In August 2019, the U.S. Department of Homeland Security (DHS) issued a final rule titled, Inadmissibility on Public Charge Grounds. 1 The rule was preliminarily enjoined by courts in the Southern District of New York, District of Maryland, Northern District of California, Eastern District of Washington, and Northern District of Illinois. 2 Following a series of stays of the preliminary injunctions, 3 DHS began applying the rule on February 24, 2020. Since that time, preliminary injunctions against the rule have been affirmed by the Second, Seventh, and Ninth Circuit Courts of Appeals. 4 On November 2, 2020, the U.S. District Court for the Northern District of Illinois issued a Rule 54(b) judgment vacating the rule on the merits. 5 On November 3, 2020, the Seventh Circuit granted an administrative stay of the district court's judgment and, on November 19, 2020, the Seventh Circuit granted a stay pending appeal. On March 9, 2021, DHS moved to dismiss its appeal before the Seventh Circuit, and the Seventh Circuit dismissed the appeal and the Rule 54(b) judgment went into effect. DHS is now implementing the judgment, i.e., the vacatur of the August 2019 rule.

This rule removes from the Code of Federal Regulations (CFR) the regulatory text that DHS promulgated in the August 2019 rule and restores the regulatory text to appear as it did prior to the issuance of the August 2019 rule. 6 This rule also removes regulatory text that DHS initially promulgated in 8 CFR part 103 as part of the August 2019 rule, but later moved to 8 CFR part 106 in the August 2020 final rule entitled U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements (2020 USCIS fee rule). 7 Although the regulatory text was moved as part of the 2020 USCIS fee rule, the content of the regulatory text was first issued in the August 2019 rule that has now been vacated.

Because this rule simply implements the district court's vacatur of the August 2019 rule, as a consequence of which the August 2019 rule no longer has any legal effect, DHS is not required to provide notice and comment or delay the effective date of this rule. Moreover, good cause exists here for bypassing any otherwise applicable requirements of notice and comment and a delayed effective date. Notice and comment and a delayed effective date are unnecessary for implementation of the court's order vacating the rule and would be impracticable and contrary to the public interest in light of the agency's immediate need to implement the now-effective final judgment. See 5 U.S.C. 553(b)(B), (d). DHS has concluded that each of those three reasons—that notice and comment and a delayed effective date are unnecessary, impracticable, and contrary to the public interest—independently provides good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date.

Under the Paperwork Reduction Act of 1995 (“PRA”), DHS is required to submit to the Office of Management and Budget (OMB), for review and approval, collections of information and changes to collections of information. 8 Table 1 below lists all collections of information impacted by the vacatur.

On December 6, 2013, Boeing applied for a change to Type Certificate No. T00001SE for structure-mounted airbags installed in the Boeing Model 777-9 airplane. The application date was extended to March 30, 2016, based on Boeing's request. The Boeing Model 777-9 airplane, which is a derivative of the Boeing Model 777 airplane currently approved under Type Certificate No. T00001SE, is a twin-engine, transport-category airplane with seating for 495 passengers and a maximum takeoff weight of 775,000 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-9 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-9 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-9 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 777-9 airplane will incorporate the following novel or unusual design features:

Airbags mounted to structure to prevent head injury.

Boeing will install structure-mounted airbags instead of inflatable lap belts as a means to protect each occupant from serious injury in the event of an emergency landing, as required by § 25.562(c)(5), on 777-9 airplanes.

Such use of airbags to provide injury protection for the occupant is a novel or unusual feature for this airplane model, and the applicable airworthiness regulations do not contain adequate or appropriate airworthiness standards for these design features. Therefore, special conditions are needed to address requirements particular to installation of airbags in this manner.

Special conditions exist for airbags installed on seat belts, known as inflatable lap belts, which have been installed on Boeing airplane passenger seats. Structure-mounted airbags, although a novel design, were first introduced on Jetstream Aircraft Limited Model 4100 series airplanes, which resulted in issuance of Special Conditions 25-ANM-127 on May 14, 1997. These special conditions supplemented 14 CFR part 25 and, more specifically, §§ 25.562 and 25.785.

The structure-mounted airbag, similar to the inflatable lap belt, is designed to limit occupant forward excursion in the event of an emergency landing. These airbags will reduce the potential for serious injury, including reducing the head-injury criterion measurement defined in part 25. However, structure-mounted airbags function similarly as automotive airbags, where the airbag deploys from furniture located in front of the passenger, relative to the airplane's direction of flight, forming a barrier between the structure and occupant. Also, unlike the inflatable lap belt, the structure-mounted airbag does not move with the occupant. To account for out-of-position and brace-position occupants, the airbag is designed to conform to the curvature of the exposed structure in the head-strike zone.

Because the airbag system is essentially a single-use device, it could deploy under crash conditions that are not sufficiently so severe as to require the injury protection the airbag system provides. Because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, a larger impact following the initial impact could render the airbag system unavailable. This potential situation does not exist with standard upper-torso restraints, which tend to provide continuous protection regardless of impact severity, or number of impacts, in a crash event. Therefore, the airbag-system installation should be such that it provides protection, when it is required, by not expending its protection when it is not required. If the airbag deployment threshold is unnecessarily low, the airbag would need to continue to provide protection when an impact requiring protection occurs.

These special conditions are based upon special conditions 25-605-SC for the Boeing Model 787-9 airplanes equipped with B/E Aerospace Super-Diamond model business-class passenger seats and associated furniture.

The special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Proposed Special Conditions No. 25-20-05-SC for the Boeing) Model 777-9 airplane, which was published in the Federal Register on July 22, 2020 (85 FR 44244). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Boeing Model 777-9 airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-9 airplanes.

1. The applicant must demonstrate by test that the structure-mounted airbag will deploy and provide protection under crash conditions where it is necessary to prevent serious injury to a 50th percentile occupant, as specified in § 25.562. The means of protection must provide a consistent approach to energy absorption for a range of occupants, from a two-year-old child to a 95th percentile male.

2. The structure-mounted airbag must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly.

3. The structure-mounted airbag system must not be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) likely to be experienced in service.

4. Deployment of the structure-mounted airbag must not introduce hazards or injury mechanisms to the seated occupant, including occupants in the brace position. Deployment of the structure-mounted airbag must also not result in injuries that could impede rapid exit from the airplane.

5. The applicant must demonstrate that an inadvertent deployment that could cause injury to a standing or sitting person is improbable. Inadvertent deployment must not cause injury to anyone who may be positioned close to the structure-mounted airbag ( e.g., seated in an adjacent seat, or standing adjacent to the airbag installation or the subject seat). Cases where a structure-mounted airbag is inadvertently deployed near a seated occupant or an empty seat must be considered.

6. Effects of the deflection and deformation of the structure to which the airbag is attached must be taken into account when evaluating deployment and location of the inflated airbag. The effect of loads imposed by airbag deployment, or stowed components where applicable, must also be taken into account.

7. Inadvertent deployment of the structure-mounted airbag during the most critical part of flight will either not cause a hazard to the airplane or is extremely improbable.

8. The applicant must demonstrate that the structure-mounted airbag, when deployed, does not impair access to the seatbelt- or harness-release means, and must not hinder evacuation. This will include consideration of adjacent seat places and the aisle.

9. The airbag, once deployed, must not adversely affect the emergency-lighting system, and must not block escape-path lighting to the extent that the light(s) no longer meet their intended function.

10. The structure-mounted airbag must not impede occupants' rapid exit from the airplane 10 seconds after its deployment.

11. Where structure-mounted airbag systems are installed in or close to passenger evacuation routes (other than for the passenger seat for which the airbag is installed), possibility of impact on emergency evacuation ( e.g., hanging in the aisle, potential trip hazard, etc.) must be evaluated.

12. The airbag electronic system must be designed to be protected from lightning per § 25.1316(b), and high-intensity radiated fields per § 25.1317(c).

13. The structure-mounted airbag system must not contain or release hazardous quantities of gas or particulate matter into the cabin.

14. The structure-mounted airbag installation must be protected from the effects of fire such that no hazard to occupants will result.

15. The inflatable bag material must meet the 2.5-inches-per-minute horizontal flammability test defined in 14 CFR part 25, appendix F, part I, paragraph (a)(1)(iv).

16. The design of the structure-mounted airbag system must protect the mechanisms and controls from external contamination associated with that which could occur on or around passenger seating.

17. The structure-mounted airbag system must have a means to verify the integrity of the structure-mounted airbag activation system.

18. The applicant must provide installation limitations to ensure installation compatibility between the seat design and opposing monument or structure.

On June 7, 2019, B/E Aerospace applied for a supplemental type certificate for seats with 3-point harness and pretensioner restraint systems on Bombardier Model CL-600-2B16 (604 variant) airplanes. The 604 variant is a derivative of the Bombardier Model CL-600-2B16 airplane currently approved under Type Certificate No. A21EA. This airplane variant is a twin-engine, transport category airplane with seating for 22 passengers, including crew, and a maximum take-off weight of 47,600 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, B/E Aerospace must show that the Bombardier Model CL-600-2B16 (604 variant) airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A21EA or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model CL-600-2B16 (604 variant) airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model CL-600-2B16 (604 variant) airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Bombardier Model CL-600-2B16 (604 variant) airplane, as modified by B/E Aerospace, will incorporate the following novel or unusual design feature:

Seats with a 3-point shoulder harness incorporating a pretensioner restraint system to prevent head injuries.

B/E Aerospace has developed a system in which a pretensioning automotive retractor eliminates slack in the 3-point shoulder harness, pulling the occupant back into the seat prior to impact. This has the effect of reducing forward translation of the occupant (reduced head arc), while reducing the loads in the shoulder harness. B/E Aerospace will install, in Bombardier Model CL-600-2B16 (604 variant) airplanes, seats that incorporate a 3-point harness and pretensioner restraint system to protect seat occupants from head injuries.

Over the past 10 years, multiple sensor-driven systems have been installed in various airplanes to meet improved crashworthiness regulations. A sensor-driven system is defined as any system that activates due to a signal sent by an impact-triggered inertial sensor. These types of systems include a lap-belt airbag, a structure-mounted airbag, and a 3-point harness and pretensioner restraint system.

Shoulder harnesses have been widely used on flight-attendant seats, flight-deck seats, in business jets, and in general-aviation airplanes to reduce occupant head injury in the unlikely event of an emergency landing. Special conditions, pertinent regulations, and guidance have been published, relating to other or existing restraint systems. However, the use of a pretensioner restraint system with a 3-point harness on transport airplane seats is a novel design.

Pretensioner technology involves a step change in loading experienced by the occupant for impacts below and above that at which the device activates, because the upper torso excursion would be interrupted by activation of the shoulder harness. This could result in the head-injury criteria being higher at an intermediate impact condition than that resulting from the maximum impact condition corresponding to the test conditions specified in § 25.562.

The ideal triangular maximum-severity pulse is defined in Advisory Circular 25.562-1B, “Dynamic Evaluation of Seat Restraint Systems and Occupant Protection on Transport Airplanes with Change 1,” dated January 10, 2006. For evaluating and testing less-severe pulses to assess the effectiveness of the pretensioner setting, a similar triangular pulse should be used with acceleration, rise time, and velocity change scaled accordingly. The magnitude of the required pulse should not deviate below the ideal pulse by more than 0.5g until 1.33 t 1 is reached, where t 1 represents the time interval between 0 and t 1 on the referenced pulse shape as shown in AC 25.562-1B. This is an acceptable method of compliance to the test requirements of these special conditions.

Additionally, the pretensioner might not provide protection, after actuation, during secondary impacts. Therefore, the case where a small impact is followed by a large impact should be addressed. If the minimum deceleration severity at which the pretensioner is set to activate is unnecessarily low, the protection offered by the pretensioner may be lost by the time a second larger impact occurs.

The existing regulations do not adequately address seats with pretensioner restraint systems. Therefore, the proposed configuration requires special conditions.

Special conditions 1 through 5 address ensuring that the pretensioner system activates when intended, to provide the necessary protection of occupants. This includes protection of a range of occupants under various accident conditions. Special conditions 6 through 11 address maintenance and reliability of the pretensioner system, including any outside influences on the mechanism, to ensure it functions as intended.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Proposed Special Conditions No. 25-20-04-SC for the Bombardier Model CL-600-2B16 (604 variant) airplane, which was published in the Federal Register on September 4, 2020 (85 FR 55198). The FAA received responses from four commenters supporting the special conditions. The special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Bombardier Model CL-600-2B16 (604 variant) airplane. Should B/E Aerospace apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A21EA to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model CL-600-2B16 (604 variant), as modified by B/E Aerospace.

In addition to the requirements of § 25.562, forward-facing passenger seats incorporating pretensioner restraint systems must meet the following:

1. Head Injury Criteria —The Head Injury Criteria value must not exceed 1,000 units at any condition at which the pretensioner does or does not deploy, up to the maximum severity pulse that corresponds to the test conditions specified in § 25.562. Tests must be performed to demonstrate this, taking into account any necessary tolerances for deployment.

2. Protection during Secondary Impacts —The pretensioner activation setting must be demonstrated to maximize the probability of the protection being available when needed, considering secondary impacts.

3. Protection of Occupants Other than 50th Percentile —Protection of occupants for a range of stature from a 2-year-old child to a 95th percentile male must be shown. For shoulder harnesses that include pretensioners, protection of occupants other than a 50th percentile male may be shown by test or analysis. In addition, the pretensioner must not introduce a hazard to passengers due to the following seating configurations:

a. The seat occupant is holding an infant.

b. The seat occupant is a child in a child restraint device.

c. The seat occupant is a pregnant woman.

4. Occupants Adopting the Brace Position —Occupants in the traditional brace position when the pretensioner activates must not experience adverse effects from the pretensioner activation.

5. Inadvertent Pretensioner Actuation

a. The probability of inadvertent pretensioner actuation must be shown to be extremely remote ( i.e., average probability per flight hour of less than 10 −7 ).

b. The system must be shown not susceptible to inadvertent pretensioner actuation as a result of wear and tear, or inertia loads resulting from in-flight or ground maneuvers likely to be experienced in service.

c. The seated occupant must not be seriously injured as a result of inadvertent pretensioner actuation.

d. Inadvertent pretensioner activation must not cause a hazard to the airplane nor cause serious injury to anyone who may be positioned close to the retractor or belt ( e.g., seated in an adjacent seat or standing adjacent to the seat).

6. Availability of the Pretensioner Function Prior to Flight —The design must provide means for a crewmember to verify the availability of the pretensioner function prior to each flight, or the probability of failure of the pretensioner function must be demonstrated to be extremely remote ( i.e., average probability per flight hour of less than 10 −7 ) between inspection intervals.

7. Incorrect Seatbelt Orientation —The system design must ensure that any incorrect orientation (twisting) of the seatbelt does not compromise the pretensioner protection function.

8. Contamination Protection —The pretensioner mechanisms and controls must be protected from external contamination associated with that which could occur on or around passenger seating.

9. Prevention of Hazards —The pretensioner system must not induce a hazard to passengers in case of fire, nor create a fire hazard if activated.

10. Functionality after Loss of Power —The system must function properly after loss of normal airplane electrical power, and after a transverse separation in the fuselage at the most critical location. A separation at the location of the system does not have to be considered.

11. High-intensity Radiated Fields (HIRF) and Lightning Protection —For airplanes that do not already incorporate 14 CFR 25.1316 and 25.1317 into their certification basis, the equipment must meet the applicable requirements of §§ 25.1316 and 25.1317. Electrostatic discharge must also be considered in the design and testing of the equipment.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to 14 CFR 11.38(b), that new comments are unlikely, and public notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On May 3, 2019, Rockwell Collins applied for a supplemental type certificate for installation of the Rockwell Collins Pro Line Fusion System in the Bombardier Model BD-100-1A10 airplane, requiring security protection from unauthorized internal access. The Bombardier Model BD-100-1A10 airplane is a twin-engine, transport-category airplane with a passenger capacity of 19 and a maximum takeoff weight of 40,600 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Rockwell Collins must show that the Bombardier Model BD-100-1A10 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00005NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model BD-100-1A10 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-100-1A10 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Bombardier Model BD-100-1A10 airplane, as modified by Rockwell Collins, will incorporate the following novel or unusual design feature:

Installation of the Rockwell Collins Pro Line Fusion System, which allows connection to airplane electronic systems and networks, and access from sources internal to the airplane to the previously isolated internal airplane electronic assets.

The Bombardier Model BD-100-1A10 airplane architecture is novel or unusual for commercial transport airplanes because it allows connection to previously isolated data networks connected to systems that perform functions required for the safe operation and maintenance of the airplane. This data network and design integration creates a potential for unauthorized persons to access the aircraft-control domain and airline information-services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplane.

The existing FAA regulations did not anticipate these networked airplane system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems will not be compromised by unauthorized wired or wireless connections from within the airplane. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design so that this feature does not allow or reintroduce security threats.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Bombardier Model BD-100-1A10 airplane. Should Rockwell Collins apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00005NY to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplane, as modified by Rockwell Collins. It is not a rule of general applicability and affects only the applicant.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-100-1A10 airplanes, as modified by Rockwell Collins, for electronic-system security protection from unauthorized internal access.

1. The applicant must ensure that the design provides isolation from, or airplane electronic-system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, or other assets required for safe flight and operations.

2. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic-system security safeguards.

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2020-0817” at the beginning of your comments. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date and may amend these special conditions because of those comments.

On December 19, 2019, Airbus applied for a change to Type Certificate No. A28NM for single-occupant oblique seats with 3-point restraints in the Airbus Model A321neo ACF airplane. This airplane, which is a derivative of the Airbus Model A321-200 airplane currently approved under Type Certificate No. A28NM, is a twin-engine, transport-category airplane with seating for 244 passengers and a maximum takeoff weight of 213,848 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A321neo ACF airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A321neo ACF airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A321neo ACF airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Airbus Model A321neo ACF airplane will incorporate the following novel or unusual design features:

Single-occupant oblique seats with 3-point restraints.

The FAA has been conducting and sponsoring research on appropriate injury criteria for oblique seat installations. However, the FAA research program is not complete, and the FAA may update these criteria as further research results are obtained. To reflect current research findings, the FAA issued policy statement PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats,” November 5, 2012, which updates injury criteria for fully side-facing seats; and policy statement PS-AIR-25-27, “Technical Criteria for Approving Oblique Seats,” July 11, 2018, to define injury criteria for oblique seats. These policies provide background and technical information, as well as applicable injury criteria.

The installation of obliquely oriented passenger seats is novel such that the current certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are oriented at an angle greater than 18 degrees from the airplane longitudinal centerline.

The installation of passenger seats at angles of 18 to 45 degrees to the airplane centerline is unusual in transport- category airplanes due to the seat and occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns with or without the installation of a 3-point restraint system or additional airbag restraint system. Note that, while the applicant did not specifically cite airbag systems as part of the seat restraint system, this discussion and related special conditions address airbag information in the event that an airbag system is installed as part of the seat restraint system.

FAA-sponsored research has found that an unrestrained flailing of the upper torso, even when the pelvis and torso are nearly aligned, can produce serious spinal and torso injuries. At lower-impact severities, including with significant misalignment between the torso and pelvis, the injuries did not occur. Tests with an FAA Hybrid III anthropomorphic test device (ATD) have identified a level of lumbar spinal tension corresponding to the no-injury impact severity. This level of tension is included as a limit in the special conditions. The spine-tension limit selected is conservative with respect to other aviation injury criteria because it corresponds to a no-injury loading condition.

Shoulder harnesses (3-point restraint systems) have been widely used on flight-attendant seats, flight-deck seats, business jets, and general aviation airplanes to reduce occupant head injury in the unlikely event of an emergency landing. The use of 3-point restraint systems on transport-category airplane passenger seats is rare; however, pertinent regulations and published guidance for this type of restraint system exist.

The existing regulations, however, do not adequately address the proposed business-class seating configuration of oblique seats with 3-point restraints because they do not consider unique occupant alignment and loading concerns due to obliquely oriented passengers. Therefore, special conditions are required.

These special conditions provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Airbus Model A321neo ACF airplane. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A321neo ACF airplane.

In addition to the requirements of § 25.562, passenger seats installed at an angle between 18 degrees and 45 degrees from the aircraft bow-to-stern centerline must meet the following:

1. Head Injury Criteria (HIC):

Compliance with § 25.562(c)(5) is required, except that, when an airbag device is present in addition to the 3-point restraint system, and the anthropomorphic test device (ATD) has no apparent contact with the seat or structure but has contact with an airbag, the HIC unlimited scored in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

ATD head contact with the seat or other structure, through the airbag, or contact subsequent to contact with the airbag, requires a HIC value that does not exceed 1000.

2. Body-to-Wall/Furnishing Contact:

If a seat is installed aft of structure ( e.g., interior wall or furnishings) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if an airbag device is present, and different yaw angles could result in different airbag-device performance, then additional analysis or separate test(s) may be necessary to evaluate performance.

3. Neck Injury Criteria:

a. The seating system must protect the occupant from experiencing serious neck injury. If an airbag device is present, the assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck injury potential would be higher for impacts below the airbag-device deployment threshold.

b. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where N ij = F z /F zc + M y /M yc , and N ij critical values are:

i. F zc = 1530 lbs. for tension

ii. F zc = 1385 lbs. for compression

iii. M yc = 229 lb-ft in flexion

iv. M yc = 100 lb-ft in extension

c. In addition, peak F z must be below 937 lb. in tension and 899 lb. in compression.

d. Rotation of the head about its vertical axis relative to the torso is limited to 105 degrees in either direction from forward-facing.

e. The neck must not impact any surface that would produce concentrated loading on the neck.

4. Spine and Torso Injury Criteria:

a. The lumbar spine tension (F z ) cannot exceed 1200 lb.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than three (3) milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE recommended practice J211/1, “Instrumentation for Impact Test-Part 1-Electronic Instrumentation.”

c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

5. Pelvis Criteria:

Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

6. Femur Criteria:

Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211/1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

7. ATD and Test Conditions:

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01- 1609. The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports ( e.g., armrests or walls) installed.

Note: Airbus must demonstrate that the installation of seats via plinths or pallets meet all applicable requirements. Compliance with the guidance contained in policy memorandum PS-ANM-100-2000-00123, “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” dated February 2, 2000, is acceptable to the FAA.

8. Inflatable Airbag Restraint Systems Special Conditions:

If inflatable airbag-restraint systems are also installed, the airbag systems must meet the requirements in the airbag (inflatable restraint) special conditions applicable to the Airbus Model A321 series airplanes.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to 14 CFR 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On May 3, 2019, Rockwell Collins applied for a supplemental type certificate for installation of the Rockwell Collins Pro Line Fusion System in the Bombardier Model BD-100-1A10 airplane, requiring security protection from unauthorized external access. The Bombardier Model BD-100-1A10 airplane is a twin-engine, transport-category airplane with a passenger capacity of 19 and a maximum takeoff weight of 40,600 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Rockwell Collins must show that the Bombardier Model BD-100-1A10 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00005NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model BD-100-1A10 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-100-1A10 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Bombardier Model BD-100-1A10 airplane, as modified by Rockwell Collins, will incorporate the following novel or unusual design feature:

Installation of the Rockwell Collins Pro Line Fusion System, which allows connection to airplane electronic systems and networks, and access from aircraft external sources ( e.g., operator networks, wireless devices, internet connectivity, service provider satellite communications, electronic flight bags, etc.) to the previously isolated airplane electronic assets.

The Bombardier Model BD-100-1A10 airplane architecture and network configuration is novel or unusual for commercial transport airplanes because it may allow increased connectivity to and access from external network sources and airline operations and maintenance networks to the airplane control domain and airline information services domain. The airplane control domain and airline information-services domain perform functions required for the safe operation and maintenance of the airplane. Previously, these domains had very limited connectivity with external network sources. This data network and design integration creates a potential for unauthorized persons to access the aircraft-control domain and airline information-services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplane.

The existing FAA regulations did not anticipate these networked airplane system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections. This includes ensuring that the security of the airplane's systems is not compromised during maintenance of the airplane's electronic systems. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design so that this feature does not allow or reintroduce security threats.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Bombardier Model BD-100-1A10 airplane. Should Rockwell Collins apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00005NY to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplane, as modified by Rockwell Collins. It is not a rule of general applicability and affects only the applicant.

The authority citation for these special conditions is as follows:

1. The applicant must ensure airplane electronic-system security protection from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic-system security threats are identified and assessed, and that effective electronic-system security-protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic-system security safeguards.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, AS332L2, EC 155B, EC155B1, EC225LP, and SA330J helicopters with window extraction tape with snap fasteners installed. The NPRM published in the Federal Register on October 22, 2020 (85 FR 67313). The NPRM proposed to require inspecting each internal and external snap fastener to determine whether they unbutton by hand. For external snap fasteners that do not unbutton by hand, the NPRM proposed to require replacing the male part of the snap fastener and installing self-gripping tape if it still does not unbutton by hand. Thereafter, the NPRM proposed to require a repetitive inspection of the external extraction tape and self-gripping tape and replacing any tape that is cracked, torn, disintegrated, worn, or missing, and replacing the snap fasteners. For internal snap fasteners that do not unbutton by hand, the NPRM proposed to require installing self-gripping tape and replacing the snap fasteners. The proposed requirements were intended to prevent failure of a window to jettison, preventing occupants from exiting the helicopter during an emergency.

The NPRM was prompted by EASA AD No. 2015-0149, dated July 23, 2015 (EASA AD 2015-0149), to correct an unsafe condition for Airbus Helicopters Model AS 322 and EC 225 LP helicopters; EASA AD No. 2015-0168, dated August 13, 2015 (EASA AD 2015-0168), to correct an unsafe condition for Airbus Helicopters Model EC 155 B and EC 155 B1 helicopters; and EASA AD No. 2015-0169, dated August 13, 2015 (EASA AD 2015-0169), to correct an unsafe condition for Airbus Helicopters Model SA330 J helicopters, equipped with an extraction tape fitted with “press-studs” (snap fasteners) on the windows. Each EASA AD was issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advises of difficulty unbuttoning the extraction tape during the manufacturing of a helicopter. Investigation concluded that the difficulty was caused by a bad male/female coupling, possibly resulting from miscrimping. This difficulty is known to have occurred on two additional helicopters. EASA states this condition, if not detected and corrected, could prevent the jettisoning of the helicopter window, possibly affecting the evacuation of passengers during an emergency situation. For these reasons, EASA AD 2015-0149, EASA AD 2015-0168, and EASA AD 2015-0169 require inspecting each press-stud located on the extraction tapes of the window jettisoning system and depending on the findings, installing self-gripping tape and replacing the press-studs.

The FAA gave the public the opportunity to participate in developing this final rule, but the FAA did not receive any comments on the NPRM or on the determination of the cost to the public.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all of the information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS332-56.00.10, Revision 0, dated July 16, 2015, for Model AS332-series helicopters; ASB No. EC155-56A006, Revision 0, dated August 10, 2015, for Model EC155-series helicopters; ASB No. EC225-56A008, Revision 0, dated July 16, 2015, for Model EC225LP helicopters; and ASB No. SA330-56.02, Revision 0, dated August 10, 2015, for Model SA330J helicopters. This service information specifies procedures to inspect the internal and external press-studs and to install self-gripping tape for press-studs that do not unbutton or are difficult to unbutton. This service information also specifies procedures to replace internal press-studs that are difficult to unbutton and a repetitive inspection for affected external press-studs until they are replaced.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 72 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

Inspecting the snap fasteners takes about 1 work-hour for a cost of $85 per helicopter and $6,120 for the U.S. fleet. Installing self-gripping tape takes about 0.3 work-hour and parts cost $200 for a cost of $226 per window. Inspecting the tape takes about 0.3 work-hour for a cost of $26 per window per inspection cycle. Replacing the extraction tape or self-gripping tape takes about 1 work-hour and parts cost $200 for a total of $285 per window. Replacing a snap fastener takes about 1 work-hour and parts cost $200 for a total of $285 per snap fastener.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-26-10, Amendment 39-19141 (82 FR 61675, December 29, 2017) (AD 2017-26-10). AD 2017-26-10 applied to certain The Boeing Company Model 757 airplanes. The NPRM published in the Federal Register on October 13, 2020 (85 FR 64419). The NPRM was prompted by reports of unwanted lateral oscillations during landing operations, and the development of wiring changes for certain SCMs, which will improve the lateral handling qualities of the airplane during approach and landing. The NPRM proposed to require repetitive operational tests of the spoiler inhibit function. For certain airplanes, the NPRM proposed to require installing a new relay bracket assembly, making changes to the wire bundles for certain SCMs, installing new SCMs, measuring the clearance between a wire bundle and the top of the new relay bracket assembly, and applicable on-condition actions. For a certain other airplane, the NPRM proposed to require changing certain wire bundles. The FAA is issuing this AD to address unwanted lateral oscillations during landing operations, which could cause over-control of the airplane and subsequent lateral pilot induced oscillation, which could affect continued safe flight and landing.

The FAA gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

An anonymous commenter, FedEx Express, and United Airlines (UAL) stated their support for the NPRM. An additional comment from UAL is addressed below.

Aviation Partners Boeing stated that the installation of winglets per Supplemental Type Certificate (STC) ST01518SE does not affect the accomplishment of the proposed actions.

The FAA agrees with the commenter that STC ST01518SE does not affect the ability to accomplish the actions required by this AD. The FAA has not changed this AD in this regard.

Boeing requested that the FAA revise certain language in the NPRM. Boeing stated that in the Discussion section of the NPRM, it suggested to revise the last sentence as follows: “The FAA issued AD 2017-26-10 to address a failure condition that can cause uncommanded spoiler movement resulting in loss of controllability of the airplane.” Boeing commented that the change is justified based on the original safety determination of Continued Operational Safety Program (COSP) 2017-0373.

Boeing also stated that in the Actions Since AD 2017-26-10 Was Issued section of the NPRM, it suggested that the FAA add the following sentence: “This change provides the equivalent lateral handling quality improvements during approach and landing as AD 2015-08-01, but with a new design implementation.” Boeing commented that the change is justified based on the mitigating design for COSP 2018-0094.

The FAA acknowledges the commenter's request and agrees the proposed wording provides clarity and more closely aligns with the COSP recommendations. However those sections are not carried over into this final rule. The FAA has not changed this AD in this regard.

UAL requested that the proposed AD be revised to allow for the use of later revisions of the service information in either paragraph (g) of the proposed AD (Required Actions) or in paragraph (h) of the proposed AD (Exceptions to Service Information Specifications).

The FAA disagrees with the commenter's request. The FAA may not in an AD refer to any document that does not yet exist. In general terms, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51.

To allow operators to use later revisions of the referenced document (issued after publication of the AD), either the FAA must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph (j) of this AD.

Boeing contacted the FAA and stated that there is an error in Boeing Alert Requirements Bulletin 757-27A0158 RB, dated July 9, 2020, and that the service information would be revised. Boeing stated that the reason for the service information revision is that step 2 in the figure 4 table incorrectly states to drill six holes, while the graphic in figure 4 accurately shows to only drill two holes.

The FAA has added paragraph (h)(2) of this AD to state, “Where Boeing Alert Requirements Bulletin 757-27A0158 RB, dated July 9, 2020, specifies in figure 4 (sheet 3 of 3), step 2, to drill a quantity of six holes, this AD requires drilling two holes.” The FAA has also moved the content of paragraph (h) of the proposed AD to paragraph (h)(1) of this AD.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously, and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

The FAA reviewed Boeing Alert Requirements Bulletin 757-27A0158 RB, dated July 9, 2020. This service information describes procedures for installing a new relay bracket assembly, making changes to the wire bundles for the SCMs, installing new SCMs, measuring the clearance between a wire bundle and the top of new relay bracket assembly, changing certain wire bundles, repetitive operational tests of the spoiler inhibit function, and applicable on-condition actions. On-condition actions include installing a new protective sleeve, heat shrinkable to the wire bundle, doing a landing configurations warning module landing flap tests, and doing a system test for the SCMs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 626 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The Inflation Adjustment Act, as amended by the 2015 Act, required Federal agencies to adjust the civil penalty amounts within their jurisdiction for inflation by July 1, 2016. Subsequent to the 2016 adjustment, Federal agencies were required to make an annual inflation adjustment by January 15 every year thereafter. 1 Under the amended Act, any increase in a civil penalty made under the Act will apply to penalties assessed after the increase takes effect, including penalties whose associated violation predated the increase. 2 The inflation adjustments mandated by the Act serve to maintain the deterrent effect of civil penalties and to promote compliance with the law.

Pursuant to the Act, adjustments to the civil penalties are required to be made by January 15 of each year. The annual adjustments are based on the percent change between the U.S. Department of Labor's Consumer Price Index for All Urban Consumers (“CPI-U”) for the month of October preceding the date of the adjustment and the CPI-U for October of the prior year (28 U.S.C. 2461 note, section (5)(b)(1)). Based on that formula, the cost-of-living adjustment multiplier for 2020 is 1.01182. Pursuant to the 2015 Act, adjustments are rounded to the nearest dollar.

This final rule makes the required adjustments to civil penalties for 2021. Applying the 2021 multiplier above, the adjustments for each penalty are summarized below.

Table of Contents I. Public Participation II. Executive Summary III. Background A. Purpose of Rule B. Statutory and Regulatory History 1. Statutory History 2. Regulatory History i. Trade Act of 2002 Implementing Regulations ii. Safe Port Act and ISF Regulations iii. ACAS Regulations iv. Mail Importation Regulations C. AED and the Mail System 1. The International Mail System for Inbound U.S. Mail 2. Current CBP Regulatory Requirements for Mail Shipments to the United States 3. Process for Mail Shipments to the United States 4. International Framework for the Provision of AED for Mail Shipments 5. Current USPS Transmission of AED to CBP IV. Mandatory AED for Mail Shipments A. New 19 CFR Part 145, Subpart G B. Definitions C. Mandatory Advance Electronic Data (AED) 1. General Requirements 2. Types of Inbound International Mail Shipments for Which AED is Required 3. Time Frames for Providing and Updating AED 4. Required AED a. Item Attribute Information b. Pre-Advice of Despatch Information 5. Exclusions From AED Requirements for Mail Shipments From Specific Countries 6. Compliance Dates 7. Shipments for Which USPS has Not Complied With AED Requirements D. Penalties E. Amendment to 19 CFR 145.0 F. Amendment to Other Parts of 19 CFR Chapter 1 G. Flexible Enforcement V. Statutory and Regulatory Reviews A. Administrative Procedure Act B. Executive Orders 12866 and 13563 1. Purpose of Rule 2. Overview of Analysis 3. Population Affected by Rule 4. Costs of Rule 5. Benefits of Rule 6. Regulatory Alternatives 7. Net Impact of Rule C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Privacy F. Paperwork Reduction Act G. Other Regulatory Requirements H. Required Report to Congress VI. Signing Authority Glossary of Terms Used ACAS Air Cargo Advance Screening AED Advance Electronic Data APA Administrative Procedure Act APO Army Post Office CBP U.S. Customs and Border Protection CDC Centers for Disease Control and Prevention CFR Code of Federal Regulations DHS Department of Homeland Security DPO Diplomatic Post Office EMS Inbound Express Mail Service FPO Foreign Postal Operators IMPC International Mail Processing Center IMF International Mail Facility ISC International Service Center ISF Importer Security Filing ITMATT Item Attribute Information MOU Memorandum of Understanding NTC National Targeting Center OMB Office of Management and Budget PLACI Pre-Loading Advance Cargo Information PREDES Pre-Advice of Despatch Information SAFE Port Act Security and Accountability for Every Port Act of 2006 SOP Standard Operating Procedures STOP Act Synthetics Trafficking and Overdose Prevention Act of 2018 UPU Universal Postal Union USPS United States Postal Service WCO World Customs Organization I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this interim final rule. The Department of Homeland Security (DHS) and CBP also invite comments that relate to the economic, environmental, or federalism effects that might result from this interim final rule. Comments that will provide the most assistance to CBP will reference a specific portion of the interim final rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change.

DHS and CBP specifically invite comments on the following issues, discussed in the rule document below:

• Whether CBP should require AED on mail shipments classified as EMS or parcel post regardless of whether these are identified as containing documents;

• Whether CBP should require AED on mail that is sent using channels that USPS identifies as “domestic” even as these remain subject to customs examination, including: Mail from APO/FPO/DPO addresses; mail to/from U.S. territories and possessions, or to/from/between the Freely Associated States of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau; returned U.S. origin items; and items transiting the U.S. in closed transit;

• Whether updates to the AED should be required until the mail shipment has arrived at the first CBP port;

• If any data elements identified as optional under this rule should be deemed mandatory;

• The costs to USPS to return mail without AED;

• Comments on CBP's flexible enforcement policy.

The United States is experiencing the worst drug overdose epidemic since the 1990s. In recent years, there has been a marked increase in the consumption of illicit opioids, such as heroin and its synthetic analogues, such as fentanyl. In 2016, there were nearly 64,000 overdose deaths, of which two-thirds involved opioids, including fentanyl. 1 From 2016 to 2017, synthetic opioid-involved death rates increased by 45.2 percent. 2 In light of this, the President declared a public health emergency in 2017, 3 and the Secretary for Health and Human Services made a determination that a public health emergency exists nationwide. 4 The public health crisis continues unabated as rate of overdose deaths has sharply accelerated in the coronavirus disease (COVID-19) pandemic  5 and synthetic opioids (primarily illicitly manufactured fentanyl) appear to be the primary driver of the increases in overdose deaths. 6

On October 24, 2018, Congress enacted the Synthetics Trafficking and Overdose Prevention Act of 2018 (STOP Act), primarily to fight the influx of deadly opioids, particularly synthetic opioids such as fentanyl, coming to the United States in international mail shipments. 7 Among other things, the STOP Act amends section 343(a)(3) of the Trade Act of 2002 to require CBP to issue regulations requiring the United States Postal Service (USPS) to transmit certain advance electronic data (AED) to CBP for international mail shipments. The AED required by this rule includes various details about the package's sender, recipient and contents, information that is generally provided by foreign senders on customs declarations forms, but only on paper copies that are affixed to the packages. It is the same information that is currently required by the UPU and CBP on existing custom declaration forms and that is provided by foreign senders.

The current paper process has made it difficult for CBP to most effectively use the information for targeting packages containing illegal goods since CBP processing has relied mostly on physical inspection of the declarations and the packages.

In recent years and in advance of the enactment of the STOP Act, USPS has been working with CBP through pilot programs to provide the information received on customs declaration forms to CBP electronically and in advance of arrival of the package. This assists CBP in its targeting of high risk shipments. The international postal community has also been moving towards requiring AED for mail shipments if required by customs and security authorities in the country of destination. However, the international mail customs process remains largely paper-based and there is currently no regulation requiring AED for mail shipments. As required by the STOP Act, this rule addresses that gap. Requiring USPS to transmit AED to CBP for international mail shipments will make data requirements for international mail shipments comparable to existing AED requirements currently imposed on non-mail shipments of cargo, subject to the parameters set forth in section 343(a)(3) of the Trade Act of 2002 (19 U.S.C. 1415). The principal benefit of this rule will be a more precise identification of at-risk postal shipments in advance of arrival of the package. The required AED will enable CBP to better target and identify risky mail shipments and is expected to disrupt the supply chain of illegal opioids and other dangerous goods. The lack of required AED for mail shipments presents a security gap that could be exploited by bad actors because it hinders CBP's ability to effectively target for illegal opioids and other dangerous goods before they enter the commerce of the United States. Requiring AED for mail shipments will enhance the security of the supply chain with respect to international mail shipments by giving CBP adequate time and information necessary to perform targeted risk assessments geared towards interdicting illicit and dangerous goods before they enter the U.S. mail system. This will improve CBP's ability to detect and disrupt the flow of illicit supply chains that exploit the postal environment and will reduce the risk that shipments of illicit fentanyl and other dangerous goods will enter the country.

This rule would impose costs on CBP and USPS in the form of increased technology costs to set up targeting systems to identify mail to be inspected based on the AED, as well as training costs, and hold processing costs. Costs to the United States government total an undiscounted $55.8 million over a ten-year period of analysis. This rule would also impose costs on foreign posts in the form of technology costs needed to transmit AED to the USPS, training costs, and the time cost to key in AED. The principal benefit of the rule is more precise identification of mail shipments with illicit goods, including fentanyl, at an earlier time, improving CBP's effectiveness in preventing prohibited mail items from reaching the United States. Accepting the high degree of uncertainty, taking account of the magnitude of the underlying problem, and recognizing that the rule is likely to have additional benefits from assisting CBP's targeting to prevent smuggling of items other than fentanyl, DHS believes, in the terms of Executive Order 13563, “that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify).”

In developing these regulations, CBP considered the process and information flow unique to the movement of international mail to the United States, international efforts to develop AED requirements, and the AED requirements that apply to non-mail shipments arriving in the United States. The required AED consists of two elements: (1) Information already collected through the customs declaration forms attached to incoming mail, including the contents and value of the goods in the package as well as sender and recipient information; and (2) information about the movement of the package, such as the date and time of departure of the transporting conveyance, the scheduled date and time of arrival in the United States, transportation information ( e.g., carrier, flight number, voyage number), and destination International Mail Facility (IMF). 8 Taking into account how the international mail process works, these requirements are comparable to the requirements for the transmission of AED imposed on similar non-mail shipments of cargo and are consistent with the requirement in section 343(a)(3) of the Trade Act of 2002 (19 U.S.C. 1415) that regulations developed under the Act consider certain parameters. 9 These parameters include, among others, consulting parties likely to be affected by the regulations, considering existing commercial practices, and taking into account the extent to which the technology necessary for parties to transmit the information is available. See 19 U.S.C. 1415(a)(3).

The new regulations provide that for certain inbound international mail shipments, CBP must electronically receive from USPS, within specified time frames, certain mandatory AED and updates thereto. The AED requirement generally pertains to all mail shipments except for letter class mail—documents. 10 Letter class mail—documents means letter class mail containing only documents ( i.e., any piece of written, drawn, printed or digital information), excluding objects of merchandise, and may include M-bags to the extent that such items do not contain goods. This exception for letter class mail—documents is comparable with the current AED requirements for non-mail, which do not apply to letters and documents. Specifically, the new regulations provide that USPS must transmit AED for inbound international mail shipments containing goods classified as Express Mail Service (EMS), parcel post, or Letter class mail—goods, unless a shipment originates from a country that CBP has, in accordance with the procedures set forth in the new regulations, 11 excluded from the AED requirements and has informed USPS of the exclusion. The new regulations will not require AED for letter class mail—documents and items for the blind consisting of correspondence, literature in whatever format including sound recordings, and equipment or materials of any kind made or adapted to assist blind persons in overcoming the problems of blindness (up to 7 kilograms). Under this rule, AED will also not be required for items sent as Parcel Post or EMS that do not contain goods. Similarly, AED will not be required for returned U.S. origin items, items transiting the U.S. in closed transit, items sent as U.S. domestic mail, or mail treated as domestic, including mail to or from APO, FPO, and DPO addresses, mail to or from U.S. territories and possessions, and mail, from or between the Freely Associated States of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. However, this exclusion does not preclude CBP's existing authority to inspect any of these shipments. Pursuant to the new regulations, USPS must provide the required AED to CBP as soon as practicable, but no later than prior to loading the inbound international mail shipment onto the transporting conveyance. Additionally, USPS must electronically provide CBP with updates to the AED as soon as USPS becomes aware of any changes to the submitted data or as soon as it becomes aware that more accurate data is available, until the timeframes for updated AED set forth in the Air Cargo Advance Screening (ACAS) regulations at 19 CFR 122.48b(b)(2).

In accordance with the STOP Act, these regulations also contain the criteria by which certain mail shipments from specific countries may be excluded from the requirement to provide AED. Namely, if a specific country or countries do not have the capacity to collect and transmit AED, represent a low risk for mail shipments that violate relevant U.S. laws and regulations, and account for low volumes of mail shipments that can be effectively screened for compliance with relevant U.S. laws and regulations through an alternative means, they may be excluded from the AED requirement. CBP will re-evaluate determinations to exclude specific countries from the requirement to provide AED at a minimum, on an annual basis.

Additionally, these regulations incorporate provisions of the STOP Act that address compliance dates, as well as the necessary remedial actions that must be taken with respect to shipments for which USPS has not complied with the AED requirements.

To implement the AED requirements, CBP is adding a new subpart G to title 19 of the Code of Federal Regulations (CFR) part 145. Title 19 CFR part 145 covers Mail Importations. The new subpart G is titled Mandatory Advance Electronic Data for Mail Shipments. CBP is also making certain revisions to 19 CFR 145.0 to expand the scope of 19 CFR part 145 to include the AED provisions. Additionally, CBP is making revisions to 19 CFR 4.7, 122.0, 123.0, and 149.1 to refer readers looking for the AED requirements for international mail shipments to part 145.

The new subpart G of 19 CFR part 145, consists of three new sections. New § 145.73 adds various definitions specific to the subpart, new § 145.74 provides details regarding the mandatory AED CBP must receive from USPS, and new § 145.75 provides the applicable penalties if USPS accepts a shipment in violation of the regulations.

As explained in the Executive Summary, the United States is experiencing the worst drug overdose epidemic since the 1990s. The nature of this drug use and overdose has changed over the decades since it first began. Initially characterized by the abuse of prescription opioids, drug use shifted towards the consumption of illicit opioids, such as heroin, in the 2000s. In recent years, there has been a shift towards the use of synthetic opioids, such as fentanyl, particularly as suppliers have begun mixing synthetic opioids into heroin in order to decrease their costs. For the reasons explained below, this shift towards synthetic opioids has led to a marked increase in the number of overdose deaths. The consumption of synthetic opioids is particularly worrisome given this class of drugs' high lethality. Fentanyl is 40 times more potent than heroin  12 and 100 times more potent than morphine, a common prescription opiate. 13 Moreover, consumers of other opioids may be unaware of the presence of synthetic opioids in the drugs they purchase through non-prescription means. The heroin supply has been contaminated with fentanyl, and counterfeit opioid pills are laced with fentanyl, unbeknownst to many users. 14 According to drug seizure data from the DEA National Forensic Laboratory Information System, fentanyl reports have increased fifty-fold between 2013 and 2017. 15 According to data from the Centers for Disease Control and Prevention (CDC), there were nearly 64,000 drug overdose deaths in 2016, of which two thirds (or, approximately 42,000) involved opioids. Moreover, the sharpest increase in overdose deaths between 2015 and 2016 occurred in deaths related to synthetic opioids, including fentanyl. 16 From 2016 to 2017, synthetic opioid-involved death rates increased again by 45.2 percent. 17 In March 2017, the Commission on Combating Drug Addiction and the Opioid Crisis declared a public health emergency under the Public Health Services Act. 18 Subsequently, on October 26, 2017, the Secretary of Health and Human Services made a determination that a public health emergency existed nationwide as a result of the consequences of the opioid crisis. This determination of a public health emergency has been consistently renewed and remains active. Renewals are located on the Public Health Emergency website. 19 The COVID-19 pandemic has only intensified this public health crisis as the rate of overdose deaths has sharply increased during the pandemic and synthetic opioids (primarily illicitly manufactured fentanyl) appear to be the primary driver of the increases in overdose deaths. 20 According to the CDC, the pandemic has accelerated drug overdose deaths, resulting in over 81,000 drug overdose deaths in the 12-month period ending in May 2020 (CDC 2020). CDC notes that “synthetic opioids (primarily illicitly manufactured fentanyl) appear to be the driver,” increasing 38.4 percent relative to the prior year. Ten western states reported a more than 98 percent increase in synthetic opioid-involved deaths over the same period. 21

Synthetic opioids circulating in the United States generally originate internationally (principally from China and Mexico) and arrive into the United States through the international mail system, express consignment carriers, cross-border smuggling operations, and other means. 22 CBP is responsible for screening inbound international mail for and removing packages with dangerous goods (including but not limited to opioids) from the mail stream before delivery to intended recipients in the United States. The number of packages flowing through the international mail system has increased dramatically in recent years due to the proliferation of e-Commerce and an increase in the threshold value of goods that can be imported into the United States free of duties and taxes. 23 This increased volume of parcels coupled with the urgency of the opioid epidemic requires that CBP utilize its resources more effectively to target and intercept packages with illegal goods. Despite this increase in the volume of mail, there is currently no requirement in the CBP regulations regarding the transmission of AED for mail shipments. To fulfill the STOP Act mandate to stem the flow of deadly opioids and to facilitate the interdiction of suspect packages, CBP is establishing in this rule requirements for USPS to transmit certain AED for inbound international mail shipments. The required AED will also enable CBP to better target and identify all risky mail shipments and is expected to disrupt the supply chain of illegal opioids and other dangerous goods. The current lack of required AED for mail shipments presents a security gap that could be exploited by bad actors because it hinders CBP's ability to effectively target for dangerous goods before they enter the commerce of the United States. Requiring AED for mail shipments will enhance the security of the supply chain with respect to international mail shipments and help close this security gap by giving CBP adequate time and information necessary to perform targeted risk assessments geared towards interdicting dangerous goods before they enter the U.S. mail system.

Congress has long recognized that the provision of AED for imported cargo shipments is an essential security tool which enables CBP to perform advance targeting before the shipments arrive in the United States, and has authorized CBP to prescribe regulations that mandate the provision of AED.

Section 343(a) of the Trade Act of 2002 authorizes CBP to promulgate regulations, in accordance with certain parameters, 24 providing for the mandatory transmission of cargo information by way of a CBP-approved electronic data interchange (EDI) system before the cargo is brought into or departs the United States by any mode of commercial transportation. The required cargo information is that which is reasonably necessary to enable high-risk cargo to be identified for purposes of ensuring cargo safety and security, pursuant to the laws enforced and administered by CBP.

Section 203 of the Security and Accountability for Every Port Act of 2006 (Pub. L. 109-347, 120 Stat 1884) (SAFE Port Act), requires the Secretary of Homeland Security, acting through the Commissioner of CBP, to promulgate regulations requiring the electronic transmission of additional data elements for improved high-risk targeting, including appropriate security elements of entry data for cargo destined to the United States by vessel. These electronic data elements are required prior to loading the cargo on vessels at foreign seaports.

Most recently, on October 24, 2018, Congress enacted the “Substance Use—Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act” (SUPPORT for Patients and Communities Act). Public Law 115-271. Title VIII of this law is the “Synthetics Trafficking and Overdose Prevention Act of 2018” (STOP Act), which mandates certain actions regarding mail. 25 Section 8003 of the STOP Act amends section 343(a)(3)(K) of the Trade Act of 2002, to require DHS to prescribe regulations mandating that USPS transmit certain advance electronic information for international mail shipments to CBP. 26 This rule implements the AED requirements set forth in the STOP Act. 27

The AED requirements as currently provided in CBP's regulations pursuant to the Trade Act of 2002 and the SAFE Port Act are described below. They generally require the carrier or other eligible parties to provide certain AED to CBP. The specific requirements vary by mode of transportation.

On December 5, 2003, CBP published a final rule in the Federal Register (68 FR 68140) to effectuate the provisions of the Trade Act of 2002 (Trade Act final rule). The Trade Act final rule amended the regulations in title 19, Code of Federal Regulations (CFR), to require carriers or other eligible parties to submit certain electronic data for cargo in advance, i.e., AED. The required time frame varies depending on the mode of transportation:

• For vessel cargo, the AED must be received by CBP 24 hours before the cargo is laden aboard the vessel at the foreign port. 19 CFR 4.7.

• For air cargo, the AED must be received by CBP either: (1) No later than the time of the departure of the aircraft for the United States, 28 in the case of aircraft that depart for the United States from any foreign port or place in North America, including locations in Mexico, Central America, South America (from north of the Equator only), the Caribbean, and Bermuda; or (2) no later than 4 hours prior to the arrival of the aircraft in the United States, in the case of aircraft that depart for the United States from any foreign area other than that specified in 19 CFR 122.48a(b)(1). 19 CFR 122.48a(b)(1).

• For rail cargo, the AED must be received by CBP no later than 2 hours prior to the cargo reaching the first port of arrival in the United States. 19 CFR 123.91.

• For truck cargo, the AED must be received by CBP no later than either 30 minutes or 1 hour prior to the carrier's reaching the first port of arrival in the United States, or such lesser time as authorized, based upon the CBP-approved system employed to present the information. 19 CFR 123.92.

To date, no rule has been published that extends the advance electronic cargo information mandate to USPS shipments.

Pursuant to section 203 of the SAFE Port Act, and section 343(a) of the Trade Act of 2002, on November 25, 2008, CBP published an interim final rule in the Federal Register (73 FR 71730), requiring importers (referred to as ISF importers) and carriers to submit additional information pertaining to cargo before the cargo is brought into the United States by vessel. 29 This became known as the Importer Security Filing or “ISF” rule. The ISF rule was silent on whether it covered mail shipments or whether USPS is considered to be an ISF importer. To date, CBP has not required ISF information from USPS.

To address ongoing aviation security threats, on June 12, 2018, CBP published an interim final rule in the Federal Register entitled, “Air Cargo Advance Screening (ACAS)” (83 FR 27380), which amended the CBP Trade Act regulations to implement a mandatory ACAS program. Under this program, specified AED must be submitted to CBP for air cargo transported onboard U.S.-bound aircraft as early as practicable, but no later than prior to loading of the cargo onto the aircraft. See 19 CFR 122.48b(b)(1). The party submitting the initial ACAS data must also update the initial filing if any submitted data changes or more accurate data becomes available, up until the timeframes specified in 19 CFR 122.48a(b) for submitting advance information under 19 CFR 122.48a(a). See 19 CFR 122.48b(b)(2). The required ACAS data is a subset of the data required under 19 CFR 122.48a. The ACAS program enhances the security of the aircraft and passengers on U.S.-bound flights by enabling CBP to perform targeted risk assessments on the air cargo earlier, namely, prior to the aircraft's departure for the United States. These risk assessments aim to identify and prevent high-risk air cargo from being loaded on the aircraft that could pose a risk to the aircraft during flight.

Title 19 CFR part 145 contains the specific requirements and procedures for the importation of mail subject to customs examination. These regulations are discussed in section III.C (AED and the Mail System), below. There is currently no AED requirement for mail shipments in 19 CFR part 145.

Currently, the AED requirements described in section III.B. (Statutory and Regulatory History) above have not been applied to items being shipped via the international mail system. This is due to unique circumstances that pertain to international mail shipments that do not exist for non-mail shipments. Specifically, there are different processes, technologies, and international agreements that apply to international mail shipments that are not applicable to non-mail shipments. These differences must be taken into account in developing AED requirements for international mail. This rule establishes AED requirements for international mail that take its unique circumstances into account. CBP has consulted with USPS in the development of this rule.

The sections below describe in detail the CBP requirements and processes for mail shipments, the international transmission of AED and USPS's transmission of that AED to CBP.

International mail destined for the United States is customarily collected at origin country local branches ( i.e., local post offices) of foreign postal operators (FPOs), moved to larger international mail processing centers (IMPCs), 30 sorted and loaded for transport to the United States. 31 Most mail is transported to the United States in the cargo portion of commercial carrier flights, although some mail may be transported via sea, rail, or land. IMPCs communicate the pending arrival of mail shipments via an automated messaging system described in further detail below. Mail arrives in the United States at a CBP port of arrival. After arrival it is transferred to an International Mail Facility (IMF) or International Service Center (ISC) for processing and inspection by USPS and CBP. 32 Once mail is cleared by CBP, it enters the domestic mail stream. 33

The international mail system is governed by the Universal Postal Union (UPU). The UPU was established in 1874 and has its headquarters in Berne, Switzerland. It is a specialized agency of the United Nations that governs the international movement of mail amongst its over 190 member countries under the Universal Postal Convention. Members of the UPU agree to provide a “single postal territory” for international mail, which involves responsibility for sending and receiving international mail across a global network of cooperating posts. The UPU establishes the rules for international mail exchange among its members and provides technical assistance to improve the quality of postal services. It is the primary forum for cooperation between postal sector entities across a global network of posts. The United States is a member of the UPU. Pursuant to 39 U.S.C. 407, the Department of State, in collaboration with USPS represents the United States at the UPU. 34 USPS is the designated postal operator in the United States and is required to accept and deliver inbound international mail on behalf of foreign postal operators.

Both documents and goods may be transported through the international mail system. There are four main classes of mail relevant to this rule, described in more detail in section IV.B (Definitions) and C (Mandatory Advance Electronic Data (AED)): Letter class mail—documents, Letter class mail—goods (also referred to as “small packets”), Parcel post, and Express Mail Service (EMS). 35 Most countries, including the United States, impose customs requirements only on packages containing goods. For these, customs declaration forms with specific data requirements agreed to at the UPU are used worldwide. 36 For the most part, the international mail process is paper-based and involves the sender providing information to an FPO using paper forms that are affixed to the package and the FPOs submitting that information/form to the destination post. In the case of the United States, the destination post is USPS. USPS in turn submits this information to CBP. In the electronic environment, information also travels between established postal networks and uses existing messaging standards. In order to require AED for mail shipments to the United States, FPOs first have to develop the capability to provide AED to USPS. Until recently, that capability was non-existent. However, in recent years, a number of FPOs, as well as the United States, have been moving towards providing AED for mail, and USPS has been actively pursuing data sharing agreements with several countries that would require the mutual transmission of AED. Concurrently, the UPU has developed a Customs Declaration System (CDS) that can be used by any country to collect and transmit customs data and the United States has been assisting with capacity building efforts. As a result of the STOP Act and other international efforts to require AED for international mail, the capability and the provision of AED for international mail shipments has been increasing and is now likely to be accelerated.

In general terms, all international mail arriving into the United States is subject to examination by CBP. Initially, all packages enter the mail facility through a portal designed to detect radiation. Once inside the facility, a subset of packages is targeted for additional non-intrusive inspection, and a subset of these undergoes further visual inspection by CBP officers. Due to the large volume of mail arriving in the United States on a daily basis, it is not feasible for CBP to inspect every package for illegal or dangerous items. Therefore, CBP has established protocols to determine which packages it will consider for inspection based on intelligence surrounding known risks, referred to as targeting.

As noted above, the United States and various other members of the UPU have improved technical capabilities to provide AED in the postal environment in recent years. At present, a number of FPOs collect and share AED with USPS voluntarily or on the basis of mutual agreements. The AED generally includes the same information collected on the customs declarations forms for mail. 37

Since 2014, USPS and CBP have been engaged in a pilot program at various IMFs to use the inbound AED collected by USPS to develop more automated and sophisticated targeting systems. The pilot program is described in more detail in section III.C.5 (Current USPS Transmission of AED to CBP). AED allows CBP to target based on information customarily provided by the sender on the customs declarations forms. This information is received by USPS, which in turn provides it to CBP. CBP officers analyze the information at targeting facilities, including the CBP Office of Field Operations National Targeting Center (NTC), and at IMFs in the United States. This electronic data-driven approach is expected to result in better targeting of packages most likely to contain illegal goods. Moreover, because AED data can be analyzed prior to the arrival of a package at the IMF, the provision of AED will enable CBP to place a hold request on a package in time for USPS to prepare its systems to locate the package. While CBP expects to utilize AED targeting alongside other risk assessment methods and random inspections, the mandatory provision of AED will enable more sophisticated and efficient targeting moving forward. As the volume of mail received in the United States steadily rises, the ability to target better and more efficiently is of critical importance.

Title 19 CFR part 145 contains the specific requirements and procedures for the importation of mail subject to CBP examination. Currently, the focus of these regulations is on duties and entry requirements and it does not include an AED requirement for mail shipments. This rule amends the existing regulations to add a new subpart G to part 145 to cover AED for mail shipments. Several sections included in part 145 are relevant to this rule.

Section 145.1 provides definitions for mail article and letter class mail. A mail article is any posted parcel, packet, package, envelope, letter, aerogramme, box, card, or similar article or container, or any contents thereof, which is transmitted in mail subject to customs examination. Letter class mail is any mail article, including packages, post cards, and aerogrammes, mailed at the letter rate or equivalent class or category of postage. This rule adds some new definitions in the new subpart G that are relevant to the AED provisions, including definitions of letter class mail—documents and letter class mail—goods. Pursuant to § 145.11(a), a clear and complete Customs declaration on the form provided by the foreign post office, giving a full and accurate description of the contents and value of the merchandise, must be securely attached to at least one mail article of each shipment. Currently, this requirement is satisfied by attaching a UPU declaration form. This requirement generally does not apply to letter class mail—documents.

The above provisions will continue to apply to 19 CFR part 145, including the new subpart G regarding AED.

Most international mail comes to the United States by air, although it can be transported by any mode of transportation. The mail process is briefly described below.

International mail is generally subject to customs control and eligible mail items are accompanied by paper forms. 38 After receipt of the mail item with paper forms that satisfy the requirements of 19 CFR 145.11, 39 the FPO assigns it to a labeled receptacle, typically a bag or tray. Receptacles are then assigned to a dispatch. A dispatch is a shipment of receptacles of the same mail category and class sent from one post to another. A dispatch may consist of only one receptacle ( e.g., bag or tray) or may consist of several, depending on the volume of mail at the time. Each dispatch is accompanied by a paper bill describing the dispatch. 40 This “dispatch level information” includes information relating to the origin and destination post, dispatch number, date of departure of the transporting conveyance, scheduled international mail facility, total weight of dispatch, and similar information for receptacles contained within the dispatch. 41 Individual receptacles of a dispatch do not always stay together as they progress through the supply chain. The FPO hands over the receptacles to the transporting carrier, along with dispatch level information on the mail to be conveyed. 42 The carrier does not receive any item level information about the contents or other data about mail items in the receptacles.

The carrier assigns receptacles to a specific transport—referred to as a consignment—regardless of the dispatch (or dispatches) to which the receptacles belong. The transporting carrier, pursuant to CBP manifest requirements, manifests the shipment as receptacles of mail. Upon arrival in the United States at a CBP port of arrival the mail is transferred to an IMF or ISC for processing and inspection by USPS and CBP. 43 USPS scans the barcoded receptacle IDs, opens the receptacles, and scans the barcoded mail as received. USPS is generally required to present all inbound mail to CBP for inspection. CBP then selects mail for inspection based on its risk determinations, as described above. Subject to certain exceptions, CBP can open any mail item and hold it for further examination or review. Once the mail is cleared, CBP returns it to USPS to be introduced to the domestic USPS network and delivered to its final destination.

As described further in section III.C.5 (Current USPS Transmission of AED to CBP), USPS transmits AED to CBP only in those cases where the sending FPO has an agreement with USPS and USPS actually receives AED, and where the pilot program between CBP and USPS for the transmission of such AED is operational. In cases where CBP does not receive AED for a mail shipment, the only information CBP receives is on the paper forms affixed to the package. 44 This means that CBP generally only gets an opportunity to access this information when the mail shipment is physically presented. This paper process does not provide sufficient time for CBP to evaluate risks in advance or even after the items have been presented, due to the steadily increasing volume of mail reaching the United States and the need for speedy clearance for domestic distribution of the mail.

In 2012, with strong U.S. encouragement, the UPU resolved to advance an international mail security model that would rely on the provision of AED, adopting Article 8 (Postal Security) of the Universal Postal Convention to provide for the exchange of AED, effective January 1, 2014. 45 As a result, the UPU established an AED task force to help guide and accelerate programs necessary to advance the provision of AED by the UPU membership. This entailed the member countries' agreeing on a standardized AED message format, having the UPU develop Information Technology (IT) systems capable of transmitting AED, and fostering efforts to build capacity by providing these IT systems (and training) to postal operators in need of them. These efforts have increased the adoption of AED exchanges among UPU members and have made it easier for countries to participate. The UPU and its member countries continue to move towards making AED mandatory if required by destination customs and/or security authorities.

Separately, the World Customs Organization (WCO)  46 SAFE Framework of Standards of 2015  47 provides standards on implementing a Pre-loading Advance Cargo Information (PLACI) regime as an additional layer of security for air cargo and mail shipments. Specifically, a PLACI regime includes the submission of pre-loading data (7+1 data elements)  48 by various entities in the air cargo supply chain, including “Postal Operators,” as soon as the information becomes available, but no later than prior to loading the cargo/mail shipment onto the aircraft. 49 The goal is to ensure a harmonized approach towards the implementation of the PLACI regimes, so that Members may align their efforts to the fullest extent possible.

The AED requirements set forth in this rule are consistent with these international programs.

Since the enactment of the Trade Act of 2002, the United States and a number of other industrialized countries have improved their technical capabilities to provide AED. AED for inbound international mail is made possible by FPOs collecting and sharing the data with USPS voluntarily, through bilateral or multilateral agreements. In order to receive AED from a foreign post, USPS needs to sign a data sharing agreement that sets out the appropriate data formats to be used, privacy considerations, and regulatory requirements. USPS has leveraged its provision of AED for outbound shipments to incentivize FPOs to provide AED for inbound shipments. Additionally, USPS has prioritized obtaining AED from the largest volume FPOs, which collectively account for more than 90 percent of all inbound volume. Currently, USPS has data sharing agreements with about 150 foreign postal operators, though such data sharing agreements do not imply that a foreign post is actually tendering data to USPS. Such agreements rather provide a mechanism for the exchange of such data were it to occur.

Currently, USPS adheres to global standards established by the UPU for the particular data element requirements for the AED it collects. These data elements include item information  50 (referred to by the UPU as ITMATT, which is the Item Attribute EDI message standard) such as the sender's full name and address (including full business name), the recipient's full name and address, the stated content description, unit of measure, and the quantity, weight, value, and date of the mailing. 51 The data also includes receptacle and flight arrival information (referred to by the UPU as PREDES). 52 As detailed in section IV.C.4.a (Item Attribute Information), with the exception of the elements declared value and designated operator, the required data elements are comparable to the information CBP requires under ACAS and the Trade Act of 2002 implementing regulations. 53 In general, under the pilot FPOs are required to submit AED up to four hours prior to loading. The pilot is discussed in greater detail below.

USPS and CBP began a pilot program in 2014 at the New York IMF to use the inbound AED that USPS collects as detailed above to facilitate more automated and advance targeting by CBP. Starting in 2015, similar pilot programs and targeting based on AED have been expanded to include seven IMFs. Concurrently, on September 1, 2017, CBP and USPS signed a Memorandum of Understanding (MOU) in which both agencies agreed to collaborate together on day-to-day operations, strategic planning, and other initiatives related to the inspection of goods imported and exported through the mail, including the transmission of AED. 54 To date, the pilots cover seven IMFs, and pursuant to these pilots USPS transmits AED to CBP on incoming mail, assuming it is provided with the AED by the FPO. The pilots are voluntary and even FPOs with agreements with the USPS do not provide AED on all mail sent to the United States and there are no consequences for non-compliance.

Pursuant to the pilot, if USPS receives AED, USPS provides CBP with that AED via electronic message files from the USPS Electronic Manifest-Central Database (EM-CDB) system to CBP's Automated Targeting System (ATS)  55 to enable CBP to review and target specific high-risk mail items prior to their arrival in the United States. AED allows CBP to target based on the same information provided by the sender on the customs declarations forms (including sender name, recipient name, and the contents of the package), except in the AED environment this information is provided in advance in electronic form. This AED is analyzed by CBP officers at IMFs using locally developed algorithms as well as intelligence linked to their system from the NTC and local law enforcement. For example, CBP officers may flag a package being sent by a known distributor of illicit drugs. CBP identifies the individual target items by placing what is called an electronic hold on the item. An electronic hold is transmitted to USPS using a secure file transfer protocol between CBP and USPS that is automated and takes place in near real-time. USPS then uses its barcode tracking and scanning system to locate the inbound targeted high-risk items with electronic holds. The holds are executed at the USPS mail facilities, downstream plants or delivery units. Once located, USPS presents the targeted items to CBP for inspection.

The USPS-CBP AED pilot programs, which are voluntary and depend upon mutual agreement with some, but not all FPOs, will be replaced by the AED regulatory program when this rule takes effect. After implementation of the rule, the AED requirement will be mandatory and enforceable.

To fulfill the STOP Act mandate to stem the flow of deadly opioids and to facilitate the interdiction of suspect packages, CBP is establishing requirements for USPS to transmit certain AED for inbound international mail shipments. This AED consists of two elements—“Item attribute information” and “Pre-advice of despatch information”.

Item attribute information is the information about the attributes (characteristics) of mail items and their contents already collected through the customs declaration forms, including the contents and value of the goods in the package as well as sender and recipient information. 56 USPS will collect this information from its counterparts at foreign posts through existing “ITMATT” electronic messages.

Pre-advice of despatch information is information about the shipment (“dispatch” or “despatch”)  57 of mail receptacles of the same category and class sent from one post to another that includes the mail item. This information relates to the movement of the package by a carrier and is information of the type customarily collected by USPS via letter or parcel bills, 58 including the scheduled date and time of arrival in the United States, transportation information ( e.g., carrier, flight number, voyage number), and destination IMF. 59 USPS will collect this information from its counterparts at foreign posts through existing “PREDES” electronic messages.

Obtaining this ITMATT information and the dispatch level information as AED will enable CBP to better identify, target and mitigate high-risk mail shipments.

Taking into account how the international mail process works, these requirements are comparable to the requirements for the transmission of AED imposed on similar non-mail shipments and are consistent with the requirement in section 343(a)(3) of the Trade Act of 2002 (19 U.S.C. 1415) that regulations developed under the Act consider certain parameters. 60 As described in section III.B (Statutory and Regulatory History), CBP's AED requirements for non-mail shipments vary depending on the mode of transportation and generally require the carrier to transmit the information to CBP. However, the requirements for transmission of AED for mail shipments must follow the international postal framework which does not vary based on mode of transportation. Additionally, the STOP Act specifically provides that USPS must provide AED for mail shipments to CBP. 61 For non-mail, the AED requirements generally pertain to carriers and other eligible parties. Accordingly, the AED requirements set forth in this rule are comparable to the AED requirements for non-mail. These AED requirements will be the only AED requirements applicable to USPS for inbound international mail shipments at this time.

In order to implement mandatory AED for mail shipments, CBP must adhere to the parameters applicable to the development of regulations under section 343(a) of the Trade Act of 2002. While public health, safety and national security are paramount, the Trade Act of 2002 parameters require CBP to give due consideration to the concerns of the affected parties and the flow of commerce. These parameters include, among others, provisions requiring consultation with the affected parties and consideration of the differences in the practices among the different parties in comparable non-mail shipments. In addition, the parameters require that the information collected pursuant to the regulations be used for ensuring cargo safety and security, preventing smuggling, and commercial risk assessment targeting, and require CBP to balance the expected improvement in cargo safety and security with the impact of this information collection and targeting on the flow of commerce. The parameters also require that the obligations imposed must generally be upon the party most likely to have direct knowledge of the required information and mandate that if this is not feasible, that the obligations imposed take into account ordinary commercial practices for receiving data and what the party transmitting the information reasonably believes to be true. In developing the AED regulations, CBP has considered all of the parameters.

For this rule, USPS is the party responsible for providing AED to CBP. Throughout the development of the AED pilot and this interim final rule, CBP gathered information from the USPS about its business practices, the international mail system, and how to best formulate the mandatory AED requirements to take these business practices into consideration in developing a regulatory program that addressed the relevant security and public health concerns. As a result of these consultations, CBP has been able to develop AED regulations that, in accordance with the parameters of the Trade Act of 2002, balance the expected improvements in cargo safety and security with the impact of the regulations on the flow of commerce, and take into consideration existing standard business practices and interactions among stakeholders.

In developing these regulations, CBP also considered both the process and information flow with regard to the movement of international mail to the United States and international efforts to develop AED requirements. As described in section III.C (AED and the Mail System), the information regarding the item to be shipped to the United States is provided by the foreign sender to the FPO, the FPO provides the information to USPS, and USPS provides the information to CBP. Although the current process for providing the data is often a paper-based process, under the provisions of this rule, the pertinent information must be provided by USPS to CBP electronically in advance, i.e., as AED. It is important to note that the ITMATT data that USPS must provide to CBP electronically under this rule is the same data that USPS receives from the FPO via the customs declarations forms, which CBP is able to access when packages are presented for inspection. 62 Similarly, the PREDES data is the same information that USPS receives from the FPOs on certain UPU forms. 63 The key difference is that under this rule CBP will receive the data in electronic form prior to the arrival of the mail shipments, which will allow for sophisticated and more effective targeting than the pre-rule paper- based process. Under the pilot programs between CBP and USPS and when information sharing agreements exist between the USPS and other FPOs, USPS has also been providing this information, as well as PREDES information, electronically. However, under these arrangements, the furnishing of this advance information is voluntary and does not cover all mail shipments. Under this rule, the data must be transmitted electronically and in advance in all instances, subject to the graduated compliance provided for in the new regulations. 64

As discussed in section III.C.4 (International Framework for the Provision of AED for Mail Shipments), in the international arena, various efforts are underway to provide for the exchange of AED. The AED referenced in Article 8 (Postal Security) of the Universal Postal Convention is the same type of data that is currently provided through paper forms. The pre-loading data provided pursuant to the WCO SAFE Framework of Standards PLACI regime is comparable to what USPS will be required to provide to CBP under this rule. Thus, the AED requirements in this rule are consistent with existing international programs.

To implement the AED requirements, CBP is adding a new subpart G to 19 CFR part 145, titled Mandatory Advance Electronic Data for Mail Shipments, and making certain conforming revisions to 19 CFR 145.0. Additionally, CBP is revising 19 CFR parts 4, 122, 123, and 149 to clarify that the AED requirements for mail importations are found in part 145.

The new subpart G of 19 CFR part 145, titled Mandatory Advance Electronic Data for Mail Shipments, adds three new sections to the regulations. New § 145.73 adds various definitions specific to the subpart. New § 145.74 provides details regarding the mandatory AED that CBP must receive from USPS. New § 145.75 provides the applicable penalties if USPS accepts a shipment in violation of the regulations.

The new 19 CFR 145.73 provides definitions for terms as they are used in the new subpart G. Specifically, for purposes of this subpart the terms Designated operator, Express Mail Service or EMS, International Mail Facility or IMF, Item ID, 65 Letter class mail—documents, 66 Letter class mail—goods, Parcel post, and Universal Postal Union or UPU are defined as set out in the regulatory text below.

The new AED regulation, 19 CFR 145.74, provides that pursuant to section 343(a)(3)(K) of the Trade Act of 2002 (Pub. L. 107-210, 19 U.S.C. 1415), as amended, for certain inbound international mail shipments, CBP must electronically receive from USPS within the specified time frames certain mandatory advance electronic data (AED) and updates thereto. Below, we describe the new program, including the types of inbound international mail shipments for which AED is required, the time frames for providing and updating AED, the required AED, the potential exclusion from AED requirements for mail shipments from specific countries, compliance dates, and the expected actions for shipments for which USPS has not complied with the AED requirements.

The new 19 CFR 145.74(b) provides that CBP must electronically receive AED from USPS for inbound international mail shipments containing goods classified as Express Mail Service (EMS), Parcel post, or Letter class mail—goods, unless CBP has informed USPS that mail shipments from that specific country or countries are excluded from the AED requirements. AED is not required for Letter class mail—documents or for items for the blind consisting of correspondence, literature in whatever format including sound recordings, and equipment or materials of any kind made or adapted to assist blind persons in overcoming the problems of blindness (up to 7 kilograms). Each of these terms is defined in new § 145.73. Under this rule, AED will not be required for items sent as Parcel Post or EMS that do not contain goods. AED will also not be required for returned U.S. origin items, items transiting the U.S. in closed transit, items sent as U.S. domestic mail, or mail treated as domestic, including mail to or from APO, FPO, and DPO addresses, mail to or from U.S. territories and possessions, and mail, from or between the Freely Associated States of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. However, this exclusion does not preclude CBP's existing authority to inspect any of these shipments. The scope of the new requirements is comparable to the scope of the requirements for advance electronic information for non-mail shipments. Advance electronic information for non-mail shipments is not currently required for letters and documents by the regulations promulgated under the Trade Act of 2002, as detailed in the preamble to the Trade Act final rule. See 68 FR 68140, 68150 (Dec. 5, 2003). 67

Under the Trade Act of 2002, as amended by the STOP Act, the time frame for submitting the AED for mail shipments must be as soon as practicable in relation to the transportation of the shipment, consistent with section 343(a)(3)(H) of the Trade Act of 2002. See 19 U.S.C. 1415(a)(3)(H). 68 The new 19 CFR 145.74(c) specifies the time frames for USPS to provide and update the AED. CBP must electronically receive from USPS the AED as soon as practicable, but no later than prior to loading the inbound international mail shipment onto the transporting conveyance. The as soon as practicable but no later than prior to loading time frame is the same time frame as in the ACAS regulations. See 19 CFR 122.48b(b)(1). Additionally, CBP must electronically receive from USPS updates to the AED, if any of the submitted data changes or more accurate data becomes available after USPS transmits the AED, up until the timeframes for AED updates set forth in the ACAS regulations in 19 CFR 122.48b(b)(2). The requirement to provide and update AED is the same as the current AED requirements for commercial cargo shipments. These time frames are consistent with the PLACI time frame of the SAFE Framework of Standards. In the interest of facilitating the objectives of the STOP Act and these regulations, USPS may continue to submit updates until the mail shipment arrives at the first CBP port of arrival in the United States.

Under the Trade Act of 2002, as amended by the STOP Act, the required AED for international mail shipments is the information the Secretary determines is reasonably necessary to ensure cargo safety and security that is comparable to what is required for similar non-mail shipments, taking into account the parameters set forth in the Trade Act of 2002. The required AED is listed in the new 19 CFR 145.74(d). The AED that CBP must electronically receive from USPS within the specified time frames is the item attribute information and the pre-advice of despatch information, both described in more detail below. Some of this data is mandatory and other data elements are optional, but encouraged. The provided AED will only be used to the extent consistent with the Trade Act of 2002.

The new 19 CFR 145.74(d)(1) sets forth the required AED categorized as item attribute information, that is, information about the attributes or characteristics of mail items and their contents. USPS receives the item attribute or “ITMATT” information from the origin post. USPS may then transmit this information to CBP in an electronic message that is the customs declaration equivalent to the paper declaration forms. 69

The required data elements are listed below. An “M” next to any listed data element indicates that the data element is mandatory in all cases and an “O” next to the listed data element indicates that the data element is optional, but encouraged if available. The AED elements categorized as item attribute information are:

(1) Sender's Name (M);

(2) Sender's Address (M);

(3) Sender's Telephone/fax/email (O);

(4) Recipient's Name (M);

(5) Recipient's Address (M);

(6) Recipient's Telephone/fax/email (O);

(7) Detailed description of contents (M);

(8) Quantity (M);

(9) Weight (M);

(10) Item ID (M);

(11) Category of Item (gift, documents, sale of goods, commercial sample, merchandise, returned goods, other) (O);

(12) Declared Value (M) *;

(13) Date of Posting (O);

(14) Postal Charges/Fees (O);

(15) 10-digit HS Tariff Number (for commercial items) (O);

(16) Country of Origin of Goods (for commercial items) (O);

(17) Importer's reference (tax code, VAT number, importer number, etc.) (O);

(18) Importer's telephone/fax/email (O);

(19) License Number (O);

(20) Certificate Number (O);

(21) Invoice Number (O);

(22) Details if the goods are subject to quarantine, sanitary/phytosanitary inspection, or other restrictions (O); and

(23) Designated operator (M) *.

As noted previously, this required AED is aligned to the information already required on customs declarations forms that satisfy the requirements of 19 CFR 145.11 and are used by FPOs internationally pursuant to the guidelines set forth by the UPU. This alignment is consistent with the Trade Act of 2002 parameters, specifically 19 U.S.C. 1415(a)(3)(B), which provides that where it is not practicable to require information from the party with direct knowledge of that information, the regulations shall take into account how, under ordinary commercial practices, information is acquired by the party on which the requirement is imposed, and whether and how such party is able to verify the information. The majority of the mandatory data elements are also in line with the globally recognized PLACI data elements and with requirements for non-mail shipments, particularly the ACAS requirements for air cargo. The two exceptions, Declared Value and Designated Operator, 70 are noted with an asterisk in the list above. CBP is requiring USPS to provide these data elements to CBP because these data elements are globally recognized as mandatory. 71 In the AED environment, USPS can easily provide this data (Declared Value, and Designated Operator) to CBP, and this data, along with the other required data, is valuable for targeting purposes to identify high-risk shipments. Although CBP is only making mandatory the data elements that are currently mandatory on the paper forms, CBP encourages USPS to transmit all available data elements to CBP in order for CBP to better target incoming mail.

In addition to the information about each mail item, the required AED also includes information about the shipment, referred to as the “dispatch” or “despatch,” of mail receptacles of the same mail category and class sent from one post to another. As noted above, individual receptacles in one dispatch, may not arrive in the United States together as a unit. Dispatch level information helps CBP to identify where the mail items are likely to be and when they should arrive. This information is comparable to the shipment information CBP requires for non-mail shipments under the Trade Act final rule. However, it is tailored to align with the way mail is shipped ( i.e., in dispatches containing receptacles), the way information is provided by the origin post to USPS, and where the mail arrives. USPS receives the “pre-advice of dispatch” or “PREDES” information from the foreign post. USPS may transmit this information to CBP in an electronic message. The new 19 CFR 145.74(d)(2) lists the required AED categorized as “pre-advice of despatch information,” as follows:

(1) Dispatch information including origin post, destination post, and dispatch number;

(2) Scheduled date and time of departure of the transporting conveyance;

(3) Scheduled date and time of arrival in the United States;

(4) Transportation information including carrier and, as applicable, flight number, voyage number, trip number, and/or transportation reference number;

(5) Scheduled International Mail Facility (IMF) in the United States;

(6) Total weight of the dispatch; and

(7) The information for receptacles contained within the dispatch, including receptacle type, receptacle ID, and weight, as well as item ID for items nested to the receptacles, if applicable.

Under the Trade Act of 2002, as amended by the STOP Act, CBP, in consultation with USPS, may determine to exclude a country from the AED requirements if CBP determines that certain specified conditions exist. New 19 CFR 145.74(e) incorporates this provision. It provides that pursuant to section 343(a)(3)(K)(vi) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)), CBP, in consultation with USPS, may determine that a specific country or countries do not have the capacity to collect and transmit AED, represent a low risk for mail shipments that violate relevant U.S. laws and regulations, and account for low volumes of mail shipments that can be effectively screened for compliance with relevant U.S. laws and regulations through an alternate means. It further provides that in such case(s), CBP will notify USPS that mail shipments from that specific country or countries are excluded from the AED requirements. Section 145.75(e) also provides that CBP will re-evaluate these determinations on an annual basis. This provision aligns not only with new section 343(a)(3)(K)(vi) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)), but also with the parameters set forth at section 343(a)(3)(E) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(E)), which requires regulations to take into account the extent to which the technology necessary for parties to transmit data is available.

The Trade Act of 2002, as amended by the STOP Act, specifies that USPS must fully comply with the AED requirements no later than December 31, 2020, but allows for the implementation of the AED requirement in phases prior to that date. Pursuant to the statute, CBP may set incremental targets for the transmission of AED prior to December 31, 2020 that take into consideration the risk posed by such shipments, the volume of mail shipped to the United States by or through a particular country, and the capacities of foreign postal operators to provide that information to USPS. See section 343(a)(3)(K)(iv) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(iv)).

New 19 CFR 145.74(f) provides that full compliance is required no later than December 31, 2020, as set forth in section 343(a)(3)(K)(vi) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)). This means that, except for mail shipments from countries that are excluded from AED requirements pursuant to new 19 CFR 145.74(e), USPS must comply with the AED requirements of this section for 100 percent of mail shipments described in new 19 CFR 145.74(b) no later than December 31, 2020.

The Trade Act of 2002, as amended by the STOP Act, sets forth the actions to be taken for shipments for which USPS has not complied with the AED requirements. New 19 CFR 145.74(g) incorporates these provisions. Under new 19 CFR 145.74(g)(1), pursuant to section 343(a)(3)(K)(vii) of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vii)), USPS must, in consultation with CBP, refuse any shipments received after December 31, 2020, for which the required AED is not received by CBP, unless remedial action is warranted in lieu of refusal of a shipment. If remedial action is warranted, CBP and USPS will determine the appropriate remedial action. Remedial action may include, but is not limited to, destruction, seizure, controlled delivery or other law enforcement initiatives, or a correction of the failure to provide the AED. Pursuant to an amendment to the Trade Act of 2002 that was included in Sec. 802, Consolidated Appropriations Act, 2021, Pub. L. 116-260, new 19 CFR 145.74(g)(2) provides that, notwithstanding paragraph (g)(1) of the section, during the period beginning on January 1, 2021, through March 15, 2021, the Postmaster General may accept a shipment without transmission of the information described in paragraph (d) of the section if the Commissioner determines, or concurs with the determination of the Postmaster General, that the shipment presents a low risk of violating any relevant United States statutes or regulations, including statutes or regulations relating to the importation of controlled substances such as fentanyl and other synthetic opioids.

Section 8007 of the STOP Act amends section 436 of the Tariff Act of 1930 (19 U.S.C. 1436) to add a new paragraph (e), which mandates the imposition of civil penalties for certain violations of the STOP Act. Specifically, new 19 U.S.C. 1436(e)(1) provides that a civil penalty “shall be imposed against the United States Postal Service if the Postal Service accepts a shipment in violation of section 1415(a)(3)(K)(vii)(I) of this title.” To implement this statutory provision, CBP is adding a new 19 CFR 145.75. This new section provides that a violation of the new 19 CFR 145.74(g) after December 31, 2020, will result in the USPS being liable for penalties in accordance with 19 U.S.C. 1436(e)(1). The amount of the penalty will be $5,000 per violation, however, as provided by 19 U.S.C. 1436(e)(2), the penalty will be reduced or dismissed based on certain factors.

Current 19 CFR 145.0 specifies the scope of 19 CFR part 145. CBP is expanding the scope to account for the addition of the new subpart G. Accordingly, a new sentence stating that the part also contains regulations requiring USPS to transmit certain AED to CBP for certain inbound international mail shipments is added at the end of the section.

The AED requirements in 19 CFR 145.74 applicable to inbound international mail shipments are intended to be the only AED requirements applicable to USPS for inbound international mail shipments. Accordingly, CBP is making revisions to 19 CFR parts 4, 122, 123, and 149 to clarify that the AED requirements for mail importations are found in part 145.

In order to provide the USPS sufficient time to adjust to the new requirements and in consideration of the business process changes that may be necessary to achieve full compliance, CBP will show restraint in enforcing the data submission requirements of the rule, taking into account difficulties USPS may face in complying with the rule, so long as USPS is making significant progress toward compliance and is making a good faith effort to comply with the rule to the extent of its current ability. This CBP policy will last for twelve months after the effective date. While full enforcement will be phased in over this twelve month period, willful and egregious violations will be subject to enforcement actions at all times. CBP welcomes comments on this enforcement policy.

The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register and to provide interested persons the opportunity to submit comments. 5 U.S.C. 553(b), (c). The APA also generally requires agencies to delay the effective date of substantive rules by no less than 30 days. 5 U.S.C. 553(d). However, the APA enumerates certain exceptions to these requirements. 5 U.S.C. 553(b)(A), (B). The APA provides an exception from notice and comment procedures “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The APA also provides an exception from the 30-day delayed effective date requirement “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). These exceptions to notice-and-comment procedures are to be “narrowly construed” and only “reluctantly countenanced.” New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). Courts have found “good cause” to be a permissible exception where “the delay created by the notice and comment requirements would result in serious damage to important interests.” Woods Psychiatric Inst. v. United States, 20 Cl. Ct. T324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991) (absence of relevant comprehensive regulations had led to administrative difficulties and litigation regarding basic issues such as eligibility, scope and reasonable charges for benefits and delay would have caused medical and financial hardships for beneficiaries); see also Nat'l Fed'n of Fed. Emps. v. Nat'l Treasury Emps. Union, 671 F.2d 607, 611 (D.C. Cir. 1982) (lacking information on insurance contract terms due to circumstances beyond its control, the agency elected to delay “open season” because failure to do so would threaten the financial stability of the Federal employee health benefit program constituting a threat to the welfare of employees and annuitants enrolled in that program). These interests include public safety and public health. United States v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010) (to delay regulations would harm the public interest because it would delay the registration of sex offenders who would evade registration requirements during the notice and comment period, putting the public's safety at risk).

This rule is being promulgated pursuant to the STOP Act to fight the influx of deadly opioids, particularly synthetic opioids such as fentanyl, coming to the United States in international mail shipments. Given the critical public health and safety implications of continued shipments of illegal opioids into the United States, to delay the implementation of this rule would be “impracticable, unnecessary, and contrary to the public interest” as it would allow a gap that invites illegal and toxic drugs into our communities. There is particular urgency in view of recent and current events, connected with the COVID-19 pandemic and a significant spike in deaths as a result of opioids. On January 7, 2021, the Secretary of Health and Human Services renewed public health emergency declarations for both the opioid crisis  72 and COVID-19 pandemic. 73 Additionally, and critically, CDC has reported an accelerating rate of overdose deaths during the COVID pandemic, with the highest number of such deaths ever recorded in a 12-month period. 74 The CDC has found “an acceleration of overdose deaths during the pandemic.” This is a testament to the imminent risk of having these types of goods enter the U.S. mail stream and thus endanger public health. In view of the recent declarations and the recent acceleration in overdose deaths, a delay would clearly be “contrary to the public interest.”

The recent and marked increase in demand for opioids by Americans has had a detrimental impact on this country as seen by the sharp rise in overdoses and the increased strain placed on law enforcement, healthcare, and social service providers. According to the CDC, the COVID-19 pandemic has accelerated drug overdose deaths, resulting in over 81,000 drug overdose deaths in the 12-month period ending in May 2020. CDC notes that “synthetic opioids (primarily illicitly manufactured fentanyl) appear to be the driver,” increasing 38.4 percent relative to the prior year. Ten western states reported a more than 98 percent increase in synthetic opioid-involved deaths over the same period. 75 CBP is a vital line of defense to secure the border, and needs to move toward improving its ability to detect and interdict illicit supply chains in the postal environment.

One of the greatest challenges to effective interdiction is the sheer volume of mail received. The use of AED for mail shipments will thus facilitate the interdiction of suspect packages, a critical tool in stemming the flow of deadly opioids. Requiring AED for mail shipments will enhance the security of the supply chain with respect to international mail shipments by giving CBP adequate time and information necessary to perform targeted risk assessments geared towards interdicting dangerous and illicit items before they enter the U.S. mail system. For further details regarding the benefits of the rule, see sections III.A (Purpose of Rule), V.B (Executive Orders 12866 and 13563), and the stand-alone regulatory impact analysis. 76

Where an agency reasonably determines that existing regulations do not sufficiently protect public safety, authorized measures to address the regulatory deficiency need not await the completion of notice and comment procedures to begin saving lives. See Hawaii Helicopter Operators Ass'n v. FAA, 51 F.3d 212, 213-14 (9th Cir. 1995). This is especially true with respect to measures taken to prevent the exploitation of security or public health vulnerabilities, which do not involve “complex and controversial questions of ethics and public policy.” Cf. American Academy of Pediatrics v. Heckler, 561 F. Supp. 395, 401 (D.D.C. 1983). This is the case here. It is DHS's determination that the relevant existing regulatory framework does not sufficiently protect public safety, and in the context of a public health crisis of this magnitude every day is important. In fact, no regulations exist at this time that require USPS to provide CBP with AED. These regulations, promulgated pursuant to the STOP Act, aim to address this regulatory deficiency, and as such, they need not await the completion of notice and comment procedures or the 30-day delayed effective date period. See Hawaii Helicopter Operators Ass'n v. FAA, 51 F.3d 212, 213-14 (9th Cir. 1995). In filling the regulatory gap, this rule will have a substantial impact on stemming the flow of illicit drugs. As detailed above, the use of AED in targeting and risk mitigation will help CBP disrupt the supply chain of illicit opioids by reducing the amount of illicit opioids entering the country. This, in turn, should lead to a decrease in lives lost to this epidemic.

For the same reasons that the new regulations will address the regulatory gap described above, delaying the implementation of these regulations could result in serious harm to public health and safety by continuing to allow the illicit flow of opioids into the country while the procedural periods elapse. The agency “only has to show that there is good cause to believe that delay would do real harm.” United States v. Dean, 604 F.3d 1275, 1281 (11th Cir. 2010) (quoting Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004)). This is especially the case in the context of vulnerabilities that may be susceptible to exploitation, including in the context of an escalating public health crisis of this magnitude or in the case of a significant public safety concern. It is therefore sufficient for the agency to make a reasonable determination that a vulnerability exists that the proposed lawful rule would effectively mitigate and for that reason determine that a delay in promulgation would cause serious and immediate harm. See Jifry, 370 F.3d at 1179; Dean, 604 F.3d at 1281. In the absence of prior regulations that mandate USPS to transmit AED to CBP, the use of notice and comment prior to the issuance of this rule would delay CBP's ability to take immediate and effective action to keep illicit shipments of all kinds out of the supply chain.

Such a delay might well lead as well to an influx of illicit shipments before the rule was issued and took effect. To delay the implementation of effective mitigation measures in this way would unreasonably prolong the public's exposure to high levels of illicit opioids and their analogues. On that basis, it is reasonable for DHS to determine that it may, for good cause, forgo the usual prior notice and comment and delayed effective date procedure and publish a rule that is effective immediately.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is a “significant regulatory action,” and one that the Office of Information and Regulatory Affairs has determined is economically significant under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget (“OMB”). CBP prepared an economic analysis of the estimated impacts of this rule for public awareness, which CBP summarizes below. The complete analysis, entitled “Regulatory Impact Analysis: Mandatory Advance Electronic Data (AED) for International Postal Shipment Final Rule” can be found in the public docket for this rulemaking (docket number USCBP-2021-0009) at www.regulations.gov. The complete economic impact analysis of this rule is intended to address the requirements of Executive Order 12866 (1993), “Regulatory Planning and Review” and related executive orders and laws, which require Federal agencies to assess the costs and benefits of significant regulatory actions.

CBP has developed this interim final rule requiring the submission of advance electronic data (AED) from the United States Postal Service (USPS) for inbound international mail shipments containing goods destined for the United States. This interim final rule follows from the requirements mandated in section 8003 of the Synthetics Trafficking and Overdose Prevention (STOP) Act of 2018, principally intended to lessen the flow of illegal opioids into the United States. The STOP Act imposes new responsibilities on the USPS for providing AED for international mail.

AED contains details about the package's sender, recipient, and related content that have historically been available to USPS on customs declaration forms but only in paper copies, making it difficult for CBP to use the information for targeting of mail containing illegal goods. Requiring USPS to provide CBP with AED will address a current safety and security gap regarding mail importations. Having this data available in electronic format and submitted to CBP before the package is loaded on the transporting carrier is expected to improve the success and efficiency of targeting packages for inspection and to disrupt the supply chain for illegal opioids, particularly synthetic fentanyl. 77 Fentanyl is one of many synthetic opioids that are produced in both licit and illicit manners. Many chemical compounds—commonly known as fentanyl analogs—share the majority of their chemical structure with fentanyl, albeit with some molecular modifications. In this report, we refer to this class of substances as fentanyl for simplicity and to reflect its share among synthetic opioids. While synthetic fentanyl is the primary motivation behind the STOP Act, the interim final rule will also improve CBP's ability to identify and seize other illegal and dangerous items (including other illegal drugs, other hazardous materials, etc.) and close the gap that has the potential to be exploited by bad actors. With the implementation of this interim final rule, CBP regulations will require the transmission of AED on all shipments of goods, whether or not they are transported through the international mail system.

Beginning in 2014, CBP and USPS piloted programs at IMFs around the United States to collect AED from foreign posts ( i.e., non-U.S. postal operators, analogous to the USPS in the United States) to improve CBP's targeting efforts. As required by the STOP Act and informed by the results of the pilots, 78 CBP has developed an interim final rule to transition the AED pilot program to a regulatory program. 79

The interim final rule requires that CBP must receive AED from USPS for inbound international mail containing goods classified as Letter class mail—goods, Parcel post, or Express Mail Service (EMS). Letter class mail—goods refers to letter class (in UPU terms, letter post) mail up to two kilograms containing goods, also referred to as “small packets.” Mail over two kilograms containing goods must use a postal service other than letter class. Parcel post refers to any mail article mailed at the parcel rate or equivalent class or category of postage. EMS refers to the optional supplementary postal express service for documents and merchandise and is whenever possible the quickest postal service by physical means. Under this interim final rule, AED is not required for mail containing only letters and documents ( i.e., Letter class mail—documents ). AED will not be required for items for the blind consisting of correspondence, literature in whatever format including sound recordings, and equipment or materials of any kind made or adapted to assist blind persons in overcoming the problems of blindness (up to 7 kilograms). Under this rule, AED will not be required for items sent as Parcel Post or EMS that do not contain goods. AED will also not be required for returned U.S. origin items, items transiting the U.S. in closed transit, items sent as U.S. domestic mail, or mail treated as domestic, including mail to or from APO, FPO, and DPO addresses, mail to or from U.S. territories and possessions, and mail, from or between the Freely Associated States of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. However, this exclusion does not preclude CBP's existing authority to inspect any of these shipments.

AED are comprised of two elements, as described in full detail in Exhibit 1 and summarized below:

1. Information already collected through the customs declaration forms CN 22 and CN 23, including the contents and value of the goods in the package as well as sender and recipient information. USPS will collect this information from its counterparts at foreign posts through existing “ITMATT” electronic messages; and

2. Information about the movement of the shipment by a carrier, including the scheduled date and time of arrival in the United States, flight number, and destination IMF. USPS will collect this information from its counterparts at foreign posts through existing “PREDES” electronic messages.

Recognizing the magnitude of the change in operations necessary to accommodate the international flow of AED, the STOP Act and this interim final rule offer a phased approach to the mandatory AED requirement. No later than the end of 2018, the Act required USPS to transmit AED to CBP on no less than 70 percent of mail shipments, including 100 percent of mail from China. 80 No later than the end of 2020, USPS must transmit AED for 100 percent of mail. Beginning in March 2021, USPS will be required to refuse mail shipments that do not include AED, unless a “remedial action” is identified. Such action may include destruction, seizure, controlled delivery, other law enforcement action for mail without AED, or correction of the failure to provide AED. The interim final rule allows that CBP and USPS create country-specific exceptions for countries with low mail volume, that are considered low-risk, or lack the capacity to collect and transmit AED.

In the complete economic impact analysis of this rule, we estimate the incremental costs of implementing (1) AED pilot projects initiated prior to the STOP Act and (2) the interim final rule. We also provide a discussion of the anticipated benefits of the rule qualitatively. We present information on the available data sources we rely upon and the analytic methodologies we employ and discuss the implications of limitations of the analysis.

Our analysis focuses on two discrete time periods. All incremental costs and benefits of collecting and transmitting AED occurring in the time period before the STOP Act was enacted into law are associated with the pre-statute period, while all incremental costs and benefits incurred after the STOP Act was enacted ( i.e., post-statute period), including current and future costs, are attributed to the interim final rule. Taken together, the two time periods address the costs and benefits of the entire AED program.

Pre-statute period: 2013 through 2018; and

Post-statute period: 2019 through 2028.

All costs are estimated in 2019 dollars, and present value calculations reported in the document use a base year of 2019. 81 CBP summarizes the results of the rule's complete economic impact analysis below.

Between 2014 and 2018, USPS worked with foreign postal operators to collect available AED for CBP targeting of postal shipments across a subset of IMFs. CBP's use of the AED, which is voluntarily provided by foreign postal operators to USPS, is considered a pilot program to determine how AED can improve CBP's targeting process. John F. Kennedy International Airport (JFK) was the first IMF to launch a pilot in 2014, followed by Los Angeles International Airport (LAX) and Miami International Airport (MIA) in 2017, Chicago O'Hare International Airport (ORD) and San Francisco International Airport (SFO) in 2018, and the New Jersey International and Bulk Mail facility located in Jersey City, New Jersey (JEC) and the Daniel K. Inouye International Airport (Honolulu International Airport) (HNL) in 2019. These pilots have provided insight into how the interim final rule will be implemented. Two more IMFs—Cyril E. King Airport (St. Thomas Airport) (STT), and Luis Munoz Marin International Airport (San Juan Airport) (SJU)—are expected to commence AED operations in 2020.

Furthermore, separate from the STOP Act, a desire to receive AED has been gaining traction among other countries. Motivated by the collection of goods and services (GST) tax on imported goods, the European Union (EU) and Australia recently passed or are considering legislation that would also require AED for inbound international mail. Several other countries are also likely to impose AED requirements, including but not limited to China, Russia, Malaysia, Brazil, and Thailand. 82 Beyond individual country initiatives, the UPU approved a roadmap in 2016 for working toward universal AED capabilities among its members. 83

In consideration of the AED requirements passed by other countries, as well as the general move towards storing information electronically, foreign posts would need to make upgrades to their systems to accommodate AED in the absence of the STOP Act and this interim final rule. Nonetheless, the STOP Act plays a key role in accelerating the adoption of AED internationally. 84 Exhibit 2, below, illustrates our assumptions regarding this acceleration, differences between the types of actions taken, and the timing of these actions under the baseline and regulatory scenarios. The differences between these two scenarios represent the incremental effects measured in the analysis.

CBP and USPS are the two U.S.-based actors that incur costs in response to the AED pilots and the requirements of the interim final rule. All activities related to the collection, transmission, and use of inbound AED are incremental to the rule. We summarize these cost categories below.

CBP incurs costs to draft and negotiate agreements with USPS, implement software upgrades to accommodate AED, train staff on the use of AED for targeting, and analyze inbound AED at IMFs. Among the categories of cost we are able to quantify, costs associated with analyzing AED data and placing holds associated with the AED are the largest, followed by the costs to upgrade software and, lastly, by the time spent developing the MOU and SOPs with USPS. CBP also incurred costs to train its staff to use AED; we are unable to quantify these costs.

Exhibit 3 presents costs incurred by CBP to implement the pilot program in the pre-statute period (2013 through 2018). Specifically, its total present value cost over the 6-year period ranges from $19 million to $22 million, depending on the discount rate assumption (3 and 7 percent, respectively). Because we are unable to quantify CBP's training costs, this estimate may understate total costs incurred by the agency during the pre-statute period. However, these costs are unlikely to be large enough to significantly impact our estimate of the total cost of the regulation. Importantly, these costs have already been incurred.

Exhibit 4 provides estimates of the costs incurred by CBP in the post-statute period (2019 through 2028). We estimate the total present value of these costs will range from $41 million to $49 million, assuming discount rates of 7 and 3 percent, respectively. The majority of these costs are likely to be incurred in the future. 85

USPS also incurs costs to implement the new requirements. Specifically, it must negotiate operational agreements with CBP at the IMFs, negotiate data-sharing agreements with foreign posts, upgrade software, train staff, process AED holds for CBP, and potentially return mail to foreign posts that do not meet the mandatory AED requirement. In this analysis, we quantify three of the six categories of costs likely to be incurred by USPS. Among them the labor devoted to processing holds for CBP constitutes a larger share than costs of upgrading and maintaining software or the requirement to return mail. Moreover, between the two periods examined, a majority of these costs are incurred in the post-statute period. CBP does not expect USPS to need to return mail without AED and this will not experience costs associated with that return. To the extent that these costs do take place, the costs of this rule will be higher. CBP requests comment on the size of these costs.

Exhibit 5 presents the costs incurred by USPS in the pre-statute period (2013 through 2018). The total present value of these past costs is likely to range from $11 million to $13 million, assuming discount rates of 3 and 7 percent, respectively. Because we are unable to estimate the costs to USPS of developing MOUs and SOPs with CBP, negotiating data sharing agreements with foreign posts, and training its staff, these estimates may understate the actual costs incurred during this period.

Exhibit 6 presents the future costs likely to be incurred by USPS in the post-statute period. Specifically, total present value costs are likely to range from $41 million to $49 million, assuming discount rates of 7 and 3 percent, respectively. Similar to the pre-statute period, because we are unable to quantify certain categories of costs incurred by USPS, these estimates may understate the total costs experienced by the organization.

Foreign posts around the world incur costs to upgrade and maintain outbound AED systems in order to comply with the requirements of the STOP Act. The STOP Act, however, is not the only international AED requirement. As described earlier, it represents the first in a series of similar requirements under development by other countries and encouraged by the UPU. As a result, the costs foreign posts incur to update their systems to accommodate the outbound flow of AED are not fully attributable to the pilot or the interim final rule; foreign posts would be making many of these upgrades to their systems in the absence of the STOP Act. The law, however, accelerates their timeline for having functional AED systems and capabilities in place.

In general, we consider when countries incur costs due to the interim final rule relative to when they would incur similar costs to comply with other mandatory AED requirements imposed by other countries. In particular, the European Union AED rule is scheduled to take effect in early 2021. The incremental cost of the pilot or interim final rule, therefore, is the opportunity cost to foreign posts of upgrading their systems earlier than they would have in the absence of the STOP Act.

To estimate the opportunity cost of earlier action, we estimate the stream of costs through time under the baseline scenario ( i.e., the world without the pilot or the interim final rule) and compare it to a scenario with the pilot and the interim final rule, separately for the pre-statute period and the post-statute period. The difference between the present value of these two cost streams represents the incremental costs of the pilot and the interim final rule.

Significant uncertainty exists regarding when certain countries will be able to meet the requirements of the interim final rule. We rely on analysis provided by the UPU to estimate which countries will be able to send AED to the United States by December 31, 2020. For the purposes of this analysis, we assume that all countries unable to send AED to the United States by the end of 2020 will be granted exceptions under the interim final rule and will, therefore, not incur costs. In the absence of data to predict which countries will be able to begin transmitting AED between 2021 and 2028, we assume the number of countries transmitting AED in years 2021 through 2028 does not change. To the extent that more countries shift to AED submissions, costs will be higher and will depend on the income level of the country and its volume of mail. This analysis contains the necessary information on the costs per country and by volume, so extending this analysis to further countries can be done using the information in this analysis. Exhibit 7 describes the number of countries transmitting AED to the United States, as well as the percent of packages from these countries arriving with AED elements.

Foreign posts incur costs including the time devoted to negotiating data-sharing agreements with USPS, the cost of upgrading software and hardware to accommodate the outbound flow of AED, efforts spent training staff on how to collect and transmit AED, and the costs related to accepted packages rejected from the United States because they do not meet mandatory AED requirements. Of these categories, the largest costs are associated with manually entering AED for transmission. The lowest cost categories are the one-time costs to upgrade hardware and train employees, in part because these costs would have been incurred—albeit in different years—in the absence of the STOP Act.

Exhibit 8 presents costs incurred by foreign posts in the pre-statute period (2013 through 2018). Total present value costs range from $46 million to $51 million, assuming discount rates of 3 and 7 percent, respectively. Nearly all of these costs (approximately 95 percent) result from the labor required to manually enter AED. Importantly, these costs have already been incurred.

Exhibit 9 presents costs likely to be incurred by foreign posts in the future, during the post-statute period (2019 through 2028). We estimate the total present value costs are likely to range from $150 million to $170 million, assuming discount rates of 7 and 3 percent, respectively. Labor costs associated with manually entering AED comprise the majority of these costs. Because we assume the amount of affected mail sent to the United States in future years remains constant, annual costs from 2021 (the year the interim final rule takes full effect) through 2028 are constant. 86

Exhibit 10 presents the combined cost of the rule in the United States, including costs incurred by CBP and USPS. We estimate the total present value cost incurred in the pre-statute period ranges from approximately $29 million to $33 million, assuming discount rates of 3 and 7 percent, respectively. In the post-statute period, total present value costs likely to be incurred by these entities range from $80 million to $94 million, assuming discount rates of 7 and 3 percent, respectively. Over the combined 16-year period (2013 through 2028), present value costs range from $110 million to $120 million, assuming discount rates of 7 and 3 percent, respectively.

For the purpose of preparing the Circular A-4 (OMB 2003) accounting statement (presented in Exhibits 13 and 14), we also estimate the equal annual payment that would need to be made over the period of analysis to achieve the present value costs estimated in Exhibit 10. On an annualized basis, total costs in the post-statute period are approximately $11 million, regardless of discount rate. Over the entire 16-year period, U.S. costs range from $7.7 to $8.3 million on an annualized basis, assuming discount rates of 7 and 3 percent, respectively. Annualized costs are smaller over the longer period because the relatively larger costs incurred in the post-statute period are spread over more years.

Exhibit 11 presents the total cost of the pilot and interim final rule, including costs incurred by both U.S. actors (CBP and USPS) and non-U.S. actors (the foreign posts). Specifically, we estimate total present value costs incurred in the pre-statute period are likely to range from $76 million to $84 million, assuming discount rates of 3 and 7 percent, respectively. In the post-statute period, we estimate that total present value costs are likely to range from $230 million to $270 million, assuming discount rates of 7 and 3 percent respectively. Over the entire 16-year period, total present value costs range from $310 million to $340 million, assuming discount rates of 7 and 3 percent, respectively.

On an annualized basis, total post-statute costs are estimated to be approximately $30 million, regardless of the discount rate assumption. Across the entire 16-year period, annualized costs range from $21 million to $22 million, assuming discount rates of 7 and 3 percent respectively. We present these annualized estimates for purposes of comparison with the estimates presented in Exhibit 10; however, for purposes of the Circular A-4 accounting statement, we focus on U.S.-based costs. 87

The AED interim final rule represents an important component of DHS's evolving layered strategy for limiting the flow of prohibited goods entering the United States. The rule provides CBP with earlier and more detailed information about international mail being received at IMFs. Specifically, the rule requires the information to be provided prior to loading the inbound mail shipment onto the transporting conveyance. The principal benefit of the new rule will be more precise identification of at-risk shipments at an earlier time. This information will allow for better targeting and aims to improve CBP's effectiveness in preventing prohibited mail items from entering the commerce of the United States.

Our analysis examines how AED may reduce adverse opioid-related outcomes. While this category of benefits is one of many possible outcomes of the rule, our focus on opioids reflects the principal objective of the STOP Act and the relative share of benefits that we anticipate will be attributable to this category. 88 We also emphasize seizures of fentanyl and related compounds because the drug disproportionately influences opioid-related deaths and international mail is a major distribution channel for producers in China and elsewhere. 89

For context, from 2017 to 2018, CBP officers at IMFs seized 616 mail containing fentanyl, totaling 119 kilograms of the drug, or 59.5 kilograms per year. This volume of fentanyl seizures is significant, particularly considering its high purity ( i.e., exceeding 90 percent by weight, CEA 2019). The influence of these seizures can be gauged by comparing the dosage to heroin consumption in the United States. Assuming a moderately high purity of 75 percent for seized fentanyl at IMFs and that 0.25 to 1 milligram of fentanyl is equivalent to a single dose of heroin, this represents roughly 45 to 179 million replacement doses seized annually. Put another way, the fentanyl seized at IMFs annually is equivalent to approximately 4 percent of the total heroin consumption annually, assuming 40 metric tons of heroin consumption and a 40:1 potency ratio of fentanyl relative to heroin. 90 91

Replacement doses may also be transformed into another metric, person-years of use, using basic assumptions on doses per year. Assuming 1,000 doses per person-year of use, the seized fentanyl represents roughly 45,000 to 179,000 person-years of use. The death rate per person-year of use is likely between one and four percent, meaning this annual volume of seizures may represent 450 to 7,160 overdose deaths in total. 92 93

Notably, current seizures are not fully attributable to the pilot program. While AED may aid in the detection and seizure of fentanyl, the total seizure amount is likely also due to other forms of targeting, including screening mail from countries of interest. Nonetheless, the staggering volume of fentanyl seizures suggests that even small improvements in CBP's targeting capabilities resulting from the use of AED will likely result in benefits exceeding the cost of obtaining and using AED in the targeting process. We also note that efforts to reduce the risk of opioid addiction, consistent with Executive Order 13563, help promote “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” This is so especially in view of the fact that the relevant risks, including that or premature death, are often inflicted on particularly vulnerable members of society.

The interim final rule will only generate benefits if AED improves CBP's ability to target mail containing illicit goods. Data from the JFK pilot provides clear evidence that AED improves CBP's ability to target mail containing illicit goods. AED targeting increased the seizure rate per inspection from 9.29 percent under conventional targeting to 16.26 percent. CBP believes that this will result in a higher seizure rate of fentanyl and other dangerous goods, but CBP databases do not separately track AED seizures for fentanyl specifically compared to conventional targeting. While data doesn't exist to show that fentanyl seizures would have also increased due to AED, there is no reason to believe that fentanyl seizures would be different from overall seizures in this regard. During the regulatory period, the improvements in targeting will be applied to a much larger portion of mail than in the pilot period because AED will be the standard requirement for all countries. CBP has seen bad actors use transshipment as a means of circumventing the enhanced enforcement that results from advance reporting of data. Requiring all countries to submit AED will close this security gap and increase the seizures from all countries. The exact effect of these seizures on the growing opioid epidemic is less clear. Literature on the effectiveness of supply-side drug policy is both limited and discouraging. For the fentanyl market, empirical studies on drug interdiction have not yet been published. However, available qualitative literature in related markets provides a more optimistic perspective on the anticipated outcomes stemming from the interim final rule because of fentanyl's lethality and its ongoing emergence as an illicit market. As discussed in more detail in section 5.1 of the full regulatory impact analysis available in the docket of this rulemaking, because fentanyl's emergence in illicit markets is relatively new, there is reason to believe that increased interdiction would reduce overall illicit use of fentanyl.

Nonetheless, data limitations hinder our ability to quantify the effectiveness, and thus the benefits, of the interim final rule. Most notably, we are unable to quantify the effect of fentanyl seizures on total use of the drug. Our assessment of benefits is therefore limited to this qualitative discussion. Quantification of the benefits of the interim final rule is unusually challenging. While the pilot programs suggest that the rule may result in additional package seizures, it is not possible to extrapolate from any estimated increase in seized packages a number to represent likely benefits, including mortality reductions, from the interim final rule. This is particularly true because of uncertainty about the effectiveness of supply-side drug policies.

Important intended effects of the interim final rule are reduced mortalities from overdoses; other important intended effects include reductions in morbidity resulting from opioid addiction. It is possible to imagine a range of plausible scenarios, in which the interim final rule has different impacts on health and economic end-states. Further, while the rule is focused on the prevention of opioid deaths as its intended goal, additional information for targeted cargo screening obtained through AED could also be used to screen for CBP's other targets such as counterfeit and dangerous goods, fraudulent goods, or illicit biological matter, or even in counterterrorism. As it related to opioids, DHS is able to describe possible scenarios rather than estimates of net benefits. Each of those scenarios involves a degree of speculation, making it hazardous to make even qualitative judgments about which is most likely to occur.

As its standard practice, DHS values a statistical life at $9.6 million. 94 The quantified costs of the rule from the post-statute period are about $31 million annualized, but the unquantified costs of the rule may be substantial. Under one scenario, the interim final rule could have a moderate effect, preventing ten premature deaths annually; under a more conservative scenario, the interim final rule could have a more modest effect, perhaps preventing five premature deaths annually. Under the moderate scenario if the rule prevented 10 premature deaths by screening for and successfully seizing opioids as they enter the country, and if the unquantified costs were roughly equal to the quantified costs, the rule could provide benefits well in excess of costs. Under the more modest scenario if the rule prevented five premature deaths and if the unquantified costs were roughly equal to half the quantified costs, the rule would also have benefits in excess of costs. Accepting the high degree of uncertainty, taking account of the magnitude of the underlying problem, and recognizing that the rule is likely to have additional benefits from assisting CBP's targeting to prevent smuggling of other items, DHS believes, in the terms of Executive Order 13563, “that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify).”

CBP is considering three alternative time frames by which CBP must electronically receive AED from USPS: The preferred alternative that is the subject of the extensive quantitative analysis presented in this RIA, as well as two additional alternatives that are more and less stringent. Below we describe each alternative:

Alternative 1 (the preferred alternative): CBP must receive AED from USPS as soon as practicable, but no later than prior to loading the inbound international mail shipment onto the transporting conveyance destined for the United States. CBP must electronically receive from the USPS updates to the AED, if any of the submitted data changes or more accurate data becomes available after the USPS transmits the AED. USPS must provide these updates as soon as it becomes aware that any of the submitted data changes or as soon as it becomes aware that more accurate data is available. USPS must submit updated information up until the timeframes set forth for updating AED in 19 CFR 122.48b(b)(2) (which matches the requirement to update AED currently required for commercial cargo shipments). USPS may submit updates up until the mail shipment arrives at the first CBP port in the United States.

Alternative 2: Same as Alternative 1; however, instead of requiring USPS to update AED if any of the submitted data elements changes or more details are provided, CBP would require USPS to provide updated AED for all mail shipments regardless of a change to confirm PREDES data prior to departure of the transport from the origin post.

Alternative 3: Same as Alternative 1; however, instead of requiring USPS to transmit AED prior to loading, CBP would require USPS to transmit AED information prior to arrival.

By evaluating these three alternatives, CBP is seeking the most favorable balance between benefits ( i.e., security outcomes) and costs. In summary:

• CBP believes that Alternative 1 provides the most favorable combination of cost and stringency as it allows for flexibility while meeting the necessary security requirements.

• Alternative 2 is the most stringent alternative, and its costs are likely to be greater than the costs estimated for Alternative 1. At the same time, this alternative would likely result in increased benefits due to better targeting ( i.e., more time to conduct risk assessments based on information provided in the updated AED as well as providing greater certainty in the accuracy of the information). However, CBP anticipates that the increased benefits are marginal and do not justify the additional costs.

• Alternative 3 is the least stringent alternative, and its costs are likely lower than the costs we estimate for Alternative 1. However, these cost savings come at the expense of providing the time required for CBP to properly perform risk assessments, potentially resulting in many packages with AED going unanalyzed. Though this alternative would give the foreign posts and USPS more time to transmit the information to CBP and could lead to fewer corrections, most filings can be submitted by the Alternative 1 time frame without a problem, and Alternative 3 may not provide adequate security.

Exhibit 13 provides a cost accounting statement for the interim final rule (post-statute period, 2019 through 2028). Exhibit 14 provides a cost accounting statement for the overall time frame of this analysis (pre-statute and post-statute periods, 2013 through 2028).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires Federal agencies to examine the impact a rule would have on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). Because this rule is being issued as an interim final rule under the good cause exception (5 U.S.C. 553(b)(B)), as set forth above, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601-612).

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

CBP will ensure that all Privacy Act requirements and policies are adhered to in the implementation of this rule, and will issue or update any necessary Privacy Impact Assessment and/or Privacy Act System of Records notice to fully outline processes that will ensure compliance with Privacy Act protections.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. There is no new information collection request burden placed on the public associated with this rule as the burden is imposed on a partner government agency. As such, the provisions of the Act do not apply to this rule.

For purposes of Congressional Review Act (CRA), the Office of Management and Budget (OMB) makes a determination as to whether a final rule constitutes a “major” rule. 5 U.S.C. 801-808. If a rule is deemed a “major rule” by the OMB, the CRA generally provides that the rule may not take effect until at least 60 days following its publication. 5 U.S.C. 801(a)(3). However, the CRA provides that if agency finds good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the rule shall take effect at such time as the agency determines. 5 U.S.C. 808(2).

The CRA defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic and export markets. 5 U.S.C. 804(2). The Office of Information and Regulatory Affairs has determined that this rule does constitute a major rule under 5 U.S.C. 804. However, DHS is proceeding with good cause and this rule will not be subject to the typical 60 day delayed effective date. See 5 U.S.C. 808(2). As discussed in more detail in section V.A Administrative Procedure Act, the COVID-19 pandemic has accelerated drug overdose deaths, resulting in over 81,000 drug overdose deaths in the 12-month period ending in May 2020. CDC notes that “synthetic opioids (primarily illicitly manufactured fentanyl) appear to be the driver,” increasing 38.4 percent relative to the prior year. Ten western states reported a more than 98 percent increase in synthetic opioid-involved deaths over the same period. 95 CBP believes this rule will address a regulatory gap related the importation of illicit opioids and that delaying the implementation of this rule could result in serious harm to public health and safety by continuing to allow the illicit flow of opioids into the country while the procedural periods elapse.

Pursuant to section 343(a)(3)(L) of the Trade Act of 2002 (19 U.S.C. 1415 (a)(3)(L)), DHS must submit a report regarding this interim final rule document to the Committees on Finance and Commerce, Science, and Transportation of the Senate and the Committees on Ways and Means and Transportation and Infrastructure of the House of Representatives not later than 15 days prior to publication in the Federal Register . DHS has timely submitted the required report.

The signing authority for this document falls under 19 CFR 0.2(a). Accordingly, this document is signed by the Secretary of Homeland Security.

For the reasons set forth above, CBP amends parts 4, 122, 123, 145, and 149 of title 19 of the Code of Federal Regulations (19 CFR parts 4, 122, 123, 145, and 149) as follows:

PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes actuarial assumptions—including interest assumptions—for valuing benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulation are also published on PBGC's website ( https://www.pbgc.gov ).

PBGC uses the interest assumptions in appendix B to part 4044 (“Interest Rates Used to Value Benefits”) to determine the present value of annuities in an involuntary or distress termination of a single-employer plan under the asset allocation regulation. The assumptions are also used to determine the value of multiemployer plan benefits and certain assets when a plan terminates by mass withdrawal in accordance with PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281).

The second quarter 2021 interest assumptions will be 1.82 percent for the first 20 years following the valuation date and 1.68 percent thereafter. In comparison with the interest assumptions in effect for the first quarter of 2021, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), an increase of 0.13 percent in the select rate, and an increase of 0.02 percent in the ultimate rate (the final rate).

PBGC has determined that notice of, and public comment on, this rule are impracticable, unnecessary, and contrary to the public interest. PBGC routinely updates the interest assumptions in appendix B of the asset allocation regulation each quarter so that they are available to value benefits. Accordingly, PBGC finds that the public interest is best served by issuing this rule expeditiously, without an opportunity for notice and comment, and that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication to allow the use of the proper assumptions to estimate the value of plan benefits for plans with valuation dates early in the second quarter of 2021.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows: