Forest Service
Economic Analysis Bureau
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Western Area Power Administration
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Community Living Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Ocean Energy Management Bureau
Justice Programs Office
Federal Highway Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
In rule document 2019-12437, appearing on pages 29288 through 29370, in the issue of Friday, June 21, 2019 make the following corrections:
1. On page 29337, Table 1 to paragraph (b)(2)(iv)(B) should appear as follows:
2. On page 29338, Table 1 to paragraph (b)(2)(vi)(B)(1) should appear as follows:
3. On the same page, Table 1 to paragraph (b)(2)(vi)(B)(
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain waters of the Tennessee River.
This rule is effective from 8:45 p.m. to 10 p.m. on August 31, 2019.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this proposed rulemaking, call or email MST2 Dylan Caikowski, MSU Paducah, U.S. Coast Guard; telephone 270-442-1621 ext. 2120, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. It is impracticable to publish an NPRM because this safety zone must be established by August 31, 2019 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with a pyrotechnics display on August 31, 2019, will be a safety concern for anyone within a 350-foot radius of the pyrotechnics display. This rule is needed to protect personnel on the navigable waters within the safety zone prior to, during, and after a pyrotechnics display.
This rule establishes a safety zone from 8:45 p.m. until 10 p.m. on August 31, 2019. The safety zone will cover all navigable waters within a 350-foot radius from the pyrotechnics launch site at the entrance to Kentucky Dam Marina at mile marker 22.6 on the Tennessee River. The duration of the zone is intended to protect personnel and vessels in these navigable waters prior to, during, and after a pyrotechnic display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone, which will impact a 350-foot radius designated area of the Tennessee River for one hour and fifteen minutes on August 31, 2019. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners (BNMs) via VHF-FM marine channel 16 to inform mariners about the zone, and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the
A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one hour and fifteen minutes that will prohibit the entry of vessels and persons within a 350-foot radius of the entrance to Kentucky Dam Marina at mile marker 22.6 on the Tennessee River in Gilbertsville, KY. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by phone at 502-779-5400.
(3) If permission is granted, all persons and vessels must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule; technical amendments.
The Environmental Protection Agency (EPA) is amending its regulations to reflect a change in address and organization names for EPA's Region 6 office. This action is editorial in nature and is intended to provide accuracy and clarity to EPA's regulations.
This rule is effective on August 23, 2019.
EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
Carl Young, EPA Region 6, 214-665-6645,
This rule makes editorial changes to various environmental regulations in title 40 of the Code of Federal Regulations (CFR) to reflect a change in address and organization names for the Region 6 office. It does not otherwise impose or amend any requirements. Pursuant to 5 U.S.C. 533 (b)(3)(B) of the Administrative Procedure Act (APA), EPA has found that the public notice and comment provisions of the APA, found at 5 U.S.C. 553(b), do not apply to this rulemaking as public notice and comment is unnecessary because this amendment to the regulations provides only technical changes to update an address or an organization name. EPA has also determined that there is good
Environmental protection, Organization and functions (Government agencies).
Small businesses.
Environmental protection, Air pollution control, Coastal zone, Grant programs-environmental protection, Grant programs-Indians, Hazardous waste, Indians, Intergovernmental relations, Pesticides and pests, Reporting and recordkeeping requirements, Technical assistance, Waste treatment and disposal, Water pollution control, Water supply.
Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Administrative practice and procedure, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements.
Air pollution control, Reporting and recordkeeping requirements, Volatile organic compounds.
Administrative practice and procedure, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
Administrative practice and procedure.
Administrative practice and procedure, Air pollution control, Environmental protection, Hazardous substances, Reporting and recordkeeping requirements.
Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Administrative practice and procedure, Air pollution control, Chemicals, Exports, Imports, Labeling, Reporting and recordkeeping requirements.
Intergovernmental relations, Reporting and recordkeeping requirements.
Hazardous waste, Intergovernmental relations.
Hazardous substances, Intergovernmental relations, Oil pollution, Water pollution control, Water supply.
Administrative practice and procedure, Hazardous substances, Hazardous waste, Superfund.
Chemicals, Environmental protection, Exports, Hazardous substances, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Asbestos, Intergovernmental relations, Reporting and recordkeeping requirements, Schools.
Therefore, chapter I of title 40 of the Code of Federal Regulations is amended as follows:
5 U.S.C. 552.
(b) * * *
(6) EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102. (Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.)
15 U.S.C. 636, as amended by Pub. L. 92-500.
(a) * * *
42 U.S.C. 4368b, unless otherwise noted.
(f) TAG Coordinator or Grants Office, U.S. EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
42 U.S.C. 7401
(g) * * *
(f) * * *
(f) * * *
42 U.S.C. 7401
(d) * * *
(2) * * *
(vi) Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Environmental Protection Agency, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
(b) * * *
(6) Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Environmental Protection Agency, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at
(c) * * *
(25) Reporting and recordkeeping requirements. Unless otherwise stated all requests, reports, submittals, notifications, and other communications to the Regional Administrator required under this paragraph (c) shall be submitted, unless instructed otherwise, to the Director, Air and Radiation Division, U.S. Environmental Protection Agency, Region 6, to the attention of Mail Code: AR, at 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102. For each unit subject to the emissions limitation under this paragraph (c), the owner or operator shall comply with the following requirements, unless otherwise specified:
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at
(f) Reporting and Recordkeeping Requirements. Unless otherwise stated all requests, reports, submittals, notifications, and other communications to the Regional Administrator required by this section shall be submitted, unless instructed otherwise, to the Director, Air and Radiation Division, U.S. Environmental Protection Agency, Region 6, to the attention of Mail Code: AR, at 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102. For each unit subject to the emissions limitation in this section and upon completion of the installation of CEMS as required in this section, the owner or operator shall comply with the following requirements:
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at
(a) * * *
(6)
42 U.S.C. 7414 and 7511b(e).
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), Director, Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), Director, Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), Director, Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), Director, Enforcement and Compliance Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
42 U.S.C. 7401
(a) * * *
Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas); Director; Enforcement and Compliance Assurance Division; U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
42 U.S.C. 7401
(a) * * *
Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas); Director; Enforcement and Compliance Assurance Division; U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
42 U.S.C. 7401
Except as otherwise provided in § 60.23 of this chapter, all requests, reports, applications, submittals, and other communications to the Administrator pursuant to this part shall be submitted in duplicate and addressed to the appropriate Regional Office of the Environmental Protection Agency, to the attention of the Director, Air and Radiation Division. The Regional Offices are as follows:
42 U.S.C. 7401
(a) * * *
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas); Director; Enforcement and Compliance Assurance Division; U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
42 U.S.C. 7401
(a) * * *
Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas); Director; Compliance Assurance and Enforcement Division; U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102.
42 U.S.C. 7414, 7601, 7671-7671q.
(a) * * *
(1) * * *
(iii) * * *
(F) Owners or lessees of recycling or recovery equipment having their places of business in Arkansas, Louisiana, New Mexico, Oklahoma, Texas must send their certifications to: CAA Section 609 Enforcement Contact, EPA Region 6, 1201 Elm Street, Suite 500, Mail Code 6ECDAP, Dallas, Texas 75270-2102.
42 U.S.C. 300h
(a)
Sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
(c) * * *
(1)
(c) * * *
(1) The Louisiana statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921
(4) * * *
(ii) * * *
(B) The actual State regulatory text authorized by EPA (
(c) * * *
(1) The New Mexico statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921
(c) * * *
(1) The Oklahoma statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921
(c) * * *
(1) The Texas statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under Subtitle C of RCRA, 42 U.S.C. 6921
(4) * * *
(i) The following authorized provisions of the Texas regulations include amendments published in the Texas Register that are not approved by EPA. Such unauthorized amendments are not part of the State's authorized program and are, therefore, not Federally enforceable. Thus, notwithstanding the language in the Texas hazardous waste regulations incorporated by reference at paragraph (c)(1)(i) of this section, EPA will enforce the State provisions that are actually authorized by EPA. The effective dates of the State's authorized provisions are listed in the table in this paragraph (c)(4)(i). The actual State regulatory text authorized by EPA (
42 U.S.C. 6912, 6991c, 6991d, and 6991e.
(b)* * *
(6) Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas): 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
(d)* * *
(1)
42 U.S.C. 9659.
Regional Administrator, Region VI, U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102.
15 U.S.C. 2611(b) and 2612.
(c)* * *
(2)* * *
(ii)* * *
1201 Elm Street, Suite 500, Dallas, Texas 75270-2102 (214-665-2760).
15 U.S.C. 2605, 2607(c), 2643, and 2646.
II. * * *
C. * * *
3. * * *
EPA, Region VI, (ECD), Asbestos Coordinator, 1201 Elm Street, Suite 500, Dallas, TX 75270, (214) 655-2760.
Asbestos NESHAP Contact, Enforcement and Compliance Assurance Division, USEPA Region VI, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270-2102, (214) 655-2760.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a State Implementation Plan (SIP) revision submitted by the State of Missouri on November 2, 2018. This final action replaces a Consent Decree in Missouri's SIP with an Administrative Order on Consent (AOC) between the Missouri Department of Natural Resources (MoDNR) and Kansas City Power and Light (KCPL). The EPA is also approving an amendment to the AOC. This action strengthens Missouri's SIP by replacing an outdated Consent Decree with an AOC and its Amendment that reflect current operating conditions at the facility and does not result in an increase in sulfur dioxide (SO
This final rule is effective on September 23, 2019.
The EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2019-0289. All documents in the docket are listed on the
Jonathan Meyer, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number (913) 551-7140; email address
Throughout this document “we,” “us,” and “our” refer to the EPA.
On June 17, 2019, the EPA proposed to approve revisions in the
The EPA is approving a SIP revision submitted by the State of Missouri on November 2, 2018. The revision consists of an AOC between the MoDNR and KCPL that limits emissions of SO
A detailed discussion of Missouri's SIP revision was provided in EPA's June 17, 2019,
The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from July 30, 2018, to September 6, 2018, and received zero comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
We are taking final action to replace the May 25, 2001, St. Joseph Light and Power Consent Decree with the 2015 AOC and 2018 Amendment between MoDNR and KCPL.
In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Source-Specific Orders described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through
Therefore, these materials have been approved by the EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.
Also, in this document, as described in the amendments to 40 CFR part 52 set forth below, the EPA is removing provisions of the EPA-Approved Missouri Source-Specific Permits and Orders from the Missouri State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.
Under the CAA, the Administrator is required to approve a SIP submission
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
The revision and additions read as follows:
(d) * * *
Environmental Protection Agency (EPA).
Final rule.
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving revisions to the Arkansas State Implementation Plan (SIP) Permitting Programs submitted on October 24, 2002, July 26, 2010, November 6, 2012, and March 24, 2017. Most of the revisions are administrative in nature and make the SIP current with Federal rules. In addition, the revisions add permit flexibility provisions to the NSR program. This final action is consistent with the requirements of section 110 of the CAA.
This rule is effective on September 23, 2019.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2019-0301. All documents in the docket are listed on the
Ashley Mohr, EPA Region 6 Office, Air Permits Section, 1201 Elm Street, Suite 500, Dallas, TX 75270, 214-665-7289,
Throughout this document “we,” “us,” and “our” means the EPA.
The background for this action is discussed in detail in our May 31, 2019 proposal (84 FR 25218). In that document we proposed to approve SIP revisions submitted by Arkansas on October 24, 2002, July 26, 2010, November 6, 2012, and March 24, 2017. The revisions addressed in that action include administrative revisions, revisions that make the Arkansas SIP current with Federal rules, and revisions that add permit flexibility provisions to the NSR program.
We are approving portions of the revisions to the Arkansas SIP submitted on October 24, 2002, July 26, 2010, November 6, 2012, and March 24, 2017. Specifically, we are approving the following revisions:
• Revisions to Regulation 19, Chapter 4 adopted on December 5, 2008 (effective January 25, 2009), June 22, 2012 (effective July 9, 2012), October 26, 2012 (effective November 18, 2012), and February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 19, Chapter 7 adopted on February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 19, Chapter 9 adopted on February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 19, Chapter 11 adopted on February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 19, Appendix A adopted on December 5, 2008 (effective January 25, 2009), June 22, 2012 (effective July 9, 2012), October 26, 2012 (effective November 18, 2012), and February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 26, Chapter 3 adopted on August 23, 2002 (effective September 26, 2002), December 5, 2008 (effective January 25, 2009), and February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 26, Chapter 4 adopted on August 23, 2002 (effective September 26, 2002), December 5, 2008 (effective January 25, 2009), June 22, 2012 (effective July 9, 2012), October 26, 2012 (effective November 18, 2012), and February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 26, Chapter 5 adopted on December 5, 2008 (effective January 25, 2009) and February 26, 2016 (effective March 14, 2016);
• Revisions to Regulation 26, Chapter 6 adopted on August 23, 2002 (effective September 26, 2002), December 5, 2008 (effective January 25, 2009), and February 26, 2016 (effective March 14, 2016); and
• Non-substantive revisions throughout the current SIP-approved portions of Regulation 19 and 26 that replace “Section” with “Reg.” within section headings (
This action is being taken under section 110 of the Act. EPA is not taking any action on the portions of the July 26, 2010 and November 6, 2012 SIP revision submittals that were listed in the letter from Arkansas dated March 28, 2019, that requested the withdrawal of those revisions from EPA's consideration for approval into the Arkansas SIP.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference the revisions to the Arkansas regulations as described in the Final Action section above. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The additions and revisions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action for 11 ozone nonattainment areas that are classified as “Moderate” for the 2008 ozone national ambient air quality standards (NAAQS). First, the agency is determining that two Moderate areas—Baltimore, Maryland, and Mariposa County, California—attained the standards by the July 20, 2018, applicable attainment date. Second, the agency is granting a 1-year attainment date extension for the two Moderate areas in Sheboygan County, Wisconsin—Inland Sheboygan County, Wisconsin, and Shoreline Sheboygan County, Wisconsin. Third, the agency is determining that seven Moderate areas failed to attain the standards by the applicable attainment date—Chicago-Naperville, Illinois-Indiana-Wisconsin; Dallas-Fort Worth, Texas; Greater Connecticut, Connecticut; Houston-Galveston-Brazoria, Texas; Nevada County (Western part), California; New York-North New Jersey-Long Island, New York-New Jersey-Connecticut; and San Diego County, California. The effect of failing to attain by the applicable attainment date is that these areas will be reclassified by operation of law to “Serious” nonattainment for the 2008 ozone NAAQS on September 23, 2019, the effective date of this final rule. Accordingly, the responsible state air agencies must submit State Implementation Plan (SIP) revisions and implement controls to satisfy the statutory and regulatory requirements for Serious areas for the 2008 ozone
This rule is effective on September 23, 2019.
The EPA established Docket ID No. EPA-HQ-OAR-2018-0226 for this action. All documents on the docket are listed at
For further general information on this final rule, contact Ms. Virginia Raps, Air Quality Policy Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code: C539-01, Research Triangle Park, NC 27711, telephone (919) 541-4383; fax number: (919) 541-5315; email address:
On November 14, 2018, the EPA proposed actions to fulfill its statutory obligation under Clean Air Act (CAA or the Act) section 181 to determine whether 11 Moderate ozone nonattainment areas attained the 2008 ozone NAAQS by July 20, 2018, the applicable attainment date for such areas.
First, the EPA proposed to find that two areas—Baltimore, Maryland, and Mariposa County, California—attained the 2008 ozone NAAQS by the applicable attainment date based on complete, quality-assured and certified ozone air quality monitoring data for the 2015-2017 calendar years.
Second, the EPA proposed to grant state requests for a 1-year extension of the attainment date from July 20, 2018, to July 20, 2019, for two areas—Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, and Sheboygan County, Wisconsin. The proposed extensions were based on the states' specific requests for such extensions and compliance with the criteria under CAA section 181(a)(5)(B) and 40 CFR 51.1107,
Third, the EPA proposed to find that seven areas failed to attain the 2008 ozone NAAQS by the applicable attainment date and did not qualify for a 1-year attainment date extension: Chicago-Naperville, Illinois-Indiana-Wisconsin; Dallas-Fort Worth, Texas; Greater Connecticut, Connecticut; Houston-Galveston-Brazoria, Texas; Nevada County (Western part), California; New York-North New Jersey-Long Island, New York-New Jersey-Connecticut; and San Diego County, California. The proposed determination for each of these areas was based upon complete, quality-assured and certified ozone air quality monitoring data that showed that the 8-hour ozone design value for the area exceeded 0.075 ppm for the period 2015-2017. The EPA proposed that these seven areas would be reclassified as Serious nonattainment areas by operation of law on the effective date of a final action finding that these areas failed to attain the 2008 ozone NAAQS by the applicable attainment date for Moderate areas.
In the November 2018 proposal, the EPA also solicited comment on adjusting the due dates, in accordance with CAA section 182(i), for SIP submissions and setting deadlines for implementation of reasonably available control technology (RACT) for ozone nonattainment areas that would be reclassified to Serious. Under CAA section 181(b)(2), Moderate nonattainment areas that fail to attain the 2008 ozone NAAQS by the applicable attainment date for such areas will be reclassified as Serious by operation of law upon the effective date of the final reclassification action. Each responsible state air agency must subsequently submit a SIP revision that satisfies the air quality planning requirements for a Serious area under CAA section 182(c).
On July 20, 2012, when final nonattainment designations became effective for the 2008 ozone NAAQS, states responsible for areas initially classified as Serious were required to submit SIP revisions by due dates relative to that effective date. For those areas, the SIP submission due dates ranged from 2 to 4 years after July 20, 2012, depending on the required SIP “element” (
First, the EPA proposed that states submit Serious area SIP revisions (including RACT measures tied to attainment) and implement those RACT measures no later than 12 months from the effective date of the final reclassification action. Second, the EPA proposed the date for submitting SIP revisions addressing RACT measures not tied to attainment and implementing those measures as August 3, 2020, which is the deadline for areas classified Moderate and higher for the 2015 ozone NAAQS to submit RACT SIP revisions.
In CAA section 182(c), the schedule for submitting attainment planning requirements for Serious areas is 4 years from the effective date of nonattainment designation.
The EPA also proposed that any RACT that states determine is needed for meeting RFP or timely attainment of the 2008 ozone NAAQS would need to be implemented by the date that the attainment plan is due,
Due dates for SIP submission often precede the deadline for implementation of control strategies contained in those SIP submissions. However, given the compressed timeframe available for states to meet the July 20, 2021, attainment date for Serious areas, the EPA considered that, at the very least, it would be appropriate to align the due date for RACT SIP submissions with the deadline for implementation of any new control measures contained in that RACT SIP.
As provided for in CAA section 182(i), the Administrator may adjust deadlines for reclassified areas “to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” In the November 2018 proposal, the EPA interpreted “consistency among the required submissions” to allow for consideration of “required submissions” for various ozone NAAQS that are being implemented simultaneously. Since all the areas that are subject to reclassification to Serious upon the effective date of this final reclassification action are also designated nonattainment for the 2015 ozone NAAQS or are in the Ozone Transport Region (OTR), the same state air agencies are required under CAA section 182 to submit SIP revisions for certain SIP elements for the 2015 ozone
Under CAA section 182(i), reclassified areas generally are required to submit SIP revisions associated with their new classification “according to the schedules prescribed in connection with such requirements.” CAA section 182(b)(2), which establishes the RACT requirement for ozone nonattainment areas classified as Moderate or above, and CAA section 184(b), which establishes RACT requirements for states in the ozone transport region, provide a 24-month schedule for compliance with those requirements.
This proposed deadline of August 3, 2020, was based on EPA's estimation at proposal that the date would be approximately 18 months after the anticipated effective date of the final reclassification action. EPA also proposed the same date for the submission due date for related SIP revisions for RACT measures not tied to attainment discussed in Section I.B.2 of this final reclassification action.
Areas originally classified as Moderate and higher for the 2008 ozone NAAQS had just under 5 years to implement ozone RACT requirements (by January 1 of the fifth year after the effective date of designation,
Following EPA's issuance of the November 2018 proposal, two significant events occurred which have bearing on this final rule. First, on March 26, 2019, the State of Colorado's Governor Jared Polis sent a letter to EPA to withdraw the state's request for a 1-year attainment date extension.
Second, since the EPA issued its November 2018 proposal, the agency has taken final action to approve a request from the State of Wisconsin to revise the designation for the Sheboygan County nonattainment area for the 1997 and 2008 primary and secondary ozone NAAQS, by splitting the historic nonattainment area into two distinct nonattainment areas that together cover the identical geographic area of Sheboygan County, Wisconsin.
The public comment period for EPA's November 2018 proposal closed on December 14, 2018. To accommodate a request for a public hearing, the comment period was subsequently reopened on February 8, 2019, a public hearing was held on February 15, 2019, and the comment period closed on February 22, 2019.
All comments received during these two public comment periods may be found in the electronic docket for this final action. In this section describing EPA's final actions, certain key comments and the agency's responses are included. A Response to Comments document including all significant comments received on the EPA's proposal and the agency's responses to those comments is also included in the docket for this rulemaking. To access the full set of comments received and the Response to Comments document, please go to
Due to the withdrawal of Colorado's request for a 1-year attainment date extension, EPA is not taking final action for the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, nonattainment area in this final rule. However, EPA is finalizing the attainment date extension for both portions of the historic Sheboygan, Wisconsin, nonattainment area (
Pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1103, the EPA is making final determinations that the Baltimore, MD, and Mariposa County, CA, Moderate nonattainment areas listed in Table 2 attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2018. Once effective, this final action satisfies the EPA's obligation pursuant to CAA section 181(b)(2)(A) to determine, based on an area's air quality as of the attainment date, whether the area attained the standard by the applicable attainment date. The effect of a final determination of attainment by an area's attainment date is to discharge the EPA's obligation under CAA section 181(b)(2)(A), and to establish that, in accordance with CAA section 181(b)(2)(A), the area will not be reclassified for failure to attain by the applicable attainment date.
These determinations of attainment do not constitute a redesignation to attainment as provided for under CAA section 107(d)(3). Redesignations require states to meet additional statutory criteria, including the EPA approval of a state plan demonstrating maintenance of the air quality standard for 10 years after redesignation, as required under CAA section 175A. As for all NAAQS, the EPA is committed to working with states that choose to submit redesignation requests for the 2008 ozone NAAQS.
Pursuant to CAA section 181(a)(5), the EPA is taking final action to grant a 1-year extension of the applicable attainment date from July 20, 2018, to July 20, 2019, for the two nonattainment areas in Sheboygan County, Wisconsin—Inland Sheboygan County, WI, and Shoreline Sheboygan County, WI.
The EPA is not taking final action to grant a 1-year extension for the Denver area because the State withdrew its request for an extension, and the EPA interprets that request to be a necessary prerequisite to an extension of the attainment date under CAA section 181(a)(5). The EPA is therefore addressing whether the Denver area attained the 2008 ozone NAAQS by the July 20, 2018 attainment date and any associated reclassification in a separate action.
Pursuant to CAA section 181(b)(2), the EPA is finalizing its proposed determinations that the seven Moderate nonattainment areas listed in Table 2 have failed to attain the 2008 ozone NAAQS by the applicable attainment date of July 20, 2018. Therefore, upon the effective date of this final action, these seven areas will be reclassified, by operation of law, to Serious for the 2008 ozone NAAQS. Once reclassified to Serious, these areas will be required to attain the standard “as expeditiously as practicable” but no later than 9 years after the initial designation as nonattainment, which in this case would be no later than July 20, 2021. If any of these areas attains the 2008 ozone NAAQS prior to the Serious area attainment date, the relevant state may request redesignation to attainment, provided the state can demonstrate that the criteria under CAA section 107(d)(3)(E) are met.
Following the November 2018 proposal, the California Air Resources Board submitted a request under CAA section 181(b)(3) to voluntarily reclassify the Nevada County (Western part) nonattainment area from Moderate to Serious nonattainment for the 2008 ozone standards.
The EPA received some adverse comments on its proposal to determine that certain areas failed to attain by the applicable attainment date and to reclassify those areas to Serious nonattainment. For a discussion of additional comments received on the proposal and responses to those comments, please see the Response to Comments document in the docket for this action.
The EPA received comments on the proposed alternatives for the Serious area deadlines for submitting SIP and RACT revisions, and on the deadlines for implementation of RACT. After full consideration of those comments, and pursuant to CAA section 182(i), the EPA is finalizing the SIP submission due dates and RACT implementation deadlines.
The EPA's decision to finalize the date of August 3, 2020, for these deadlines was informed by several factors. The EPA proposed a due date of 12 months from the effective date of a final action for these SIP elements and the implementation deadline for RACT measures tied to attainment in its November 2018 proposal. At the time of proposal, the agency had hoped to issue a timely final action—by January 2019. Under such a scenario, the actual due dates for Serious area SIP submissions and deadlines for implementation of RACT measures tied to attainment
The timeliness of the final action was delayed when the EPA received a request to schedule a public hearing on the proposal around the time of the lapse in government appropriations, otherwise referred to as the Federal Government shutdown, occurred beginning on December 22, 2018, and ended January 25, 2019. Consequently, while the original public comment period for the November 2018 proposal closed on December 14, 2018, the EPA was unable to hold a public hearing in December. As quickly as possible after the shutdown ended, and the Government resumed normal operations, the EPA reopened the public comment period on February 8, 2019, held the public hearing on February 15, 2019,
More specifically, although the EPA did not propose August 3, 2020, as a due date for these particular SIP submissions, the date was proposed as the due date for SIP revisions addressing RACT measures not tied to attainment and proposed for the deadline for implementation of those RACT measures. In the November 2018 proposal, the EPA provided its rationale for proposing August 3, 2020, to provide for “consistency among submissions” that may be due from a nonattainment area for more than one NAAQS. For the reasons provided to proposing the August 3, 2020, due date for SIP submissions and the deadline for implementation of RACT measures not tied to attainment, the EPA believes that establishing August 3, 2020, as the due date for Serious-area SIP submissions (including RACT measures tied to attainment) and the implementation deadline of those RACT measures, would more effectively meet the objective of having consistency among submissions pursuant to CAA section 182(i), rather than a deadline that is 12 months from the effective date of this final rule.
2.
The proposal's due date of August 3, 2020, for RACT submissions not tied to attainment was expected to be roughly 18 months from the effective date of the
While EPA is not electing to finalize a due date of 24 months from the effective date of this action (approximately August 2021), we are also electing not to finalize a due date of August 3, 2020, given that such a date would provide just under 12 months from the effective date. Because the measures that states identify as “reasonably available” are directly tied to the time provided by the EPA in establishing such a due date, providing a slightly longer timeframe (
The EPA notes that the notion embodied in this provision is consistent with several other CAA provisions to establish a SIP submission due date for an area that has failed to attain a NAAQS by the relevant attainment date that may be shorter than the SIP submission due date for the first plan due after an area is initially designated as nonattainment.
Finally, the EPA is cognizant and in agreement with the commenter who stated that a due date of 18 months (which was the expected amount of time the EPA anticipated with an August 3, 2020, due date) could allow states to identify additional controls as “reasonably available” in comparison with the shorter deadline.
Thus, the EPA is finalizing July 20, 2021, the Serious area attainment date, as the deadline for implementation of RACT measures not tied to attainment. Given the intervening time between proposed and final rules, an August 3, 2020, deadline for implementation of RACT measures not tied to attainment would limit the controls that states could consider implementing. As noted
The CAA requires that states with areas designated as nonattainment submit to the Administrator the appropriate SIP revisions and implement specified control measures by certain dates applicable to the area's classification. By requiring additional planning and implementation requirements for the seven nonattainment areas that the EPA determined failed to attain the 2008 ozone NAAQS standards, the part of this action reclassifying those seven areas from Moderate to Serious will protect all those residing, working, attending school, or otherwise present in those areas regardless of minority or economic status.
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This rule does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The determinations of attainment and failure to attain the 2008 ozone standards (and resulting reclassifications), and the final approval to grant 1-year attainment date extensions do not in and of themselves create any new requirements beyond what is mandated by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538,
This action does not have federalism implications. It will not have substantial direct effects 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.
This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA has identified a few tribal areas that exist within certain Moderate nonattainment areas for which the EPA is making final determinations of attainment for the 2008 ozone NAAQS. The EPA regional offices consulted with tribal officials under the EPA policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. Documentation of the consultation is provided in docket items EPA-HQ-OAR-2018-0226-0041 and 0043.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in the section of the preamble titled, “Environmental Justice Considerations.”
This rule is exempt from the CRA because it is a rule of particular applicability. The rule makes factual determinations for specific entities and does not directly regulate any entities. The determinations of attainment and failure to attain the 2008 ozone NAAQS (and resulting reclassifications), and the approval to grant 1-year attainment date extensions do not in themselves create any new requirements beyond what is mandated by the CAA.
Under section 307(b)(1) of the CAA, petitions for judicial review of final actions that are locally and regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. However, the statute also provides that notwithstanding that general rule, “a petition for review of any action . . . may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, parts 52 and 81, title 40, chapter 1 of the Code of Federal Regulations are amended as follows:
42 U.S.C. 7401
(k)
(ff) The EPA has determined that the Baltimore, Maryland Moderate nonattainment area attained the 2008 8-hour ozone National Ambient Air Quality Standards by the applicable attainment date of July 20, 2018, based upon complete quality-assured and certified data for the calendar years 2015-2017.
42 U.S.C. 7401,
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
This final rule clarifies the direct contact protection requirements for high voltage connectors in Federal Motor Vehicle Safety Standard (FMVSS) No. 305, “Electric-powered vehicles: electrolyte spillage and electrical shock protection.” It amends the standard to make clear the allowance of high voltage connectors that require the use of a tool to separate from their mating component. This final rule also makes three minor technical corrections to FMVSS No. 305.
Petitions for reconsideration of this final rule must refer to the docket and notice number set forth above and be submitted to the Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Note that all petitions received will be posted without change to
You may contact Ms. Shashi Kuppa, Office of Crashworthiness Standards; telephone: 202-366-3827; facsimile: 202-493-2990, or Mr. Daniel Koblenz, Office of Chief Counsel; telephone: 202-366-2992; facsimile: 202-366-3820. The mailing address of these officials is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
On February 28, 2019, NHTSA published a notice of proposed rulemaking (NPRM) proposing to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 305, “Electric-powered vehicles: electrolyte spillage and electrical shock protection.” 84 FR 6758. The NPRM proposed to amend the regulatory text of FMVSS No. 305 to explicitly permit high-voltage connectors that provide direct contact protection when connected to their mating component and that require the use of a tool to separate from their mating component. The regulatory text that was the subject of the NPRM was
NHTSA provided an abbreviated 15-day comment period for the NPRM because the proposed changes were merely corrective and clarifying in nature, and because the changes would provide manufacturers with additional flexibility to meet the requirements of NHTSA's September 27, 2017 final rule amending FMVSS No. 305.
NHTSA received just one comment on the NPRM, which was submitted by the Alliance of Automobile Manufacturers (Alliance) in support of the proposed change.
After consideration of the comment submitted by the Alliance and all other pertinent matters, NHTSA adopts the amendments proposed in the NPRM for the reasons stated in the NPRM.
We have considered the potential impact of this final rule under Executive Order (E.O.) 12866, and DOT Order 2100.6 and have determined that it is nonsignificant. This rulemaking document was not reviewed by the Office of Management and Budget (OMB) under E.O. 12866. The changes in this final rule largely clarify or correct text adopted by a September 27, 2017 final rule and will have no significant effect on the national economy. This final rule clarifies the direct contact protection requirements that apply to high voltage connectors, and explicitly permits the use of high voltage connectors that cannot be separated from their mating component without the use of tools.
E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Per OMB Memorandum M-17-21, only those rules deemed significant under section 3(f) of E.O. 12866 are considered E.O. 13771 regulatory actions. This final rule is not significant under E.O. 12866, and is therefore not considered an E.O. 13771 regulatory action.
NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255; Aug. 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the final rule does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule does not have “substantial direct effects 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.”
NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision, stating that when a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State common law tort causes of action by virtue of NHTSA's rules—even if not expressly preempted.
This second way that NHTSA rules can preempt is dependent upon the existence of an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer—notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle
Pursuant to E.O. 13132, NHTSA has considered whether this final rule preempts State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Please note that anyone can search the electronic form of all documents received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There are no information collection requirements associated with this final rule.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (
Pursuant to the above requirements, the agency conducted a review of voluntary consensus standards to determine if any were applicable to this final rule. NHTSA searched for but did not find voluntary consensus standards directly applicable to the amendments in this final rule.
However, consistent with the NTTAA, this final rule is aligned with regulations developed globally on electric vehicle safety, namely GTR No. 13 and GTR No. 20.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). We note that as this final rule only makes minor adjustments and clarifications to FMVSS No. 305, it will not result in expenditures by any of the aforementioned entities of over $100 million annually.
Executive Order 13609 states that the regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
This final rule harmonizes FMVSS No. 305 with provisions that are in GTRs No. 13 and No. 20. Specifically, the primary clarification made by this document—that the use of connectors that cannot be separated from their mating component without the use of tools is permissible under FMVSS No. 305—brings FMVSS No. 305 into alignment with GTRs No. 13 and No. 20 requirements relating to high voltage connectors, and so will further the goals of E.O. 13609.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal
Imports, Motor vehicles, Motor vehicle safety.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95 and 501.8.
The addition and revisions read as follows:
S4. Definitions.
S5.4.1.5
(a) Meeting the requirements specified in S5.4.1.4 when the connector is connected to its corresponding mating component; and,
(b) If a connector can be separated from its mating component without the use of a tool, meeting at least one of the following conditions from (b)(1), (2), or (3) of this section:
(1) The connector meets the requirements of S5.4.1.4 when separated from its mating component;
(2) The voltage of the live parts becomes less than or equal to 60 VDC or 30 VAC within one second after the connector is separated from its mating component; or,
(3) The connector requires at least two distinct actions to separate from its mating component and there are other components that must be removed in order to separate the connector from its mating component and these other components cannot be removed without the use of tools.
S8.
S9.2 * * *
(a)
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document sets forth proposed regulations regarding special valuation rules for employers and employees to use in determining the amount to include in an employee's gross income for personal use of an employer-provided vehicle. The proposed regulations reflect changes made by the Tax Cuts and Jobs Act, Public Law 115-97 (the Act).
Comments and requests for a public hearing must be received by October 22, 2019.
Submit electronic submissions via the Federal eRulemaking Portal at
Concerning the proposed regulations, Gabriel J. Minc at (202) 317-4774; concerning submissions of comments or to request a public hearing, Regina L. Johnson at (202) 317-6901 (not toll-free numbers).
If an employer provides an employee with a vehicle that is available to the employee for personal use, the value of the personal use must generally be included in the employee's income under section 61 of the Internal Revenue Code (the Code). In addition, benefits paid as remuneration for employment, including the personal use of employer-provided vehicles, generally are also wages for purposes of the Federal Insurance Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA) and the Collection of Income Tax at Source on Wages (federal income tax withholding). Sections 3121(a), 3306(b), and 3401(a).
The amount that must be included in the employee's income and wages for the personal use of an employer-provided vehicle generally is determined by reference to the vehicle's fair market value (FMV). However, the regulations under section 61 provide special valuation rules for employer-provided vehicles. If an employer chooses to use a special valuation rule, the special value is treated as the FMV of the benefit for income tax and employment tax purposes. § 1.61-21(b)(4). Two such special valuation rules, the fleet-average valuation rule and the vehicle cents-per-mile valuation rule, are set forth in § 1.61-21(d)(5)(v) and § 1.61-21(e), respectively. These two special valuation rules are subject to limitations, including that they may be used only in connection with vehicles having values that do not exceed a maximum amount set forth in the regulations.
Under the current § 1.61-21 regulations (the final regulations), the vehicle cents-per-mile valuation rule may be used only to value the personal use of a vehicle having a value no greater than $12,800 (the sum of the maximum recovery deductions allowable under section 280F(a)(2) for the recovery period of the vehicle). § 1.61-21(e)(1)(iii). The fleet-average valuation rule may be used only to value the personal use of vehicles having values no greater than $16,500. § 1.61-21(d)(5)(v)(D). (The fleet-average valuation rule uses the term “automobile” rather than “vehicle.” For convenience, this preamble uses the term “vehicle” except in specific discussions of the fleet-average valuation rule or the section 280F depreciation limitations.) Under the final regulations, each of these maximum values is adjusted annually pursuant to section 280F(d)(7).
The fleet-average valuation rule is an optional component of a special valuation rule called the automobile lease valuation rule set forth in § 1.61-21(d). Under the automobile lease valuation rule, the value of the personal use of an employer-provided automobile available to an employee for an entire year is the portion of the annual lease value determined under the regulations (Annual Lease Value) relating to the availability of the automobile for personal use. Furthermore, provided the FMV of the automobile does not exceed the maximum value permitted under § 1.61-21(d)(5)(v), an employer with a fleet of 20 or more automobiles may use a fleet-average value for purposes of calculating the Annual Lease Value of any automobile in the fleet.
The fleet-average value is the average of the fair market values of all the automobiles in the fleet. However, § 1.61-21(d)(5)(v)(D) provides that the value of an employee's personal use of an automobile may not be determined under the fleet-average valuation rule for a calendar year if the FMV of the automobile on the first date the automobile is made available to the employee exceeds the base value of $16,500, as adjusted annually pursuant to section 280F(d)(7). Section 1.61-21(d)(5)(v)(D) provides that the first such adjustment shall be for calendar year 1989, subject to minor modifications to the section 280F(d)(7) formula specified in the regulations. In other words, under the final regulations, the maximum value for use of the fleet-average rule is the base value of $16,500, as adjusted annually under section 280F(d)(7) every year since 1989.
Prior to enactment of the Act, the automobile price inflation adjustment of section 280F(d)(7)(B) was calculated using the “new car” component of the Consumer Price Index (CPI) “automobile component.” Beginning in 2005, the IRS began to calculate the price inflation adjustment for trucks and vans separately from cars using the “new truck” component of the CPI, and continued using the “new car” component of the CPI for automobiles other than trucks and vans. Rev. Proc. 2005-48, 2005-32 I.R.B. 271. For 2017, the year prior to the enactment of the Act, the maximum value for use of this rule was $21,100 for a passenger automobile and $23,300 for a truck or van. See Notice 2017-03, 2017-2 I.R.B. 368.
Section 1.61-21(d)(5)(v)(B) provides that the fleet-average valuation rule may be used by an employer as of January 1 of any calendar year following the calendar year in which the employer acquires a sufficient number of automobiles to total a fleet of 20 or more, each one satisfying the maximum value requirement of § 1.61-21(d)(5)(v)(D). The Annual Lease Value calculated for automobiles in the fleet, based on the fleet-average value, must remain in effect for the period that begins with the first January 1 the fleet-average valuation rule is applied by the employer to the automobiles in the fleet and ends on December 31 of the subsequent calendar year. The Annual Lease Value for each subsequent two-year period is calculated by determining the fleet average value of the automobiles in the fleet as of the first January 1 of such period. An employer may cease using the fleet-average valuation rule as of any January 1.
Another special valuation rule is the vehicle cents-per-mile rule in § 1.61-21(e). Under § 1.61-21(e), if an employer provides an employee with the use of a vehicle that the employer reasonably expects will be regularly used in the employer's trade or business throughout the calendar year (or such shorter period as the vehicle may be owned or leased by the employer), or that satisfies the requirements of § 1.61-21(e)(1)(ii) (
Section 1.61-21(e)(1)(iii)(A) provides that the value of the personal use may not be determined under the vehicle cents-per-mile valuation rule for a calendar year if the fair market value of the vehicle on the first date the vehicle is made available to the employee exceeds the sum of the maximum recovery deductions allowable under section 280F(a) for a five-year period for an automobile first placed in service during that calendar year (whether or not the automobile is actually placed in service during that year), as adjusted by section 280F(d)(7). The final regulations also provide that, under this rule, with respect to a vehicle placed in service in or after 1989, the limitation on value is $12,800, as adjusted under section 280F(d)(7). In other words, under the final regulations, the maximum value of a vehicle for use of the vehicle cents-per-mile valuation rule is the base value of $12,800, as adjusted annually under section 280F(d)(7) since 1989. As with the fleet-average valuation rule, beginning in 2005, the IRS calculated the price inflation adjustment for trucks and vans separately from cars. See Rev. Proc. 2005-48. For 2017, the year prior to the enactment of the Act, the maximum value for use of the vehicle cents-per-mile valuation rule was $15,900 for a passenger automobile and $17,800 for a truck or van. See Notice 2017-03.
Section 1.61-21(e)(5)(i) states that an employer must adopt the vehicle cents-per-mile valuation rule for a vehicle to take effect by the first day on which the vehicle is used by an employee of the employer for personal use (or, if another special valuation rule called the commuting valuation rule of § 1.61-21(f) is used when the vehicle is first used by an employee of the employer for personal use, the first day on which the commuting valuation rule is not used). Section 1.61-21(e)(5)(ii) also provides, in part, that once the vehicle cents-per-mile valuation rule has been adopted for a vehicle by an employer, the rule must be used by the employer for all subsequent years in which the vehicle qualifies for use of the rule, except that the employer may, for any year during which use of the vehicle qualifies for the commuting valuation rule of § 1.61-21(f), use the commuting valuation rule with respect to the vehicle.
The Act made the following amendments to the Code:
(1) For owners of passenger automobiles, section 280F(a), as modified by section 13202(a)(1) of the Act, imposes dollar limitations on the depreciation deduction for the year the taxpayer places the passenger automobile in service and for each succeeding year. The amendments made by the Act substantially increase the maximum annual dollar limitations on the depreciation deductions for passenger automobiles. The new dollar limitations are based on the depreciation, over a five-year recovery period, of a passenger automobile with a cost of $50,000 (formerly $12,800).
(2) Section 11002(d)(8) of the Act amended section 280F(d)(7)(B) effective for tax years beginning after December 31, 2017. Pursuant to these amendments, the price inflation amount for automobiles (including trucks and vans) is calculated using both the CPI automobile component and the Chained Consumer Price Index for All Urban Consumers (C-CPI-U) automobile component.
To implement the changes described above, Notice 2019-08, 2019-3 I.R.B. 354, provides interim guidance for 2018 on new procedures for calculating the price inflation adjustments to the maximum vehicle values for use with the special valuation rules under § 1.61-21(d) and (e) using section 280F(d)(7), as modified by sections 11002 and 13202 of the Act. Notice 2019-08 states that the Treasury Department and the IRS anticipated that further guidance would be issued in the form of proposed regulations and expected that the regulations would be consistent with the rules set forth in Notice 2019-08.
Notice 2019-08 provides that, consistent with the substantial increase in the dollar limitations on depreciation deductions under section 280F(a), as modified by section 13202(a)(1) of the Act, the Treasury Department and the IRS intend to amend § 1.61-21(d) and (e) to incorporate a higher base value of $50,000 as the maximum value for use of the vehicle cents-per-mile and fleet-average valuation rules effective for the 2018 calendar year. Notice 2019-08 further states that the Treasury Department and the IRS intend that the regulations would be modified to provide that this $50,000 base value will be adjusted annually using section 280F(d)(7) for 2019 and subsequent years. Accordingly, Notice 2019-08 provides that, for 2018, the maximum value for use of the vehicle cents-per-mile and fleet-average valuation rules is $50,000.
Finally, for 2018 and 2019, Notice 2019-08 provides that the Treasury
Notice 2019-34, 2019-22 I.R.B. 1257, provides that the inflation-adjusted maximum value of an employer-provided vehicle (including cars, vans and trucks) first made available to employees for personal use in calendar year 2019 for which the vehicle cents-per-mile valuation rule provided under § 1.61-21(e), or the fleet-average valuation rule provided under § 1.61-21(d), may be applicable is $50,400. Notice 2019-34 also provides information about the manner in which the Treasury Department and the IRS intend to publish this maximum vehicle value in the future.
As noted in Notice 2019-34, Rev. Proc. 2010-51, 2010-51 I.R.B. 883, provides rules for using optional standard mileage rates in computing the deductible costs of operating an automobile for business, charitable, medical, or moving expense purposes. Section 2.12(1) of Rev. Proc. 2010-51 provides that the IRS publishes both the standard mileage rates for the use of an automobile for business, charitable, medical, and moving expense purposes, and the maximum standard automobile cost that may be used in computing the allowance under a fixed and variable rate (FAVR) plan, in a separate annual notice. See,
Notice 2019-34 indicates that, in amending § 1.61-21(d) and (e) to incorporate a higher base value of $50,000 as the maximum value for use with the vehicle cents-per-mile and the fleet-average valuation rules, the IRS and Treasury Department expected that the maximum value for use of those rules for 2019 and subsequent years would be the same as the maximum standard automobile cost that may be used in computing the allowance under a FAVR plan. Accordingly, Notice 2019-34 provides that the maximum value for use with the fleet-average and vehicle cents-per-mile valuation rules will be published in the annual notice providing the standard mileage rates for use of an automobile for business, charitable, medical, and moving expense purposes and the maximum standard automobile cost that may be used in computing the allowance under a FAVR plan.
Notice 2019-34 also provides that the Treasury Department and the IRS intend to revise § 1.61-21(d) to include a transition rule for any employer that did not qualify to use the fleet-average valuation rule prior to January 1, 2018 because the inflation-adjusted maximum value requirement of § 1.61-21(d)(5)(v)(D), as published by the IRS in a notice or revenue procedure applicable to the year the automobile was first made available to any employee of the employer, was not met. In such a case, under the transition rule, the employer may adopt the fleet-average valuation rule for 2018 or 2019, provided the requirements of § 1.61-21(d)(5)(v) are met for that year using the maximum values set forth in Notice 2019-08 ($50,000) or Notice 2019-34 ($50,400), respectively.
In addition, Notice 2019-34 states that the Treasury Department and the IRS intend to revise § 1.61-21(e) to provide a transition rule for vehicles first made available to employees for personal use before calendar year 2018, if the employer did not qualify under § 1.61-21(e)(5) to adopt the vehicle cents-per-mile valuation rule for the vehicle on the first day on which the vehicle was used by the employee for personal use because the fair market value of the vehicle exceeded the inflation-adjusted limitation of § 1.61-21(e)(1)(iii) as published by the IRS in a notice or revenue procedure applicable to the year the vehicle was first used by the employee for personal use. In such a case, under the transition rule, the employer may first adopt the vehicle cents-per-mile valuation rule for the 2018 or 2019 taxable year based on the maximum fair market value of a vehicle for purposes of the vehicle cents-per-mile valuation rule set forth in Notice 2019-08 ($50,000) or Notice 2019-34 ($50,400), respectively.
Similarly, Notice 2019-34 also provides that the Treasury Department and the IRS intend to amend § 1.61-21(e) to provide a transition rule for a vehicle first placed in service before calendar year 2018 if the commuting valuation rule of § 1.61-21(f) was used when the vehicle was first used by an employee of the employer for personal use, and the employer did not qualify to switch to the vehicle cents-per-mile valuation rule on the first day on which the commuting valuation rule was not used because the vehicle had a fair market value in excess of the inflation-adjusted maximum permitted under § 1.61-21(e)(1)(iii) as published by the IRS in a notice or revenue procedure applicable to the year the commuting valuation rule was first not used. Under the transition rule, the employer may adopt the vehicle cents-per-mile valuation rule for the 2018 or 2019 taxable year based on the maximum fair market value of the vehicle for purposes of the vehicle cents-per-mile valuation rule set forth in Notice 2019-08 or Notice 2019-34, respectively.
With respect to the transition rules described above, Notice 2019-34 adds that, consistent with § 1.61-21(e)(5), an employer that adopts the vehicle cents-per-mile valuation rule must continue to use the rule for all subsequent years in which the vehicle qualifies for use of the rule, except that the employer may, for any year during which use of the vehicle qualifies for the commuting valuation rule of § 1.61-21(f), use the commuting valuation rule with respect to the vehicle.
These proposed regulations update the fleet-average and vehicle cents-per-mile valuation rules described in § 1.61-21(d) and (e), respectively, to align the limitations on the maximum vehicle fair market values for use of these special valuation rules with the changes made by the Act to the depreciation limitations in section 280F. Specifically, consistent with the substantial increase in the dollar limitations on depreciation deductions under section 280F(a), these proposed regulations increase, effective for the 2018 calendar year, the maximum base fair market value of a vehicle for use of the fleet-average or vehicle cents-per-mile valuation rule to $50,000. As previously, the maximum fair market value of a vehicle for purposes of the fleet-average and vehicle cents-per-mile valuation rule is adjusted annually under section 280F(d)(7). This annual adjustment will be calculated in accordance with section 280F(d)(7) as amended by the Act. Consistent with Notice 2019-34, the Treasury Department and the IRS expect that the inflation-adjusted maximum fair market value for a vehicle for purposes of the fleet-average and vehicle cents-per-mile valuation rules will be included in the annual notice published by the IRS providing the standard mileage rates for the use of an automobile for business, charitable, medical, and moving expense purposes and the maximum standard automobile
Furthermore, consistent with Notice 2019-34, the following transition rules are included in these proposed regulations:
(1) With respect to the fleet-average valuation rule, if an employer did not qualify to use the fleet-average valuation rule prior to January 1, 2018 with respect to an automobile because the fair market value of the automobile exceeded the inflation-adjusted maximum value requirement of § 1.61-21(d)(5)(v)(D), as published by the IRS in a notice or revenue procedure applicable to the year the automobile was first made available to any employee of the employer, the employer may adopt the fleet-average valuation rule for 2018 or 2019, provided the fair market value of the automobile does not exceed $50,000 on January 1, 2018, or $50,400 on January 1, 2019, respectively.
(2) With respect to the vehicle cents-per-mile valuation rule, for a vehicle first made available to any employee of the employer for personal use before calendar year 2018, if an employer did not qualify under § 1.61-21(e)(5) to adopt the vehicle cents-per-mile valuation rule on the first day on which the vehicle was used by the employee for personal use because the fair market value of the vehicle exceeded the inflation-adjusted limitation of § 1.61-21(e)(1)(iii), as published by the IRS in a notice or revenue procedure applicable to the year the vehicle was first used by the employee for personal use, the employer may first adopt the vehicle cents-per-mile valuation rule for the 2018 or 2019 taxable year with respect to the vehicle, provided the fair market value of the vehicle does not exceed $50,000 on January 1, 2018, or $50,400 on January 1, 2019, respectively. Similarly, if the commuting valuation rule of § 1.61-21(f) was utilized when the vehicle was first used by an employee of the employer for personal use, and the employer did not qualify to switch to the vehicle cents-per-mile valuation rule on the first day on which the commuting valuation rule was not used because the vehicle had a fair market value in excess of the inflation-adjusted limitation of § 1.61-21(e)(1)(iii), as published by the IRS in a notice or revenue procedure applicable to the year the commuting valuation rule was first not used, the employer may adopt the vehicle cents-per-mile valuation rule for the 2018 or 2019 taxable year, provided the fair market value of the vehicle does not exceed $50,000 on January 1, 2018, or $50,400 on January 1, 2019, respectively. However, consistent with § 1.61-21(e)(5), an employer that adopts the vehicle cents-per-mile valuation rule must continue to use the rule for all subsequent years in which the vehicle qualifies for use of the rule, except that the employer may, for any year during which use of the vehicle qualifies for the commuting valuation rule of § 1.61-21(f), use the commuting valuation rule with respect to the vehicle.
Until amendments to the final regulations are published under Treas. Reg. § 1.61-21(d) and (e) in the
These proposed regulations are not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Department of the Treasury and the Office of Management and Budget regarding review of tax regulations.
It is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6). This certification is based on the fact that the proposed regulations would update existing regulations to comport with the statutory changes to section 280F made by the Act. Although the proposed regulations might affect a substantial number of small entities, the economic impact of the proposed regulations is not expected to be significant.
Since the current vehicle valuation rules in the regulations are tied to inflation adjustments under section 280F, the statutory changes to section 280F necessitate modifications to the procedures for calculating annual inflation adjustments to the maximum fair market value of a vehicle permitted for use with the fleet-average and vehicle cents-per-mile special valuation rules. These proposed revised special valuation rules are consistent with the base values and methodology used for section 280F purposes and simplify the determination of the amount employers must include in employees' income and wages for income and employment tax purposes for the personal use of employer-provided vehicles. The modifications that would be made by these proposed regulations to the maximum fair market value of a vehicle permitted for use with the fleet-average and vehicle cents-per-mile special valuation rules, and the transition rules provided in connection with these proposed regulations, increase the number of employers and employees that may take advantage of the special valuation rules, without increasing costs to the employer.
Notwithstanding this certification that the proposed regulations would not have a significant economic impact on a substantial number of small entities, the Treasury Department and the IRS invite comments on the impacts these proposed regulations may have on small entities. Pursuant to section 7805(f), these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The Treasury Department and the IRS request comments on all aspects of the proposed rules.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
All comments are available at
The principal author of these regulations is Gabriel Minc of the Office of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Tax). However, other personnel from the IRS and the Treasury Department participated in their development.
The IRS Notices and Revenue Procedures cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(d) * * *
(5) * * *
(v) * * *
(D)
(G)
(H)
(e) * * *
(1) * * *
(iii) * * *
(A)
(5) * * *
(i)
(vi)
(6)
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations to implement certain sections of the Internal Revenue Code, including sections added to the Internal Revenue Code by the Tax Cuts and Jobs Act, that relate to the withholding of tax and information reporting with respect to certain dispositions of interests in partnerships engaged in the conduct of a trade or business within the United States.
The public hearing, originally scheduled for August 26, 2019 at 10:00 a.m. is cancelled.
Regina Johnson, Publications and Regulations Specialist at (202) 317-6901 (not a toll-free number).
The cancelled hearing was originally scheduled to be held at the Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224.
A notice of proposed rulemaking and notice of public hearing that appeared in the
The public comment period for these regulations expired on August 8, 2019. The notice of proposed rulemaking and notice of hearing instructed those interested in testifying at the public hearing to submit an outline of the topics to be discussed. The outline of topics to be discussed was due by August 8, 2019. As of August 8, 2019, no one has requested to speak. Therefore, the public hearing scheduled for August 26, 2019 at 10:00 a.m. is cancelled.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish special local regulations for certain waters of the North Atlantic Ocean. This action is necessary to provide for the safety of life on these navigable waters located at Ocean City, MD, during a high-speed power boat racing event on September 29, 2019. This proposed rulemaking would prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port Maryland-National Capital Region or Coast Guard Patrol Commander. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before September 9, 2019.
You may submit comments identified by docket number USCG-2019-0634 using the Federal eRulemaking Portal at
If you have questions on this rule, call or email Mr. Ron Houck, U.S. Coast Guard Sector Maryland-National Capital Region; telephone 410-576-2674, email
OPA Racing LLC of Brick Township, NJ, notified the Coast Guard through submission of a marine event application that this year's Ocean City Grand Prix would be held on a different date this year from the date published in the Code of Federal Regulations (CFR) at Table to 33 CFR 100.501 at (b.)19. The estimated date for this annual event listed in the regulation is either the first or second Saturday or Sunday of May, or the second or third Saturday and Sunday of September. This year, the Ocean City Grand Prix is being held on September 29, 2019, or the fourth Sunday of September. The high-speed power boat racing consists of approximately 35 participating offshore race boats of various classes, 21 to 50 feet in length, operating along a designated, marked racetrack-type course located in the North Atlantic Ocean, at Ocean City, MD. Hazards from the power boat racing event include participants operating near a designated navigation channel, as well as injury to persons and damage to property that involve vessel mishaps during high-speed power boat races conducted on navigable waters located near the shoreline. The Captain of the Port (COTP) Maryland-National Capital Region has determined that potential hazards associated with the power boat races would be a safety concern for anyone intending to participate in this event or for vessels that operate within specified waters of the North Atlantic Ocean at Ocean City, MD.
The purpose of this rulemaking is to protect event participants, spectators and transiting vessels on certain waters of the North Atlantic Ocean at Ocean City, MD before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70041, which authorizes the Coast Guard to establish and define special local regulations.
The COTP Maryland-National Capital Region proposes to establish special local regulations from 8:30 a.m. through 5:30 p.m. on September 29, 2019. There is no alternate date planned for this event. The regulated area would cover all navigable waters of the North Atlantic Ocean, within an area bounded by the following coordinates: commencing at a point near the shoreline at latitude 38°21′42″ N, longitude 075°04′11″ W, thence east to latitude 38°21′33″ N, longitude 075°03′10″ W, thence southwest to latitude 38°19′25″ N, longitude 075°04′02″ W, thence west to the shoreline at latitude 38°19′35″ N, longitude 075°05′02″ W, at Ocean City, MD. The regulated area is approximately 4,500 yards in length and 1,600 yards in width.
This proposed rule provides additional information about areas
The proposed duration special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the high-speed power boat racing event, scheduled from 9 a.m. to 5 p.m. on September 29, 2019. The COTP and the Coast Guard Patrol Commander (PATCOM) would have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area would be required to immediately comply with the directions given by the COTP or PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.
Except for Ocean City Grand Prix participants and vessels already at berth, a vessel or person would be required to get permission from the COTP or PATCOM before entering the regulated area. Vessel operators can request permission to enter and transit through the regulated area by contacting the PATCOM on VHF-FM channel 16. Vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols would be considered a spectator. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.
If permission is granted by the COTP or PATCOM, a person or vessel would be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels would be required to operate at a safe speed that minimizes wake while within the regulated area. Official patrol vessels will direct spectator vessels while within the regulated area. Only participant vessels and official patrol vessels would be allowed to enter the race area.
The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, duration and location of the regulated area. Vessel traffic would be able to safely transit around this regulated area, which would impact a small designated area of the North Atlantic Ocean for 9 hours. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule would allow vessels to seek permission to enter the regulated area, and vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section (IV.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for nine hours. Normally such actions are categorically excluded from further review under paragraph L[61] in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(1)
(2)
(3)
(4)
(b)
(c)
(2) Except for participants and vessels already at berth, a person or vessel within the regulated area at the start of enforcement of this section must immediately depart the regulated area.
(3) A spectator must contact the PATCOM to request permission to either enter or pass through the regulated area. The PATCOM, and official patrol vessels enforcing this regulated area, can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz) and channel 22A (157.1 MHz). If permission is granted, the spectator must pass directly through the regulated area as instructed by PATCOM. A vessel within the regulated area must operate at safe speed that minimizes wake.
(4) Only participant vessels and official patrol vessels are allowed to enter the race area.
(5) A person or vessel that desires to transit, moor, or anchor within the regulated area must obtain authorization from the COTP Maryland-National Capital Region or PATCOM. A person or vessel seeking such permission can contact the COTP Maryland-National Capital Region at telephone number 410-576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz) or the PATCOM on Marine Band Radio, VHF-FM channel 16 (156.8 MHz).
(6) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event date and times.
(d)
(e)
Environmental Protection Agency (EPA).
Proposed rule.
North Carolina has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed North Carolina's application and has determined, subject to public comment, that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State's changes. EPA seeks public comment prior to taking final action.
Comments must be received on or before September 23, 2019.
Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2019-0425, at
Thornell Cheeks, RCRA Programs and Cleanup Branch, Land, Chemicals and Redevelopment Division, U.S. Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960; telephone number: (404) 562-8479; fax number: (404) 562-9964; email address:
States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in North Carolina, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.
On June 4, 2019, North Carolina formally requested authorization of changes to its hazardous waste management program that correspond to certain Federal rules promulgated between July 1, 2004 and June 30, 2017 (including RCRA Clusters
North Carolina has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its program revision application, subject to the limitations of HSWA, as discussed above.
If North Carolina is authorized for the changes described in North Carolina's authorization application, these changes will become part of the authorized State hazardous waste program and will therefore be federally enforceable. North Carolina will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:
• Conduct inspections, and require monitoring, tests, analyses, and reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.
This action will not impose additional requirements on the regulated community because the regulations for which EPA is proposing to authorize North Carolina are already effective under North Carolina State law and are not changed by today's proposed action.
EPA will evaluate any comments received on this proposed action and will make a final decision on approval or disapproval of North Carolina's proposed authorization. Our decision will be published in the
North Carolina initially received final authorization on December 14, 1984, effective December 31, 1984 (49 FR 48694), to implement a hazardous waste management program. EPA granted authorization for changes to North Carolina's program on the following dates: March 25, 1986, effective April 8, 1986 (51 FR 10211); August 5, 1988, effective October 4, 1988 (53 FR 29460); February 9, 1989, effective April 10, 1989 (54 FR 6290); September 22, 1989, effective November 21, 1989 (54 FR 38993); January 18, 1991, effective March 19, 1991 (56 FR 1929); April 10, 1991, effective June 9, 1991 (56 FR 14474); July 19, 1991, effective September 17, 1991 (56 FR 33206); April 27, 1992, effective June 26, 1992 (57 FR 15254); December 12, 1992, effective February 16, 1993 (57 FR 59825); January 27, 1994, effective March 28, 1994 (59 FR 3792); April 4, 1994, effective June 3, 1994 (59 FR 15633); June 23, 1994, effective August 22, 1994 (59 FR 32378); November 10, 1994, effective January 9, 1995 (59 FR 56000); September 27, 1995, effective November 27, 1995 (60 FR 49800); April 25, 1996, effective June 24, 1996 (61 FR 18284); October 23, 1998, effective December 22, 1998 (63 FR 56834); August 25, 1999, effective October 25, 1999 (64 FR 46298); February 28, 2002, effective April 29, 2002 (67 FR 9219); December 14, 2004, effective February 14, 2005 (69 FR 74444); March 23, 2005, effective May 23, 2005 (70 FR 14556); February 7, 2011, effective April 8, 2011 (76 FR 6561); June 14, 2013, effective August 13, 2013 (78 FR 35766); and August 24, 2015, effective October 23, 2015 (80 FR 51141).
On June 4, 2019, North Carolina formally requested authorization, in accordance with 40 CFR 271.21, of changes to its hazardous waste management program associated with Checklists
When revised state rules differ from the Federal rules in the RCRA state authorization process, EPA determines whether the state rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to Section 3009 of RCRA, 42 U.S.C. 6929, state programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent states from adopting regulations that are broader in scope than the Federal program, states cannot receive Federal authorization for such regulations, and they are not federally enforceable.
EPA has determined that certain regulations included in North Carolina's program revision application are more stringent than the Federal program. These more stringent requirements will become part of the federally enforceable RCRA program in North Carolina when authorized.
First, the North Carolina definition for “contained” at 15A NCAC 13A .0102(c) is more stringent than the Federal definition at 40 CFR 260.10 because it adds the italicized language at the end of the following sentence: “The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials
Second, North Carolina's program is more stringent at 15A NCAC 13A .0107(a) and (i), the State analogs to 40 CFR 262.16(b)(8)(v) and 40 CFR 262.255. The North Carolina provisions require small quantity and large quantity generators to maintain aisle space of at least two feet in a central accumulation area. The Federal program requires small quantity and large quantity generators to maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency, unless aisle space is not needed for any of these purposes, but does not specify a minimum amount of space.
It should be noted that states cannot receive authorization for certain Federal regulatory functions included in the regulations associated with the Hazardous Waste Electronic Manifest Rule (Checklist 231). Although North Carolina has adopted these regulations to maintain its equivalency with the Federal program, it has appropriately maintained the Federal references.
States also cannot receive authorization for certain Federal regulatory functions included in the regulations involving international shipments (
When final authorization takes effect, North Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that EPA issued prior to the effective date of authorization until they expire or are terminated. EPA will not issue any new permits or new portions of permits for the provisions listed in the table above after the effective date of the final authorization. EPA will continue to implement and issue permits for HSWA requirements for which North Carolina is not yet authorized. EPA has the authority to enforce State-issued permits after the State is authorized.
North Carolina is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the Eastern Band of Cherokee Indians. EPA will continue to implement and administer the RCRA program on these lands.
Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of North Carolina's changes at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart II for the authorization of North Carolina's program changes at a later date.
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes to authorize State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of North Carolina's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under RCRA section 3006(b), EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in proposing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This action does not impose an information collection burden under the
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Federal Communications Commission.
Proposed rule.
This document announces that the Federal Communications Commission granted a motion filed by the Multicultural Media, Telecom and internet Council (MMTC) in MB Docket No. 19-177 to extend the deadlines for filing comments and replies in response to the Commission's document on possible improvements to equal employment opportunity (EEO) compliance and enforcement.
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
For detailed instructions on submitting comments and replies and additional information on the rulemaking process, see the Commission's
Radhika Karmarkar, Industry Analysis Division, Media Bureau,
This document summarizes the Media Bureau's Order in MB Docket No. 19-177 which was adopted and released July 30, 2019. On July 25, 2019, MMTC filed a motion requesting an extension of time to file comments and replies until September 20, 2019, and November 4, 2019, respectively in response to the Commission's Proposed Rule in MB Docket No. 19-177, FCC 19-54 (rel. June 21, 2019), 84 FR 35063, July 22, 2019. For good cause shown, the Media Bureau, pursuant to delegated authority, granted the motion. Comments were originally due August 21, 2019, and replies were due September 5, 2019. Grant of the MMTC's request makes comments now due on September 20, 2019 and replies due on November 4, 2019. This proceeding is treated as “permit-but-disclose” for purposes of the Commission's
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend a Federal Acquisition Regulation (FAR) clause to permit the issuance of task or delivery orders via fax or electronic commerce
Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before October 22, 2019 to be considered in the formulation of a final rule.
Submit comments identified by FAR Case 2018-022 by any of the following methods:
•
•
Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448 for clarification of content. Please cite FAR Case 2018-022. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501-4755. Please cite “FAR Case 2018-022.”
DoD, GSA, and NASA are proposing to amend the FAR to update a clause to permit the issuance of task or delivery orders via fax or electronic commerce, and to clarify when an order is considered to be “issued” when using these methods. FAR clause 52.216-18, Ordering, currently states that task or delivery orders may be issued orally, by facsimile, or electronic commerce only if authorized in the contract schedule. If mailed, task or delivery orders are considered “issued” when the Government puts the order in the mail. The clause is included in solicitations and contracts when an indefinite-delivery definite-quantity, requirements, or indefinite-delivery indefinite-quantity contract is contemplated.
As part of today's business environment, the Government and Federal contractors frequently use email, fax, or other electronic commerce methods to communicate with one another. In an effort to reflect current business practices and maintain speed and efficiency in the ordering process, this rule updates FAR clause 52.216-18 to no longer require a separate authorization in the contract to use electronic commerce or fax to issue task or delivery orders. The rule also identifies when a task or delivery order is considered “issued” when using such methods. As a result, contracting officers will no longer need to include supplemental ordering language in the contract when anticipating the use of fax or electronic commerce to issue task or delivery orders. Ordering information will be located in one place in the contract. A common understanding of when a task or delivery order is considered issued, in such situations, will be applied Governmentwide.
As task or delivery orders are not issued orally as frequently as other issuance methods and the use of such a method is dependent upon the particular circumstances of the procurement, the authority to issue orders orally must still be authorized under the contract and is not being amended by this rule.
This rule proposes to amend FAR clause 52.216-18, Ordering, to (1) remove the language stating that the use of fax or electronic commerce may only be used if authorized in the contract; and (2) identify the point in time in which a task or delivery order is considered issued when sent by fax or electronically.
This proposed rule does not create any new provisions or clauses, nor does it change the applicability or burden of any existing provisions or clauses included in solicitations and contracts valued at or below the SAT, or for commercial items, including COTS items.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.
DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) are proposing to revise the Federal Acquisition Regulation (FAR) to update a clause to automatically permit the issuance of task or delivery orders via fax or electronic commerce, without additional authorization text in the contract and to clarify when an order is considered to be “issued” when using these methods.
The objective of the rule is to update the clause language to reflect current business practices and maintain speed and efficiency when issuing task and delivery orders under a contract.
DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Federal Government awarded approximately 17,690 new indefinite-delivery indefinite-quantity, indefinite-delivery definite-quantity, and requirements contracts; of which approximately 62% were awarded to approximately 7,420 unique small businesses.
The proposed rule does not impose any Paperwork Reduction Act reporting, recordkeeping, or other compliance requirements on any small entities. The proposed rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the proposed rule that would meet the proposed objectives.
The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-022) in correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The revisions and additions reads as follows:
(c) A delivery order or task order is considered “issued” when—
(1) If sent by mail (includes transmittal by U.S. mail or private delivery service), the Government deposits the order in the mail;
(2) If sent by fax, the Government transmits the order to the Contractor's fax number; or
(3) If sent electronically, the Government either—
(i) Posts a copy of the delivery order or task order to a Government document access system, and notice is sent to the Contractor; or
(ii) Distributes the delivery order or task order via email to the Contractor's email address.
(d) Orders may be issued by methods other than those enumerated in this clause only if authorized in the contract.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
NMFS proposes to implement allowable catch levels, an overfishing limit, an allowable biological catch, and an annual catch limit for Pacific mackerel in the U.S. exclusive economic zone off the West Coast (California, Oregon and Washington) for the fishing seasons 2019-2020 and 2020-2021. This rule is proposed pursuant to the Coastal Pelagic Species Fishery Management Plan. The proposed harvest guideline and annual catch target for the 2019-2020 fishing season are 11,109 metric tons (mt) and 10,109 mt, respectively. The proposed harvest guideline and annual catch target for the 2020-2021 fishing season are 7,950 mt and 6,950 mt, respectively. If the fishery attains the annual catch target in either fishing season, the directed fishery will close, reserving the 1,000-mt difference between the harvest guideline and annual catch target as a set-aside for incidental landings in other Coastal Pelagic Species fisheries and other sources of mortality. This rule is intended to conserve and manage the Pacific mackerel stock off the U.S. West Coast.
Comments must be received by September 23, 2019.
You may submit comments on this document, identified by NOAA-NMFS-2019-0087, by any of the following methods:
•
•
•
Copies of the report, “Pacific Mackerel Stock Assessment for U.S. Management in 2019-2020 and 2020-2021” may obtained from the Long Beach NMFS office or viewed at the following website:
Lynn Massey, West Coast Region, NMFS,
Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
During public meetings each year, the NMFS Southwest Fisheries Science Center (SWFSC) presents biomass estimates for Pacific mackerel to the Pacific Fishery Management Council's (Council) CPS Management Team (CPSMT), the Council's CPS Advisory Subpanel (CPSAS) and the Council's Scientific and Statistical Committee (SSC), and the biomass estimates and the status of the fisheries are reviewed and discussed. The CPSMT, CPSAS, and SSC then provide recommendations and comments to the Council regarding the calculated OFL, ABC, ACL, HG and ACT. Following Council review and after hearing public comment, the Council adopts biomass estimates and makes its harvest specification recommendations to NMFS. Biennial specifications published in the
The control rules in the CPS FMP include the HG control rule, which, in conjunction with the OFL and ABC rules, are used to manage harvest levels for Pacific mackerel. According to the FMP, the quota for the principal commercial fishery, the HG, is determined using the FMP-specified HG formula. The HG is based, in large part, on the current estimate of stock biomass. The biomass estimate is an explicit part of the various harvest control rules for Pacific mackerel, and as the estimated biomass decreases or increases from one year to the next, the resulting allowable catch levels similarly trend. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:
1.
2.
3.
4.
The Council has recommended and NMFS is proposing, Pacific mackerel harvest specifications for both the 2019-2020 and 2020-2021 fishing seasons. For the 2019-2020 Pacific mackerel fishing season these include an OFL of 14,931 mt, an ABC and ACL of 13,169 mt, a HG of 11,109 mt, and an annual ACT of 10,109 mt. For the 2020-2021 Pacific mackerel fishing season these include an OFL of 11,772 mt, and ABC and ACL of 10,289 mt, a HG of 7,950 mt, and an ACT of 6,950 mt. These catch specifications are based on the control rules established in the CPS FMP and biomass estimates of 71,099 mt (2019-2020) and 56,058 mt (2020-2021). The biomass estimates are the result of a full stock assessment the NMFS SWFSC completed in June 2019 (see
Under this proposed action, in the unlikely event that catch reaches the ACT in either fishing season, directed fishing would close, reserving the difference between the HG and ACT (1,000 mt) as a set-aside for incidental landings in other fisheries and other sources of mortality.
The NMFS West Coast Regional Administrator will publish a notice in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:
For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N latitude; Point Arena, California) of the CPS fishery and is one component of CPS fisheries off the U.S. West Coast, which also includes the fisheries for Pacific sardine, northern anchovy and market squid. The small entities that would be affected by the
NMFS used the ex-vessel revenue information for a profitability analysis, as the cost data for the harvesting operations of CPS finfish vessels was limited or unavailable. For the 2017-2018 fishing season, the HG was 26,293 mt and was divided into an ACT of 25,293 mt and an incidental set-aside of 1,000 mt. Approximately 1,434 mt of Pacific mackerel was harvested in the 2017-2018 fishing season with an estimated ex-vessel value of approximately $482,656.
The HG for the 2019-2020 Pacific mackerel fishing season is 11,109 mt, with an ACT of 10,109 mt and an incidental set-aside of 1,000 mt. The HG for the 2020-2021 Pacific mackerel fishing season is 7,950 mt with an ACT of 6,950 mt and an incidental set-aside of 1,000 mt. The proposed ACTs for these fishing seasons are substantially lower than the prior 2 fishing seasons (
Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have adverse or disproportional economic impact on these small business entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
16 U.S.C. 1801
(i) The following harvest specifications apply for Pacific mackerel:
(1) For the Pacific mackerel fishing season July 1, 2019, through June 30, 2020, the harvest guideline is 11,109 mt and the ACT is 10,109 mt; and
(2) For the Pacific mackerel fishing season July 1, 2020, through June 30, 2021, the harvest guideline is 7,950 mt and the ACT of 6,950 mt.
(j) When an ACT in paragraph (i) of this section has been reached or exceeded, then for the remainder of the Pacific mackerel fishing season, Pacific mackerel may not be targeted and landings of Pacific mackerel may not exceed: 45 percent of landings when Pacific mackerel are landed in CPS fisheries (in other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel), or up to 3 mt of Pacific mackerel when landed in non-CPS fisheries. The Regional Administer shall announce in the
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 23, 2019 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of proposed new fee sites.
The National Forests in North Carolina is proposing to charge new fees at two recreation sites. All sites have recently been reconstructed or improvements are being added to enhance services and experiences. Fees are assessed based on the level of amenities and services provided, cost of operation and maintenance, market assessment, and public comment. Funds from fees would be used for the continued operation and maintenance of these recreation sites.
Send any comments about these fee proposals by September 25, 2019, comments will be compiled, analyzed and shared with the Recreation Resource Advisory Committee. New fees would begin after January 1, 2020.
Written comments concerning this notice should be addressed to ATTN: Recreation Fee Proposals, National Forests in North Carolina, 160A Zillicoa Street, Asheville, NC 28801.
Logan Free, Recreation Fee Coordinator, 828-257-4256,
The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the
Once public involvement is complete, these new fees will be reviewed by the Southern Region Recreation Resource
Forest Service, USDA.
Notice of meeting.
The Flathead Resource Advisory Committee (RAC) will meet in Kalispell, Montana. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following website:
The meetings will be held on the following dates:
• Monday, September 20, 2019, at 4:00 p.m.;
• Tuesday, October 1, 2019, at 4:00 p.m.;
• Thursday, October 3, 2019, at 4:00 p.m.;
• Monday, October 7, 2019, at 4:00 p.m.;
• Tuesday, October 8, 2019, at 4:00 p.m.; and
• Thursday, October 10, 2019, at 4:00 p.m.
All RAC meetings are subject to cancellation. For status of the meetings prior to attendance, please contact Meghan Mulholland, RAC Coordinator, by phone at 406-758-5252 or via email at
The meetings will be held at the Flathead National Forest, Supervisor's Office, 650 Wolfpack Way, Kalispell, Montana.
Written comments may be submitted as described under
Meghan Mulholland, RAC Coordinator, by phone at 406-758-5252 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to discuss, recommend, and approve new Title II projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by Friday, September 13, 2019, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Meghan Mulholland, RAC Coordinator, 650 Wolfpack Way, Kalispell, MT 59901, by email to
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Arkansas Advisory Committee (Committee) will hold a meeting on Wednesday, August 28, 2019 at 12:00 p.m. Central time. The Committee will discuss next steps in their study of civil rights and mass incarceration in the state.
The meeting will take place on Wednesday, August 28, 2019 at 12:00 p.m. Central time.
Melissa Wojnaroski, DFO, at
Members of the public can listen to these discussions. These meetings are available to the public through the above call in numbers. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Alabama Advisory Committee (Committee) will hold a meeting on Tuesday, September 3, and Tuesday, September 10, 2019, at 2 p.m. (Central) for the purpose discussing civil rights topics in the state.
The meeting will be held on Tuesday, September 3, and Tuesday, September 10, 2019, at 2 p.m. (Central).
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 206-800-4892, conference ID: 514210608. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 S Dearborn Street, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324 or emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA at
The Regulations and Procedures Technical Advisory Committee (RPTAC) will meet September 17, 2019, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
The open session will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on May 21, 2019, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and the U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 § § 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty order on certain amorphous silica fabric (silica fabric) from the People's Republic of China (China) for the period March 1, 2018, through February 28, 2019, based on the timely withdrawal of the request for review.
Applicable August 23, 2019.
Julie Geiger, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2057.
On March 5, 2019, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the party that requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. As noted above, AMI, the only party to file a request for review, withdrew this request by the 90-day deadline. Accordingly, we are rescinding the administrative review of the antidumping duty order on silica fabric from China covering March 1, 2018, through February 28, 2019, in its entirety.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of silica fabric from China. Antidumping duties shall be assessed at
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to all parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is initiating a changed circumstances review (CCR) of the antidumping duty (AD) order on fine denier polyester staple fiber (PSF) from the Republic of Korea (Korea) and simultaneously issuing preliminary results finding Toray Advanced Materials Korea, Inc. (TAK) to be the successor-in-interest to Toray Chemical Korea, Inc. (TCK).
Applicable August 23, 2019.
Thomas Hanna, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0835.
On July 20, 2018, Commerce published the
The merchandise covered by the order is fine denier polyester staple fiber (fine denier PSF), not carded or combed, measuring less than 3.3 decitex (3 denier) in diameter. The scope covers all fine denier PSF, whether coated or uncoated. Fine denier PSF is classifiable under the HTSUS subheading 5503.20.0025. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216(d), Commerce will conduct a CCR upon receipt of information or a review request showing changed circumstances sufficient to warrant a review of an order. Among other things, Commerce has conducted CCRs to consider the applicability of cash deposit rates after there have been changes in the name or structure of a company, such as a merger or spinoff (“successor-in-interest,” or “successorship,” determinations). However, pursuant to 19 CFR 351.216(c), Commerce will not conduct a CCR in a proceeding within 24 months of publication of the notice of final determination in that proceeding without good cause.
The final determination that led to the
Moreover, we find the information provided is sufficient to warrant a CCR of the
Therefore, in accordance with section 751(b)(1) of the Act and 19 CFR
In addition, Commerce's regulations at 19 CFR 351.221(c)(3)(ii) permit it to initiate a CCR and issue the preliminary results of that CCR simultaneously if it concludes that expedited action is warranted. We have on the record the information necessary to make a preliminary finding and therefore we find that expedited action is warranted.
In determining whether one company is the successor to another for AD purposes, Commerce examines a number of factors including, but not limited to, changes in: (1) Management, (2) production facilities, (3) suppliers, and (4) customer base.
TAK provided evidence
Should our final results of review remain the same as these preliminary results of review, effective the date of publication of the final results of review, we will instruct U.S. Customs and Border Protection to apply TCK's exclusion from the
Interested parties may submit case briefs not later than 14 days after the date of publication of this notice.
Any interested party may request a hearing within 14 days of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using ACCESS.
Consistent with 19 CFR 351.216(e), we intend to issue the final results of this CCR no later than 270 days after the date on which this review was initiated or within 45 days if all parties agree to the outcome of the review.
We are issuing and publishing this initiation and preliminary results notice in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review in part, of the countervailing duty (CVD) order on certain cold-drawn mechanical tubing of carbon and alloy steel (cold-drawn mechanical tubing) from India covering the September 25, 2017, through December 31, 2018 period of review (POR).
Applicable August 23, 2019.
Hannah Falvey, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4889.
On February 8, 2019, Commerce published a notice of opportunity to request an administrative review of the CVD order on cold-drawn mechanical tubing from India covering the September 25, 2017, through December
On June 27, 2019, the petitioners timely withdrew their request for an administrative review of 11 companies: Automotive Steel Pipe; Bhushan Steel Ltd.; Hyundai Steel Pipe India Pvt., Ltd.; Innoventive Industries; ISMT Limited; Jindal (India) Ltd.; Jindal Saw Ltd.; Pennar Industries, Inc.; Sandvik Asia Pvt., Ltd.; Tata Steel BSL Limited; and Tube Products of India.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, “in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” The petitioners timely withdrew their request for review of the 11 companies. Because we received no other requests for review of the 11 companies, we are rescinding the administrative review, in part, with respect to these 11 companies, in accordance with 19 CFR 351.213(d)(1). This administrative review will continue with respect to Goodluck and TII.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. For the companies for which this review is rescinded, countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of countervailing duties occurred and the subsequent assessment of doubled countervailing duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with section 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies have been provided to producers and exporters of narrow woven ribbons with woven selvedge (ribbons) from the People's Republic of China (China). The period of review (POR) is January 1, 2017 through December 31, 2017. Interested parties are invited to comment on these preliminary results.
Effective August 23, 2019.
Terre Keaton Stefanova or Maria Tatarska, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-1562.
Commerce published the notice of initiation of this administrative review
The products covered by the order are narrow woven ribbons with woven selvedge from China. For a complete description of the scope of this administrative review,
Commerce is conducting this countervailing duty (CVD) review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, Commerce preliminarily determines that there is a subsidy,
For a full description of the methodology underlying our preliminary conclusions, including our reliance, in part, on adverse facts available pursuant to sections 776(a) and (b) of the Act,
As a result of this review, we preliminarily determine that the following estimated countervailable subsidy rate exists:
Commerce intends to disclose the calculations and analysis performed in connection with these preliminary results to interested parties within five days of publication of this notice in the
As provided in section 782(i)(3) of the Act, Commerce intends to verify the information relied upon in making its final results.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which Commerce issues the verification report in this proceeding.
Interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, we intend to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue assessment instructions to CBP 15 days after publication of the final results of this review.
Pursuant to section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount indicated above for Yama, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption, on or after the date of publication of the final results of review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Weihai Zhongwei Rubber Co., Ltd. (Zhongwei), an exporter of certain new pneumatic off-the-road tires (OTR tires) from the People's Republic of China (China), did not sell merchandise in the United States at prices below normal value (NV) during the period of review (POR) September 1, 2017 through August 31, 2018. We invite interested parties to comment on these preliminary results.
Applicable August 23, 2019.
Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5139.
On September 11, 2018, Commerce published a notice of opportunity to request an administrative review of the antidumping duty (AD) order on OTR tires from China for the period September 1, 2017 through August 31, 2018.
On January 28, 2019, Commerce exercised its discretion to toll all deadlines affected by the partial federal government closure from December 22, 2018 through the resumption of operations on January 29, 2019.
On June 19, 2019, pursuant to section 751(a)(3)(A) Tariff Act of 1930, as amended (the Act), we determined that it was not practicable to complete the preliminary results of this review within 245 days.
For a complete description of the events that followed the initiation of this administrative review, see the Preliminary Decision Memorandum.
The merchandise covered by this order includes new pneumatic tires designed for off-the-road and off-highway use, subject to certain exceptions. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description of the scope of the order is dispositive. For a complete description of the scope of the order, see the Preliminary Decision Memorandum.
Commerce is conducting this review in accordance with section 751(a)(1)(B) and 751(a)(2)(A) of the Act. Export
For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum.
Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review.
Commerce preliminarily determines that information placed on the record by Zhongwei and Honghua demonstrates that these companies are entitled to separate rate status.
The statute and Commerce's regulations do not address what rate to apply to respondents not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for non-selected respondents that are not examined individually in an administrative review. Section 735(c)(5)(A) of the Act states that the all-others rate should be calculated by averaging the weighted-average dumping margins for individually-examined respondents, excluding rates that are zero,
We preliminarily determine that the following weighted-average dumping margins exist for the period September 1, 2017 through August 31, 2018:
Commerce intends to disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review in the
Any interested party may request a hearing within 30 days of publication of this notice.
Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
If Zhongwei's weighted-average dumping margin is not zero or
For entries that were not reported in the U.S. sales database submitted by an exporter individually examined during this review, Commerce will instruct CBP to liquidate such entries at the China-wide rate. Additionally, if Commerce determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number will be liquidated at the China-wide rate.
Because the antidumping duty order on OTR tires from China was revoked,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Sea Life Park Hawaii, 41-202 Kalanianaole Highway #7, Waimanalo, HI 96795 (Valerie King, Responsible Party), has applied in due form for a permit to maintain non-releasable Hawaiian monk seals (
Written, telefaxed, or email comments must be received on or before September 23, 2019.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone: (301) 427-8401; fax: (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Jennifer Skidmore or Sara Young, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Sea Life Park Hawaii proposes to maintain up to four non-releasable adult Hawaiian monk seals for enhancement purposes. These seals would be animals removed from the wild under separate permits for stranding response and enhancement and will be animals that have been deemed non-releasable to the wild. A public conservation and education lecture will be conducted daily concerning the status of Hawaiian monk seals, and educational descriptive signs with current information are on display at the monk seal exhibit. In addition, these animals will be made available for scientific studies by researchers whose research protocols are approved by the Sea Life Park Hawaii Curator and staff veterinarian and authorized under separate permits. The requested duration of this permit is five years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before October 22, 2019.
Direct all written comments to Adrienne Thomas, Government Information Specialist, NOAA, 151 Patton Avenue, Room 159, Asheville, NC 28801 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Gabrielle Aberle, National Marine Fisheries Service, P.O. Box 21668, Juneau, AK 99802-1668. Telephone (907) 586-7228.
This request is for extension of a currently approved information collection.
In 2016, NMFS implemented this collection of information under Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands (BSAI) Management Area. Amendment 113 modified management of the BSAI Pacific cod fishery to set aside a portion of the Aleutian Islands (AI) Pacific cod total allowable catch for harvest by vessels directed fishing for AI Pacific cod and delivering their catch for processing to a shoreside processor located on land west of 170° W longitude in the Aleutian Islands (“Aleutian Islands shoreplant”). This harvest set-aside applies only if specific notification and performance requirements are met, and only during the first few months of the fishing year. This harvest set-aside provides the opportunity for vessels, Aleutian Islands shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the Aleutian Islands Pacific cod fishery. The notification and performance requirements preserve an opportunity for the complete harvest of the BSAI Pacific cod resource if the set-aside is not fully harvested.
This collection of information contains the annual notification of intent that the City of Adak or the City of Atka submits to NMFS of its intent to process Aleutian Islands Pacific cod in the upcoming fishing year in order for the Bering Sea Trawl Catcher Vessel A-Season Sector Limitation and the Aleutian Islands Catcher Vessel Harvest Set-Aside to go into effect in the upcoming fishing year. The City Manager of Adak or the City Administrator of Atka is required to provide NMFS with the annual notification of intent no later than October 31 for the harvest set-aside to go into effect in the upcoming year.
In March 2019, the U.S. District Court for the District of Columbia vacated the rule implementing Amendment 113 and remanded Amendment 113 to NMFS for reconsideration. In May 2019, the U.S. Department of Justice filed a notice of appeal.
As the annual notification of intent is based on the vacated regulations that implemented Amendment 113, this information will not be collected unless the regulations are reinstated on appeal.
NMFS is requesting renewal of this collection of information in the event of a successful appeal.
The City Manager of Adak or the City Administrator of Atka submits a letter or memorandum to NMFS indicating that the community he or she represents intends to process Aleutian Islands Pacific cod. This notification of intent must be submitted annually by certified mail through the U.S. Postal Service and postmarked no later than October 31. It may also be emailed to ensure that NMFS has received notification prior to November 1. Email notification is optional and in addition to notification via the U.S. Postal Service; email does not replace the U.S. Postal Service notification requirement.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
This action serves as a notice that NMFS, on behalf of the Secretary of
Regina Spallone, (301) 427-8568.
Pursuant to section 304(e)(2) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1854(e)(2), NMFS, on behalf of the Secretary, must notify Councils, and publish in the
NMFS has determined that the northern subpopulation of Pacific sardine is now overfished. The most recent assessment for Pacific sardine, finalized in 2019, using data through 2018 and estimating a stock size on July 1, 2019, indicates that the stock is overfished because the biomass is projected to be less than the minimum stock size threshold. NMFS has informed the Pacific Fishery Management Council that it must develop a rebuilding plan for this stock.
16 U.S.C. 1854
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to the Procurement List.
The Committee is proposing to add services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products and services from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 7/19/2019, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Commodity Futures Trading Commission.
Notice of meeting.
The Commodity Futures Trading Commission (CFTC) announces that on September 9, 2019, from 3:00 p.m. to 5:00 p.m. (Eastern Standard Time), the Market Risk Advisory Committee (MRAC) will hold a public meeting via teleconference. At this meeting, the MRAC will receive a status update from the Interest Rate Benchmark Reform Subcommittee (Subcommittee) and vote on a recommendation of the Subcommittee. In addition, the MRAC will discuss other issues involving the transition from the London Inter-bank Offered Rate to risk-free reference rates, including central counterparty adjustments to discounting/price alignment interest and the clearing treatment for certain physically-settled swaptions.
The meeting will be held on September 9, 2019, from 3:00 p.m. to 5:00 p.m. (Eastern Standard Time). Please note that the teleconference may end early if the MRAC has completed its business. Members of the public who wish to submit written statements in connection with the meeting should submit them by September 16, 2019.
The meeting will be held via teleconference. You may submit public comments, identified by “Market Risk Advisory Committee,” by any of the following methods:
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Any statements submitted in connection with the committee meeting will be made available to the public, including publication on the CFTC website,
Alicia L. Lewis, MRAC Designated Federal Officer, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 418-5862.
The meeting will be open to the public. Members of the public may listen to the meeting by telephone by calling a domestic toll-free telephone or international toll or toll-free number to connect to a live, listen-only audio feed. Call-in participants should be prepared to provide their first name, last name, and affiliation.
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The meeting agenda may change to accommodate other MRAC priorities. For agenda updates, please visit the MRAC committee site at:
All written submissions provided to the CFTC in any form will also be published on the CFTC's website. Persons requiring special accommodations to attend the meeting because of a disability should notify the contact person above.
5 U.S.C. app. 2 section 10(a)(2).
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before September 23, 2019.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs
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A copy of all comments submitted to OIRA should be sent to the Commodity Futures Trading Commission (Commission) by any of the following methods. The copies should refer to “OMB Control No. 3038-0031.”
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• By Hand Delivery/Courier to the same address; or
• Through the Commission's website at
Please submit your comments to the Commission using only one method. A copy of the supporting statement for the collection of information discussed herein may be obtained by visiting
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
William M. Roberson, Senior Procurement Executive, Financial Management Branch, Commodity Futures Trading Commission, Three Lafayette Centre, 1122 21st Street NW, Washington, DC 20581; phone: (202) 418-5367; fax: (202) 418-5414; email:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. On June 14, 2019, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
44 U.S.C. 3501
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Regulation I: Disclosure Requirements for Depository Institutions Lacking Federal Deposit Insurance (12 CFR 1009).”
Written comments are encouraged and must be received on or before September 23, 2019 to be assured of consideration.
Comments in response to this notice are to be directed towards OMB and to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection. You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Documentation prepared in support of this information collection request is available at
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense is publishing this notice to announce that it is renewing the charter for the Strategic Environmental Research and Development Program Scientific Advisory Board (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Board's charter is being renewed pursuant to 10 U.S.C. 2904 and in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix) and 41 CFR 102-3.50(a). The charter and contact information for the Board's Designated Federal Officer (DFO) are found at
The Board provides the Secretary of Defense with independent advice and recommendations on matters pertaining to the proposed research projects, including estimated costs, for research in and technology development related to environmental activities in excess of $1,000,000 as referred to it by the Strategic Environmental Research and Development Program Council (“the Council”). The Board may make recommendations to the Council regarding technologies, research, projects, programs, activities, and, if appropriate, funding within the scope of the Strategic Environmental Research and Development Program. In addition, the Board shall assist and advise the Council in identifying the environmental data and analytical assistance activities that should be covered by the policies and procedures prescribed pursuant to 10 U.S.C. 2904(e).
The Board shall be composed of no less than six and no more than 14 members, jointly approved by the Secretaries of Defense and Energy and in consultation with the Administrator of the Environmental Protection Agency. Permanent members of the Board are the Science Advisor to the President and the Administrator of the National Oceanic and Atmospheric Administration, or his or her respective designees. Non-permanent members are appointment from among persons eminent in the fields of basic sciences, engineering, ocean and environmental sciences, education, research management, international and security affairs, health physics, health sciences, or social sciences, with due regard given to the equitable representation of scientists and engineers who are women or who represent minority groups. At least one member of the Board shall be a representative of environmental public interest groups, and one member shall be a representative of the interests of State governments.
The Secretary of Defense and the Secretary of Energy, in consultation with the Administrator of the Environmental Protection Agency, shall request that the head of the National Academy of Sciences, in consultation with the head of the National Academy of Engineering and the head of the Institutes of Medicine of the National Academy of Sciences, nominate persons for appointment to the Advisory Board; that the Council on Environmental Quality nominate for appointment to the Advisory Board at least one person who is a representative of environmental public interest groups; and that the National Association of Governors nominate for appointment to the Advisory Board at least one person who is representative of the interests of State governments. Individual members will be appointed according to DoD policy and procedures, and members will serve a term of service of two-to-four years with annual renewals.
One member, pursuant to 10 U.S.C. 2904(d) according to DoD policy and procedures, will serve as Chair of the Board. No member, unless approved according to DoD policy and procedures, may serve more than two consecutive terms of service on the Board, to include its subcommittees, or serve on more than two DoD federal advisory committees at one time.
Members of the Board who are not full-time or permanent part-time Federal officers or employees, or members of the Armed Services will be appointed as experts or consultants, pursuant to 5 U.S.C. 3109, to serve as special government employee members. Board
All members of the Board are appointed to provide advice on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Board-related travel and per diem, members serve without compensation.
The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Board. All written statements shall be submitted to the DFO for the Board, and this individual will ensure that the written statements are provided to the membership for their consideration.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by October 22, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Defense Health Agency Information Management Control Officer, 7700 Arlington Boulevard, Falls Church, VA 22042, Ms.Wanda Oka or call 703-681-1697.
Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Women in the Services (DACOWITS) will take place.
Day 1—Open to the public Tuesday, September 17, 2019 from 8:00 a.m. to 11:30 a.m. Day 2—Open to the public Wednesday, September 18, 2019 from 8:30 a.m. to 11:30 a.m.
The address of the open meeting is the Key Bridge Marriott, located at 1401 Lee Highway, Arlington, VA 22209.
Colonel Toya J. Davis, U.S. Army, (703) 697-2122 (Voice), 703-614-6233 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open Federal advisory committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the U.S. Army Corps of Engineers, Inland Waterways Users Board (Board). This meeting is open to the public. For additional information about the Board, please visit the committee's website at
The Army Corps of Engineers, Inland Waterways Users Board will meet from 8 a.m. to 12 p.m. on September 12, 2019. Public registration will begin at 7:15 a.m.
The Inland Waterways Users Board meeting will be conducted at the Hilton Springfield Hotel, 6550 Loisdale Road, Springfield, Virginia 22150, 703-971-8900.
Mr. Mark R. Pointon, the Designated Federal Officer (DFO) for the committee, in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR-GM, 7701 Telegraph Road, Casey Building, Alexandria, VA 22315-3868; by telephone at 703-428-6438; and by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before September 23, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Western Area Power Administration, DOE.
Notice concerning fiscal year 2020 Boulder Canyon Project base charge and rates for electric service.
The Assistant Secretary for Electricity confirms, approves, and places into effect, on a final basis, the Boulder Canyon Project (BCP) base charge and rates for fiscal year (FY) 2020 under Rate Schedule BCP-F10. The base charge decreased by $3.3 million to $66.4 million, a 4.8% reduction from FY 2019. The reduction is primarily the result of an increase in non-power revenue projections for the Hoover Dam visitor center.
The FY 2020 base charge and rates will be effective October 1, 2019, and will remain in effect through September 30, 2020.
Mr. Ronald E. Moulton, Regional Manager, Desert Southwest Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, (602) 605-2525, or
On June 6, 2018, the Federal Energy Regulatory Commission (FERC) confirmed and approved Rate Schedule BCP-F10 under Rate Order No. WAPA-178 on a final basis through September 30, 2022.
Rate Schedule BCP-F10 and the BCP Electric Service Agreement require WAPA to determine the annual base charge and rates for the next fiscal year before October 1 of each year. The FY 2019 BCP base charge and rates expire on September 30, 2019.
A $5.1 million increase in non-power revenue projections primarily resulting from the resumption of typical revenues following completion of renovations to the Hoover Dam visitor center and $1.3 million in prior year carryover contributed to the FY 2020 base charge reduction.
The Bureau of Reclamation's FY 2020 budget is increasing by $3.7 million. Higher operation and maintenance expenses of $1.8 million and replacement costs of $1.4 million account for most of this increase. WAPA's FY 2020 budget is decreasing by $600,000 due to a $400,000 reduction in dispatching and substation maintenance expenses and a $200,000 reduction in replacement costs.
The FY 2020 composite and energy rates are decreasing by 4.4 percent. The reduction of the base charge contributes to these decreases. The capacity rate is decreasing by 6.9 percent. This decline is due to a reduction in the base charge and an increase in capacity projections.
The notice of the proposed FY 2020 base charge and rates for electric service was published consistent with procedures set forth in 10 CFR part 903 and 10 CFR part 904. WAPA took the following steps to involve customers and interested parties in the rate process:
1. On April 9, 2019, a
2. On May 9, 2019, WAPA held a public information forum in Phoenix, Arizona. WAPA's representatives explained the proposed base charge and rates, provided handouts, and were available to answer questions.
3. On June 10, 2019, WAPA held a public comment forum in Phoenix, Arizona, to provide an opportunity for customers and interested parties to comment and ask questions for the record.
4. On July 8, 2019, the consultation and comment period ended, and WAPA received four comments. The comments appear below, paraphrased where appropriate without compromising their meaning.
WAPA's Administrator certified that the FY 2020 base charge and rates under Rate Schedule BCP-F10 are the lowest possible rates, consistent with sound business principles. The base charge and rates were developed following administrative policies and applicable laws.
Information about the rate process to establish the FY 2020 base charge and rates was made available on WAPA's website at
10 CFR part 904.7(e) requires annual review of the BCP base charge and an adjustment, either upward or downward, when necessary and administratively feasible to assure sufficient revenues to effect payment of all costs and financial obligations associated with the project. The Administrator provided all Contractors an opportunity to comment on the proposed base charge adjustment consistent with the procedures for public participation in rate adjustments as required under 10 CFR part 904.7(e) and the BCP Electric Service Agreement. The BCP Electric Service Agreement goes on to state that in years other than the first and fifth years of a rate schedule approved by the Federal Energy Regulatory Commission on a final basis, adjustments to the base charge shall be effective upon approval by the Deputy Secretary of Energy. Under the Department of Energy Organization Act, the Secretary of Energy holds plenary authority over Department of Energy affairs with respect to the Power Marketing Administrations. By Delegation Order No. 00-002.00Q, effective November 1, 2018, the Secretary of Energy delegated to the Under Secretary of Energy the authority vested in the Secretary with respect to WAPA. By Redelegation Order No. 00-002.10D, effective June 4, 2019, the Under Secretary of Energy delegated to the Assistant Secretary for Electricity the same authority with respect to WAPA.
Following DOE's review of WAPA's proposal, I hereby confirm, approve, and place the FY 2020 base charge and rates for BCP electric service, under Rate Schedule BCP-F10, into effect on a final basis through September 30, 2020.
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the provisions of the Federal Advisory Committee Act, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held September 5 and 6, 2019 at Milken Institute School of Public Health, located at 950 New Hampshire Ave NW, Washington, DC 20052. Due to unforeseen administrative circumstances, EPA is announcing this meeting with less than 15 calendar days' notice. The CHPAC advises the Environmental Protection Agency (EPA) on science, regulations and other issues relating to children's environmental health.
September 5, 2019 from 9 a.m. to 5 p.m. and September 6, 2019 from 9 a.m. to 1 p.m.
950 New Hampshire Ave. NW, Washington, DC 20052.
Nica Louie, Office of Children's Health Protection, U.S. EPA, MC 1107T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-7633 or
The meetings of the CHPAC are open to the public. An agenda will be posted to
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to add a new site (hemp) to the labeling of currently registered pesticide products that contain active ingredients with established tolerance exemptions. Due to EPA's expectation that these initial applications involving hemp may be of significant interest to the public and to enhance transparency, EPA is hereby providing notice of receipt and opportunity to comment, although not required pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Comments must be received on or before September 23, 2019.
Submit your comments, identified by the EPA Registration Number of interest as shown in the body of this document, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (BPPD) (7511P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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When the Agriculture Improvement Act of 2018 (2018 Farm Bill) was signed into law on December 20, 2018, hemp, defined therein as the plant
Because of these recent developments with regard to hemp, EPA has received applications to add hemp as a new site to the labeling of some currently registered pesticide products. These registered pesticide products contain active ingredients for which EPA previously determined the residues will be safe under any reasonably foreseeable circumstances and, pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA), established tolerance exemptions, as indicated below, for those residues in or on all raw agricultural or food commodities. As these initial applications that involve hemp may be of significant interest to the public and to enhance transparency, EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by EPA on these applications.
FIFRA section 3(c)(4) requires EPA to “publish in the
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7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice of proposed stipulated partial settlement agreement; request for public comment.
In accordance with the EPA Administrator's October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is
Written comments on the proposed stipulated partial settlement agreement must be received by September 23, 2019.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2019-0478 online at
Michele Knorr, Pesticides and Toxic Substances Law Office (2333A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-5631; email address:
On January 20, 2011, Plaintiffs (non-governmental environmental organizations) filed a complaint in the United States District Court in the Northern District of California asserting a single claim against EPA for allegedly violating section 7(a)(2) of the ESA by failing to initiate and reinitiate consultation with the Services with respect to 382 pesticide active ingredients. After motions practice and an appeal to the Ninth Circuit Court of Appeals, the plaintiffs filed their fourth amended complaint on June 29, 2018 for failure to initiate consultation under ESA section 7(a)(2) for certain pesticide products containing 35 pesticide active ingredients. After several settlement discussions, the parties reached a partial agreement in this case. Specifically, Paragraph 1.a. of the proposed stipulated partial settlement provides that EPA would agree to complete ESA section 7(a)(2) effects determinations, compiled into a biological evaluation, by February 14, 2021, for carbaryl and methomyl, and, as appropriate, request initiation of any ESA section 7(a)(2) consultations with the NMFS and/or the USFWS that EPA may determine to be necessary as a result of those effects determinations. Additional deadlines for completing ESA section 7(a)(2) effects determinations, compiled into a biological evaluation, included in Paragraphs 2.a. and 3.a., respectively, would be August 14, 2021, for atrazine and simazine, and August 14, 2024, for brodifacoum, bromadiolone, warfarin, and zinc phosphide, and, as appropriate, request initiation of any ESA consultations with NMFS and/or USFWS.
The agreement also includes statements of EPA's intent to take certain actions, in addition to the deadlines associated with specific biological evaluations, including: (1) To complete draft biological evaluations no later than one year prior to the deadline for the final biological evaluations, as well to provide notice and a 60-day opportunity for public comment on any such draft, (2) consistent with current practice, EPA would, within 30 business days of receipt from the USFWS of any draft biological opinions on the effects of chlorpyrifos and diazinon, make the draft available to the public for a 60-day comment period, (3) consistent with current practice, conduct nationwide-scale effects determinations, and (4) to complete biological evaluations for glyphosate and propazine on the same schedule as simazine and atrazine.
The stipulated partial settlement also includes provisions that would require EPA to meet specific milestones connected to the deadlines in Paragraphs 1.a, 2.a, and 3.a. These provisions included in Paragraphs 1.b., 2.b., and 3.b would include: (1) No later than 90 days prior to EPA's commitment to complete draft biological evaluations, EPA would provide a status report to the Court and other parties on its progress toward completing these drafts; and (2) EPA would provide a status report to the Court and the parties 90 days prior to the deadline to complete the final biological evaluations. Additionally, Paragraphs 1.c., 2.c., and 3.c. would include provisions for modifying the final biological evaluation deadlines. The stipulated partial settlement agreement would also include a meet and confer deadline of August 30, 2021 for all parties to discuss resolving the remaining issues in this case.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed stipulated partial settlement from persons who are not named as parties to the litigation in question. If so requested, EPA will also consider holding a public hearing on whether to
The official public docket for this action (identified by EPA-HQ-OGC-2019-0478) contains a copy of the proposed stipulated partial settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available on EPA's website at [Insert URL] and through
EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Office of Research and Development; Environmental Protection Agency (EPA).
Notice of the designation of a new equivalent method for monitoring ambient air quality.
Notice is hereby given that the Environmental Protection Agency (EPA) has designated one new equivalent method for measuring concentrations of ozone (O
Robert Vanderpool, Exposure Methods and Measurement Division (MD-D205-03), National Exposure Research Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711. Phone: 919-541-7877. Email:
In accordance with regulations at 40 CFR part 53, the EPA evaluates various methods for monitoring the concentrations of those ambient air pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS) as set forth in 40 CFR part 50. Monitoring methods that are determined to meet specific requirements for adequacy are designated by the EPA as either reference or equivalent methods (as applicable), thereby permitting their use under 40 CFR part 58 by States and other agencies for determining compliance with the NAAQS. A list of all reference or equivalent methods that have been previously designated by EPA may be found at
The EPA hereby announces the designation of one new equivalent method for measuring concentrations of O
EQOA-0719-253, “Focused Photonics Inc. AQMS-300 O
This application for an equivalent method determination for this O
A representative test analyzer was tested in accordance with the applicable test procedures specified in 40 CFR part 53, as amended on October 26, 2015. After reviewing the results of those tests and other information submitted by the applicant, EPA has determined, in accordance with part 53, that this method should be designated as an equivalent method.
As a designated equivalent method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, this method must be used in strict accordance with the operation or instruction manual associated with the method and subject to any specifications and limitations (
Use of the method also should be in general accordance with the guidance and recommendations of applicable sections of the “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume I,” EPA/600/R-94/038a and “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume II, Ambient Air Quality Monitoring Program,” EPA-454/B-13-003, (both available at
Consistent or repeated noncompliance with any of these conditions should be reported to: Director, Exposure Methods and Measurement Division (MD-E205-01), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711.
Designation of this equivalent method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR part 58. Questions concerning the commercial availability or technical aspects of the method should be directed to the applicant.
Environmental Protection Agency (EPA).
Notice.
As required under section 6(b) of the Toxic Substances Control Act (TSCA) and implementing regulations, EPA is proposing to designate 20 chemical substances as High-Priority Substances for risk evaluation. This document and supporting docket materials identify the proposed designation for each of the chemical substances and instructions on how to access the chemical-specific information, analysis and basis used by EPA to support the proposed designation for each chemical substance. EPA is providing a 90-day comment period during which interested persons may provide comments on the proposed designations of High-Priority Substances for risk evaluation.August 22, 2019
Comments must be received on or before November 21, 2019.
Use one of the following methods to submit comments. For comments not related to a specific chemical, including comments on Unit V., direct your comments to docket identification (ID) number EPA-HQ-OPPT-2019-0131. For comments on one or more of the 20 chemical substances, use the applicable chemical specific docket ID number(s) identified in Unit IV.B.:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general and may be of interest to entities that currently or may manufacture (including import) a chemical substance regulated under TSCA (
EPA is proposing to designate 20 chemical substances as High-Priority Substances for risk evaluation pursuant to section 6(b) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(b). This document includes a summary of the approach used by EPA to support the proposed designations, the proposed designation for each of the chemical
TSCA section 6(b) and EPA implementing regulations at 40 CFR 702.9 require EPA to carry out a prioritization process for chemical substances that may be designated as high priority for risk evaluation. TSCA section 6(b)(2)(B) requires that EPA be conducting risk evaluations on at least 20 High-Priority Substances no later than three and one-half years after the date of enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. 114-182). EPA is proposing to designate as High-Priority Substances for risk evaluation the same 20 chemical substances for which EPA initiated the prioritization process required by TSCA section 6(b) on March 21, 2019 (Ref. 1). EPA is providing a 90-day comment period during which the public may submit comments on EPA's proposed designations of High-Priority Substances for risk evaluation, as required by TSCA section 6(b)(1)(C)(ii) and implementing regulations (40 CFR 702.9(g)).
This document is issued pursuant to TSCA section 6(b)(1).
This document identifies 20 chemical substances for proposed designation as High-Priority Substances for risk evaluation. This document does not establish any requirements on persons or entities outside of the Agency. No incremental impacts are therefore anticipated, and consequently, EPA did not estimate potential incremental impacts for this action.
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TSCA section 6(b)(1) requires EPA to prioritize chemical substances for risk evaluation. As required by TSCA section 6(b) and described in 40 CFR 702.7, on March 21, 2019 (Ref. 1) EPA initiated the prioritization process for 20 chemical substances identified as candidates for High-Priority Substance designation.
Under TSCA section 6(b)(1)(B) and implementing regulations (40 CFR 702.3), a High-Priority Substance is defined as a chemical substance that EPA determines, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA.
A proposed designation of a substance as a High-Priority Substance is not a finding of unreasonable risk. Rather, when prioritization is complete, for those chemicals designated as High-Priority Substances, the Agency will have evidence that the substances may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use. Final designation of a High-Priority Substance initiates the risk evaluation process (40 CFR 702.17), which culminates in a finding of whether or not the chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use.
This document is intended to fulfill the requirement in TSCA section 6(b)(1)(C)(ii) that the Administrator propose the designation of 20 chemical substances as High-Priority Substances for risk evaluation after conducting a review, as required by TSCA section 6(b)(1)(A) (see also 40 CFR 702.9(a)). This document is also intended to fulfill the requirement in TSCA section 6(b)(1)(C)(ii) that the Administrator request public comments on proposed priority designations (see also 40 CFR 702.9(g)).
EPA generally used reasonably available information to screen the candidate chemical substances against the following criteria and considerations (40 CFR 702.9(a)):
• The chemical substance's hazard and exposure potential;
• The chemical substance's persistence and bioaccumulation;
• Potentially exposed or susceptible subpopulations;
• Storage of the chemical substance near significant sources of drinking water;
• The chemical substance's conditions of use or significant changes in conditions of use;
• The chemical substance's production volume or significant changes in production volume; and
• Other risk-based criteria that EPA determines to be relevant to the designation of the chemical substance's priority.
As described in 40 CFR 702.9(b), in conducting the review during the prioritization process, EPA considered sources of information relevant to the review criteria as outlined in the statute (TSCA section 6(b)(1)(A)) and implementing regulations (40 CFR 702.9(a)) and consistent with the scientific standards of TSCA section 26(h), including, as appropriate, sources for hazard and exposure data listed in Appendices A and B of the TSCA Work Plan Chemicals: Methods Document (February 2012). In addition, as required by 40 CFR 702.9, EPA considered the hazard and exposure potential of the chemical substances and did not consider costs or other non-risk factors in making a proposed priority designation.
The initiation of the prioritization process (Ref. 1) included a 90-day comment period during which interested persons were able to submit relevant information on the 20 chemical substances identified as candidates for High-Priority Substance designation. EPA received 125 submissions from commenters, including private citizens, potentially affected businesses, trade associations, environmental and public health advocacy groups, and academia. Comments addressed the overall prioritization process (
EPA used reasonably available information, including public comments received during the 90-day comment period following initiation of the prioritization process (Ref. 1), to analyze the candidate chemical substances against the criteria and considerations in TSCA section 6(b)(1)(A) and 40 CFR 702.9 (see Unit III.). EPA developed a document for each substance to identify the information, analysis and basis used to support the proposed designations as a High-Priority Substance for risk evaluation. These documents are available in the docket of each of the chemical substances with a proposed designation as a High-Priority Substance for risk evaluation. The proposed designations and docket references are presented in Unit IV.B., along with the docket references.
Also included in each document is an explanation of the approach used by EPA to conduct the review. Each of the documents includes an overview of the requirements in TSCA section 6(b)(1)(A) and the regulatory section addressing the following review criteria and considerations (40 CFR 702.9):
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• For children, EPA evaluated the chemical substance's use in products and articles regulated under TSCA and intended for children, using CDR information reported during the 2012 and 2016 CDR cycles. EPA presented information regarding those commercial and consumer uses where the chemical substance was used in products intended for children. EPA also identified the potential for developmental hazards that could negatively impact children.
• For women of reproductive age (
• For workers, EPA identified the potential for occupational exposures to workers based on the conditions of use of each chemical.
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• For environmental exposures, EPA considered the conditions of use and activities associated with those conditions of use and considered monitoring data and fate properties of each chemical substance to anticipate its presence in different environmental media.
• For worker or occupational exposure, EPA identified the conditions of use that are likely to result in workers exposures, such as manufacturing, processing, industrial and commercial use, distribution in commerce, and disposal.
• For consumer exposure, EPA identified consumer uses using CDR information, information from the NIH Household Products Database and the EPA's Chemical and Products Database (CPDat).
• For general population exposure, EPA considered releases from certain conditions of use as reported in TRI, such as manufacturing, that may result in general population exposures via drinking water ingestion and/or inhalation from air releases.
8.
EPA is proposing to designate the 20 chemicals listed in Unit IV.C. as High-Priority Substances for risk evaluation. The proposed designations are based on the conclusion that the chemical substance satisfies the definition of High-Priority Substance in TSCA section 6(b)(1)(B) and 40 CFR 702.3. As mentioned previously, a proposed designation of a chemical substance as a High-Priority Substance is not a finding of unreasonable risk; rather, when prioritization is complete, a final designation as a High-Priority Substance will initiate the risk evaluation for the chemical substance, which will culminate in a finding of whether or not the chemical substance presents an unreasonable risk to health or the environment under the conditions of use. Based on the information provided in the Proposed Designation documents, the Agency is proposing the chemical substances listed in Unit IV.C. as High-Priority Substances for risk evaluation. The chemical-specific designation documents containing the information, analysis and basis used to support the proposed designation are located in the docket for each chemical substance.
EPA is interested in comments that would inform the exposure and hazard assessments and the identification of conditions of use for the following chemicals:
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The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
15 U.S.C. 2601
Export-Import Bank of the United States.
Notice.
This Notice is to inform the public, in accordance with Section 3(c)(10) of the Charter of the Export-Import Bank of the United States (“Ex-Im Bank”), that Ex-Im Bank has received an application for final commitment for a long-term loan or financial guarantee in excess of $100 million (as calculated in accordance with Section 3(c)(10) of the Charter). Comments received within the comment period specified below will be presented to the Ex-Im Bank Board of Directors prior to final action on this Transaction. Any comments received will be made available to the public.
Comments must be received on or before September 17, 2019 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before October 22, 2019. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Section 64.703(c) of the Commission's rules requires the posted consumer information to be added when an aggregator has changed the pre-subscribed operator service provider (OSP) no later than 30 days following such change. Consumers will use this information to determine whether they wish to use the services of the identified OSP.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before October 22, 2019. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC or Commission) Communications Security, Reliability, and Interoperability Council (CSRIC) VII will hold its second meeting.
September 17, 2019.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street SW, Washington, DC 20554.
Suzon Cameron, Designated Federal Officer, (202) 418-1916 (voice) or
The meeting will be held on September 17, 2019, from 1 p.m. to 5 p.m. in the Commission Meeting Room of the Federal Communications Commission, Room TW-C305, 445 12th Street SW, Washington, DC 20554.
The CSRIC is a Federal Advisory Committee that will provide recommendations to the FCC regarding best practices and actions the FCC can take to help ensure the security, reliability, and interoperability of communications systems. On March 15, 2019, the FCC, pursuant to the Federal Advisory Committee Act, renewed the charter for the CSRIC for a period of two years through March 14, 2021. The meeting on September 17, 2019, will be the second meeting of the CSRIC under the current charter. The FCC will attempt to accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will provide audio and/or video coverage of the meeting over the internet from the FCC's web page at
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via email to
Telephonic, August 27, 2019, 10 a.m.
Kimberly Weaver, Director, Office of External Affairs (202) 942-1640.
Office of the Chief Acquisition Officer, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement for Proposal to Lease Space, GSA Form 1364 and Lessor's Annual Cost Statement, GSA Form 1217.
Submit comments on or before: October 22, 2019.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to GSA by any of the following methods:
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Ms. Christina Mullins, Procurement Analyst, General Services Acquisition Policy Division, 202-969-4066 or via email at
The General Services Administration has various mission responsibilities related to the acquisition, management, and disposal of real and personal property. These mission responsibilities include developing requirements, solicitation of lease offers and the award of real property lease contracts. Individual solicitations and resulting contracts may impose unique information collection/reporting requirements on contractors, not required by regulation, but necessary to (1) evaluate whether the physical attributes of offered properties meet the Government's requirements and (2) evaluate the owner/offeror's price proposal. The approval requested includes four versions of the GSA Form 1364; GSA Forms 1364, 1364A, 1364A-1, and 1364WH. These forms are used to obtain information for offer evaluation and lease award purposes regarding property being offered for lease to house Federal agencies. This includes financial aspects of offers for analysis and negotiation, such as real estate taxes, adjustments for vacant space, and offeror construction overhead fees.
A total of seven lease contract models have been developed to meet the needs of the national leased portfolio. Three of these lease models require offerors to complete a GSA Form 1364 and two require a GSA Form 1217. The GSA Form 1364 versions require the submission of information specifically aligned with certain leasing models and avoids mandating submission of information that is not required for use in evaluation and award under each model. The GSA Form 1217 requires the submission of information specific to the services and utilities of a building in support of the pricing detailed under GSA Form 1364. The forms relate to individual lease procurements and no duplication exists.
The Global Lease model uses the GSA Form 1364. The 1364 captures all rental
The Simplified Lease Model uses the GSA Forms 1364A and 1364A-1. This model obtains a firm, fixed price for rent, which includes the cost of tenant improvement construction. Therefore, leases using the Simplified model do not include post-award tenant improvement cost information on the form. The 1364A includes rental rate components and cost data that becomes part of the lease contract and that is necessary to satisfy GSA pricing policy requirements.
The 1364A-1 is a checklist that addresses technical requirements as referenced in the Request for Lease Proposals. The 1364A-1 is separate from the proposal itself and is maintained in the lease file; it does not become an exhibit to the lease. The 1364A-1 may contain proprietary offeror information that cannot be released under the Freedom of Information Act.
The Warehouse Lease Model uses GSA Form 1364WH. This model is specifically designed to accommodate the special characteristics of warehouse space and is optimized for space whose predominant use is for storage, distribution, or manufacturing. The 1364WH captures building characteristics unique to warehouse facilities and allows for evaluation of offers based on either area or volume calculations.
The Global and Warehouse Lease Models use the GSA Form 1217. GSA Form 1217 captures the estimated annual cost of services and utilities and the estimated costs of ownership, exclusive of capital charges. These costs are listed for both the entire building and the area proposed for lease to the Government, broken down into specific categories.
Public comments are particularly invited on: Whether this collection of information is necessary; whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision and renewal of a previously approved information collection requirement regarding right of first refusal employment.
Submit comments on or before September 23, 2019.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally submit a copy to GSA by any of the following methods:
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Mr. Michael O. Jackson, Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, at 202-208-4949 or via email at
9000-0114, Right of First Refusal of Employment.
As prescribed in FAR 7.305(c), the clause at FAR 52.207-3, Right of First Refusal of Employment, deals with adversely affected or separated Government employees resulting from the conversion of work from in-house performance to performance by contract. The clause requires the contractor to give these employees an opportunity to work for the contractor who is awarded the contract.
The information gathered will be used by the Government to gain knowledge of which employees, adversely affected or separated as a result of the contract award, have gained employment with the contractor within 90 days after contract performance begins.
A 60-day notice published in the
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on a proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on “Generic Clearance for CDC/ATSDR Formative Research and Tool Development”. This information collection request is designed to allow CDC to conduct formative research information collection activities used to inform aspects of surveillance, communications, health promotion, and research project development.
Written comments must be received on or before October 22, 2019.
You may submit comments, identified by Docket No. CDC-2019-0072 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who respond, including through the use of automated, electronic, mechanical, or other technilogical collection techniques or other forms of information technology;
5. Assess information costs.
Generic Clearance for CDC/ATSDR Formative Research and Tool Development—Extension—Office of Science (OS), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) requests approval for an extension of a generic clearance for CDC/ATSDR Formative Research and Tool Development. This information collection request is designed to allow CDC to conduct formative research information collection activities used to inform many aspects of surveillance, communications, health promotion, and research project development at CDC. Formative research is the basis for developing effective strategies including communication channels, for influencing behavior change. It helps researchers identify and understand the characteristics—interests, behaviors and needs—of target populations that influence their decisions and actions.
Formative research is integral in developing programs, as well as improving existing and ongoing programs. Formative research looks at the community in which a public health intervention is being or will be implemented and helps the project staff understand the interests, attributes and needs of different populations and persons in that community. Formative research occurs before a program is designed and implemented, or while a program is being conducted.
At CDC, formative research is necessary for developing new programs or adapting programs that deal with the complexity of behaviors, social context, cultural identities, and health care that underlie the epidemiology of diseases and conditions in the U.S. CDC conducts formative research to develop public-sensitive communication messages and user friendly tools prior to developing or recommending interventions, or care. Sometimes these studies are entirely behavioral but most often they are cycles of interviews and focus groups designed to inform the development of a product.
Products from these formative research studies will be used for prevention of disease. Findings from these studies may also be presented as evidence to disease-specific National Advisory Committees, to support revisions to recommended prevention and intervention methods, as well as new recommendations.
Much of CDC's health communication takes place within campaigns that have fairly lengthy planning periods— timeframes that accommodate the standard Federal process for approving data collections. Short term qualitative interviewing and cognitive research techniques have previously proven invaluable in the development of scientifically valid and population-appropriate methods, interventions, and instruments.
This request includes studies investigating the utility and acceptability of proposed sampling and recruitment methods, intervention contents and delivery, questionnaire domains, individual questions, and interactions with project staff or electronic data collection equipment. These activities will also provide information about how respondents answer questions and ways in which question response bias and error can be reduced.
This request also includes collection of information from public health programs to assess needs related to initiation of a new program activity or expansion or changes in scope or implementation of existing program activities to adapt them to current needs. The information collected will be used to advise programs and provide capacity-building assistance tailored to identify needs.
Overall, these development activities are intended to provide information that will increase the success of the surveillance or research projects through increasing response rates and decreasing response error, thereby decreasing future data collection burden to the public. The studies that will be covered under this request will include one or more of the following investigational modalities: (1) Structured and qualitative interviewing for surveillance, research, interventions and material development, (2) cognitive interviewing for development of specific data collection instruments, (3) methodological research, (4) usability testing of technology-based instruments and materials, (5) field testing of new methodologies and materials, (6) investigation of mental models for health decision-making to inform health communication messages, and (7) organizational needs assessments to support development of capacity. Respondents who will participate in individual and group interviews (qualitative, cognitive, and computer assisted development activities) are selected purposively from those who respond to recruitment advertisements.
In addition to utilizing advertisements for recruitment, respondents who will participate in research on survey methods may be selected purposively or systematically from within an ongoing surveillance or research project. Participation of respondents is voluntary. There is no cost to participants other than their time. The total estimated annual burden is 20,000 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled “Poison Center Collaborations for Public Health Emergencies.” This information collection is designed to create a timely mechanism which will allow a network of regional, state and local poison centers, supported by CDC, to obtain critical exposure and health information during a public health emergency.
CDC must receive written comments on or before October 22, 2019.
You may submit comments, identified by Docket No. CDC-2019-0070 by any of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger,
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Poison Center Collaborations for Public Health Emergencies (OMB Control No. 0920-1166, Exp. 2/29/2020)—Extension—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) is requesting a three-year Paperwork Reduction Act (PRA) clearance for an extension to the Generic Information Collection Request (Generic ICR) titled Poison Center Collaborations for Public Health Emergencies (OMB Control No. 0920-1166).
CDC's key partner, the American Association of Poison Control Centers (AAPCC), is a national network of 55 poison centers working to prevent and treat poison exposures. The goal for this new Generic ICR is to create a timely mechanism to allow poison centers, in collaboration with CDC, to obtain critical exposure and health information during public health emergencies. This information is not captured during initial poison center calls about triage and treatment of potential poison exposures. Additional data collections are needed quickly to further characterize exposures, risk factors, and illnesses.
When a public health emergency of interest to CDC and AAPCC occurs, the CDC and AAPCC hold a meeting to mutually decide whether the incident needs further investigation. For a public health emergency to be selected for call-back, adverse health effects must have occurred and a response is needed to prevent further morbidity and mortality. The event must meet the criteria below:
(1) The event is a public health emergency causing adverse health effects.
(2) Timely data are urgently needed to inform rapid public health action to prevent or reduce injury, disease, or death.
(3) The event is characterized by a natural or man-made disaster, contaminated food or water, a new or existing consumer product, or an emerging public health threat.
(4) The event has resulted in calls to a poison center, and the poison center agrees to conduct the call-back data collection.
(5) The event is domestic.
(6) Data collection will be completed in 60 days or less.
Trained poison center staff will conduct the call-back telephone survey, after administering consent. Respondents will include individuals who call poison centers about exposures related to the select public health emergencies. These respondents include adults, 18 years and older; adolescents, 15 to less than 18 years; and parents or guardians on behalf of their children less than 15 years of age.
The total estimate of 300 annual respondents is based on poison center experience which assumes two incidents per year with approximately 150 respondents per event. The average burden per respondent is approximately 40 minutes for the call-back questionnaire. We anticipate a total annualized burden of 200 hours. There is no cost to the respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled National Program of Cancer Registries Cancer Surveillance System to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on May 30, 2019 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
National Program of Cancer Registries Cancer Surveillance System (NPCR CSS) (OMB Control No. 0920-0469, Exp. 6/30/2019)—Reinstatement with Change—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In 2015, the most recent year for which complete information is available, almost 596,000 people died of cancer and more than 1.6 million were diagnosed with cancer. It is estimated that 15.8 million Americans are currently alive with a history of cancer. In the U.S., state/territory-based cancer registries are the only method for systematically collecting and reporting population based information about cancer incidence and outcomes such as survival. These data are used to measure the changing incidence and burden of each cancer; identify populations at increased or increasing risk; target preventive measures; and measure the success or failure of cancer control efforts in the U.S.
In 1992, Congress passed the Cancer Registries Amendment Act which established the National Program of Cancer Registries (NPCR). The NPCR provides support for state/territory-based cancer registries that collect, manage and analyze data about cancer cases. The state/territory-based cancer registries report information to CDC through the National Program of Cancer Registries Cancer Surveillance System (NPCR CSS), (OMB No. 0920-0469). CDC plans to request OMB approval to reinstate collecting this information for three years. Data definitions will be updated to reflect changes in national standards for cancer diagnosis and coding. The number of respondents has been updated to reflect the increased number of states/territories supported by CDC, but the burden per respondent will not change.
The NPCR CSS allows CDC to collect, aggregate, evaluate, and disseminate cancer incidence data at the national level. The NPCR CSS is the primary source of information for
The NPCR CSS also allows CDC to monitor cancer trends over time, describe geographic variation in cancer incidence throughout the country, and provide incidence data on racial/ethnic populations and rare cancers. These activities and analyses further support CDC's planning and evaluation efforts for state and national cancer control and prevention. In addition, datasets can be made available for secondary analysis.
Respondents are NPCR-supported central cancer registries (CCR) in 46 U.S. states, three territories, and the District of Columbia. Fifty CCRs submit data elements specified for the Standard NPCR CSS Report. Each CCR is asked to transmit two data files to CDC per year. The first NPCR CSS Standard file, submitted in January, is a preliminary report consisting of one year of data for the most recent year of available data. CDC evaluates the preliminary data for completeness and quality and provides a report back to the CCR. The second NPCR CSS Standard file, submitted by November, contains cumulative cancer incidence data from the first diagnosis year for which the cancer registry collected data with the assistance of NPCR funds (
The burden for each file transmission is estimated at two hours per response. Because cancer incidence data are already collected and aggregated at the state level the additional burden of reporting the information to CDC is small. All information is transmitted to CDC electronically. Participation is required as a condition of the cooperative agreement with CDC. There are no costs to respondents other than their time. The total estimated annualized burden hours are 200 for the Standard NPCR CSS Report.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Performance Progress and Monitoring Report (PPMR) (OMB Control No. 0920-1132) to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on May 8, 2019 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Performance Progress and Monitoring Report (PPMR) (OMB Control No. 0920-1132, Exp. 08/31/2019)—Revision—Office of Science (OS), Centers for Disease Control and Prevention (CDC).
Each year, approximately 80% of the Centers for Disease Control and Prevention's (CDC) budget is distributed via contracts, grants and cooperative agreements, from the Office of Financial Resources (OFR) to partners throughout the world in an effort to promote health, prevent disease, injury and disability and prepare for new health threats. OFR is responsible for the stewardship of these funds while providing excellent, professional services to our partners and stakeholders.
Currently, CDC uses the Performance Progress and Monitoring Report (PPMR—OMB Control Number: 0920-1132, Expiration Date: 08/31/2019), a progress report form for Non-Research awards to collect information semi-annually from Awardees regarding the progress made over specified time periods on CDC funded projects. The PPMR was originally modified from SF-PPR (OMB Control Number: 0970-0406, Expiration Date: 10/31/2015), a similar progress report that was owned by the Administration for Children and Families (ACF) within the Department of Health and Human Services (HHS). The PPMR was created by CDC to provide an agency-wide collection tool that would be able to obtain data on the progress of CDC Awardees for the purposes of evaluation, and to bring the Awardee reporting procedure into compliance with the Paperwork Reduction Act (PRA).
The information collected enables the accurate, reliable, uniform, and timely submission to CDC of each Awardee's work plans and progress reports, including strategies, activities and performance measures. The information collected by the PPMR is designed to align with, and support the goals outlined for each of the CDC Awardees. Collection and reporting of the information will occur in an efficient, standardized, and user-friendly manner that will generate a variety of routine and customizable reports. The PPMR will allow each Awardee to summarize activities and progress towards meeting performance measures and goals over a specified time period specific to each award. CDC will also have the capacity to generate reports that describe activities across multiple Awardees. In addition, CDC will use the information collection to respond to inquiries from HHS, Congress and other stakeholder inquiries about program activities and their impact.
This Revision request is being submitted to allow CDC to continue collection of this valuable information from Awardees for an additional three years, and to amend the procedures by which the information can be collected. Currently, the submission process requires Awardees to submit a completed PDF version of the PPMR by uploading it to
Use of this mechanism and the ability of Awardees to submit information related to program evaluation directly to
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comments on a request for a revision of an approved information collection titled, CDC's Fellowship Management System (OMB Control No. 0920-0765). CDC uses the information collected for processes that aid and enhance the selection of fellowship participants and host sites and to track participant information that helps strengthen the current, emerging, and ever-changing public health workforce.
CDC must receive written comments on or before October 22, 2019.
You may submit comments, identified by Docket No. CDC-2019-0071 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
CDC Fellowship Management System (OMB Control No. 0920-0765, Exp. 01/21/2021)—Revision—Division of Scientific Education and Professional Development (DSEPD), Center for Surveillance, Education, and Laboratory Services (CSELS), Centers for Disease Control and Prevention (CDC).
DSEPD requests a three-year Revision to continue the use of the CDC Fellowship Management System (FMS) to collect data under the approved OMB Control No. 0920-0765. CDC uses FMS to collect, process, and manage data from nonfederal applicants seeking training or public health support services through CDC fellowships. FMS
The proposed Revision will contribute significant enhancements and provide CDC with an efficient, effective, and secure electronic mechanism for collecting, processing, and monitoring fellowship information. The update to the technology platform will make it easier for additional fellowships to choose to use FMS. The increased efficiencies will allow programs to conduct their administrative data collection and monitor fellows' learning outcomes with a reduced burden and minimal development requirements.
The mission of DSEPD is to improve health outcomes through a competent, sustainable, and empowered public health workforce. Professionals in public health, epidemiology, medicine, economics, information science, veterinary medicine, nursing, public policy, and other related professionals seek opportunities, through CDC fellowships, to broaden their knowledge, and skills to improve the science and practice of public health. CDC fellows are assigned to state, tribal, local, and territorial public health agencies; federal government agencies, including CDC and Department of Health and Human Services' (HHS) operational divisions, such as Centers for Medicare & Medicaid Services; and to nongovernmental organizations, including academic institutions, tribal organizations, and private public health organizations.
A three-year revision will allow all fellowship applicants, public health agencies that host fellowship participants, and fellowship alumni the continued use of FMS for submission of electronic data. The annual burden table reflects OMB-approved changes since 2017. There is no cost to respondents other than their time. Total Burden Hours requested are 6361. There are no costs to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Birth Defects Study To Evaluate Pregnancy exposureS (BD-STEPS) to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on March 4, 2019 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Birth Defects Study To Evaluate Pregnancy exposureS (OMB Control No. 0920-0010, Exp. 02/29/2020)—Revision—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC).
Birth defects are associated with substantial morbidity and mortality in the United States. About one in every 33 babies is born with a birth defect, which are the leading cause of infant mortality and the fifth leading cause of loss of potential years of life before age 65. One in five infant deaths is due to birth defects.
CDC's National Center on Birth Defects and Development Disabilities (NCBDDD) works to identify causes of birth defects, improve the health of those living with birth defects, and find and promote opportunities for prevention. For example, vaccination programs have reduced the incidence of congenital rubella syndrome, Rh hemolytic disease of the newborn can be prevented by appropriate medical practice, and genetic counseling can provide parents with information about the increased risk of Down syndrome associated with advanced maternal age. Perhaps most importantly, folic acid intake before and during pregnancy can prevent many cases of fatal or permanently disabling neural tube defects, such as anencephaly and spina bifida.
For most birth defects, however, the causes are not known, making prevention efforts challenging to develop. To improve understanding of the causes of birth defects, CDC initiated active surveillance of birth defects in the wake of the thalidomide tragedy. The system has been in continuous operation since 1967 and is the longest running active surveillance system in the world. Over this period CDC adapted the system to both utilize and contribute to new findings about the epidemiology and causes of birth defects. Previous related efforts include the “Metropolitan Atlanta Congenital Defects Program” (MACDP) and the “National Birth Defects Prevention Study” (NBDPS).
In its current form, CDC conducts birth defects surveillance through the Birth Defects Study To Evaluate Pregnancy exposureS (BD-STEPS, OMB No. 0920-0010). BD-STEPS is a CDC-funded collaborative effort involving six CDC-funded, state-based Centers for Birth Defects Research and Prevention (CBDRP) that have legislative authority to collect population-based information on infants with major congenital malformations (Arkansas, California, Iowa, Massachusetts, New York, and North Carolina). CDC serves as an additional site on behalf of Georgia. Information collection for BD-STEPS is based on a case-control design that builds upon information obtained from state-based vital records and birth defects tracking systems. At all CBDRP sites, mothers who have given birth to infants with birth defects are invited to participate in a computer-assisted telephone interview (CATI) to discuss their medical history, pregnancies, environmental exposures, and medications. In addition, interviews are conducted with mothers of control-infants from each CBDRP, selected randomly from live-born infants without a major birth defect. Controls are identified either from vital records (birth certificates) or from hospitals of birth, and represent the birth population from which the case infants were identified. Two CBDRP sites (Arkansas and Massachusetts) also conduct interviews with mothers of infants who are stillborn without major birth defects, and controls. In states that allow retrieval of blood spots, BD-STEPS participants are asked for permission to share a portion of the newborn blood spot for the child who is part of the study, and for mothers of multiples, the co-siblings of this child. Finally, the interviews identify mothers who work in one of eight occupational categories of interest. These respondents are asked to complete a supplemental online questionnaire designed to assess the impact of the workplace on reproductive outcomes.
During the next OMB approval period, CDC plans to implement a number of changes, many reflecting increased emphasis on birth defects with established or suspected association with maternal infection. Five new birth defect case groups will be added. In addition, the maternal interviews will include new questions on infections, travel history, and marijuana use during pregnancy. The new case groups and questions will increase the estimated burden per interview from 45 minutes to 55 minutes. CBDRPs will also begin asking mothers for permission to access information on reportable infectious diseases from their state health departments. The estimated burden per response is 15 minutes. CDC will discontinue plans for a medical records review that was previously approved but never implemented.
Additional changes will also affect burden estimates. The estimated number of case interviews per site will increase from 200 to 270, and the number of control interviews per site will increase from 75 to 100. The number of interviews with mothers who gave birth to a stillborn infant will remain constant (220 interviews per site for the two CBDRP sites participating in this information collection activity, plus 100 control interviews per site). The number of respondents who complete the online occupational questionnaire will increase but there is no change to the estimated burden per response of 20 minutes. The number of mothers who are asked to provide permission for bloodspot retrieval will also increase, but the burden per response will not change.
CDC will use BD-STEPS data to identify modifiable maternal risk factors and to apply findings to prevention programs for birth defects and stillbirths. Data will also be used to examine hypotheses for gene-environment interactions involved in the etiology of birth defects.
OMB approval is requested for three years. Participation is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden will increase from 3,034 hours to 4,433 hours.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by October 22, 2019.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) announces the intent to award a single-source cooperative agreement in the amount of $75,000 to the Gerontology Institute, University of Massachusetts Boston (UMass Boston) to support and stimulate the expansion of work already underway by UMass Boston in providing pension counseling services to residents of the State of Illinois.
The award will be issued for a project period to run concurrently with the existing grantee's budget period.
Eva LaManna, Office of Elder Rights and Adult Protective Services, Administration on Aging, Administration for Community Living, 330 C Street SW, Washington, DC 20024. Telephone: 202-795-7311; Email:
The ACL's Pension Counseling & Information Program consists of six regional pension counseling projects, covering 30 states. The state of Illinois, with 64 million workers and a pension participation rate of 42%, is one of the largest states without an ACL-funded pension counseling project. The Pension Action Center at UMass Boston, which conducts ACL's New England Pension Assistance Project, is currently providing pension counseling services to residents of Illinois with funding from the Retirement Research Foundation. Additional funds are needed to leverage the foundation's funding, in order to ensure that the current provision of services to Illinois residents will be continued. This supplementary funding would be provided for the approved period.
This program is authorized under Title II of the Older Americans Act (OAA) (42 U.S.C. 3032), as amended by the Older Americans Act Amendments of 2006, Public Law 109-365.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) announces a forthcoming public advisory committee meeting of the Vaccines and Related Biological Products Advisory Committee (VRBPAC). The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on November 8, 2019, from 8:30 a.m. to 4:30 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. For those unable to attend in person, the meeting will also be webcast and will be available at the following link:
Serina Hunter-Thomas, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 240-402-5771,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Serina Hunter-
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at:
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30 days of the date of this publication.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Gisele Sarosy, MD, Coordinating Center for Clinical Trials (CCCT), National Cancer Institute, 9609 Medical Center Drive, 6W134, Rockville, MD 20852 or call non-toll-free number 240-276-6172 or Email
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The estimated annualized burden hours are 18,000.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is issued that allows such activities. The ESA also requires that we invite public comment before issuing permits for any activity otherwise prohibited by the ESA with respect to any endangered species.
We must receive comments by September 23, 2019.
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For more information, see Public Comment Procedures under
Monica Thomas, by phone at 703-358-2104, via email at
We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
You may submit your comments and materials by one of the methods in
When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.
You may view and comment on others' public comments at
If you submit a comment at
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(c) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
We invite comments on the following applications:
The applicant requests a permit to export one captive-bred female mongoose lemur (
The applicant requests a permit to export one captive-bred male white-naped crane (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for northern bald ibis (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for Galapagos tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for Madagascar radiated tortoise (
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
After the comment period closes, we will make decisions regarding permit issuance. If we issue permits to any of the applicants listed in this notice, we will publish a notice in the
We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of the Special Trustee for American Indians, Interior.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to modify the Office of the Special Trustee for American Indians Privacy Act system of records titled, “Individual Indian Money (IIM) Trust Funds—Interior, OS-02”. This system helps the Office of the Special Trustee for American Indians meet fiduciary responsibilities set forth in the American Indian Trust Fund Management Reform Act of 1994. The Department of the Interior is updating this system to (1) update the system location, (2) propose new and modified routine uses, (3) update the categories of records and categories of individuals covered by the system, and (4) provide general and administrative updates to remaining sections to accurately reflect the management and scope of the system. This modified system will be included in the Department of the Interior's inventory of record systems.
This modified system will be effective upon publication. New or modified routine uses will be effective September 23, 2019. Submit comments on or before September 23, 2019.
You may send comments, identified by docket number [DOI-2019-0003], by any of the following methods:
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Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240, email at
The Department of the Interior (DOI), Office of the Special Trustee for American Indians (OST) maintains the Individual Indian Money (IIM) Trust Fund—Interior, OS-02 system of records. This system assists OST in meeting the fiduciary responsibilities set forth in the American Indian Trust Fund Management Reform Act of 1994, including management of the receipt, investment, disbursement and administration of money held in trust for individual Indians and Alaskan Natives (or their heirs), and Indian Tribes. The OST provides trust services and information for Indian trust funds program management and oversees the implementation of trust reforms, trust accounting and coordination of trust policies intra-bureau-wide related to the management of Indian trust funds and assets. The system also provides litigation support by analyzing and reconciling the historical collection, distribution, and disbursement of income from IIM accounts, Indian trust land, and other revenue sources. The system also supports DOI land consolidation activities of fractionated lands and annual tribal trust evaluations for Tribes who compact trust programs, functions, services, and activities under Public Law 93-638 Self-Governance Compacts on behalf of the Secretary of the Interior.
OST is publishing this revised notice to (1) update the system location, (2) propose new and modified routine uses, (3) update the categories of records and categories of individuals covered by the system, and (4) provide general and administrative updates to remaining sections to accurately reflect the management and scope of the system in accordance with the Office of Management and Budget (OMB) Circular A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act.”
OST is proposing to modify existing routine uses to provide clarity and transparency, and reflect updates consistent with standard DOI routine uses. Routine uses A, B, G and L have been modified to provide additional clarification on external organizations and circumstances where disclosures are proper and necessary to facilitate the management of the IIM system. Routine use A was modified to further clarify disclosures to the Department of Justice or other Federal agencies when necessary in relation to litigation or judicial proceedings. Routine use B was modified to clarify disclosures to a congressional office to respond to or resolve an individual's request made to that office. Routine use G facilitates sharing with other government and tribal organizations pursuant to a court order or discovery request. Modified routine use L was revised to separate the sharing of information with the Department of the Treasury to recover debts owed to the United States into new proposed routine use W to distinguish the purpose of the sharing of information and promote greater transparency. Modified routine use I and new routine use J allow DOI to share information with appropriate Federal agencies or entities when reasonably necessary to respond to a breach of personally identifiable information and to prevent, minimize, or remedy the risk of harm to individuals or the Federal Government, or assist an agency in locating individuals affected by a breach in accordance with OMB Memorandum M-17-12, “Preparing for and Responding to a Breach of Personally Identifiable Information.”
OST is proposing new routine uses to facilitate the sharing of information with agencies and organizations to ensure the efficient and effective management of the IIM system, or to carry out a statutory responsibility of the DOI or Federal Government. Proposed routine use V facilitates sharing of information with the Executive Office of the President to resolve issues concerning an individual's records when requested by the subject individual. Proposed routine use W allows sharing of information with the Department of the Treasury to recover debts owed to the United States.
The Privacy Act of 1974, 5 U.S.C. 552a, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information about an individual is retrieved by the name or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of the DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires each agency to publish in the
You should be aware your entire comment including your personal identifying information, such as your address, phone number, email address, or any other personal identifying information in your comment, may be made publicly available at any time. While you may request that we withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
INTERIOR/OS-02, Individual Indian Money (IIM) Trust Funds.
Unclassified.
The system of records is maintained by the Office of the Special Trustee for American Indians, U.S. Department of the Interior, at the following locations:
(1) Office of the Special Trustee for American Indians, 4400 Masthead Street NE, Albuquerque, New Mexico 87109;
(2) American Indian Records Repository, 17501 West 98th Street, Lenexa, Kansas 66219;
(3) Bureau of Indian Affairs, Southwest Region, Albuquerque Data Center, 1001 Indian School Road, Albuquerque, New Mexico 87109;
(4) U.S. Department of the Interior, Office of the Special Trustee for American Indians, 1849 C Street NW, Washington, DC 20240;
(5) Other program offices that are located at regional and field offices and at the offices of Indian Tribes that administer trust programs under Indian Self-Determination or Self- Governance contracts or compacts; and
(6) Offices of contractors under contract to OST.
Financial Systems Administrator, Office of the Special Trustee for American Indians, U.S. Department of the Interior, 4400 Masthead Street NE, Albuquerque, New Mexico 87109.
American Indian Trust Fund Management Reform Act of 1994, Public Law 103-412, 108 Stat. 4239; 25 U.S.C. 116, 117a, 117b, 117c, 118, 119, 120, 121, 151, 159, 161a, 162a; 4011, 4043(b)(2)(B), Public Law 93-638 Self-Governance Compacts; 25 U.S.C. 5363(d)(1); 25 CFR 1000.350; 25 CFR 1000.355; 25 CFR 1000.365.
The purpose of the system is to manage the receipt, investment, distribution, and disbursement of IIM account and Tribal trust fund income; comply with the American Indian Trust Fund Management Reform Act of 1994; and improve accountability and management of Indian funds held in trust by the Government.
Individuals covered by the system include individual Indians and Alaskan Natives (or their heirs); Tribes that compact trust programs, functions, services, and activities under Public Law 93-638 Self-Governance Compacts; current and former Federal employees and contractors who receive IIM account information or are IIM account holders, owners of land held in trust or restricted status by the Federal Government, officials acting in their official capacity to administer program activities, individuals owning purchasable fractional interests in land or who may be interested in participating in the Land Buy-Back Program; members of the public who make inquiries about the Cobell Settlement payments; acquaintances of IIM account holders, depositors into and claimants against IIM accounts; individuals who lease, contract, or who are permit holders on Indian lands; and individuals with whom OST conducts business.
The system also contains information about private organizations that provide contact information about individual Indian account holders whose whereabouts are unknown to OST, corporations and other business entities, which are not subject to the Privacy Act. However, information about individuals acting on behalf of corporations and other business entities may reflect personal information that may be covered by this notice.
This system maintains IIM account and Tribal trust fund account records; documents related to financial and investment activity; custodianship of investments for IIM accounts and Tribal trust fund accounts; account reconciliation information, disbursements, bonds, transfers, and historical statements of account; transaction data regarding receipts, and contact information for individuals who may know the whereabouts of unknown locations of beneficiaries; land ownership and interests in restricted or fractioned lands; official land buy-back correspondence, appraisals, maps, purchase offers, and other documents related to land consolidation efforts and program activities; and, Tribal trust evaluation data and documentation. The records from Tribes and the Bureau of Indian Affairs (BIA) are used to evaluate compliance with Federal regulations, statutes, and policies in the management of Indian trust programs, and identify names of Tribes or trust beneficiaries associated with the ownership of trust assets, leases, court orders, or other trust related transactions and documentation. The data regarding IIM accounts that may be obtained from the OST Accounting Reconciliation Tool (ART) system, Trust Funds Accounting System (TFAS) and the BIA Trust Asset and Accounting Management system (TAAMS). Records in the system may include IIM account numbers, bank routing and account numbers, names, aliases or other names used, mother's maiden name, child or dependent information, guardianship information, gender, date of birth, age, date of death, emergency contact information, marital status, spouse information, medical information,
Records in the system are obtained from individual Indians and Alaskan Natives (or their heirs), Indian Tribes, current and former Federal employees and contractors who receive IIM account information or are IIM account holders. Records and financial data in this system are also obtained from the OST ART, TFAS, and other DOI Bureaus and Offices including BIA, Office of Natural Resources and Revenue (ONRR), Bureau of Land Management (BLM), Office of Hearings and Appeals (OHA), and the Office of the Secretary (OS). Information may also be obtained from the Department of Justice (DOJ), Department of the Treasury, and other Federal, state and local agencies, and Tribes; Courts of competent jurisdiction, including Tribal courts; and, private financial, business institutions, and entities.
This system also obtains information from members of the public, including individuals who make inquiries about Cobell Settlement payments, acquaintances of IIM account holders who may know the whereabouts of otherwise unknown locations of beneficiaries, depositors into and claimants against IIM accounts, individuals who lease, contract, or who are permit holders on Indian lands and individuals with whom OST conducts business. Information may also be received from private organizations about individual Indian account holders whose whereabouts are unknown to OST and correspondents, beneficiaries, landowners, and members of the public who participate or are interested in land consolidation or related program activity.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information maintained in this system may be disclosed to authorized entities outside DOI for purposes determined to be relevant and necessary as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
(1) DOI or any component of DOI;
(2) Any other Federal agency appearing before the Office of Hearings and Appeals;
(3) Any DOI employee or former employee acting in his or her official capacity;
(4) Any DOI employee or former employee acting in his or her individual capacity when DOI or DOJ has agreed to represent that employee or pay for private representation of the employee; or
(5) The United States Government or any agency thereof, when DOJ determines that DOI is likely to be affected by the proceeding.
B. To a congressional office when requesting information on behalf of, and at the request of, the individual who is the subject of the record.
C. To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
D. To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
E. To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
F. To representatives of the National Archives and Records Administration (NARA) to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
G. To state, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
H. To an expert, consultant, grantee, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
I. To appropriate agencies, entities, and persons when:
(1) DOI suspects or has confirmed that there has been a breach of the system of records;
(2) DOI has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOI (including its information systems, programs, and operations), the Federal Government, or national security; and
(3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DOI's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
J. To another Federal agency or Federal entity, when DOI determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in:
(1) responding to a suspected or confirmed breach; or
(2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
K. To the Office of Management and Budget (OMB) during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
L. To the Department of the Treasury, as needed, in the performance of their official duties to disburse trust funds and to issue disbursements, Explanation of Payment (EOP) reports, Statements of Performance (including Assets), IRS Form 1099s, Osage Headwright Owner's Share of Income, Deductions, etc., and BIA invoices for the use or sale of Indian trust lands and resources.
M. To agency contractors who have been engaged to assist the Government in the performance of a contract, grant, cooperative agreement, or other activity related to this system or records and who need to have access to the records in order to perform the activity.
N. To Indian Tribes entering into a contract or compacts of the trust funds management functions under the Indian Self-Determination and Education Assistance Act, as amended.
O. To any of the following entities or individuals, when the entity or individual makes a written request for information of owners of any interest in trust or restricted lands, location of the parcel, and the percentage of undivided interest owned by each individual.
(1) To other owners of interests in trust or restricted lands within the same Indian Reservation.
(2) To Tribes that exercise jurisdiction over the land where the parcel is located or any person who is eligible for membership in a Tribe.
(3) To any person that is leasing, using or consolidating, or is applying to lease, use or consolidate trust or restricted land or the interest in trust or restricted lands.
P. To Indian Tribes entering into a contract or compacts of real estate or title functions under the Indian Self-Determination and Education Assistance Act, as amended.
Q. To Indian Tribes (including employees) who
(1) operate, or are eligible to operate, land consolidation activities on behalf of DOI,
(2) agree to non-disclosure, and
(3) submit a request in writing, upon a determination by DOI that such activities shall occur on the Tribe's Reservation within six months or less and when the information relates to owners of fractionated land. Information disclosed may include, but is not limited to, the following:
(a) Contact information (telephone number, email address);
(b) Relevant personal characteristics of the owner (age, Tribal membership, living/deceased);
(c) Type of ownership,
(d) Transaction status,
R. To the lineal descent, heir, or devisee of a deceased individual covered by the system or to any other person entitled to the deceased's trust assets.
S. To IIM account owners, their heirs, guardians, or agents.
T. To members of the public, the names of IIM account holders whose whereabouts are unknown and OST is seeking a current address.
U. To the news media and the public, with the approval of the Public Affairs Officer in consultation with counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
V. To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible with the reason for which the records are collected or maintained.
W. To the Department of the Treasury to recover debts owed to the United States.
Disclosure pursuant to 5 U.S.C. 552a(b)(12). Disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are maintained in any medium including paper, electronic, microfilm, microfiche, imaged, and computer printout form. Original input documents are stored in standard office filing equipment and/or imaged documents on magnetic media which prepare and provide input documents and information for data processing. Paper records are maintained in file folders stored within locking file cabinets or locked areas in secured facilities with controlled access. Electronic records are stored in computers, removable drives, storage devices, electronic databases, and other electronic media under the control of OST.
Records are retrieved by individual names; SSNs; IIM or Tribal trust funds account numbers; Tribe, Tribal enrollment or census numbers; Tribal codes, electronic ticket numbers; contact names; call numbers or incident numbers; Tax Identification Number (TIN); IIM or Tribal trust fund account number and identifiers may also be linked to an individual appraisal, parcel, or encumbrance on ownership.
Records in this system are covered by the Indian Affairs Records Schedule (IARS) records series 6100 and 9000 approved on June 28, 2006 by the National Archives and Records Administration (NARA) Job No. N1-075-04-7 and Job. No. N1-075-06-8. The Indian Fiduciary Financial Trust records are cut off at the end of the fiscal year, maintained in the office two years after cut off, and then retired to the American Indian Records Repository (AIRR), Federal Records Center, Lenexa, Kansas. Record retention periods vary based on the type of record under the appropriate 6100 and 9000 records series. Subsequent legal transfer of the records to the National Archives of the United States will be in accordance with the signed Standard Form 258, Agreement to Transfer Records to the National Archives of the United States. Historical Trust Accounting records are cut off at fiscal year-end, maintained in the office of records for a maximum of 5 years after cut off, and then retired to the AIRR, Federal Records Center, Lenexa, Kansas. Subsequent legal transfer of the records to the National Archives of the United States will be as jointly agreed to between the U.S. Department of the Interior and NARA. Temporary records are maintained and disposed of in accordance with the General Records Schedule or the Departmental Records Schedule (DRS) for the appropriate record type (including data backup tapes or copies).
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security and privacy rules and policies. During normal hours of operation, paper records are maintained in locked file cabinets in secure locations under the control of authorized personnel. Computer servers on which electronic records are stored are located in secured DOI controlled facilities with physical, technical and administrative levels of security to prevent unauthorized access to the DOI network and information assets. Access granted to authorized personnel is password-protected, and each person granted access to the system must be individually authorized to use the system. A Privacy Act Warning Notice appears on computer monitor screens when records containing information on individuals are first displayed. Data exchanged between the servers and the system is encrypted. Backup tapes are encrypted and stored in a locked and controlled room in a secure, off-site location.
Computerized records systems follow the National Institute of Standards and Technology standards as developed to comply with the Privacy Act of 1974, 5 U.S.C. 552a, Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521; Federal Information Security Modernization Act of 2014, 44 U.S.C. 3551-3558; and the Federal Information Processing Standards 199; Standards for Security Categorization of Federal Information
Access to records in the system is limited to authorized personnel who have a need to know to access the records in the performance of their official duties. Electronic data is protected through identification, passwords, database permission and software controls. Such security measures establish different access levels for different types of users associated with pre-defined groups and/or bureaus. Each user's access is restricted to only the functions and data necessary to perform that person's job responsibilities. Access can be restricted to specific functions (
An individual requesting records on himself or herself should send a signed, written request to the System Manager identified above. The request should describe the records sought as specifically as possible. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238. Provide the following information with your request:
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency;
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you; and
(h) Description or identification of the records you are requesting (including whether you are asking for a copy of all of your records or only a specific part of them) and the maximum amount of money that you are willing to pay for duplication.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the System Manager identified above. A request for corrections or removal must meet the requirements of 43 CFR 2.246. Provide the following information with your request:
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency;
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you;
(h) Specific description or identification of the record(s) you are contesting and the reason(s) why you believe the record(s) are not accurate, relevant, timely, or complete; and
(i) Copy of documents or evidence in support of (h) above.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the System Manager identified above. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235. Provide the following information with your request:
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency; and
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you.
None.
80 FR 1043 (January 8, 2015).
Office of the Special Trustee for American Indians, Interior.
Rescindment of a system of records notice.
The Department of the Interior is issuing a public notice of its intent to rescind the Office of the Special Trustee for American Indians Privacy Act system of records, “OST Parking Assignment Records, OS-08” from its existing inventory.
August 23, 2019.
You may send comments, identified by docket number [DOI-2018-0014], by any of the following methods:
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You should be aware that your entire comment including your personal identifying information, such as your address, phone number, email address, or any other personal identifying information in your comment, may be made publicly available at any time. While you may request to withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240, email at
The Office of the Special Trustee for American Indians (OST) no longer uses the OS-08, OST Parking Assignment Records, system of records to collect and maintain parking permits for employees and contractors. In September 2013, OST opened parking to all OST employees, contractors, and visitors and discontinued the use of parking permits to control parking access. The records in this system were previously maintained in accordance with General Records Schedule (GRS), GRS 11/4a, which was approved by the National Archives and Records Administration. The retention period was six months, and all parking permit records maintained in the system were disposed of in accordance with GRS 11/4a.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the OST is removing the OS-08, OST Parking Assignment Records, from its system of records inventory. Rescinding the OS-08, OST Parking Assignment Records, system of records notice will have no adverse impacts on individuals as the records previously maintained in the system were disposed of in accordance with an approved records retention schedule. This rescindment will also promote the overall streamlining and management of Department of the Interior Privacy Act systems of records.
OS-08, OST Parking Assignment Records.
73 FR 77823 (December 19, 2008).
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Grand Staircase-Escalante National Monument (GSENM) and Kanab Field Office (KFO) have prepared the Proposed Resource Management Plans (RMPs) and Final Environmental Impact Statement (EIS) for the GSENM Grand Staircase, Kaiparowits, and Escalante Canyons Units, and Federal lands excluded from the Monument by Proclamation 9682 (Kanab-Escalante Planning Area (KEPA), and by this notice is announcing its availability and the opening of a protest period concerning the Proposed RMPs. In accordance with the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019, this notice also announces the opening of a 60-day public comment period regarding the proposed closure of recreational target shooting within at least 0.25 miles of residences, campgrounds, and developed recreation facilities in GSENM and KEPA.
The BLM planning regulations state that any person who meets the conditions as described in the regulations may protest the BLM's Proposed RMPs and Final EIS. A person who meets the conditions and files a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability in the
To ensure that comments on the proposed target shooting closure will be considered, the BLM must receive written comments by October 22, 2019.
The Proposed RMPs and Final EIS is available on the BLM ePlanning project website at
Instructions for filing a protest with the Director of the BLM regarding the Proposed RMPs may be found online at
You may submit comments on the proposed target shooting closure using either of the following methods:
Harry Barber, Monument Manager, telephone (435) 644-1200; address 669 S Hwy. 89A, Kanab, UT 84741; email
On December 4, 2017, President Donald Trump signed Presidential Proclamation 9682 modifying the boundaries of the GSENM to exclude from designation and reservation approximately 861,974 acres of land. Lands that remain part of the GSENM are included in three units, known as the Grand Staircase, Kaiparowits, and Escalante Canyons Units and are reserved for the care and management of the objects of historic and scientific interest described in Proclamation 6920, as modified by Proclamation 9682. Lands that are excluded from the Monument boundaries are now referred to as the Kanab-Escalante Planning Area (KEPA) and are managed in accordance with the BLM's multiple-use mandate.
The planning area is located in Kane and Garfield Counties, Utah, and encompasses approximately 1.87 million acres of public land. For the GSENM Grand Staircase, Kaiparowits, and Escalante Canyons Units, this planning effort is needed to identify goals, objectives, and management actions necessary for the proper care and management of the objects and values identified in Proclamations 6920, as modified by Proclamation 9682. For lands in the KEPA, this planning effort is needed to identify goals, objectives, and management actions necessary to ensure that public lands and their various resource values are utilized in the combination that will best meet the present and future needs of the American people.
The entire planning area is currently managed by the BLM and under the Grand Staircase-Escalante National Monument Management Plan (BLM 1999), as amended. This planning effort would replace the existing Monument Management Plan with four new RMPs.
The BLM reviewed public-scoping comments to identify planning issues that directed the formulation of alternatives and framed the scope of analysis in the Draft RMPs/EIS. Issues identified include management of
The formal public scoping process for the RMPs and EIS began on January 16, 2018, with publication of a Notice of Intent in the
The Draft RMPs/EIS evaluated four alternatives in detail. Alternative A is the No Action alternative, which is a continuation of existing decisions in the Monument Management Plan. Alternative B generally focuses on protection of resources (
In the Proposed RMPs, the BLM proposes that recreational target shooting shall not be allowed on certain lands managed by the BLM in both GSENM and KEPA. As proposed, target shooting would generally be allowed, but would be prohibited within at least 0.25 miles of residences, campgrounds, and developed recreation facilities. The proposed closure would provide for public safety near residences, campgrounds and developed recreation facilities. The proposed closure would also enhance the safety of the public visiting campgrounds and developed recreation facilities in GSENM and KEPA, which would improve their experience.
In accordance with the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019, the BLM is announcing the opening of a 60-day public comment period on the proposed target shooting closure. As such, the BLM is only accepting comments on the proposed target shooting closure. All comments must be received by the date set forth in the
All protests must be in writing and submitted, as set forth in the
40 CFR 1506.6 40 CFR 1506.10 43 CFR 1610.2 and 36 CFR 219.59.
Bureau of Land Management, Interior.
Notice.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Mount Lewis Field Office, Battle Mountain, Nevada, has prepared a Final Supplemental Environmental Impact Statement (EIS) and by this notice is announcing the beginning of the 30-day review period on the Final Supplemental EIS. The Mount Hope Project (Project) is owned by Eureka Moly, LLC (EML) and is located in central Nevada, approximately 23 miles northwest of Eureka, Nevada. The BLM has prepared this Final Supplemental EIS as a response to the United States Court of Appeals for the Ninth Circuit's remand decision for further action on issues identified in its December 28, 2016 decision.
The review period will end following a 30 day review period beginning on the date the Environmental Protection Agency publishes its Notice of Availability in the
For questions related to the Mount Hope Project:
•
•
•
Documents pertinent to this proposal may be downloaded from
Kevin Hurrell—Project Manager, telephone 775-635-4000; address 50 Bastian Road, Battle Mountain, Nevada 89820. Contact Kevin Hurrell to have your name added to our mailing list. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The Bureau of Land Management Mount Lewis Field Office authorized the Mount Hope Project Record of Decision, Plan of Operations Approval, and Approval of Issuance of Right-of-Way Grants on November 16, 2012. The Project consists of a proposed molybdenum mine including a power transmission line, a water well field, and all associated facilities to be located on public land administered by the BLM Mount Lewis Field Office and on private land controlled by EML. The Project will utilize an open pit mining method and will process the mined ore using a flotation and roasting process. When completed, a total of 8,618 acres of disturbance would occur within the 23,065-acre Project area. Of the 8,618 acres, 8,359 is public land and 259 is private land.
The BLM has prepared this Final Supplemental EIS as a response to the United States Court of Appeals for the Ninth Circuit's remand decision for further action on issues identified in its December 28, 2016 decision. The Final Supplemental EIS includes the following: (1) An explanation of the usage of baseline values of zero for several air pollutants; (2) a quantitative cumulative air quality impacts analysis; and (3) a clarification of the status of certain springs and water holes under Executive Order Public Water Reserve No. 107.
The BLM has consulted, and continues to consult, with Native American tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the Project are invited to participate in the comment process.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7.
Bureau of Ocean Energy Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Ocean Energy Management (BOEM) is proposing to renew an information collection request (ICR) with revisions.
Interested persons are invited to submit comments on or before October 22, 2019.
Send your comments on this ICR by mail to the BOEM Information Collection Clearance Officer, Anna Atkinson, Bureau of Ocean Energy Management, 45600 Woodland Road, Sterling, Virginia 20166; or by email to
To request additional information about this ICR, contact Anna Atkinson by email, or by telephone at 703-787-1025.
In accordance with the Paperwork Reduction Act of 1995, BOEM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps BOEM assess the impact of its information collection requirements and minimizes the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
BOEM is soliciting comments on the proposed ICR described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BOEM; (2) what can BOEM do to ensure that this information be processed and used in a timely manner; (3) is the burden estimate accurate; (4) how might BOEM enhance the quality, utility, and clarity of the information to be collected; and (5) how might BOEM minimize the burden of this collection on the respondents, including minimizing the burden through the use of information technology?
Comments submitted in response to this notice are a matter of public record. BOEM will include or summarize each comment in our request to the Office of Management and Budget (OMB) for approval of this ICR. You should be aware that your entire comment—including your address, phone number, email address, or other personal identifying information—may be made publicly available at any time. In order for BOEM to withhold from disclosure your personally identifiable information, you must identify any information contained in the submittal of your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences of the disclosure of your information, such as embarrassment, injury, or other harm. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so.
BOEM protects proprietary information in accordance with the Freedom of Information Act (5 U.S.C. 552) and the Department of the Interior's FOIA regulations (43 CFR part 2), and under applicable sections of 30 CFR parts 550 and 552 promulgated pursuant to Outer Continental Shelf Lands Act (OCSLA) at 43 U.S.C. 1352(c).
BOEM uses the information collected under 30 CFR part 553 to verify compliance with section 1016 of the Oil Pollution Act, as amended, 33 U.S.C. 2701
BOEM uses forms to collect information to ensure proper and efficient administration of Oil Spill Financial Responsibility. BOEM collects information to:
• Provide a standard method for establishing eligibility for oil spill financial responsibility for offshore facilities;
• Identify and maintain a record of those offshore facilities that have a potential oil spill liability;
• Establish and maintain a continuous record, over the liability term specified in Title I of the Oil Pollution Act of 1990, of financial evidence and instruments established to pay claims for oil spill cleanup and damages resulting from operations conducted on covered offshore facilities and the transportation of oil from covered offshore facilities and wells;
• Establish and maintain a continuous record of responsible parties, as defined in Title I of the Oil Pollution Act of 1990, and their agents or Authorized Representatives for oil spill financial responsibility for covered offshore facilities; and
• Establish and maintain a continuous record, over the liability term specified in Title I of the Oil Pollution Act of 1990, of persons to contact and U.S. Agents for Service of Process for claims associated with oil spills from covered offshore facilities.
• BOEM-1016, Designated Applicant Information Collection;
• BOEM-1017, Appointment of Designated Applicant;
• BOEM-1018; Self-Insurance Information;
• BOEM-1019, Insurance Certificate;
• BOEM-1020, Surety Bond;
• BOEM-1021, Covered Offshore Facility;
• BOEM-1022, Covered Offshore Facility Changes;
• BOEM-1023, Financial Guarantee; and
• BOEM-1025, Independent Designated Applicant Information Certification.
The following table details the individual components and respective hour burden estimates of this ICR.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it will proceed with full reviews pursuant to the Tariff Act of 1930 to determine whether revocation of the countervailing duty order on light-walled rectangular pipe and tube (“LWR pipe and tube”) from China and revocation of the antidumping duty orders on LWR pipe and tube from China, Korea, Mexico, and Turkey would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the reviews will be established and announced at a later date.
August 5, 2019.
Andres Andrade (202-205-2078), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
On August 5, 2019, the Commission determined that it should proceed to full reviews in the subject five-year reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). The Commission found that the group responses to its notice of institution (84 FR 18577) from both the domestic interested parties and the respondent interested parties from Mexico were adequate. The Commission determined to conduct a full review of the antidumping order on LWR pipe and tube from Mexico. The Commission did not receive a response to the notice of institution from any respondent interested parties concerning the orders on subject imports from China, Korea, or Turkey in these reviews. Consequently, the Commission determined that the respondent interested party group responses from each of these subject countries were inadequate. The Commission, however, determined to conduct full reviews of the orders on LWR pipe and tube from China, Korea, and Turkey in order to promote administrative efficiency in light of the Commission's determination to conduct a full review of the order on LWR pipe and tube from Mexico.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to terminate the above-captioned investigation in its entirety based upon settlement. The investigation is terminated.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
The Commission instituted this investigation on January 18, 2018, based on a complaint filed by Qualcomm Incorporated of San Diego, California. 83 FR 834 (Jan. 8, 2018). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of articles that infringe claims 1, 7, 8, 10, 11, 17, and 18 of U.S. Patent No. 9,154,356 (“the '356 patent”); claim 4 of U.S. Patent No. 9,473,336 (“the '336 patent”); claims 1, 5-8, 12, 16-18, and 21-22 of U.S. Patent No. 8,063,674 (“the '674 patent”); claims 1-4, 7-9, 11, 17, 20-23, 31-33, and 36 of U.S. Patent No. 7,693,002; and claims 1-3, 10-12, 18, and 22-24 of U.S. Patent No. 9,552,633. 83 FR at 834. The notice of investigation named as the respondent Apple Inc. of Cupertino, California.
Based on withdrawal of numerous asserted patent claims,
On March 26, 2019, the presiding administrative law judge (“ALJ”) issued the final initial determination (“final ID”), which found a violation of section 337 as to claim 1 of the '674 patent, but no violation of section 337 as to the other asserted patent claims.
On April 8, 2019, Qualcomm and Apple filed petitions for Commission review of the final ID. On April 16, 2019, the Commission investigative attorney (“IA”) filed a response to the petitions for review. On April 17, 2019, Qualcomm and Apple filed a joint motion to stay all deadlines in the investigation on the basis of the parties' settlement. On April 19, 2019, the Commission issued a notice granting that motion.
The Commission's April 19, 2019 notice requested that the private parties file a motion to terminate by April 26, 2019, and Qualcomm and Apple complied. The IA concluded that the motion did not comply with Commission rules, including Commission Rules 201.6 and 210.21(b), 19 CFR 201.6, 210.21(b), because it omitted necessary material and overredacted material that is not confidential business information. Qualcomm, Apple, and the IA moved to extend the deadline for IA's response to the motion to terminate to provide Qualcomm and Apple with additional time to amend their motion to terminate and to address the IA's concerns. The Commission granted the extension motion on May 9, 2019.
On May 13, 2019, Qualcomm and Apple filed an amended motion to terminate. On May 21, 2019, the IA responded in partial opposition, explaining that the revised motion still did not comply with Commission rules concerning the redaction of information. Following that partial opposition, the IA coordinated with the private parties to obtain a filing from the private parties in compliance with Commission rules.
On July 24, 2019, the Commission extended the target date for completion of the investigation to August 29, 2019, and required Qualcomm and Apple to file a rules-compliant motion to terminate the investigation no later than August 8, 2019. On August 8, 2019, Qualcomm and Apple filed a joint motion to supplement their earlier amended joint motion to terminate the investigation. On August 16, 2019, the IA responded in support of the motion.
The Commission finds that Qualcomm's and Apple's motion, as amended and supplemented, is proper in form and complies with Commission Rules.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Brother Industries; Ltd., Brother International Corporation (U.S.A.); and Brother Industries (U.S.A.), Inc. on August 19, 2019. The complaint alleges violations of section 337 of the Tariff Act of 1930
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3405”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission,
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Zimmer, Inc. and Zimmer US, Inc. on August 19, 2019. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain bone cements and bone cement accessories. The complaint names as respondents: Heraeus Medical GmbH of Germany and Heraeus Medical LLC of Yardley, PA. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3406”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to vacate the presiding administrative law judge's (“ALJ”) final initial determination (“ID”) issued on April 26, 2019, finding
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Commission instituted this investigation on December 19, 2017, based on a complaint filed on behalf of Align Technology, Inc. (“Align”) of San Jose, California. 82 FR 60215 (Dec. 19, 2017). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain intraoral scanners and related hardware and software by reason of infringement of one or more claims of U.S. Patent Nos.: 9,615,901 (“the '901 patent”); 8,638,448 (“the '448 patent”); 8,638,447 (“the '447 patent”); 6,845,175 (“the '175 patent”); and 6,334,853 (“the '853 patent”).
On April 26, 2019, the ALJ issued the final ID, finding no violation of section 337 with respect to the '901, '448, and '447 patents. That same day, the ALJ issued her Recommended Determination on Remedy and Bonding. On May 13, 2019, Align filed a petition for review of the final ID, and Respondents filed a joint contingent petition for review of the final ID. The parties filed responses to the petitions on May 21, 2019.
On July 19, 2019, the Commission determined to review the final ID in its entirety.
Having considered the record of the investigation, including the parties' submissions to the Commission, the Commission decides as follows. The Commission “can issue only an exclusion order barring future importation or a cease and desist order barring future conduct,” neither of which can issue as to an expired patent.
The '448 and '447 patents expired on August 5, 2019, which terminated the Commission's jurisdiction as to these patents and rendered the Commission's investigation with respect to these patents moot.
The '901 patent will expire on August 30, 2019, four days after the target date for completion of the investigation. Given the imminent expiration of the '901 patent, the ID's finding of no violation with respect to the '901 patent based on multiple grounds, and the schedule for Commission review established by the Commission's Rules of Practice and Procedure, the Commission finds that Align cannot obtain effective relief as to the '901 patent prior to its expiration. Even if the Commission were to reverse the ID in this investigation and find a violation with respect to the '901 patent, the Commission finds that it cannot grant relief as to the '901 patent before the patent expires given its long-standing procedures for determining the appropriate remedy and bonding, and for considering the public interest. Moreover, any exclusion order with respect to the '901 patent would likely not protect complainant from any injury until after the patent expires given that the ALJ recommended that no bond be imposed during the 60-day Presidential review period.
The Commission has therefore determined on review to vacate the final ID as moot, including the ID's finding of no violation of section 337 with respect to the asserted patents. The investigation is terminated in its entirety.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR 210).
By order of the Commission.
United States International Trade Commission.
Notice.
Effective Date: August 16, 2019.
Celia Feldpausch 202-205-2387, Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective October 31, 2018, the Commission established a general schedule for the conduct of the final phase of its investigations on glycine from China, India, Japan, and Thailand.
This supplemental schedule is as follows: The deadline for filing supplemental briefs is August 30, 2019. Supplemental briefs may address only the Commission's final antidumping duty determination regarding imports of glycine from Thailand. These supplemental briefs may not exceed fifteen (15) pages in length. The supplemental staff report in the final phase of this investigation regarding subject imports from Thailand will be placed in the nonpublic record on September 5, 2019; and a public version will be issued thereafter. Parties to this investigation may file supplemental final comments that contain no new factual information and may not exceed five (5) pages in length, on September 10, 2019.
For further information concerning this investigation see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice of amendment of scope of investigation.
Following receipt on August 8, 2019, of a correction to the United States Trade Representative's (USTR) request letter of June 4, 2019, the U.S. International Trade Commission (Commission) has amended the scope of its investigation No. 332-572, Generalized System of Preferences: Possible Modifications, 2018 Review, and has removed assembled flooring panels of bamboo, other than for mosaic, multilayer, having a face ply more than 6 mm in thickness from Indonesia, provided for in subheading 4418.73.40 of the Harmonized Tariff Schedule, from the list of articles being considered for redesignation in table C of the Annex to USTR's request letter. As a result, the Commission will not provide advice regarding this article.
September 9, 2019: Transmittal of Commission report to the USTR.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW, Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW, Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Information specific to this investigation may be obtained from Mark Brininstool, Project Leader, Office of Industries (202-708-1395 or
By order of the Commission.
Coordinating Council on Juvenile Justice and Delinquency Prevention, Department of Justice.
Notice of meeting.
The Coordinating Council on Juvenile Justice and Delinquency Prevention announces its next meeting.
Thursday September 12th, 2019 at 10:00 a.m. EDT.
The meeting will take place in the third floor main conference room at the U.S. Department of Justice, Office of Justice Programs, 810 7th St. NW, Washington, DC 20531.
Visit the website for the Coordinating Council at
The Coordinating Council on Juvenile Justice and Delinquency Prevention (“Council”), established by statute in the Juvenile and Delinquency Prevention Act of 1974 section 206 (a) (42 U.S.C. 5616(a)), will meet to carry out its advisory functions. Information regarding this meeting will be available on the Council's web page at
Although designated agency representatives may attend in lieu of members, the Council's formal membership consists of the following secretaries and/or agency officials; Attorney General (Chair), Administrator of the Office of Juvenile Justice and Delinquency Prevention (Vice Chair), Secretary of Health and Human Services (HHS), Secretary of Labor (DOL), Secretary of Education (DOE), Secretary of Housing and Urban Development (HUD), Director of the Office of National Drug Control Policy, Chief Executive Officer of the Corporation for National and Community Service and the Assistant Secretary of Homeland Security for the U.S. Immigration and Customs Enforcement. Nine additional members are appointed by the Speaker of the U.S. House of Representatives, the U.S. Senate Majority Leader and the President of the United States. Further agencies that take part in Council activities include, the Departments of Agriculture, Defense, Interior and the Substance and Mental Health Services Administration of HHS.
Council meeting agendas are available on
For security purposes and because space is limited, members of the public who wish to attend must register in advance of the meeting online at the meeting registration site, no later than Friday September 6th, 2019. Should issues arise with online registration, or to register by fax or email, the public should contact Maegen Barnes, Senior Program Manager/Federal Contractor (see above for contact information). If submitting registrations via fax or email, attendees should include all of the following: Name, Title, Organization/Affiliation, Full Address, Phone Number, Fax and Email. The meeting will also be available to join online via Webex, a video conferencing platform. Registration for this is also found online at
Photo identification will be required to attend the meeting at the OJP 810 7th Street Building.
Interested parties may submit written comments and questions in advance to Elizabeth Wolfe (DFO) for the Council, at the contact information above. If faxing, please follow up with Maegen Barnes, Senior Program Manager/Federal Contractor (contact information above) in order to assure receipt of submissions. All comments and questions should be submitted no later than 5:00 p.m. EDT on Friday September 6th, 2019.
The Council will limit public statements if they are found to be duplicative. Written questions submitted by the public while in attendance will also be considered by the Council.
Office of Juvenile Justice and Delinquency Prevention, Department of Justice.
Notice of meeting.
The Office of Juvenile Justice and Delinquency Prevention has scheduled a meeting of the Federal Advisory Committee on Juvenile Justice (FACJJ).
Thursday September 12th, 2019 at 11:00 a.m.-Noon EDT.
The meeting will take place remotely via webinar.
Visit the website for the FACJJ at
The Federal Advisory Committee on Juvenile Justice (FACJJ), established pursuant to Section 3(2)A of the Federal Advisory Committee Act (5 U.S.C. App.2), will meet to carry out its advisory functions under Section 223(f)(2)(C-E) of the Juvenile Justice and Delinquency Prevention Act of 2002. The FACJJ is composed of representatives from the states and territories. FACJJ member duties include: Reviewing Federal policies regarding juvenile justice and delinquency prevention; advising the OJJDP Administrator with respect to particular functions and aspects of OJJDP; and advising the President and Congress with regard to State perspectives on the operation of OJJDP and Federal legislation pertaining to juvenile justice and delinquency prevention. More information on the
FACJJ meeting agendas are available on
The meeting will be available online via Adobe Connect, a video conferencing platform. Members of the public who wish to participate must register in advance of the meeting online at FACJJ Meeting Registration, no later than Friday September 6th, 2019. Should issues arise with online registration, or to register by fax or email, the public should contact Maegen Barnes, Senior Program Manager/Federal Contractor (see above for contact information).
Interested parties may submit written comments and questions in advance to Elizabeth Wolfe (DFO) for the FACJJ, at the contact information above. If faxing, please follow up with Maegen Currie, Senior Program Manager/Federal Contractor (see above for contact information) in order to assure receipt of submissions. All comments and questions should be submitted no later than 5:00 p.m. EDT on Friday September 6th, 2019.
The FACJJ will limit public statements if they are found to be duplicative. Written questions submitted by the public while in attendance will also be considered by the FACJJ.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Occupational Code Assignment,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before September 23, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Occupational Code Assignment information collection. Information collected on Form ETA-741, Occupational Code Assignment (OCA), is necessary to help occupational information users relate an occupational specialty or job title to an occupational code and title within the framework of the Occupational Information Network. The form helps provide occupation codes for jobs where duties have changed to the extent that the published information is no longer appropriate or the user is unable to classify the job on his or her own. Section 308 of the Workforce Innovation and Opportunity Act (2014) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB under the PRA approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on August 31, 2019. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility:
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Wage and Hour Division (WHD) sponsored information collection request (ICR) titled, “Requests to Approve Conformed Wage Classifications and Unconventional Fringe Benefit Plans Under the Davis-Bacon and Related Acts and Contract Work Hours and Safety Standards Act,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before September 23, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-WHD, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Requests to Approve Conformed Wage Classifications and Unconventional Fringe Benefit Plans Under the Davis-Bacon and Related Acts and Contract Work Hours and Safety Standards Act information collection. Regulations 29 CFR part 5 prescribe labor standards for federally financed and assisted construction contracts subject to the Davis Bacon Act (DBA), 40 U.S.C. 3141
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB under the PRA approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on August 31, 2019. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility:
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering an exemption request from Arizona Public Service Company to allow the Palo Verde Nuclear Generating Station to load spent fuel with a larger pellet diameter than is authorized in the MAGNASTOR® storage cask system in Certificate of Compliance No. 1031, Amendment No. 7. The NRC prepared an environmental assessment (EA) documenting its finding. The NRC concluded that the proposed action would have no significant environmental impact. Accordingly, the NRC staff is issuing a finding of no significant impact (FONSI) associated with the proposed exemption.
The EA and FONSI referenced in this document are available on August 19, 2019.
Please refer to Docket ID NRC-2019-0161 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Bernard White, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301-415-6577; email:
The NRC is reviewing an exemption request from Arizona Public Service Company, dated July 5, 2019 (ADAMS Accession No. ML19186A449). Arizona Public Service Company is requesting an exemption from the requirements of title 10 of the
Specifically, Arizona Public Service Company requested an exemption to load and store Combustion Engineering spent fuel with a larger maximum pellet diameter than authorized in Amendment No. 7 of Certificate of Compliance No. 1031 for the MAGNASTOR® storage system.
Under the requirements of §§ 51.21 and 51.30(a), the NRC staff developed an environmental assessment (ADAMS Accession No. ML19205A273) to evaluate the proposed action, which is for the NRC to grant an exemption to Arizona Public Service Company to allow loading and storage of spent fuel with a larger maximum pellet diameter than that is authorized in Amendment No. 7 of the NAC International (NAC) CoC No. 1031 for the MAGNASTOR® storage system.
The EA defines the NRC's proposed action (
This EA evaluates the potential environmental impacts of granting the exemption to load and store spent fuel with a maximum pellet diameter than authorized in Certificate of Compliance No. 1031, Amendment No. 7 in the MAGNASTOR® storage system at the Palo Verde Nuclear Generating Station site. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the EA for the rulemaking to provide for the storage of spent fuel under a general license on July 18, 1990 (55 FR 29181). The environmental assessment for the MAGNASTOR® storage system, Certificate of Compliance No. 1031, Amendment No. 7, (82 FR 25931) tiers off the environmental assessment for the 1990 final rule.
NRC staff finds that the environmental effects from this exemption request is bounded by the EA for Certificate of Compliance No. 1031, Amendment No. 7, and that there will be no significant environmental impacts from the proposed action. The proposed action does not change the types or quantities of effluents that may be released offsite, and it does not increase occupational or public radiation exposure. The request by Arizona Public Service Company to increase the pellet diameter without a corresponding increase in the uranium oxide loading of fuel assemblies will not result an inadvertent criticality event. Therefore, there are no significant radiological environmental impacts associated with the proposed action. There is no change to the non-radiological effluents. The proposed action will take place within the site boundary and does not have other environmental impacts. Thus, the proposed action will not have a significant effect on the quality of the human environment. Therefore, the environmental impacts of the proposed action are no greater than those described in the EA for the rulemaking
The NRC staff has prepared an EA and associated FONSI in support of the proposed action. The NRC staff has concluded that the proposed action, for the NRC to grant the exemption requested for Palo Verde Nuclear Generating Station, allowing the use of a larger pellet diameter in Amendment No. 7 for the MAGNASTOR® storage system, will not significantly impact the quality of the human environment, and that the proposed action is the preferred alternative. The environmental impacts are bounded by the previous EA for the rulemaking to add the Certificate of Compliance No. 1031, Amendment No. 7, cask system to 10 CFR 72.214.
The NRC provided the Arizona Department of Health Services-Bureau of Radiation Control a draft copy of this EA for review in an email dated July 24, 2019 (ADAMS Accession No. ML19205A323).
The NRC staff has determined that this exemption would have no impact on historic and cultural resources or ecological resources and therefore no consultations are necessary under Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act, respectively.
Therefore, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a FONSI is appropriate.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Access Authorization.”
Submit comments by September 23, 2019. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0046). Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0272 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, title 10 of the
The NRC published a
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For the Nuclear Regulatory Commission.
Wednesday, September 11, 2019, 2 p.m. (OPEN Portion); 2:15 p.m. (CLOSED Portion).
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue NW, Washington, DC.
Meeting OPEN to the Public from 2 p.m. to 2:15 p.m. Closed portion will commence at 2:15 p.m. (approx.)
(Closed to the Public 2:15 p.m.):
Information on the meeting may be obtained from Catherine F. I. Andrade at (202) 336-8768, or via email at
On July 1, 2019, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Currently, FINRA publishes certain volume information for OTC transactions in NMS stocks
Currently, FINRA publishes weekly non-ATS OTC volume information (number of trades and shares) by firm and by security on a two-week or four-week delayed basis. Weekly security-specific information for transactions in NMS stocks in Tier 1 of the NMS Plan to Address Extraordinary Market Volatility (“Tier 1 NMS stocks”) is published on a two-week delayed basis, while information on the remaining NMS stocks (“Tier 2 NMS stocks”) and OTC Equity Securities is published on a four-week delayed basis. FINRA also publishes aggregate weekly non-ATS volume totals by firm and category of security (Tier 1 NMS stocks, Tier 2 NMS stocks, and OTC Equity Securities) on the same timeframes, as well as aggregate non-ATS volume totals by firm for all NMS stocks and OTC Equity Securities, for each calendar month on a one-month delayed basis.
FINRA has proposed to expand, in two ways, the summary firm data relating to non-ATS OTC equity trading that FINRA publishes on its website. First, FINRA would publish new
Pursuant to its Rule 6110(c)(2), FINRA currently publishes monthly information on block-size trades in all NMS stocks occurring on ATSs. Data regarding block-size trades on ATSs is aggregated across all NMS stocks (
FINRA currently publishes information on block-size ATS trades in NMS stocks using share-based thresholds, dollar-based thresholds, and thresholds that include both shares and dollar amount as follows:
• 10,000 or more shares;
• $200,000 or more in dollar value;
• 10,000 or more shares and $200,000 or more in dollar value;
• 2,000 to 9,999 shares;
• $100,000 to $199,999 in dollar value; and
• 2,000 to 9,999 shares and $100,000 to $199,999 in dollar value.
For each of these categories, FINRA publishes monthly trade count and volume information for each ATS, on an attributed basis, aggregated across all NMS stocks with no differentiation between Tier 1 NMS stocks and Tier 2 NMS stocks. FINRA also calculates and displays the average trade size and each ATS's rank as well as “ATS Block Market Share” (
FINRA has proposed to expand the block-size trading data that it publishes on its website to include monthly aggregate block-size trading data for all OTC trades in NMS stocks, regardless of whether they are ATS or non-ATS trades.
Pursuant to proposed FINRA Rule 6110(b)(3), FINRA would publish the new non-ATS block-size data with elements to be determined from time to time by FINRA in its discretion, as stated in a
FINRA has proposed to eliminate the current
FINRA also proposed several other technical, non-substantive, and conforming changes to the current rule text.
FINRA has stated that it will announce the effective date of the proposed rule change in a
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
The Commission previously found that the earliest iteration of FINRA's publication protocols for ATS OTC trade data were consistent with the Act.
Subsequently, in 2015, FINRA proposed to expand transparency of OTC equity trading data by publishing certain information regarding non-ATS OTC trading.
FINRA is now proposing to apply to non-ATS OTC trade data more of the publication protocols that it currently applies to ATS OTC trade data. Specifically, FINRA will publish new monthly aggregate block-size trading data for non-ATS OTC trades in NMS stocks, on the same terms as FINRA currently publishes aggregate block-size trading data for ATS trades in NMS stocks. Second, FINRA will eliminate the
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes a rule change regarding how the Nasdaq Official Closing Price (“NOCP”) will be determined for a Nasdaq-listed security that is an exchange-traded product (as defined herein).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The
Nasdaq Rule 4754(b) details the processing of the Nasdaq Closing Cross, including how the Exchange determines the NOCP. The Exchange proposes to amend Nasdaq Rule 4754 to amend how the NOCP
The proposed functionality in this filing is similar to functionality that has already been approved by the Commission and is operational on NYSE Arca, Inc. (“Arca”) (the “Arca Rule”),
Currently, the NOCP is derived from the Closing Cross
The Exchange proposes to amend Nasdaq Rule 4754(b)(4) to amend how the NOCP for a Nasdaq-listed security that is an ETP will be determined if the security does not have a closing cross. Thinly-traded ETPs are less likely to have a Closing Cross, which can result in a closing price that is based on a stale price that is no longer reflective of the value of the security. Specifically, if an ETP is thinly-traded it is currently possible that the NOCP for it will be based on a Nasdaq Last Sale price that may not necessarily reflect the current value of the security. Providing an updated price aligned with the current market value based on quotations in an ETP that is thinly-traded will provide investors and issuers with a more accurate price to mark performance of their funds and portfolios.
Nasdaq Rule 4754(b) outlines the process for determining the price level at which the Closing Cross will occur.
The T-WAM price will be a time-weighted average midpoint value calculation
In cases where the T-WAM is reflected as the ETP's NOCP, the T-WAM calculation will only use eligible quotes that meet the following validation logic: An eligible quote is defined as a quote whose spread is no greater than a value of 10% of the midpoint price. All quoted spreads within the T-WAM's stated time period in proposed Nasdaq Rule 4754(b)(4)(A)(i) that are greater than 10% of the midpoint would be excluded from the T-WAM calculation. For example: If the NBBO = 19.99 × 20.01 (midpoint = $20) validation logic would allow a maximum quote width up to $2 to be used as part of the calculation
If there are no eligible quotes to determine a T-WAM within the time period or if the ETP is halted, then Nasdaq will use the Consolidated Last Sale price prior to 4:00:00 p.m. as the NOCP. For an ETP that is already listed on Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will be the prior day's NOCP. For an ETP that has transferred its listing to Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will be the prior day's closing price as disseminated by the primary listing market that previously listed it. For an ETP that is a new listing to Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will not be disseminated.
In order to implement these proposed changes, the Exchange is proposing to amend Nasdaq Rule 4754(b)(4) by adding subsection (A) to this rule. Nasdaq Rule 4754(b)(4), as amended, will define the term “Exchange-Traded Product” and provide that in the event that a Nasdaq listed ETP does not have a closing cross then the T-WAM of the NBBO will be used.
The Exchange will implement the proposed rule change for determining the NOCP as soon as is practicable after the approval date of this proposed rule change, which may be as early as during the third quarter of 2019, and will announce the implementation date via Nasdaq Equity Trader Alert.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would provide for a method of determining the NOCP in an Exchange-listed security that is an ETP if there is no Closing Cross, as well add a definition of “Exchange-Traded Product” to the rule that will aid market participants in understanding the rule.
The Exchange further believes that since the proposed T-WAM methodology, described herein, will result in a NOCP that is more reflective of the current market value of the ETP on that trading day and it will serve to remove impediments to and perfect the mechanism of a free and open market and a national market system because it will provide for a more robust mechanism to determine the value of an affected ETP for purposes of determining a NOCP.
The Exchange also believes that the proposed methodology for determining a NOCP would be appropriate for ETPs because if they are thinly-traded, the price of the Nasdaq Last Sale trade that occurred earlier in a trading day or even from a prior trading day may no longer be reflective of the value of such product, which should be priced relative to the value of the components of such ETP. As such, the Exchange believes recent quoting activity likely will be more reflective of the current value of the ETP. Furthermore, the Exchange is proposing to use the T-WAM of the NBBO to measure such quoting activity in order to avoid overly weighting a potentially stale quote that may occur leading into the close.
Currently, the NOCP is derived from the Closing Cross on Nasdaq if the security has a closing cross and reflects actual sale prices. If a Nasdaq-listed security that is an ETP has a Closing Cross, it will continue to be priced using the current process for calculating the closing price. Under the proposed rule change, if a Nasdaq-listed security that is an ETP does not have a Closing Cross, then the T-WAM of the NBBO will be used as the NOCP. If there are no eligible quotes to determine a T-WAM within the time period or if the ETP is halted, then Nasdaq will use the Consolidated Last Sale price prior to 4:00:00 p.m. as the NOCP. For an ETP that is already listed on Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will be the prior day's NOCP .For an ETP that has transferred its listing to Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will be the prior day's closing price as disseminated by the primary listing market that previously listed it. For an ETP that is a new listing to Nasdaq and does not have any eligible quotes for the T-WAM methodology or any Consolidated Last Sale prices that day, the NOCP will not be disseminated.
The proposed functionality in this filing is similar to functionality that has already been approved by the Commission and is operational on other exchanges. The Exchange believes that the proposed pricing methodology will promote just and equitable principles of trade, remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest by enhancing how the NOCP will be determined for a Nasdaq-listed security that is an ETP and will be to the benefit of issuers, traders, and investors alike.
For the above reasons, the Exchange believes that the proposal is consistent
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed rule change is consistent with the rules of the other exchanges and is designed to provide for how the Exchange would determine the NOCP for an Exchange-listed security that is an ETP if there is no Closing Cross, which will help it better compete as a listing venue.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of MISSOURI (FEMA-4435-DR), dated 05/20/2019.
Issued on 08/16/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Missouri, dated 05/20/2019, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 06/06-0341 issued to Parallel Investment Opportunity Partners II, LP, said license is hereby declared null and void.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Oklahoma (FEMA-4453-DR), dated 07/12/2019.
Issued on 08/16/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Oklahoma, dated 07/12/2019, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 01/01-0001 issued to BancBoston Ventures, Incorporated said license is hereby declared null and void.
R. J. Corman Railroad Group, LLC, a noncarrier, and its wholly owned subsidiary, R. J. Corman Railroad Company, LLC (RJCR) (collectively, Applicants), have filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2) to continue in control of R. J. Corman Railroad Company/Childersburg Line (RJAL) (currently a noncarrier owned and controlled by Applicants) upon RJAL's becoming a Class III rail carrier.
This transaction is related to a concurrently filed verified notice of exemption in
The earliest this transaction may be consummated is September 6, 2019, the effective date of the exemption (30 days after the verified notice was filed).
Applicants state that they will continue in control of RJAL upon RJAL's becoming a Class III rail carrier, while remaining in control of 14 other Class III rail carriers, including two non-operating rail carriers, collectively operating in 10 states. For a complete list of these rail carriers, see RJAL's notice of exemption filed August 7, 2019. The notice is available at
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Stay petitions must be filed no later than August 30, 2019 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36331, must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Applicants' representative, David R. Irvin, Irvin Rigsby PLC, 110 N Main St., Nicholasville, KY 40356.
According to Applicants, this action is categorically excluded from environmental review under 49 CFR
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
R. J. Corman Railroad Company/Childersburg Line, LLC (RJAL), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to permit RJAL to: (1) Change operators and assume the lease and operation of approximately 10.30 miles of rail line and related industrial track located at the former Alabama Army Ammunition Plant (the CLRA Line), which has been jointly operated by Central of Georgia Railroad Company (CoG), Norfolk Southern Railway Company (NSR), and CSX Transportation, Inc. (CSXT), pursuant to a lease from the City of Childersburg Local Redevelopment Authority (CLRA), a municipal agency of the City of Childersburg, Ala.;
The CLRA Line, the NSR Line, and the CSXT Line (collectively, the Line) all are located in Talladega County, Ala. The CLRA Line runs from the south side of the Reservation of the Alabama Ordnance Works Track, which adjoins the NSR Alabama Ordnance Works Spur at approximately milepost 1.38 (7,221.2 feet) northeast of the CoG P-Line at milepost P 400.985, continuing north approximately 5.96 miles to the northern point adjoining CSXT track at approximately milepost 7.34 (8,716 feet south of CSXT milepost AN 926). The CSXT Line runs between milepost ANJA 925.03 and milepost ANJS 925.76. The NSR Line consists of the Alabama Ordnance Works Spur Track, from the end of the insulated joint, south of the derail located approximately at milepost 0.06 (309 feet) from the point of switch off of the CoG P-Line (near milepost P 400.985) to the adjoining CLRA track located at approximately milepost 1.38 (6,912 feet) northeast, and the Coosa River Newsprint Spur Track from the ends of the insulated joints located on the wye tracks approximately 207 feet and 260 feet from the points of switch located off of NSR's Southern Railway Line (near milepost 102.187 N and milepost 101.863 N, respectively) for a distance of approximately 5,423 feet and 5,370 feet, respectively, where it joins the Alabama Ordnance Works Spur Track at milepost 1.07.
The transaction is related to a concurrently filed verified notice of exemption in
RJAL states that it has reached an agreement in principle with CLRA, NSR, CoG, and CSXT under which it will assume the underlying lease agreement and will lease and operate the CLRA Line. RJAL represents that it has also reached an agreement in principle with NSR and CoG to lease and operate the NSR Line, and has reached an agreement in principle with CSXT to lease and operate the CSXT Line. RJAL states that, upon the effective date of this notice, RJAL will replace CoG, NSR, and CSXT as the CLRA Line's operator, and that, upon RJAL's assumption of operations, NSR, CoG, and CSXT will have no further common carrier obligation on the CLRA Line. RJAL further states that its lease of the CSXT Line and the NSR Line is necessary for RJAL to assume operations of the CLRA Line and connect to CSXT and NSR's respective rail networks.
RJAL certifies that, as a result of this transaction, its projected revenues will not result in RJAL's becoming a Class I or Class II rail carrier and will not exceed $5 million. RJAL states that the agreement between RJAL, NSR, CoG, CSXT, and CLRA and the underlying lease with CLRA do not contain any provision or agreement that would limit future interchange with a third-party connecting carrier. RJAL states that its lease with CSXT also does not contain any provision or agreement that would limit future interchange with a third-party connecting carrier. However, according to RJAL, the lease agreement between RJAL and NSR/CoG does contain an interchange commitment, in the form of lease credits.
Under 49 CFR 1150.32(b), a change in operator requires that notice be given to shippers. RJAL certifies that it has provided notice of the proposed transaction to all known shippers on the Line.
The earliest this transaction may be consummated is September 6, 2019, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than August 30, 2019 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36330, must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on RJAL's representative, David R. Irvin, Irvin Rigsby PLC, 110 N. Main St., Nicholasville, KY 40356.
According to RJAL, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
Tennessee Valley Authority (TVA).
Renewal of Federal Advisory Committee.
Pursuant to the Federal Advisory Committee Act (FACA), the TVA Board of Directors has renewed the Regional Energy Resource Council (RERC) charter for an additional two-year period beginning on August 1, 2019.
Elizabeth Upchurch, 865-632-8305,
Pursuant to FACA and its implementing regulations, and following consultation with the Committee Management Secretariat, General Services Administration (GSA) in accordance with 41 CFR 102-3.60(a), notice is hereby given that the RERC has been renewed for a two-year period beginning August 1, 2019. The RERC will provide advice to TVA on its issues affecting energy resource activities. The RERC was originally established in 2013 to advise TVA on its energy resource activities and the priority to be placed among competing objectives and values. It has been determined that the RERC continues to be needed to provide an additional mechanism for public input regarding energy issues.
Tennessee Valley Authority (TVA).
Notice of meeting.
The TVA Regional Resource Stewardship Council (RRSC) will hold a meeting on Wednesday and Thursday, September 11-12, 2019, to consider various matters. The RRSC was established to advise TVA on its natural resources and stewardship activities and the priority to be placed among competing objectives and values. Notice of this meeting is given under the Federal Advisory Committee Act (FACA).
The meeting will be held September 11-12, 2019. Wednesday's meeting will run from 8:30 a.m. to 12:00 p.m. CDT, and Thursday's meeting will run from 8:30 a.m. to 11:30 a.m. CDT.
The meeting will be held at the Pickwick Pines Resort Activities Center at 11 Ashley Avenue, Iuka, Mississippi. An individual requiring special accommodation for a disability should let the contact below know at least a week in advance.
Cathy Coffey, 865-632-4494,
The meeting agenda includes the following items:
The meeting is open to the public. Comments from the public will be accepted Thursday, September 12 at 9:30 a.m., CDT, for 60 minutes. Registration to speak is from 8:00 a.m. to 9:00 a.m., CDT, at the door. TVA will set speaking time limits once registered. Handout materials should be limited to one printed page. Written comments may be sent to the RRSC at any time through links on TVA's website at
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for Judicial review of actions by FHWA.
The Federal Highway Administration (FHWA) is issuing this notice to announce actions taken by FHWA that are final. This notice announces to the public that FHWA, as the National Environmental Policy Act (NEPA) lead agency, circulated a Final Environmental Impact Statement (EIS) and Section
The project would realign US 50 in the Stateline casino corridor area (postmile 79.00 to postmile 80.44) and convert the existing US 50 roadway, between a location southwest of Pioneer Trail in the City of South Lake Tahoe, California and Lake Parkway in Stateline, Nevada, into a two‐lane local street (one travel lane in each direction). Realigned US 50 would be four lanes (two travel lanes in each direction) with left-turn pockets at intersections; it would begin at a relocated Pioneer Trail intersection to the west of the existing intersection, and proceed south along existing Moss and Echo Roads. The realigned highway would then turn east onto the Montreal Road alignment, passing behind (southeast of) the Heavenly Village Center shopping complex, and continuing along the existing Montreal Road and Lake Parkway alignments. The proposed action includes a new, two-lane roundabout at the intersection of US 50 and Lake Parkway in Stateline, Nevada. The affected segment of existing US 50 is approximately 1.1 miles long.
The existing right-of-way of the segment of US 50 between Pioneer Trail and Lake Parkway—the new “Main Street”—would be relinquished to the City of South Lake Tahoe in California, and Douglas County in Nevada. Realigned US 50 would become California Department of Transportation (Caltrans) and Nevada Department of Transportation (NDOT) right-of-way.
Between Park Avenue and Lake Parkway, the new “Main Street” would
The proposed action would result in displacing residents and would construct replacement housing for those residents before removing existing housing and constructing the roadway improvements in California so that residents displaced by the project may be relocated to the newly constructed housing if they so choose during the relocation process.
The action taken by FHWA includes approval of the project.
By this notice, the FHWA, is advising the public of final agency actions subject to 23 U.S.C. 139(
For FHWA: Scott McHenry, Sr. Transportation Engineer, Project Delivery Team, Federal Highway Administration, 650 Capitol Mall, Suite 4-100, Sacramento, California 95814, (916) 498-5854, or email:
For NDOT: Nick Johnson, Chief, Project Management Division, Nevada Department of Transportation, 1263 South Stewart Street, Carson City, Nevada 89712, (775) 888-7318, or email:
The Final Environmental Impact Report (EIR)/EIS/EIS is a joint document prepared by the Tahoe Transportation District (TTD), Tahoe Regional Planning Agency (TRPA), and FHWA and is subject to state and federal environmental review requirements. FHWA, TTD, and TRPA jointly prepared the Final EIR/EIS/EIS pursuant to the requirements of NEPA, the California Environmental Quality Act (CEQA), and the Tahoe Regional Planning Compact (Pub. L. 96-551) and 1980 revision (Compact), Code of Ordinances, and Rules of Procedure. TTD is the lead agency under CEQA. FHWA is the lead agency under NEPA. TRPA is the lead agency for the TRPA EIS pursuant to their Rules of Procedure.
The project proposes to realign US 50 to the southeast of existing US 50 from just west of the Pioneer Trail intersection in California to Lake Parkway in Nevada; reduce the existing right-of-way of the segment of US 50 between Pioneer Trail and Lake Parkway—the new “Main Street”—to one travel lane in each direction, with landscaped medians, and new and/or upgraded bicycle lanes and sidewalks throughout the project site; and construct replacement housing for dislocated residents in the immediate vicinity.
The actions taken by the Federal agencies, and the laws under which such actions were taken, are described in the Final EIR/EIS/EIS for the project, approved on November 9, 2018 by the TTD Board and on November 15, 2018 by the TRPA Governing Board of Directors, and in the FHWA Record of Decision (ROD), issued on August 2, 2019, and in other documents in the FHWA project records. The Final EIR/EIS/EIS and other project records are available by contacting FHWA, at the address provided above. The FHWA Final EIR/EIS/EIS can be viewed and downloaded from the project website at:
1. Council on Environmental Quality regulations (40 CFR 1500
2. National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4351
3. Federal-Aid Highway Act of 1970, 23 U.S.C. 109;
4. Fixing America's Surface Transportation Act of 2015;
5. Clean Air Act of 1963, as amended (42 U.S.C. 7401
6. Clean Water Act of 1977 (33 U.S.C. 1344)
7. Federal Land Policy and Management Act of 1976 (Paleontological Resources);
8. Safe Drinking Water Act of 1944, as amended;
9. Noise Control Act of 1979 (42 U.S.C. 4901
10. FHWA Noise Standards, Policies, and Procedures (23 CFR 772);
11. Department of Transportation Act of 1966, Section 4(f) (49 U.S.C. 303);
12. Endangered Species Act of 1973 (16 U.S.C. 1531-1543);
13. Migratory Bird Treaty Act (16 U.S.C. 703-712);
14. National Historic Preservation Act of 1966, as amended (54 U.S.C. 306108
15. Executive Order 11990, Protection of Wetlands;
16. Executive Order 13112, Invasive Species;
17. Executive Order 12898, Federal Actions to Address Environmental Justice and Low-Income Populations;
18. Title VI of Civil Rights Act 1964 (42 U.S.C. 2000d
23 U.S.C. 139(
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Notice.
PHMSA is publishing this notice to seek public comments on a request for a special permit, seeking relief from compliance with certain requirements in the Federal pipeline safety regulations. At the conclusion of the 30-day comment period, PHMSA will review the comments received from this notice as part of its evaluation to grant or deny the special permit request.
Submit any comments regarding this special permit request by September 23, 2019.
Comments should reference the docket number for the specific special permit request and may be submitted in the following ways:
•
•
•
•
PHMSA has received a special permit request from the Colonial Pipeline Company (Colonial) to deviate from the Federal pipeline safety regulations in 49 CFR 195.310 for two (2) segments of the Colonial hazardous liquid pipeline system, where Colonial has failed to retain certain hydrostatic pressure test records. The first segment is a 66.372-mile portion of the 40-inch diameter Line 01 located in Acadia, St. Landry, Point Coupee, and West Feliciana Parishes, Louisiana (see
The proposed special permit and Draft Environmental Assessment (DEA) for Colonial are available for public review and comment in Docket No. PHMSA-2009-0390 at
Before issuing a decision on the special permit request, PHMSA will evaluate all comments received on or before the comments closing date. Comments received after the comment closing date, will be evaluated if it is possible to do so without incurring additional expense or delay. PHMSA will consider each relevant comment we receive in making our decision to grant or deny a request.
Office of the Secretary of Transportation (OST), U.S. Department of Transportation (DOT).
Notice of availability and request for comments.
This notice announces the availability of two U.S. Department of Transportation interim policies for public comment: (1)
Both of these memoranda are effective, as interim policies, on the date of publication of this notice. Comments must be received by September 23, 2019. Late-filed comments will be considered to the extent practicable.
Rhonda Solomon, Environmental Protection Specialist, U.S. Department of Transportation, Office of the Secretary, 1200 New Jersey Avenue SE, Washington, DC 20590, at (202) 366-5397 or email
Comments should refer to the docket number above and be submitted by one of the following methods:
•
•
•
Consistent with the Council on Environmental Quality (CEQ) “Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act” (NEPA), this interim policy provides that, to the extent practicable, DOT operating administrations (OAs) should limit the text of draft and final environmental impact statements (EISs) to 150 pages, unless they are of an unusual scope or complexity. The interim policy also recommends that environmental assessments not exceed 75 pages. The memorandum also discusses best practices to help comply with these page limits.
DOT finds it necessary to issue this interim policy because lengthy NEPA documents, containing extraneous detail and needless data, have resulted in increases in both time and cost to complete the environmental review process and has made it increasingly difficult for agency decisionmakers and the public to find the relevant information regarding proposed actions. Setting appropriate page limits is recognized as a mechanism to reduce excessive paperwork and ensure that NEPA documentation is clear, concise, and focused.
In addition to reaffirming the requirements found in CEQ regulations, this memorandum is consistent with the Department's existing NEPA implementing procedures, DOT Order 5610.1C, “Procedures for Considering Environmental Impacts” (July 30, 1985). It also aligns with the goals stated in Executive Order (E.O.) 13807,
On August 15, 2017, the President signed E.O. 13807,
On April 9, 2018, several Departments and agencies involved in the development and approval of infrastructure projects, including DOT, executed a Memorandum of Understanding (MOU) to facilitate the implementation of the E.O. The MOU outlined the roles and responsibilities for the agencies. This included establishing a pre-scoping process, concurrence points where each agency would have to agree in writing to key decision points, an elevation process to address disputes and schedule changes, and limited exceptions for applying the OFD process.
In September 26, 2018, Office of Management and Budget (OMB) released Memorandum M-18-25,
The DOT interim policy on the
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning its information collection entitled, “Bank Secrecy Act/Money Laundering Risk Assessment,” also known as the Money Laundering Risk (MLR) System. The OCC also is giving
Comments must be submitted by September 23, 2019.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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•
•
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Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0231, U.S. Office of Management and Budget, 725 17th Street NW, #10235, Washington, DC 20503 or by email to
You may review comments and other related materials that pertain to this information collection
•
• For assistance in navigating
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Shaquita Merritt, OCC Clearance Officer, (202) 649-5490, or for persons who are deaf or hearing impaired, TTY, (202) 649-5597, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501
We will collect MLR information for community banks supervised by the OCC.
The format of OCC's annual Risk Summary Form (RSF) is fully automated, making data entry quick and efficient and providing an electronic record for all parties.
The OCC estimates the burden of this collection of information as follows:
On May 10, 2019, the OCC issued a notice for 60 days of comment concerning this collection. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning the renewal of its information collection titled, “Guidance Regarding Unauthorized Access to Customer Information.” The OCC also is giving notice that it has submitted the collection to OMB for review.
Comments must be submitted on or before September 23, 2019.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
•
•
•
•
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0227, U.S. Office of Management and Budget, 725 17th Street NW, #10235, Washington, DC 20503 or by email to
You may review comments and other related materials that pertain to this information collection
•
• For assistance in navigating
•
Shaquita Merritt, OCC Clearance Officer, (202) 649-5490 or, for persons who are deaf or hearing impaired, TTY, (202) 649-5597, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501
The Interagency Guidelines Establishing Information Security Standards, 12 CFR part 30, appendix B (Security Guidelines), which implement section 501(b), require each entity supervised by the OCC (supervised institution) to consider and adopt a response program, as appropriate, that specifies actions to be taken when the supervised institution suspects or detects that unauthorized individuals have gained access to customer information systems.
The Interagency Guidance on Response Programs for Unauthorized Customer Information and Customer Notice (Breach Notice Guidance),
(1) Assessing the nature and scope of an incident, and identifying what customer information systems and types of customer information have been accessed or misused;
(2) Notifying its primary federal regulator as soon as possible when the supervised institution becomes aware of an incident involving unauthorized access to, or use of, sensitive customer information;
(3) Taking appropriate steps to contain and control the incident in an effort to prevent further unauthorized access to, or use of, customer information, for example, by monitoring, freezing, or closing affected accounts, while preserving records and other evidence; and
(4) Notifying customers when warranted.
The Breach Notice Guidance states that, when a financial institution
On April 9, 2019, the OCC issued a notice for 60 days of comment concerning this collection, 84 FR 14194. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the information collection;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
The Specially Designated Nationals and Blocked Persons List (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's website (
On August 20, 2019, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. CASTRO CORDERO, Natanael, Dominican Republic; DOB 08 Nov 1982; POB Santo Domingo, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1481029-4 (Dominican Republic) (individual) [SDNTK]. Designated pursuant to section 805(b)(3) of the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”), 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
2. DEL ROSARIO PUENTE, Ramon Antonio (a.k.a. “TONO LENA” (Latin: “TOÑO LEÑA”)), Dominican Republic; DOB 13 Sep 1968; POB Guaymate, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 026-0027057-9 (Dominican Republic) (individual) [SDNTK] (Linked To: CESAR PERALTA DRUG TRAFFICKING ORGANIZATION). Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the CESAR PERALTA DRUG TRAFFICKING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
3. FERNANDEZ FLAQUER, Kelvin Enrique (a.k.a. “COTTO”), Dominican Republic; DOB 06 Dec 1977; POB Higuey, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 026-0088747-1 (Dominican Republic) (individual) [SDNTK] (Linked To: CESAR PERALTA DRUG TRAFFICKING ORGANIZATION). Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the CESAR PERALTA DRUG TRAFFICKING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act, and Ramon Antonio DEL ROSARIO PUENTE, a foreign person designated pursuant to the Kingpin Act.
4. FERNANDEZ CONCEPCION, Carlos Ariel, Dominican Republic; DOB 14 Jan 1973; POB Santo Domingo, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1217345-5 (Dominican Republic) (individual) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
5. JAQUEZ ARAUJO, Yadher Rafael (a.k.a. “JAKE MATE”; a.k.a. “JAQUE MATE”), Dominican Republic; DOB 15 Oct 1985; POB Santo Domingo, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1733889-7 (Dominican Republic) (individual) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
6. PERALTA, Cesar Emilio (a.k.a. “EL ABUSADOR”), Dominican Republic; DOB 30 Jan 1975; POB Distrito Nacional, Dominican Republic; nationality Dominican Republic; Gender
7. SANCHEZ NOLASCO, Boarnerges (a.k.a. “WARNEL”), Dominican Republic; DOB 02 Jul 1976; POB Hato Mayor, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1595659-1 (Dominican Republic) (individual) [SDNTK] (Linked To: CESAR PERALTA DRUG TRAFFICKING ORGANIZATION). Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the CESAR PERALTA DRUG TRAFFICKING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
8. URENA MARTINEZ, Jhonan Alexander (Latin: UREÑA MARTINEZ, Jhonan Alexander), Dominican Republic; DOB 14 May 1987; POB Santo Domingo, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1871175-3 (Dominican Republic) (individual) [SDNTK] (Linked To: CESAR PERALTA DRUG TRAFFICKING ORGANIZATION; Linked To: BARBARO RECORDS SRL). Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the CESAR PERALTA DRUG TRAFFICKING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
9. VALDEZ GARCIA, Bernardo Antonio (a.k.a. “PAPI CRIS”), Dominican Republic; DOB 31 Jan 1975; POB San Cristobal, Dominican Republic; nationality Dominican Republic; Gender Male; Cedula No. 001-1856559-7 (Dominican Republic) (individual) [SDNTK] (Linked To: CESAR PERALTA DRUG TRAFFICKING ORGANIZATION; Linked To: SOLUGA SOLUCIONES GASTRONOMICAS SRL). Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the CESAR PERALTA DRUG TRAFFICKING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
1. BARBARO RECORDS SRL (a.k.a. BARBARO RECORDS), Calle 34, Local No. 10, Los Cachorros, Cristo Rey, Santo Domingo, Distrito Nacional, Dominican Republic; Tax ID No. 131-48344-5 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Jhonan Alexander URENA MARTINEZ, a foreign person designated pursuant to the Kingpin Act.
2. CESAR PERALTA DRUG TRAFFICKING ORGANIZATION (a.k.a. “PERALTA DTO”), Dominican Republic [SDNTK]. Identified as a significant foreign narcotics trafficker pursuant to section 805(b)(1) of the Kingpin Act, 21 U.S.C. 1904(b)(1).
3. FLOW GALLERY LOUNGE SRL (a.k.a. FLOW GALLERY LOUNGE), Calle Juan de Morfa 87, Villa Consuelo, Santo Domingo, Dominican Republic; Tax ID No. 131-42317-5 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
4. INKUORTYN FIVE SRL (a.k.a. LA KUORA TERRAZA; a.k.a. LA TERRAZA DE LA KUORA; a.k.a. “LA KUORA”), Calle La Guardia No. 25, Villa Consuelo, Santo Domingo, Dominican Republic; Tax ID No. 131-45973-2 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
5. SOLUGA SOLUCIONES GASTRONOMICAS SRL (a.k.a. “AL PANINO”), Av. Abraham Lincoln, Plaza Andalucia II, Primera Planta, Local Comercial 49-A y 50-A, Santo Domingo, Distrito Nacional, Dominican Republic; Tax ID No. 131-63920-8 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
6. SUPLINKA SRL (a.k.a. “VIP ROOM”), Av. Abraham Lincoln Esq. Independencia, Zona Universitaria, Santo Domingo, Dominican Republic; Tax ID No. 131-40246-1 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
7. UNLIMITED DANCE DISCOTECA SRL (a.k.a. “AQUA CLUB”), Av. Ortega y Gasset No. 95, Cristo Rey, Santo Domingo, Dominican Republic; Av. Ortega y Gasset 91 Esq. Felix Evaristo Mejia, Santo Domingo, Dominican Republic; Tax ID No. 131-28035-8 (Dominican Republic) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Cesar Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is proposing for public comment amendments to modernize the description of business, legal proceedings, and risk factor disclosures that registrants are required to make pursuant to Regulation S-K. These disclosure items have not undergone significant revisions in over 30 years. The proposed amendments are intended to update our rules to account for developments since their adoption or last amendment, to improve these disclosures for investors, and to simplify compliance efforts for registrants. Specifically, the proposed amendments are intended to improve the readability of disclosure documents, as well as discourage repetition and disclosure of information that is not material.
Comments should be received on or before October 22, 2019.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
We or the staff may add studies, memoranda, or other substantive items to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on our website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Sandra Hunter Berkheimer or Elliot Staffin, Office of Rulemaking, at (202) 551-3430, in the Division of Corporation Finance, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
We are proposing to amend 17 CFR 229.101 (“Item 101”), 17 CFR 229.103 (“Item 103”), and 17 CFR 229.105 (“Item 105”) of 17 CFR 229.10
We are proposing amendments to modernize the description of business (Item 101), legal proceedings (Item 103), and risk factor (Item 105) disclosure requirements in Regulation S-K. We are proposing amendments to these items to improve these disclosures for investors and to simplify compliance for registrants.
Pursuant to Section 108 of the Jumpstart Our Business Startups Act (“JOBS Act”),
In connection with the S-K Study and the launch of the Disclosure Effectiveness Initiative, the Commission staff received public input on how to improve registrant disclosures.
In developing the proposed amendments, we considered input from comment letters we received in response to these disclosure modernization efforts.
Regulation S-K was adopted in 1977 to foster uniform and integrated disclosure for registration statements under both the Securities Act and the Exchange Act, and other Exchange Act filings, including periodic and current reports.
The Commission adopted line-item requirements in Regulation S-K to elicit specific disclosure within broad categories of information material to an investment decision. Some of these requirements provide registrants with the flexibility to determine the disclosure that is material to an investment decision.
In contrast, some line-item requirements in Regulation S-K employ bright-line, quantitative thresholds to specify when disclosure is required, or require all registrants to disclose the same type of information. These requirements are sometimes referred to as “prescriptive” disclosure requirements because they do not rely on management's judgment to determine when disclosure is required. The benefits of prescriptive disclosure requirements can include comparability, consistency, and ease in determining when information must be disclosed.
The Concept Release sought input on whether our disclosure requirements should be more principles-based, prescriptive, or a combination of both. Many commenters supported a more principles-based approach
We are proposing amendments to Items 101, 103, and 105
For each of the disclosure requirements addressed in this release, we considered the merits and drawbacks of pursuing a principles-based versus prescriptive approach. We also considered each requirement as a component of a broader framework that will achieve the disclosure objectives of the Securities Act and the Exchange Act in the most effective and efficient manner. As discussed in greater detail in Section II below, we propose to revise Items 101(a) (description of the general development of the business), 101(c) (narrative description of the business), and 105 (risk factors) to emphasize a principles-based approach because the current disclosure requirements may not reflect what is material to every business, and, as past developments have demonstrated, disclosure requirements, and in particular prescriptive disclosure requirements, can become outdated in these areas. We believe this approach would elicit more relevant disclosures about these items. In contrast, we are proposing a more prescriptive approach for Item 103 because that requirement depends less on the specific characteristics of individual registrants.
Our proposed amendments would:
• Revise Item 101(a) to be largely principles-based, requiring:
○ Disclosure of information material
○ In filings made after a registrant's initial filing, only an update of the general development of the business with a focus on material developments in the reporting period with a hyperlink to the registrant's most recent filing (
• Revise Item 101(c) to:
○ Clarify and expand its principles-based approach, with disclosure topics drawn from a subset of the topics currently contained in Item 101(c);
○ Include, as a disclosure topic, human capital resources, including any human capital measures or objectives that management focuses on in managing the business, to the extent such disclosures would be material to an understanding of the registrant's business; and
○ Refocus the regulatory compliance requirement by including material government regulations, not just environmental laws, as a topic.
• Revise Item 103 to:
○ Expressly state that the required information may be provided by including hyperlinks or cross-references to legal proceedings disclosure located elsewhere in the document in an effort to encourage registrants to avoid duplicative disclosure; and
○ Revise the $100,000 threshold for disclosure of environmental proceedings to which the government is a party to $300,000 to adjust for inflation.
• Revise Item 105 to:
○ Require summary risk factor disclosure if the risk factor section exceeds 15 pages;
○ Refine the principles-based approach of Item 105 by changing the disclosure standard from the “most significant” factors to the “material” factors; and
○ Require risk factors to be organized under relevant headings, with any risk factors that may generally apply to an investment in securities disclosed at the end of the risk factor section under a separate caption.
We welcome feedback and encourage interested parties to submit comments on any or all aspects of the proposed amendments. When commenting, it would be most helpful if you include the reasoning behind your position or recommendation.
Item 101(a) of Regulation S-K requires a description of the general development of the business of the registrant during the past five years, or such shorter period as the registrant may have been engaged in business.
• The year in which the registrant was organized and its form of organization;
• The nature and results of any bankruptcy, receivership or similar proceedings with respect to the registrant or any of its significant subsidiaries;
• The nature and results of any other material reclassification, merger or consolidation of the registrant or any of its significant subsidiaries;
• The acquisition or disposition of any material amount of assets otherwise than in the ordinary course of business; and
• Any material changes in the mode of conducting the business.
The Concept Release solicited input on whether the disclosure provided under this Item continues to be useful and how this Item might be improved.
In light of the feedback received, we are proposing amendments to Item 101(a)(1) that would provide more flexibility to tailor disclosures to the unique circumstances of each registrant, which in turn could result in improved disclosures for investors. In addition, for filings other than initial registration statements, we are proposing to require only material updates to this disclosure.
Item 101(a) requires a description of the general development of the registrant's business during the past five years, or such shorter period as the registrant may have engaged in business.
The Concept Release solicited comments on whether the current five-year timeframe for this disclosure is appropriate, or whether a shorter or longer timeframe should be considered.
We do not think it is necessary to prescribe a timeframe for which registrants should provide disclosure regarding the general development of their business. The currently required five-year timeframe may not elicit the most relevant disclosure for every registrant. Some registrants may prefer to describe the development of their business over a longer period in order to provide the information that may be material to an investment decision, while others may conclude that the material aspects of their business development can be described over a shorter timeframe. We are proposing to revise Item 101(a) to eliminate the five-year disclosure timeframe and require registrants to focus on the information material to an understanding of the development of their business, irrespective of a specific timeframe. For similar reasons, we are also proposing to revise Item 101(h) to eliminate the provision that currently requires smaller reporting companies to describe the development of their business during the last three years.
Currently registrants are required to provide disclosure regarding the general development of the business in
Several commenters recommended revising the requirement to distinguish between new and established registrants, stating that much of the disclosure required under this Item is redundant for registrants already subject to the reporting requirements.
We propose to retain the requirement for registrants to describe the general development of the business in initial registration statements under the Securities Act and Exchange Act.
We are proposing to amend Item 101(a)(1) to be more principles-based by providing a non-exclusive list of the types of information that a registrant may need to disclose, and by requiring disclosure of a topic only to the extent such information is material to an understanding of the general development of a registrant's business.
Three of the four matters that we are proposing to list as disclosure topics are currently covered in Item 101(a)(1):
• Material bankruptcy, receivership, or any similar proceeding;
• The nature and effects of any material reclassification, merger or consolidation of the registrant or any of its significant subsidiaries; and
• The acquisition or disposition of any material amount of assets otherwise than in the ordinary course of business.
We are also proposing to include as a listed disclosure topic, to the extent material to an understanding of the registrant's business, transactions and events that affect or may affect the company's operations, including material changes to a registrant's previously disclosed business strategy. Item 101(a) does not currently require disclosure of material changes to a registrant's previously disclosed business strategy. The Concept Release solicited input on whether Item 101(a) should be revised to require the disclosure of a registrant's business strategy; whether investors would find such disclosure important or useful and, if so, whether this requirement should be included in Management's Discussion and Analysis (“MD&A”);
Many registrants currently include disclosure regarding their business strategy in their initial registration statements. We believe that information regarding material changes to a previously disclosed business strategy may be material information for investors. We are therefore proposing to include material changes to a registrant's previously disclosed business strategy as a listed disclosure topic under Item 101(a). However, if a registrant has not previously disclosed its business strategy, we are not proposing to make the disclosure of that strategy mandatory in a Commission filing because of the concerns raised by commenters that such a requirement could force registrants to disclose proprietary information that could be harmful to their competitive position.
To the extent that other matters beyond those listed in the amended item are material to an understanding of the general development of a registrant's business, the registrant would be required to disclose those matters as well.
1. Is a prescribed timeframe for disclosure regarding the general development of a registrant's business necessary or desirable? If we should retain a prescribed timeframe, is the current five-year timeframe appropriate, or should it be longer or shorter?
2. Alternatively, should we require a more detailed discussion of a registrant's general development of business on a periodic basis, such as every three years, and summary disclosure in other years? If so, would three years be an appropriate period, or should it be shorter or longer?
3. For filings other than initial registration statements, should we no longer require a full discussion of the general development of the registrant's business, and require instead an update to the general development of the business disclosure with a focus on material developments in the reporting period, as proposed?
4. When only updated business disclosure is provided in a filing, should we require the incorporation by reference of, and active hyperlink to, the most recently filed disclosure that, together with the update, would present a full discussion of the general development of a registrant's business, as proposed? Would such an approach, which would enable a reader to review the updated disclosure and one hyperlinked disclosure, facilitate an investor's understanding of the general development of a registrant's business?
5. Would registrants find it difficult to apply the proposed principles-based requirements? How could we alleviate any expected difficulties?
6. Would principles-based requirements for Item 101(a) effectively facilitate the provision of information that is material to an investment decision? If not, how might Item 101(a) be further improved?
7. Should we provide a list of topics that may be material to an understanding of a registrant's business development, as proposed? Are the proposed topics (transactions and events that affect or may affect the company's operations, including material changes to a previously disclosed business strategy; bankruptcy, receivership, or any similar proceeding; the nature and effects of any other material reclassification, merger or consolidation of the registrant or any of its significant subsidiaries; and the acquisition or disposition of a material amount of assets other than in the ordinary course of business) appropriate? Should we exclude any of our proposed topics? Are there other topics that should be added (
8. Should we make disclosure of business strategy mandatory in Commission filings? If so, how should “business strategy” be defined and what can we do to address concerns about confidentiality?
9. Should we revise Item 101(h) to eliminate the provision that currently requires smaller reporting companies to describe the development of their business during the last three years, as proposed? Is a prescribed timeframe for such disclosure necessary or desirable? If we should retain a prescribed timeframe, is the current three-year timeframe appropriate, or should it be longer or shorter?
10. We are proposing to retain the current requirement in Item 101(h) that if a smaller reporting company has not been in business for three years, it must provide the same information for predecessor(s) of the smaller reporting company if there are any. Should we eliminate or adjust this predecessor disclosure requirement for smaller reporting companies? A registrant that is not a smaller reporting company must also provide information about its predecessors in certain circumstances under current Item 101(a)(2). Should we eliminate the predecessor disclosure obligations for those registrants?
11. Should we permit certain registrants to provide the general business development disclosure by other means (
Item 101(c) requires a narrative description of the business done and intended to be done by the registrant and its subsidiaries, focusing upon the registrant's dominant segment or each reportable segment about which financial information is presented in the financial statements. To the extent material to an understanding of the registrant's business taken as a whole, the description of each such segment must include ten specific items listed in Item 101(c) (
(1) Principal products produced and services rendered;
(2) New products or segments;
(3) Sources and availability of raw materials;
(4) Intellectual property;
(5) Seasonality of the business;
(6) Working capital practices;
(7) Dependence on certain customers;
(8) Dollar amount of backlog orders believed to be firm;
(9) Business subject to renegotiation or termination of government contracts;
(10) Competitive conditions;
(11) The material effects of compliance with environmental laws; and
(12) Number of employees.
The earliest forms of registration statements and annual reports required a brief outline of the general character of the business done and intended to be done by a registrant.
In the S-K Study, the staff recommended reviewing the description of business for continuing relevance in light of changes that have occurred in the way businesses operate, which may make other disclosures relevant that are not expressly addressed under the current requirements.
A number of commenters recommended revising Item 101(c) to make it more principles-based.
Because the 12 items may not be relevant to all registrants, they can elicit disclosure that is not material to a particular registrant. For the most part, Item 101(c) currently provides that a registrant must disclose the enumerated items to the extent material to an understanding of the registrant's business taken as a whole. Based on the comments received that were critical of this provision,
The Concept Release further sought comment on whether any of the current requirements in Item 101(c) should be presented in a different context, such as MD&A or risk factors.
To facilitate application of our principles-based revisions to Item 101, we propose to include in Item 101(c) the non-exclusive list of disclosure topics discussed below.
Under our proposal, the revised rule would not explicitly reference some of the disclosure requirements currently contained in Item 101(c). In addition to working capital practices, the proposed amendments would no longer list the following topics: Disclosure about new segments and dollar amount of backlog orders believed to be firm. Nevertheless, under the proposed principles-based approach, registrants still would have to provide disclosure about these topics, as well as any other topics regarding the registrants' business, if they are material to an understanding of their business.
The proposal retains Item 101(c)'s distinction between disclosure topics
Similar to current Item 101(c), most of the listed disclosure topics would fall into the category for which segment disclosure would be required to the extent the topic is material to an understanding of the registrant's business taken as a whole.
While we recognize that the twelve enumerated items in Item 101(c) may not be relevant across all industries or businesses, we continue to believe that disclosure regarding revenue-generating activities, products and/or services, and any dependence on key products, services, product families, or customers, including governmental customers, would generally be material to an investment decision. We agree with the commenter who stated that these elements are key to how reasonable investors often evaluate the future prospects of a registrant's business and that highlighting these topics should elicit more informative disclosures.
We continue to believe that disclosure regarding development efforts for new or enhanced products, and trends in market demand and competition would generally be material to an investment decision. In response to the Concept Release, several commenters suggested additional disclosure related to competitive conditions. One commenter recommended requiring disclosure of the registrant's competitive landscape, noting that companies not only compete within their industry but also with entities external to their industry segment.
Currently two of the twelve disclosure requirements in Item 101(c) relate to registrants' resources: Item 101(c)(1)(iii) requires disclosure of the sources and availability of raw materials, and Item 101(c)(1)(iv) requires disclosure of the importance, duration and effect of all patents, trademarks, licenses, franchises, and concessions held, each to the extent material to an understanding of the registrant's business taken as a whole.
As discussed in greater detail below, we propose modernizing these disclosure requirements to refocus registrants' disclosure on all resources material to their business. We believe that this approach would elicit more informative disclosure tailored to the specific circumstances of each company or its industry. To facilitate application, we propose including (a) raw materials, and (b) patents, trademarks, licenses, franchises and concessions held, as examples of resources that may be material to a registrant's business.
Item 101(c)(1)(iii) currently requires disclosure of the sources and availability of raw materials.
We propose retaining sources and availability of raw materials as a listed disclosure topic in Item 101(c)
Item 101(c)(1)(iv) requires disclosure of the importance, duration, and effect of all patents, trademarks, licenses, franchises, and concessions held to the extent material to an understanding of the registrant's business taken as a whole.
Numerous commenters supported maintaining the current scope of Item 101(c)(1)(iv),
Conversely, a number of commenters recommended generally expanding the scope of Item 101(c)(1)(iv).
Another commenter recommended including copyrights under this item and requiring detailed tabular disclosure by asset type.
A broad range of industries directly and indirectly benefit from intellectual property
In the biotechnology and pharmaceutical industries, registrants that provide detailed patent disclosure often disclose the jurisdiction in which the patent was filed, year of expiration, type of patent (
In the information technologies and services industry, registrants protect their intellectual property through the use of patents, trademarks, copyrights, trade secrets, licenses, and confidentiality agreements.
In general, registrants in the information technologies and services industry use copyrights to protect against the unauthorized copying of software programs
We propose to retain as a listed disclosure topic the importance, duration and effect of patents, trademarks, licenses, franchises, and concessions held as non-exclusive types of property that may be material to a registrant's business.
Item 101(c)(1)(ix) requires, to the extent material to an understanding of the registrant's business taken as a whole, disclosure of any material portion of a business that may be subject to renegotiation of profits or termination of contracts or subcontracts at the election of the Government.
Business contracts with agencies of the U.S. government and the various laws and regulations relating to procurement and performance of U.S. government contracts impose terms and rights that are different from those typically found in commercial contracts. In a 1972 Notice to Registrants, the Commission noted that government contracts are subject to renegotiation of profit and to termination for the convenience of the government.
Registrants with U.S. government contracts tend to disclose that the funding of these contracts is subject to the availability of Congressional appropriations and that, as a result, long-term government contracts are partially funded initially with additional funds committed only as Congress makes further appropriations. These registrants disclose that they may be required to maintain security clearances for facilities and personnel in order to protect classified information. Additionally, these registrants state that they may be subject to routine government audits and investigations, and any deficiencies or illegal activities identified during the audits or investigations may result in the forfeiture or suspension of payments and civil or criminal penalties. We are proposing to retain renegotiation or termination of government contracts as a listed disclosure topic
Item 101(c)(1)(v) requires disclosure of the extent to which the business of the segment is or may be seasonal to the extent material to an understanding of the registrant's business taken as a whole.
In light of the Commission's recent evaluation of this disclosure item, we propose including as a disclosure topic in Item 101(c) the extent to which the business is or may be seasonal.
Item 101(c)(1)(xii) requires disclosure of the material effects of compliance with environmental laws on the capital expenditures, earnings and competitive position of the registrant and its subsidiaries, as well as any material estimated capital expenditures for the remainder of the fiscal year, the succeeding fiscal year, and such future periods that the registrant deems material.
The Concept Release solicited input on whether to increase or reduce the disclosure required by this Item and whether this disclosure is important to investors.
Pursuant to the National Environmental Policy Act of 1969 (“NEPA”),
While there is no separate line item requiring disclosure of government regulations that may be material to a registrant's business, it is common practice for many registrants to include disclosure regarding such information in response to Item 101(c)(1)(xii). The Concept Release sought comment on whether to require registrants to disclose government regulations material to their business given that many registrants already voluntarily provide such information.
Although not required by Item 101(c), many registrants currently discuss government regulations relevant to their business, often in the form of a list. Healthcare and insurance providers regularly disclose their collection, use and protection of individually-identifiable information and compliance with the Health Insurance Portability and Accountability Act of 1996,
Registrants in the financial services industry regularly describe Federal and state regulation as well as supervision by the Federal Reserve Board, while registrants with a material amount of U.S. government contracts disclose the laws and regulations for government contracts. Registrants with tax strategies involving foreign jurisdictions typically disclose that they are subject to income taxes in both the U.S. and numerous foreign jurisdictions, and that future changes to U.S. and non-U.S. tax law could adversely affect their anticipated financial position and results. Some
Consistent with the current practice of many registrants, as observed by the staff in its review of filings, we propose including the material effects of compliance with material government regulations, not just environmental laws, as a listed disclosure topic in Item 101(c).
While we propose to retain the requirement that a registrant disclose material estimated capital expenditures for environmental control facilities for the current fiscal year and any other subsequent period that the registrant deems material,
Item 101(c)(1)(xiii) currently requires disclosure of the number of persons employed by the registrant.
• Whether this disclosure is important to investors;
• Whether to require or permit registrants to provide a range of its number of employees or independent contractors;
• Whether disclosure regarding anticipated material changes in the number of employees would be useful to investors; and
• Whether to require registrants to provide disclosure distinguishing among their total employees such as by full-time and part-time or seasonal employees; employees and independent contractors; or domestic or foreign employees.
Many commenters recommended retaining and expanding the requirement to disclose the number of persons employed by the registrant,
With respect to whether anticipated material changes in the number of employees would be useful to investors, several commenters supported disclosure of employee turnover.
The Concept Release also solicited feedback on additional line-item disclosure requirements about a registrant's business that would improve the quality and consistency of disclosure, and specifically sought input on whether to require additional information about a registrant's employees or employment practices.
• Worker recruitment, employment practices, and hiring practices;
• Employee benefits and grievance mechanisms;
• ”Employee engagement” or investment in employee training;
• Workplace health and safety;
• Strategies and goals related to human capital management and legal or regulatory proceedings related to employee management;
• Whether employees are covered by collective bargaining agreements;
• Employee compensation or incentive structures.
We also received a rulemaking petition requesting that the Commission adopt new rules, or amend existing rules, to require registrants to disclose information about their human capital management policies, practices and performance (the “Human Capital Rulemaking Petition”).
Item 101(c)(1)(xiii) dates back to a time when companies relied significantly on plant, property, and equipment to drive value. At that time, a prescriptive requirement to disclose the number of employees may have been an effective means to elicit information material to an investment decision. Today, intangible assets represent an essential resource for many companies.
In assessing the best way to approach disclosure regarding human capital, we were mindful that each industry, and even each company within a specific industry, has its own human capital considerations, and that those considerations may evolve over time. In light of this fact, and with the principle of materiality in mind, it is our view that prescribing fixed, specific line item disclosures in this area for all registrants would not result in the most meaningful disclosure.
12. Should we shift to a more principles-based approach for Item 101(c), as proposed? Would registrants find it difficult to apply the principles-based requirements?
13. Would the proposed principles-based requirements elicit information that is material to an investment decision? If not, how might Item 101(c) be further improved? Are there any additional disclosure topics that we should include in Item 101(c) to facilitate disclosure? Alternatively, should we exclude any of our proposed disclosure topics?
14. Should we instead require disclosure of any or all of the topics addressed in our proposed examples? If so, which topics? Should we require other types of business information? If so, what information?
15. Should we retain Item 101(c)'s distinction between disclosure topics for which segment disclosure should be the primary focus, and those for which the focus should be on the registrant's business taken as a whole, as proposed? If so, is our allocation of the listed disclosure topics into the two categories appropriate?
16. We are proposing to amend Item 101(c) to include as a listed disclosure topic the status of development efforts for new or enhanced products, trends in market demand and competitive conditions. Would the disclosure elicited in response to this amendment overlap with the disclosure provided in response to our proposed amendment to Item 101(a) to include material changes to business strategy as a disclosure topic? If so, should business strategy changes be included as a listed disclosure topic in Item 101(c) instead of Item 101(a)?
17. Currently, the duration and effect of copyright and trade secret protection is not included within the scope of Item 101(c) disclosure. Should we include it as a listed disclosure topic that could be provided?
18. Is backlog typically discussed in MD&A or is it better suited for disclosure under Item 101(c) to the extent material? Similarly, is working capital typically sufficiently disclosed in MD&A or is it better addressed under Item 101(c)?
19. Should the extent to which the business is or may be seasonal be included as a listed disclosure topic, as proposed? Alternatively, should we require this disclosure in all circumstances? We note that fourth quarter disclosure about the extent to which the business of a registrant or its segment(s) is or may be seasonal may not be elicited by U.S. GAAP. We further note that there is no longer a separate seasonality instruction to MD&A. Do these considerations support the continued inclusion of seasonal aspects of a registrant's business, to the extent material to the understanding of a registrant's business, as a listed disclosure topic?
20. Should we include as a listed disclosure topic the material effects of compliance with material government regulations, as proposed, or should we focus more narrowly on compliance with environmental regulations, as currently required under Item 101(c)? Would the proposed more principles-based approach to governmental regulatory compliance disclosure elicit the appropriate level of disclosure about environmental and foreign regulatory risks? If not, are there more specific disclosures that we should require? Should we continue to include material estimated capital expenditures for environmental control facilities as a disclosure topic under Item 101(c)?
21. Should disclosure regarding human capital resources, including any material human capital measures or objectives that management focuses on in managing the business, be included under Item 101(c) as a listed disclosure topic, as proposed? Should we define human capital? If so, how?
22. With respect to human capital resource disclosure, should we provide non-exclusive examples of the types of measures or objectives that management may focus on in managing the business, such as, depending on the nature of the registrant's business and workforce, measures or objectives that address the attraction, development, and retention of personnel, as proposed? Would providing specific examples potentially result in disclosure that is immaterial and not tailored to a registrant's specific business? Would not including such examples result in a failure to elicit information that is material and in some cases comparable across different issuers?
23. With respect to human capital resource disclosure, should we include other non-exclusive examples of measures or objectives that may be material, such as the number and types of employees, including the number of full-time, part-time, seasonal and temporary workers, to the extent disclosure of such information would be material to an understanding of the registrant's business? Could other examples include, depending on the nature of the registrant's business and workforce: Measures with respect to the stability of the workforce, such as voluntary and involuntary turnover rates; measures regarding average hours of training per employee per year; information regarding human capital trends, such as competitive conditions and internal rates of hiring and promotion; measures regarding worker productivity; and the progress that management has made with respect to any objectives it has set regarding its human capital resources? Would providing specific examples potentially result in disclosure that is immaterial and not tailored to a registrant's specific business? Would not including such examples result in a failure to elicit information that is material and in some cases comparable across different issuers?
24. Should we retain an explicit requirement for registrants to disclose the number of their employees? Alternatively, should we permit registrants to disclose a range of the number of its employees and/or a range for certain types of employees?
25. Foreign private issuers that file registration statements on Forms F-1, F-3, and F-4 are not subject to Item 101 and instead must meet the business disclosure requirements of Form 20-F. Should we amend Form 20-F to require the disclosure of human capital resources, including any human capital measures or objectives that management focuses on in managing the business, to the extent material to an understanding of the registrant's business? Would such disclosure present a significant challenge to foreign private issuers to the extent that it is not required in other jurisdictions? Are there other proposed Item 101 disclosure topics that we should require in Form 20-F?
26. The Commission revised Form 20-F in 1999 to conform in large part to the international disclosure standards endorsed by the International Organization of Securities Commissions (“IOSCO”) for the non-financial statement portions of a disclosure document, which have served as the basis for the disclosure requirements in several foreign jurisdictions.
27. The disclosure requirements regarding a foreign private issuer's business under Form 20-F are largely prescriptive. Would amending Form 20-F to make the business disclosure more principles-based represent a more significant change, or impose a greater challenge, for foreign private issuer registrants than the proposed Item 101 amendments would for domestic registrants? Would the benefits of making Form 20-F more principles-based nevertheless justify such an amendment?
28. Much of the disclosure required under Item 101(h) for smaller reporting companies is prescriptive. Should we retain this prescriptive approach or adopt a more principles-based approach, similar to the proposed amendments to Items 101(a) and (c), under Item 101(h)? Would smaller reporting companies find it difficult to apply a principles-based approach? Should we consider changes to any of the listed disclosure items in Item 101(h)(1) through (6)?
29. We are proposing to amend Form S-4 to conform it to changes made to Item 101 pursuant to the DUSTR Adopting Release as well as to the proposed revisions to Item 101(c) discussed above.
Item 103 requires disclosure of any material pending legal proceedings, other than ordinary routine litigation incidental to the business, to which the registrant or any of its subsidiaries is a party or of which any of their property is the subject.
The Commission first adopted a requirement to disclose all pending litigation that may materially affect the value of the security to be offered, describing the origin, nature and name of parties to the litigation, as part of Form A-1 in 1933.
As discussed in greater detail below, in connection with NEPA,
In the DUSTR Proposing Release, the Commission solicited comments about whether to retain, modify, eliminate, or refer the Item 103 disclosure requirements to the Financial Accounting Standards Board (“FASB”) for potential incorporation into U.S. GAAP.
Some commenters recommended the deletion of Item 103 altogether or, at a minimum, some of the disclosure requirements contained therein.
In response to concerns expressed by commenters, the Commission decided to retain the disclosure requirements in Item 103 without amendment and without referral to the FASB for potential incorporation into U.S. GAAP, indicating that further consideration was warranted with respect to the implications of potential changes to these requirements.
In light of the concerns expressed by commenters in response to the DUSTR Proposing Release, and after further consideration of how to improve the disclosure requirements in Item 103, we are proposing the following amendments.
Although Item 103 of Regulation S-K and U.S. GAAP differ in certain respects, they also have overlapping disclosure requirements.
In an effort to encourage registrants to avoid duplicative disclosure, we propose to revise Item 103 to expressly state that some or all of the required information may be provided by including hyperlinks or cross-references to legal proceedings disclosure located elsewhere in the document.
Instruction 5.C. to Item 103 specifically requires disclosure of any proceeding under environmental laws to which a governmental authority is a party unless the registrant reasonably believes it will not result in sanctions of $100,000 or more; provided, however, that such proceedings which are similar in nature may be grouped and described generally.
Pursuant to NEPA, Congress required all Federal agencies to include consideration of the environment in regulatory action.
As noted earlier,
Consistent with the Staff Report,
Since the current requirements in Instruction 5.C. to Item 103 were adopted in 1982, the Commission has explored ways in which environmental disclosures could be improved for investors while not unduly burdening registrants. For example, the 1996 Report of the Task Force on Disclosure Simplification recommended replacing the $100,000 threshold with a general materiality standard or, alternatively, recommended raising the dollar threshold that triggers disclosure.
Although the DUSTR Proposing Release did not specifically seek comment on the bright-line $100,000 threshold in Instruction 5.C. to Item 103,
Other commenters supported eliminating the bright-line thresholds and generally supported a more principles-based disclosure framework.
We continue to believe that a disclosure threshold based on the imposition of a governmental fine is appropriate because such a fine may be important for investors in assessing a registrant's environmental compliance.
However, as the $100,000 disclosure threshold for environmental proceedings in which the government is a party has not been changed since it was adopted in 1982, we propose to increase this threshold to $300,000 to adjust it for inflation. Using the May 1981 date of the proposing release in which the $100,000 threshold was first mentioned and using the Consumer Price Index (CPI) Inflation Calculator, we estimate that the threshold would be $285,180.40 as of May 2019.
30. Would our proposed revisions to Item 103 improve disclosures required by the item? Are there different or additional revisions we should consider to improve Item 103 disclosure?
31. Should we expressly provide for the use of hyperlinks or cross-references, as proposed? Would the use of multiple hyperlinks be cumbersome for investors? Are there alternative recommendations that would more effectively decrease duplicative disclosure?
32. Should we adjust the $100,000 threshold for environmental proceedings in which the government is a party in Item 103 for inflation, as proposed? Should this threshold be adjusted for inflation periodically, such as every three years or some other interval? Does CPI inflation provide an appropriate adjustment factor for environmental proceedings? If not, what adjustment factor should we use?
33. Should we instead adopt an alternative threshold for environmental proceedings disclosure? If so, what threshold should we use, and what data or sources should provide the basis for the alternative threshold? Should we raise the dollar threshold above the proposed $300,000 threshold,
34. Form 20-F requires a foreign private issuer to provide information on any legal or arbitration proceedings, including governmental proceedings pending or known to be contemplated, which may have, or have had in the recent past, significant effects on the company's financial position or profitability.
Item 105 requires disclosure of the most significant factors that make an investment in the registrant or offering speculative or risky and specifies that the discussion should be concise and organized logically.
The Concept Release solicited comments on how to improve risk factor disclosure and sought feedback on several potential approaches aimed at facilitating more meaningful disclosure.
The revisions that we are proposing to Item 105 are intended to address the lengthy and generic nature of the risk factor disclosure presented by many registrants. Although the length and number of risk factors disclosed by registrants varies, studies show that risk factor disclosures have increased in recent years.
A contributing factor to the increased length of risk factor disclosure appears to be the inclusion of generic, boilerplate risks that could apply to any offering or registrant. Although Item 105 instructs registrants not to present risks that could apply to any registrant, and despite Commission and staff guidance stating that risk factors should be focused on the “most significant” risks and should not be boilerplate,
To address these concerns, we are proposing the following three amendments to the Item 105 risk factor disclosure requirement.
As a way of addressing the length of risk factor disclosure, the Commission has previously considered requiring a page limit for risk factor disclosure.
The Concept Release sought input on whether to require summary risk factor disclosure in addition to complete risk factor disclosure and whether highlighting information in a summary would help investors better understand a registrant's risks.
Given the increasing length of risk factor disclosure and after considering the comments received, we propose to amend Item 105 to require summary risk factor disclosure if the risk factor section exceeds 15 pages.
Since the Commission first published guidance on risk factor disclosure in 1964,
We are proposing to update Item 105 to replace the requirement to discuss the “most significant” risks with “material” risks. Securities Act Rule 405 defines “material” as follows:
The term
We propose revising the standard for disclosure from the “most significant” risks to “material” risks to focus registrants on disclosing the risks to which reasonable investors would attach importance in making investment decisions. We believe that this approach could result in risk factor disclosure that is more tailored to the particular facts and circumstances of each registrant, which would reduce the amount of risk factor disclosure that is not material and potentially shorten the length of the risk factor discussion, to the benefit of both investors and registrants.
Since 1964, the Commission has periodically emphasized the importance of organized and concise risk factor disclosure.
The Concept Release also solicited comment on whether generic risk factors are important to investors and if not, how to discourage this disclosure.
We are proposing to require registrants to organize their risk factor disclosure under relevant headings in an effort to help readers comprehend lengthy risk factor disclosures. As noted above, many registrants already do this and we believe that further organization within risk factor disclosure will improve the effectiveness of the disclosures. In addition, if a registrant chooses to disclose a risk that could apply to other companies or securities offerings and the disclosure does not provide an explanation of why the identified risk is specifically relevant to an investor in its securities, we are proposing to require the registrant to disclose such risk factors at the end of the risk factor section under the caption “General Risk Factors.”
35. Would our proposed approach to Item 105 result in improved risk factor disclosure for investors?
36. Would our proposal to require summary risk factor disclosure if the
37. Is 15 pages an appropriate number of pages to trigger summary risk factor disclosure? If not, what is the appropriate page limit that should trigger summary risk factor disclosure? Is there a better alternative than a page limit to trigger summary risk factor disclosure (
38. If summary risk factor disclosure is triggered, should we require the summary to consist of a series of short, concise, bulleted or numbered statements summarizing the principal factors that make an investment in the registrant or offering speculative or risky, as proposed? Should we in addition or instead limit the length of the summary disclosure (
39. If the risk factors discussion exceeds 15 pages, should we require a registrant to include only those risk factors that pose the greatest risk to the registrant in the first 15 pages instead of requiring it to prepare a risk factor summary?
40. Should we specify that registrants should present summary risk factor disclosure in the forepart of the prospectus or annual report, as proposed? Alternatively, should the summary immediately precede the full discussion of risk factors? Currently, when the risk factor discussion is included in a registration statement, it must immediately follow the summary section. Should registrants be permitted to provide the full discussion of risk factors elsewhere in the document to enhance readability when a summary section is included?
41. Would changing the standard from the requirement to discuss the “most significant” factors to the “material” factors, as proposed, result in more tailored disclosure and reduce the length of the risk factor disclosure? Would changing the standard, as proposed, result in other consequences that we have not considered? If so, provide specific examples of such consequences.
42. Would our proposal that registrants organize their risk factors under relevant headings improve disclosures for investors?
43. Should we require registrants to prioritize the order in which they discuss their risk factors so that the risk factors that pose the greatest risk to the registrant are discussed first? Would this improve disclosures for investors or be unduly burdensome for registrants?
44. If the registrant discloses generic risk factors, should the registrant be required to disclose them at the end of the risk factor section, and caption them as General Risk Factors, as proposed?
45. Should we require registrants to explain how generic, boilerplate risk factors are material to their investors, and what, if anything, management does to address these risks?
46. Foreign private issuers that file their Exchange Act annual reports on Form 20-F must provide risk factor disclosure as required by that Form whereas foreign private issuers that file registration statements on Forms F-1, F-3, and F-4 must provide risk factor disclosure pursuant to Item 105. Currently Form 20-F does not require a summary of the risk factors if the risk factor disclosure exceeds a certain page limit, does not state that material risks should be disclosed, and does not require the presentation of risk factors, including generic risk factors, under appropriate headings. Should we amend Form 20-F to include any or all of the proposed risk factor disclosure provisions under Item 105? If we do not similarly amend risk factor disclosure under Form 20-F, would having one set of risk factor disclosure requirements for Form 20-F annual reports and another set for registration statements on Forms F-1, F-3, and F-4 cause confusion for registrants or investors?
47. How might we further improve risk factor disclosure?
We request and encourage any interested person to submit comments on any aspect of our proposals, other matters that might have an impact on the proposed amendments, and any suggestions for additional changes. With respect to any comments, we note that they are of greatest assistance to our rulemaking initiative if accompanied by supporting data and analysis of the issues addressed in those comments and by alternatives to our proposals where appropriate.
This section analyzes the expected economic effects of the proposed amendments relative to the current baseline, which consists of both the regulatory framework of disclosure requirements in existence today and the current use of such disclosure by investors. As discussed above, we propose amendments to modernize and simplify the description of business (Item 101), legal proceedings (Item 103), and risk factor (Item 105) disclosure requirements in Regulation S-K.
We are sensitive to the costs and benefits of these amendments. The discussion below addresses the potential economic effects of the proposed amendments, including the likely benefits and costs, as well as the likely effects on efficiency, competition, and capital formation.
Our baseline includes the current disclosure requirements under Items 101, 103, and 105 of Regulation S-K, which apply to registration statements, periodic reports, and certain proxy statements filed with the Commission. Thus, the parties that are likely to be affected by the proposed amendments include investors and other users of registration statements and periodic reports, and proxy statements, such as financial analysts, as well as registrants subject to Regulation S-K.
The proposed amendments affect both domestic issuers and foreign private issuers
In this section, we discuss the anticipated economic benefits and costs of the proposed amendments. We first analyze the overall economic effects of shifting toward a more principles-based approach to disclosure, which is one of the main objectives of the proposed amendments. We then discuss the potential costs and benefits of specific proposed amendments.
Prescriptive requirements employ bright-line, quantitative thresholds to identify when disclosure is required, or require registrants to disclose the same types of information. Principles-based requirements, on the other hand, provide registrants with the flexibility to determine (i) whether certain information is material, and (ii) how to disclose such information.
In this release, we propose to revise Items 101(a), 101(c), and 105 to be more principles-based.
For certain existing disclosure requirements, shifting to a more principles-based approach could benefit issuers with no loss of investor protection because the current requirements occasionally result in some disclosure that is immaterial to an investment decision and costly for issuers to provide. Elimination of disclosure that is not material could reduce compliance burdens and potentially benefit investors, to the extent it improves the readability and conciseness of the information provided.
On the other hand, shifting to a more principles-based approach may result in the elimination of disclosure material to an investment decision if issuers misjudge what information is material.
Some of the costs of shifting to a more principles-based approach could be mitigated by external disciplines, such as the Commission staff's filing review program. In addition, registrants would remain subject to the antifraud provisions of the securities laws.
Differences between the principles-based and prescriptive approaches are likely to vary across registrants, investors, and disclosure topics. Despite potential costs associated with materiality assessments, replacing prescriptive requirements with principles-based requirements is likely to reduce compliance costs because registrants would have the flexibility to determine whether certain information is material under the principles-based approach. To the extent the principles-based approach reduces compliance costs, the cost reduction should be more beneficial to smaller registrants that are financially constrained. Although eliminating information that is not material should benefit all investors, it could benefit retail investors more since they are less likely to have the time and resources to devote to reviewing and evaluating disclosure. At the same time, smaller registrants with less established reporting histories may be the most at risk of persistent information asymmetries if the principles-based approach results in loss of information material to investors. In the event of loss of material information (the risk of which, as noted above, is offset by mitigants including accounting controls and the antifraud provisions of the securities laws), retail investors in these registrants may be more affected than institutional investors because obtaining information from alternative sources could involve monetary costs, such as database subscriptions, or opportunity costs, such as time spent searching for alternative sources, and these costs may fall more heavily on retail investors than on institutional investors.
Across different disclosure topics, the principles-based approach may be more appropriate for topics where the relevant information tends to vary greatly across companies because, in these situations, the more standardized prescriptive requirements are less likely to elicit information that is tailored to a specific company. A principles-based approach may also be more appropriate for disclosures that are episodic in nature since investors may derive relatively less value from comparisons of such disclosure for a given registrant over time. In addition, registrants may derive relatively less benefit from applying a standardized prescriptive approach to episodic disclosures, which may be less amenable to routinized reporting than periodic disclosures of information that arise on a regular basis.
We expect the proposed amendments would result in costs and benefits to registrants and investors, and we discuss those costs and benefits qualitatively, item by item, in this section. The proposed changes to each item would impact the compliance burden for registrants in filing particular forms. Overall, we expect the net effect of the proposed amendments on a registrant's compliance burden to be limited. The quantitative estimates of changes in those burdens for purposes of the Paperwork Reduction Act are further discussed in Section V. As explained in the item-by-item discussion of the proposed amendments in this section, we expect certain aspects of the proposed amendments to increase compliance burdens, while others are expected to decrease the burdens. Taken together, we estimate that the proposed amendments are likely to result in a net decrease of between three and five burden hours per form for purposes of the Paperwork Reduction Act.
Item 101(a) requires a description of the general development of the registrant's business, such as the year in which the registrant was organized and the nature and results of any merger of the registrant or its significant subsidiaries. Some academic research has found that information required under Item 101(a) is relevant to firm value. For example, the registrant's age can predict its growth rates
We propose to revise the requirements in Item 101(a) to be more principles based, requiring disclosure of information material to an understanding of the general development of the registrant's business. The shift to a more principles-based approach for these requirements would give rise to the potential economic effects discussed in Section IV.B.1 above.
Currently, Item 101(a) requires registrants to describe their business development during the past five years, or such shorter period as the registrant may have engaged in business. We propose to eliminate the prescribed five-year timeframe for this disclosure. Eliminating this specific requirement would provide registrants with flexibility to choose a different timeframe that is more relevant in describing their business development to investors. For example, a long timeframe might be less appropriate for registrants operating in rapidly changing environments where historical information becomes irrelevant in a short period of time. Given that registrants have the flexibility to determine the appropriate timeframe, this proposed amendment is likely to reduce compliance costs. Investors may also benefit if the timeframe chosen by the registrants is more consistent with their preferences than the prescribed five-year timeframe, but may be harmed if the timeframe chosen by the registrants is less consistent with their preferences than the prescribed five-year timeframe.
Currently, Item 101(a) requires registrants to describe their business development in registration statements and annual reports. For filings subsequent to the initial registration statement, we propose revising Item 101(a)(1) to require only an update of this disclosure with an active hyperlink to the registrant's most recently filed disclosure that, together with the update, would present a complete discussion of the general development of its business.
We propose to amend Item 101(a) to provide a non-exclusive list of topics that should be disclosed if material. Providing potential disclosure topics should clarify the requirements and avoid potential confusion among registrants. Besides items currently required under Item 101(a), the proposed topics also include material changes to a registrant's previously disclosed business strategy, which is not currently required to be disclosed. Since several studies have found that business strategy is a critical determinant of corporate success
Overall, investors and registrants may benefit from the proposed amendments to Item 101(a) if the existing requirements elicit disclosure that is not material to an investment decision and/or is more costly to provide. However, granting registrants additional flexibility to determine (i) whether certain information is material, and (ii) how to disclose such information may result in the elimination of information in cases in which issuers stop disclosing information material to an investment decision.
Item 101(c) requires a narrative description of the registrant's business. The current requirement identifies twelve specific items that must be disclosed to the extent material to an understanding of the registrant's business taken as a whole. We propose to revise the requirements in Item 101(c) to be more clearly principles based. The proposed amendments would require a description of the business and would set forth seven non-exclusive examples of information to be disclosed if material to an understanding of the
The topics that would be retained as examples under the proposed amendments are: (1) Principal products produced and services rendered, and dependence on certain customers; (2) new products and competitive conditions; (3) sources and availability of raw materials and intellectual property; (4) business subject to renegotiation or termination of government contracts; (5) seasonality of the business; and (6) the material effects of compliance with environmental laws.
Two of the proposed topics are more expansive than the current disclosure requirements contained in Item 101(c). We propose to replace the requirement to disclose the number of employees with a description of the registrant's human capital resources, including in such description human capital measures or objectives that management focuses on in managing the business, to the extent such disclosures would be material to an understanding of the registrant's business. The proposed amendment provides non-exclusive examples of human capital measures and objectives, such as measures or objectives that address the attraction, development, and retention of personnel. In one meta-analysis, which reviewed 66 studies, the authors found that besides the number of employees, other human capital characteristics, including education, experience, and training,
We also propose to replace the requirement to disclose the material effects on the registrant of compliance with environmental laws with a disclosure topic that covers the material effects of compliance with material government regulations, including environmental laws. To the extent that information about compliance with government regulations affects firm value, investors may benefit from additional information about the effects of material government regulations. Registrants, however, will incur incremental compliance costs to provide this information, if they determine that it is material to an understanding of their business. To the extent that many registrants already disclose such information, the incremental benefits and costs could be limited.
Some of the disclosure requirements currently contained in Item 101(c) would not be included as potential topics in the revised rule.
Additionally, in an effort to consolidate working capital disclosure in one location and to avoid duplicative disclosure, we propose not to include working capital practices as a potential topic in Item 101(c), with the expectation that working capital would be discussed in a registrant's MD&A, to the extent material. If duplicative disclosure distracts investors from other important information, the proposal may benefit investors by reducing repetition and facilitating more efficient information processing. However, to the extent that information on working capital practices would no longer be readily available in multiple locations, investors may have to spend more time to retrieve the information. Registrants may marginally benefit from reduced compliance costs from the elimination of duplicative disclosure.
Overall, investors and registrants may benefit from the proposed amendments to Item 101(c) if the existing requirements result in disclosure that is not material to an investment decision and/or is costly to provide.
Item 103 requires disclosure of material pending legal proceedings and other relevant information about the proceedings, such as the name of the court, the date instituted, and the principal parties involved. Given that involvement in legal proceedings can affect a firm's cash flows through multiple channels, including legal fees, the cost of executives being distracted from their main operational tasks, reputational costs, and settlement costs, information required under Item 103 is relevant to firm value. Several studies also have found that the possibility of legal proceedings may affect corporate decisions, such as pricing of securities
Currently, Item 103 and U.S. GAAP, which requires disclosure of certain loss contingencies, overlap in the requirement to disclose certain information associated with legal proceedings. As a result, in order to comply with Item 103, registrants commonly repeat disclosures that are already provided elsewhere in registration statements and periodic reports. We propose to revise Item 103 to encourage the use of hyperlinks or cross-references to avoid repetitive disclosure. If duplicative disclosure distracts investors from other important information, the proposal may benefit investors by reducing repetition and facilitating more efficient information processing. However, to the extent that some information on legal proceedings would no longer be readily available under Item 103, investors may have to spend more time to retrieve the information through hyperlinks or cross-references. However, we believe the increase in retrieval cost for investors would be minimal. While registrants may incur minimal compliance costs if they choose to include hyperlinks, we believe registrants would benefit from the proposal due to the potential reduction in costs to disclose duplicative information.
Currently, Item 103 specifically requires disclosure of any proceedings under environmental laws to which a governmental authority is a party unless the registrant reasonably believes that the proceeding will result in monetary sanctions, exclusive of interest and costs, of less than $100,000. This bright-line threshold for environmental proceedings was adopted in 1982. We propose to adjust the $100,000 threshold to $300,000 to account for the effects of inflation. Some research has found that environmental liabilities can influence certain corporate decisions related to managing environmental regulatory risk
Item 105 requires disclosure of the most significant factors that make an investment in the registrant or offering speculative or risky. Some academic research supports the notion that information currently required under Item 105 is important to investors. For example, there is evidence that risk factor disclosure by publicly traded firms is material in content.
We propose to amend Item 105 to require summary risk factor disclosure in the forepart of the document when the risk factor section exceeds 15 pages. If lengthy risk factor disclosure contains information that is less meaningful to investors, such as generic risks that could apply to any investment in securities, a summary of risk factors should benefit investors, especially those who have less time to review and analyze registrants' disclosure, by enabling them to make more efficient investment decisions. The proposed threshold could also incentivize registrants to limit the length of their risk factor disclosure to 15 pages. Based on current disclosure practices, we estimate that a 15-page threshold would affect approximately 40 percent of registrants.
We propose to update Item 105 to replace the requirement to discuss the “most significant” risks with “material” risks. The economic effects of the proposal depend on the preferences of investors. If the existing “most significant” standard elicits too much or too little information, investors may benefit from the proposed materiality standard. Focusing on the risks to which investors would attach the most importance should enable them to make more efficient investment decisions. Registrants may experience increased (decreased) compliance costs if the materiality standard results in more (less) expansive disclosure than the existing “most significant” standard.
We propose to update Item 105 to require registrants to organize their risk factor disclosure under relevant headings, with generic risk factors, if disclosed, at the end of the section captioned as “General Risk Factors.” Some academic research has found that different types of registrants disclose different types of risk factors and certain types of risk factors are more correlated with stock return volatilities and systematic risks.
Overall, the proposed amendments to Item 105 may benefit investors if they result in disclosure that is more likely to be material and concise. Registrants may incur additional costs to organize and summarize their risk factor disclosure. To the extent that registrants shorten their risk factor disclosure to avoid triggering the summary disclosure requirement and investors valued the additional information, investors would incur costs associated with the loss of some information.
As discussed above, the proposed amendments may improve capital allocation efficiency by enabling investors to make more efficient investment decisions. For example, the proposed amendments may reduce search costs for certain investors by eliminating information that is not material to those investors. Given that certain investors may have less time to review and analyze registrants' disclosure,
However, in cases in which issuers misjudge what information is material, a principles-based disclosure framework relying on issuers' determinations could result in increased information asymmetries between issuers and investors. Such asymmetries may increase the cost of capital, reduce capital formation, and hamper efficient allocation of capital across companies. Overall, to the extent that the proposed amendments would eliminate disclosure that is not considered to be material, we believe these effects would be limited. Moreover, we would expect this risk to be offset by mitigants including accounting controls and the antifraud provisions of the securities laws.
We are proposing to revise Items 101(a), 101(c), and 105 to be more principles-based. As an alternative to this proposal, we considered modifying these requirements using prescriptive standards. A prescriptive standard could preserve the information investors currently receive while eliciting additional specific disclosures, may be easier to apply, and could enhance the comparability and verifiability of information. For example, in response to previous requests for comment, commenters advocated for additional specific disclosures about environmental and foreign regulatory risks, the number and types of employees, and business strategy. However, not all of these disclosures will be relevant at the same level of detail for all registrants. Given that the optimal levels of disclosure for business description and risk factors, in particular, are likely to vary greatly across registrants, a more flexible principles-based approach should be more likely to elicit the appropriate disclosures for these items. In addition, a prescriptive approach to a particular area of disclosure where the specified metric does not capture or does not fully capture the information likely to be material to an investment decision for a particular issuer or for comparable issuers may lead investors to rely on that metric for the issuer or as a comparative tool with respect to other issuers.
We also are proposing to adjust for inflation the bright-line threshold for environmental proceedings in Item 103 from $100,000 to $300,000. As an alternative to this proposal, we considered applying a materiality standard. On the one hand, a materiality standard might elicit disclosure that is more relevant to a registrant's operations. For example, the same dollar amount of environmental fines might have a significant impact on cash flows of a small registrant but a trivial impact on cash flows of a large registrant. On the other hand, the bright-line threshold is easier to apply and could enhance comparability across registrants and over time. Given that some environmental proceedings can be factually and legally complex, a bright-line threshold provides an easy-to-apply benchmark for registrants when determining whether a particular environmental proceeding should be disclosed. Another alternative is to adopt a lower or higher bright-line threshold than the one proposed. The optimal threshold depends on the preference of investors. For example, a
As another alternative, we considered revising Form 20-F so that certain of the proposed amendments would also apply to foreign private issuers.
More particularly, similar to our rule proposal for registrants filing on domestic forms, we considered amending Form 20-F to include as a business disclosure topic human capital resources, including any human capital measures or objectives that management focuses on in managing the business, to the extent material to an understanding of the registrant's business. Such an amendment could impose additional costs in the short run for foreign private issuers, to the extent that this disclosure is not required in other jurisdictions. At the same time, investors could benefit from any additional information elicited by the human capital topic.
We also considered amending Item 101(h), which permits a smaller reporting company to provide the disclosure about its business development and description of its business pursuant to that Item as an alternative to Items 101(a) and (c).
In addition to the request for comments in Sections II and III of this release, we request comment on various aspects of the costs and benefits of our proposed amendments. We request comment from the point of view of investors, registrants, and other market participants. We are interested in comments on the analyses and conclusions of this Section and any effect the proposed amendments may have on efficiency, competition, and capital formation. We also request comments on alternatives presented in this release as well as any additional alternatives to the proposed amendments that should be considered. We appreciate any data or analysis that may help quantify the potential costs and benefits identified. In particular, we appreciate any data or analyses that would help understand the effects of using a higher or lower quantitative threshold for environmental proceedings. In addition, if the proposed materiality standards in this release diminish comparability among registrants, we appreciate any data or analyses on the costs associated with the loss of such comparability.
Certain provisions of our rules, schedules, and forms that would be affected by the proposed amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
“Regulation S-K” (OMB Control No. 3235-0071);
“Form S-1” (OMB Control No. 3235-0065);
“Form S-3” (OMB Control No. 3235-0073);
“Form S-4” (OMB Control No. 3235-0324);
“Form S-11” (OMB Control No. 3235-0067);
“Form F-1” (OMB Control No. 3235-0258);
“Form F-3” (OMB Control No. 3235-0256);
“Form F-4” (OMB Control No. 3235-0325);
“Form SF-1” (OMB Control No. 3235-0707);
“Form SF-3” (OMB Control No. 3235-0690);
“Form 10” (OMB Control No. 3235-0064);
“Form 10-K” (OMB Control No. 3235-0063);
“Form 10-Q” (OMB Control No. 3235-0070);
“Schedule 14A” (OMB Control No. 3235-0059).
We adopted all of the existing regulations, schedules, and forms pursuant to the Securities Act and the Exchange Act. The regulations, schedules, and forms set forth the disclosure requirements for registration statements, periodic reports, and proxy and information statements filed by registrants to help investors make informed investment and voting decisions. A description of the proposed amendments, including the need for the information and its proposed use, as well as a description of the likely respondents, can be found in Section II above, and a discussion of the economic effects of the proposed amendments can be found in Section IV above.
The following table summarizes the estimated effects of the proposed
Below we estimate the incremental and aggregate reductions in paperwork burden as a result of the proposed amendments. These estimates represent the average burden for all registrants, both large and small. In deriving our estimates, we recognize that the burdens will likely vary among individual registrants based on a number of factors, including the nature of their business. We do not believe that the proposed amendments would change the frequency of responses to the existing collections of information; rather, we estimate that the proposed amendments would change only the burden per response.
The burden reduction estimates were calculated by multiplying the estimated number of responses by the estimated average amount of time it would take a registrant to prepare and review disclosure required under the proposed amendments. For purposes of the PRA, the burden is to be allocated between internal burden hours and outside professional costs. The table below sets forth the percentage estimates we typically use for the burden allocation for each form. We also estimate that the average cost of retaining outside professionals is $400 per hour.
The table below illustrates the incremental change to the total annual compliance burden of affected forms, in hours and in costs, as a result of the proposed
The following table summarizes the requested paperwork burden, including the estimated total reporting burdens and costs, under the proposed
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comment in order to:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
• Evaluate the accuracy and assumptions and estimates of the burden of the proposed collection of information;
• Determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected;
• Evaluate whether there are ways to minimize the burden of the collection of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and
• Evaluate whether the proposed amendments would have any effects on any other collection of information not previously identified in this section.
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct their comments to the Office of Management and Budget, Attention: Desk Officer for the U.S. Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and send a copy to, Vanessa A. Countryman, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090, with reference to File No. S7-11-19. Requests for materials submitted to OMB by the Commission with regard to the collection of information should be in writing, refer to File No. S7-11-19 and be submitted to the U.S. Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549-2736. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this proposed rule. Consequently, a comment to OMB is best assured of having its full effect if the OMB receives it within 30 days of publication.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (“RFA”)
Although the rule proposal would have an impact on a substantial number of small entities,
We request comment on this certification. In particular, we solicit comment on the following: Do commenters agree with the certification? If not, please describe the nature of any impact of the proposed amendments on small entities and provide empirical data to illustrate the extent of the impact. Such comments will be considered in the preparation of the final rules (and in a Final Regulatory Flexibility Analysis if one is needed) and, if the proposed rules are adopted, will be placed in the same public file as comments on the proposed rules themselves.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
• An annual effect on the U.S. economy of $100 million or more (either in the form of an increase or a decrease);
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment, or innovation.
We request comment on whether the proposed amendments would be a “major rule” for purposes of SBREFA. In particular, we request comment on the potential effect of the proposed amendments on the U.S. economy on an annual basis; any potential increase in costs or prices for consumers or individual industries; and any potential effect on competition, investment or innovation. Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
The amendments contained in this release are being proposed under the authority set forth in Sections 7, 10, and 19(a) of the Securities Act, as amended, and Sections 3, 12, 13, 15, and 23(a) of the Exchange Act, as amended.
Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, the Commission is proposing to amend title 17, chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78
The revisions and addition read as follows:
(a)
(1) In describing developments, only information material to an understanding of the general development of the business is required. Disclosure may include, but should not be limited to, the following topics:
(i) Transactions and events that affect or may affect the company's operations, including material changes to a previously disclosed business strategy;
(ii) Bankruptcy, receivership, or any similar proceeding;
(iii) The nature and effects of any material reclassification, merger or consolidation of the registrant or any of its significant subsidiaries; and
(iv) The acquisition or disposition of any material amount of assets otherwise than in the ordinary course of business.
(2) For filings other than initial registration statements, a full discussion of the general development of the registrant's business is not required. For such filings, an update to the general development of the business disclosure with a focus on material developments in the reporting period may be provided instead of a full discussion. If a full discussion of the general development of the registrant's business is not included, pursuant to § 230.411 or § 240.12b-23 of this chapter as applicable, incorporate by reference, and include an active hyperlink to, the registrant's most recently filed disclosure that, together with the update, would present the full discussion of the general development of its business.
(c)
(i) Revenue-generating activities, products and/or services, and any dependence on revenue-generating activities, key products, services, product families or customers, including governmental customers;
(ii) Status of development efforts for new or enhanced products, trends in market demand and competitive conditions;
(iii) Resources material to a registrant's business, such as:
(A) Sources and availability of raw materials; and
(B) The duration and effect of all patents, trademarks, licenses, franchises and concessions held;
(iv) A description of any material portion of the business that may be subject to renegotiation of profits or termination of contracts or subcontracts at the election of the Government; and
(v) The extent to which the business is or may be seasonal.
(2) Discuss the information specified in paragraphs (c)(2)(i) and (ii) of this section with respect to, and to the extent material to an understanding of, the registrant's business taken as a whole, except that, if the information is material to a particular segment, you should additionally identify that segment.
(i) The material effects that compliance with material government regulations, including environmental regulations, may have upon the capital expenditures, earnings and competitive position of the registrant and its subsidiaries. Include in such disclosure material estimated capital expenditures for environmental control facilities for the current fiscal year and any other subsequent period that the registrant deems material; and
(ii) A description of the registrant's human capital resources, including in such description any human capital measures or objectives that management focuses on in managing the business (such as, depending on the nature of the registrant's business and workforce, measures or objectives that address the attraction, development, and retention of personnel).
(h)
(a) Describe briefly any material pending legal proceedings, other than ordinary routine litigation incidental to the business, to which the registrant or any of its subsidiaries is a party or of which any of their property is the subject. Include the name of the court or agency in which the proceedings are pending, the date instituted, the principal parties thereto, a description of the factual basis alleged to underlie the proceedings and the relief sought. Include similar information as to any such proceedings known to be contemplated by governmental authorities. Information may be provided by hyperlink or cross-reference to legal proceedings disclosure elsewhere in the document, such as in Management's Discussion & Analysis (MD&A), Risk Factors and notes to the financial statements.
(b) No information need be given under this section for proceedings:
(1) That involve negligence or other claims or actions if the business ordinarily results in such claims or actions, unless the claim or action departs from the normal kind of such claims or actions; or
(2) That involve primarily a claim for damages if the amount involved, exclusive of interest and costs, does not exceed 10 percent of the current assets of the registrant and its subsidiaries on a consolidated basis. However, if any proceeding presents in large degree the same legal or factual issues as other proceedings pending or known to be contemplated, the amount involved in such other proceedings shall be included in computing such percentage.
(c) Notwithstanding paragraph (b) of this section, disclosure under this section shall include, but shall not be limited to:
(1) Any material bankruptcy, receivership, or similar proceeding with respect to the registrant or any of its significant subsidiaries;
(2) Any material proceedings to which any director, officer or affiliate of the registrant, any owner of record or beneficially of more than five percent of any class of voting securities of the registrant, or any associate of any such director, officer, affiliate of the registrant, or security holder is a party adverse to the registrant or any of its subsidiaries or has a material interest adverse to the registrant or any of its subsidiaries;
(3) Administrative or judicial proceedings (including proceedings which present in large degree the same issues) arising under any Federal, State, or local provisions that have been enacted or adopted regulating the discharge of materials into the environment or primarily for the purpose of protecting the environment. Such proceedings shall not be deemed “ordinary routine litigation incidental to the business” and shall be described if:
(i) Such proceeding is material to the business or financial condition of the registrant;
(ii) Such proceeding involves primarily a claim for damages, or involves potential monetary sanctions, capital expenditures, deferred charges or charges to income and the amount involved, exclusive of interest and costs, exceeds 10 percent of the current assets of the registrant and its subsidiaries on a consolidated basis; or
(iii) A governmental authority is a party to such proceeding and such proceeding involves potential monetary sanctions, unless the registrant reasonably believes that such proceeding will result in no monetary sanctions, or in monetary sanctions, exclusive of interest and costs, of less than $300,000; provided, however, that such proceedings which are similar in nature may be grouped and described generically.
(a) Where appropriate, provide under the caption “Risk Factors” a discussion of the material factors that make an investment in the registrant or offering speculative or risky. This discussion must be organized logically with relevant headings and each risk factor should be set forth under a subcaption that adequately describes the risk. The presentation of risks that could apply generically to any registrant or any offering is discouraged, but to the extent generic risk factors are presented, disclose them at the end of the risk factor section under the caption “General Risk Factors.”
(b) Concisely explain how each risk affects the registrant or the securities being offered. If the discussion is longer than 15 pages, include in the forefront of the prospectus or annual report, as applicable, a series of short, concise, bulleted or numbered statements summarizing the principal factors that make an investment in the registrant or offering speculative or risky. If the risk factor discussion is included in a registration statement, it must immediately follow the summary section. If you do not include a summary section, the risk factor section must immediately follow the cover page of the prospectus or the pricing information section that immediately follows the cover page. Pricing information means price and price-related information that you may omit from the prospectus in an effective registration statement based on Rule 430A (§ 230.430A of this chapter). The registrant must furnish this information in plain English. See § 230.421(d) of Regulation C of this chapter.
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78
Item 12. Information with Respect to S-3 Registrants.
(b) * * *
(3) Furnish the information required by the following:
(i) Item 101(c)(1)(i) of Regulation S-K (§ 229.101(c)(1)(i) of this chapter), industry segments, key products or services;
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
(a) The information required by Item 103(c)(2) of Regulation S-K (§ 229.103(c)(2) of this chapter) with respect to directors and executive officers.
By the Commission.
U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS); U.S. Customs and Border Protection (CBP), DHS; Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).
Final rule.
This final rule amends regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. The rule replaces regulations that were promulgated in 1988 in response to a lawsuit filed in 1985 against the Attorney General and the Department of Justice's legacy U.S. Immigration and Naturalization Service (INS), in
Effective October 22, 2019.
Comments and related materials received from the public, as well as background documents mentioned in this preamble as being available in the docket, are part of docket DHS Docket No. ICEB-2018-0002. For access to the online docket, go to
On September 7, 2018, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS), (the “Departments”) published a notice of proposed rulemaking (NPRM or proposed rule) that would amend regulations related to the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children.
This final rule adopts the proposed rule, with some changes in response to comments. The final rule parallels the relevant and substantive terms of the
This final rule also takes into account changes in factual circumstances since the time the FSA was approved in 1997 as well as extensive experience over the past twenty years operating the immigration system under the FSA. The rule thus reflects the operational environment and ensures that the regulations accomplish a sound and proper implementation of governing Federal statutes—including statutes requiring DHS to retain custody of aliens arriving at or crossing our borders without inspection during the pendency of immigration proceedings. It carefully considers public comments, and sets forth for DHS a sustainable operational model of immigration enforcement, and for HHS, codifies existing policies, procedures, and practices related to the temporary care and custody of UACs.
For example, one shift since the FSA entered into force in 1997 has been the 2015 judicial interpretation of the agreement as applying to accompanied minors,
Additionally, changes to the operational environment since 1997, as well as the enactment of the HSA and the TVPRA, have rendered some of the substantive terms of the FSA outdated or unsuited to current conditions at the border, similarly making simultaneous compliance with the HSA, the TVPRA, other immigration laws, and the FSA problematic without modification. These provisions are designed to implement the substantive and underlying purpose of the FSA, by ensuring that alien juveniles detained by DHS pursuant to the immigration laws, and UACs who are transferred to the temporary care and custody of HHS, are provided protections that are substantively parallel to protections under the FSA, taking into account intervening developments and changed circumstances. The Departments have also considered comments from the public, and this rule incorporates some adjustments from the proposed regulations based on those comments. The primary purpose of this rule is to codify the purposes of the FSA in regulations, namely, to establish uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule accordingly implements the FSA.
As part of the process of codifying the purpose of the FSA into regulations, the final rule clarifies and improves certain policies and practices related to:
In the NPRM, DHS proposed to amend 8 CFR 212.5(b),
Many commenters expressed concern about a more restrictive parole standard that would allow minors in expedited removal proceedings who have not yet been found to have a credible fear of persecution (or who have been found to lack such a fear) to be paroled only on the basis of medical emergency or law enforcement necessity, the same standards applicable to adult aliens in expedited removal proceedings, while their credible fear claim remains pending.
Many commenters expressed concern about this standard, but it draws from the statute, which imposes a uniquely strong detention mandate for aliens in this cohort: such aliens “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear,
Under the FSA, facilities that house children must be licensed “by an appropriate State agency to provide residential, group, or foster care services for dependent children.” FSA paragraph 6. The state-licensing requirement is sensible for unaccompanied alien children (UACs), because all States have licensing processes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule does not change that requirement for those juveniles. But the need for the license to come specifically from a “State agency” (rather than a Federal agency) is problematic for DHS now that the FSA has been held in recent years to apply to accompanied minors, including those held at FRCs, because States generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians. The application of the FSA's requirement for “state” licensing to accompanied minors has effectively required DHS to release minors and—to avoid family separation—their parents from detention in a non-state-licensed facility, even if the parent/legal guardian and child could and would otherwise continue to be detained together during their immigration proceedings, consistent with applicable law, including statutes that require detention in these circumstances pending removal proceedings or to effectuate a removal order.
DHS proposed to define “licensed facility” as an ICE detention facility that is licensed by the state, county or municipality in which it is located. But because most States do not offer a licensing program for family unit detention, DHS also proposed that where state licensing is unavailable, a facility will be licensed if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE. Section 236.3(b)(9) requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with ICE's family residential standards. This rule adopts these provisions as final, and thus eliminates the barrier to the continued use of FRCs by creating a Federal alternative to meet the “licensed facility” definition.
Commenters stated that DHS has previously not shared the results of third-party audits. While ICE has publicly posted the results of all facility inspection reports submitted by third-party contractors within 60 days of inspection since May 2018, these posts have not included results of FRC inspections.
Commenters also stated that DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. They cited the Office of the Inspector General, DHS, OIG-18-67 report,
The licensing change does not impact CBP facilities. Under the FSA, juveniles are transferred to licensed facilities “in any case in which [DHS] does not release a minor . . . .” FSA paragraph 19. Thus, the only facilities which must be licensed under the FSA are those facilities to which juveniles are transferred following their initial encounter. Facilities at which juveniles are held immediately following their arrest, including CBP holding facilities, are governed by paragraph 12 of the FSA, and are not required to be licensed under the FSA. Accordingly, these facilities are also not included within the definition of “licensed facility” in this rule. DHS notes that CBP facilities are also subject to regular oversight and inspection by entities such as CBP's Office of Professional Responsibility (OPR), DHS' Office of Inspector General, DHS' Office of Civil Rights and Civil Liberties, and the Government Accountability Office.
DHS proposed revisions to § 236.3(m) to state that bond hearings are only required for minors in DHS custody who are in removal proceedings under section 240 of the INA, to the extent permitted by 8 CFR 1003.19. DHS also proposed updating the language regarding bond hearings to be consistent with the changes in immigration law. Several commenters supported or acknowledged that proposed 8 CFR 236.3(m) maintained the process required by FSA paragraph 24(A), while another set of commenters did not explicitly endorse the provision but acknowledged that it provided the protections and processes required by the FSA. Other commenters expressed due process concerns.
DHS agrees with commenters that the proposed regulatory text at 8 CFR 236.3(m) reflects the provisions of the FSA regarding existence of bond redetermination hearings for minors in DHS custody who are in removal proceedings pursuant to INA 240, to the extent permitted by 8 CFR 1003.19. The understanding that the term “deportation hearings” in paragraph 24(A) of the FSA refers to what are now known as removal proceedings has been reiterated throughout the
Many commenters expressed serious concerns about child trauma. Comments focused on the trauma juveniles experience during their dangerous journey to the United States (often at the hands of smugglers and traffickers), trauma associated with experiences in their country of origin, the possibility of government custody-induced trauma in the United States, and in particular trauma caused by detention itself, and the need for trauma-related training and awareness throughout the immigration lifecycle, to include repatriation. Some commenters suggested, incorrectly, that the FSA explicitly prohibits the custody of children entirely and therefore, temporarily detaining family units together is unjustified.
DHS disagrees with the view that the FSA altogether prohibits detention of juveniles (including in family units). The FSA clearly contemplates, allows, and articulates standards for the custody of juveniles in a variety of circumstances. The final rule accordingly allows for the detention of minors as well. Moreover, DHS's experience shows that family units who are released often abscond, and detention is an important enforcement tool, particularly in controlling the border.
DHS acknowledges, however, that detention and custody may have negative impacts for minors and adults, and acknowledges the importance of identifying signs of trauma and ensuring that personnel are properly trained to identify and respond to signs of trauma, particularly among juveniles. DHS notes that this rule does not mandate detention for all family units. On the contrary, DHS will make and record continuous efforts to release a minor in its custody and, as discussed more fully below, will generally consider paroling minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding as serving an urgent humanitarian reason.
Moreover, DHS has adopted rigorous standards for facilities precisely to minimize further negative impacts on minors. DHS mandates training for personnel who regularly interact with minors and UACs during the course of their official duties. For example, ICE Enforcement and Removal Operations (ERO) officers receive training on family units and UACs in the Basic Immigration Enforcement Training Program (BIETP). The BIETP is the basic training for ERO officers and occurs at the beginning of their career. Additionally, ERO's Field Office Juvenile Coordinators (FOJC) participate in annual training. This annual training focuses on policies, procedures and protocols in accordance with the FSA, HSA, and TVPRA. FOJCs constitute a specialized officer corps whose expertise informs colleagues and leaders often confronting high-profile cases involving UACs and family units. FOJCs liaise with HHS ORR's Federal Field Specialists, who make case-by-case placement decisions. FOJC training covers best practices for case processing, A-file management, docket management, age determination, child interviewing techniques, child development and trauma, screening for human trafficking, transport, the ORR placement process and an overview of FRCs and Family Residential Standards. FRCs are staffed with medical professionals and social workers specially trained to recognize the symptoms of trauma and provide appropriate treatment.
CBP generally employs contracted medical staff, who provide medical screening and appropriate triage to minors and UACs in custody along the southwest border. Where appropriations and funding permits, CBP also employs other contracted staff who are able to address the unique needs of juveniles. Additionally, all Border Patrol agents and CBP officers receive training related to the processing and interviewing of juveniles, screening UACs for trafficking concerns, and the appropriate custodial treatment of juveniles.
Separately, HHS ensures that ORR-funded care provider staff are trained in techniques for child-friendly and trauma-informed interviewing, ongoing assessment, observation, and treatment of the medical and behavioral health needs of UACs. Care provider staff are trained to identify UACs who have been smuggled (
Each ORR-funded care provider program maintains ORR-approved policies and procedures for interdisciplinary clinical services, including standards on professional licensing and education for staff, according to staff role or discipline. Staff who are required to have professional certifications must maintain licensure through continuing education requirements, and all care provider staff must complete at a minimum 40 hours of training annually.
All UACs in HHS' care participate in weekly individual counseling sessions with trained social work staff, where the provider reviews the child's progress, establishes short term objectives, and addresses developmental and crisis-related needs. Clinical staff may increase these once-a-week sessions if a more intensive approach is needed. If children have acute or chronic mental health illnesses, HHS refers them for mental health services in the community.
UACs participate in informal group counseling sessions at least twice a week, where all children are present. The sessions give UACs who are new to the program the opportunity to get acquainted with staff, other children in HHS care, and the rules of the program. These sessions provide an open forum where everyone has an opportunity to speak. Together, UACs and care providers make decisions on recreational activities and resolve issues affecting the UACs in care.
Commenters raised issues regarding what was in the best interests of the child. DHS and HHS recognize that this is the heart of the FSA. Both Departments take seriously their responsibility to provide appropriate care to juveniles, many of whom have recently endured a hazardous journey to the United States. Juveniles are subject to different custody protocols depending upon whether they are unaccompanied or part of a family unit. Under the HSA, responsibility for the apprehension, temporary detention, transfer, and repatriation of UACs is delegated to DHS; whereas the responsibility for coordinating and implementing the care and placement of UACs with sponsors is delegated to HHS.
CBP takes temporary custody of UACs apprehended and encountered at the border, while ICE handles custody transfer and repatriation responsibilities, apprehends UACs in the interior of the country, and represents the Federal Government in removal proceedings. Within 72 hours, UACs in DHS custody are generally transferred into HHS custody, absent exceptional circumstances. Minors who do not meet the statutory definition of a UAC, including accompanied minors who enter the country as part of a family unit, may be placed in FRCs. These FRCs are designed to take into account the best interests of children during custody, pursuant to applicable laws., including by keeping the child with his or her parent(s) as a family unit.
Several commenters suggested, incorrectly, that the FSA prohibits temporary custody of juveniles entirely and that, therefore, detention goes inherently against the best interests of a child. DHS notes that even the authors of the FSA understood some amount of physical custody was going to be necessary and appropriate, as discussed above. The conditions of facilities and shelters that house children in DHS custody are designed to afford a protective environment for the best interests of the child and must adhere to the statutory, regulatory, and court-ordered requirements and standards governing the care and custody of children. FRCs are also designed to allow the child to live with his or her family, and thus to preserve family unity even when custody is warranted. And HHS care-provider facilities undergo rigorous State licensing processes in order to serve as residential child care shelters for the temporary care of UACs. This final rule implements those care and custody requirements and standards in full force.
Following careful consideration of the public comments received, the Departments have made several modifications to the regulatory text proposed in the NPRM. These changes are:
• Section 212.5(b) now provides that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.
• Section 236.3(b)(2) defines
• Section 236.3(b)(9), which defines
• In § 236.3(b)(11), which defines a
• In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that the reference to 8 U.S.C. 1232(a)(2) refers to the processing of a UAC from a contiguous country. DHS is deleting “subject to the terms of” and replacing it with “processed in accordance with.”
• In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the reference to unrelated “detained” adults, for clarity.
• In § 236.3(g)(1)(i), DHS is amending the procedures applicable to the apprehension and processing of minors or UACs. The regulatory text will be clear that the notices required, including Form I-770, will be provided, read, or explained to all minors and UACs in a language and manner that they understand, not just to those minors believed to be less than 14 or who are unable to understand the notice, as was proposed in the NPRM.
• In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, DHS agrees to delete the term “exigent circumstances,” as it is redundant to “emergency.”
• In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1 paragraph B and C. DHS reiterates that these standards in § 236.3(i)(4) apply to the non-secure, licensed facilities used for housing family units—FRCs.
• Section 236.3(j) and (n) now provide that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.
• DHS has added new § 236.3(j)(2)-(4) to identify the specific statutory and regulatory provisions that govern the custody and/or release of non-UAC minors in DHS custody based on the type and status of immigration proceedings.
• DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c), and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. Paragraph (j) now also states that DHS takes aggregate and historical data, officer experience, statistical information or any other probative information into account when determining whether release may be appropriate.
• Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.
• In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”
• In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other on the placement of UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”
• In § 410.202, in response to commenters' concerns, HHS clarifies that it places UACs in licensed programs except if a reasonable person would conclude “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.
• In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that HHS place UACs in the least restrictive setting appropriate to their age and any special needs.
• In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the
• In § 410.600(a) regarding transfer of UAC, the proposed regulatory text stated that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.
• In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute.
• In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS bears the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC bears the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.
The Secretary of Homeland Security derives authority to promulgate these regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
Section 462 of the HSA also transferred to the Office of Refugee Resettlement (ORR) Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). The ORR Director may, for purposes of performing a function transferred by this section, “exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function” immediately before the transfer of the program. 6 U.S.C. 279(f)(1).
Consistent with provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services.
This rule implements the FSA by establishing uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule adopts regulatory measures that materially parallel the FSA standards and protections, and also by codifying the current requirements for complying with the FSA, the HSA, and the TVPRA, and respond to changed factual and operational circumstances.
U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) encounter minors and UACs in different manners. CBP generally encounters UACs and minors at or near the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920 juveniles.
The Departments' current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA are the primary baseline against which to assess the costs and benefits of this rule. DHS and HHS already incur the costs for these operations; therefore, they are not costs of this rule.
The primary changes to DHS's current operational environment resulting from this rule are implementing an alternative licensing process for FRCs and making changes to 8 CFR 212.5 to align parole for minors in expedited removal with all other aliens in expedited removal, consistent with the applicable statutory authority. Subject always to resource constraints, these changes may result in additional or longer detention for some groups of minors. Specifically, minors who are in expedited removal proceedings whose credible-fear determination is still pending or who lack a credible fear and are awaiting removal are more likely to be held until removal can be effectuated. Furthermore, minors who have been found to have a credible fear or who are otherwise in INA section 240 proceedings, and who pose a flight risk or danger if released, are more likely to be held until the end of their removal proceedings, although limited bed space in FRCs imposes a significant constraint on custody of this cohort. DHS estimates the total number of minors in FY 2017 in groups that might be detained longer was 2,787 and in FY 2018 was 3,663. The numbers of accompanying parents or legal guardians are not included in these estimates. While the above estimates reflects the number of minors in FY 2017 and FY 2018 in groups of individuals that would likely be held until removal can be effectuated, DHS is unable to forecast the future total
DHS notes that while additional or longer detention could result in the need for additional bed space, there are many factors that would be considered in opening a new FRC and at this time ICE is unable to determine if this rule would result in costs to build additional bed space. If ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs to provide contracted services beyond current FRC capacity.
The primary purpose of the rule is to implement applicable statutory law and the FSA through regulations, to respond to changes in law and circumstances, and in turn enable termination of the agreement as contemplated by the FSA itself, in doing so DHS will move away from judicial governance to executive government via regulation. The result is to provide for the sound administration of the detention and custody of alien minors and UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and existing regulations issued by the Departments responsible for administering those statutes, rather than partially carried out via a decades-old settlement agreement. The rule ensures that applicable regulations reflect the Departments' current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA, as well as the INA. Further, by modifying the literal text of the FSA (to the extent it has been interpreted to apply to accompanied minors) in limited cases to reflect and respond to intervening statutory and operational changes, DHS ensures that it retains discretion to detain families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, while still providing protections to minors that the FSA intended.
This final rule will be effective on October 22, 2019, 60 days from the date of publication in the
Prior to the enactment of the HSA, the Attorney General and the legacy INS had the primary authority to administer and enforce the immigration laws. In the period leading up to the
On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California,
Prior to a ruling on any of the issues, on November 30, 1987, the parties entered into a Memorandum of Understanding (MOU) on the conditions of detention. The MOU stated that minors in INS custody for more than 72 hours following arrest would be housed in facilities that met or exceeded the standards set forth in the April 29, 1987, U.S. Department of Justice Notice of Funding in the
At approximately the same time that the MOU was executed, the INS published a proposed rule on the Detention and Release of Juveniles to amend 8 CFR parts 212 and 242.
The INS issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule provided for release to a parent,
On May 24, 1988, the district court where the original
The INS appealed, and in 1993, the U.S. Supreme Court rejected Plaintiffs' facial challenge to the constitutionality of the INS's regulation concerning the care of alien juveniles.
The regulations promulgated in 1988 have remained in effect since publication but were moved to 8 CFR 236.3 in 1997.
The Supreme Court's decision in
After the 2001 Stipulation, Congress enacted the HSA and the TVPRA, both of which impact the treatment of alien juveniles. Among other changes, the HSA created DHS and, along with the TVPRA, transferred the functions under the immigration laws with respect to the care and then custody of UACs referred by other Federal agencies to HHS ORR. The TVPRA also further regulated the Departments' respective roles with respect to UACs.
The HSA also contained a general savings clause at 6 U.S.C. 552(a) with respect to the transfer of functions from the INS to ORR and DHS. The savings clause has been interpreted by courts to have maintained the FSA as enforceable against HHS and DHS. By promulgating these final rules, HHS and DHS are completing an administrative action to terminate the FSA.
To summarize agency roles under the current statutory framework: DHS apprehends, provides care and custody for, transfers, and removes alien minors; DHS apprehends, transfers, and removes UACs; and HHS ORR provides for care and custody of UACs who are in Federal custody (other than those permitted to withdraw their application for admission) and referred to HHS ORR by other Departments.
The FSA was entered into by the INS, which was under the U.S. Department of Justice, and the plaintiffs in the
In 2008, Congress passed the TVPRA, which further provided that all UACs in government custody (other than those able to withdraw their application for admission and be immediately repatriated) must be transferred to HHS ORR.
When the FSA was first entered into and even when DHS was first created, migration at the southern border primarily consisted of single adults and unaccompanied juveniles, mostly in their teens. Since then, the numbers of minors, both accompanied and
But that then changed. From Fiscal Year 2011 through 2018, apprehensions of UACs between ports of entry along the southwest border increased dramatically: Were as follows, resulting in a substantial net increase over that time period: FY 2011: 15,949; FY 2012: 24,403; FY 2013: 38,759; FY 2014: 68,541; FY 2015: 39,970; FY 2016: 59,692; FY 2017: 41,435; FY 2018: 50,036.
Additionally, a new trend also began of families with young children crossing the border. For family units, the overall numbers of apprehensions have increased dramatically: FY 2013: 14,855; FY 2014: 68,445; FY 2015: 39, 838; FY 2016: 77,674; FY 2017: 75,622; FY 2018: 107,212.
In FY 2019 so far, from October 2018 through June 2019, the total number of UAC apprehensions along the Southwest border was 63,624, and the total number of family unit apprehensions was 390,308. An additional 3,572 UACs and 37,573 family units have been found inadmissible at ports of entry.
As the number of family units increased, the Government faced a new challenge: Housing children primarily in adult facilities, even with their parents, while still trying to provide all of the services juveniles need. In the early 2000s, the government created ICE Family Residential Centers (FRCs). By 2016, there were three FRCs. Unlike the CBP facilities where juveniles are temporarily held following apprehension or encounter (which are designed for short-term detention), FRCs are more akin to a dormitory setting. For example, the first FRC in Berks, Pennsylvania, was converted from a senior living center. It has suites where each family is housed separately. Beds, tables, chests of drawers, and other standard amenities are provided. Bedding, towels, basic clothing, and toiletries are provided. There is also a laundry facility on premises. There is a large community “living room” that has a large screen television, large cushioned couches and lounge chairs, a gaming area and a separate library that contains books, smaller television sets, video games, and board games. The facility also has an entire wing dedicated to classroom learning where minors at the facility go to school five days a week and study English and other age appropriate subjects. Another wing is a medical facility where minors and their parents receive any necessary medical care, including all immunizations required for later admission to U.S. public schools, and a treatment area for those who have entered the country with a communicable disease, such as tuberculosis. There are also phone banks to call relatives, consulates, or attorney/representatives.
In all FRCs, three hot “all-you-can-eat” meals a day are provided, and snacks are available throughout the day. All three FRCs offer a variety of indoor and outdoor daily recreation activities for children and adults, and a monthly recreational schedule is posted within communal areas in each facility. Indoor activities offered include a variety of sports (
The FRCs have video conferencing set up for court hearings and private meeting rooms so that families can meet with their attorneys or representatives. Child care is provided to the parents while they meet with their attorneys/representatives or attend their court hearings. Interpreting services are available 24 hours a day via telephone. Attorneys and representatives approved to appear at immigration court hearings are provided access to the residents at various times each week, enabling families to obtain counsel and not have to appear at immigration hearings as pro se respondents.
The INA, as amended, provides the primary authority for DHS to detain certain aliens for violations of the immigration laws. Congress expanded legacy INS detention authority in IIRIRA, Public Law 104-208, 110 Stat. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C. 1225, provides that applicants for admission to the United States, including those subject to expedited removal, shall be detained during their removal proceedings, although such aliens may be released on parole in limited circumstances, consistent with the statutory standard set forth in INA 212(d)(5), 8 U.S.C. 1182(d)(5) and standards set forth in the regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and section 241, 8 U.S.C. 1231, authorizes the detention of aliens during the period following the issuance of a final order of removal. Other provisions of the INA also mandate detention of certain classes of individuals, such as criminal aliens.
As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred most of
The functions regarding care of UACs were transferred from the INS to HHS ORR. The HSA states ORR shall be responsible to coordinate and implement the care and placement of UACs who are in Federal custody by reason of their immigration status. ORR was also tasked with identifying a sufficient number of qualified individuals, entities, and facilities to house UACs, and with ensuring that the interests of the child are considered in decisions and actions relating to his or her care and custody.
Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, Title II, Subtitle D, 122 Stat. 5044 (codified in principal part at 8 U.S.C. 1232), states that consistent with the HSA, and except as otherwise provided with respect to certain UAC from contiguous countries (
The Secretary of HHS delegated the authority under the TVPRA to the Assistant Secretary for Children and Families, 74 FR 14564 (2009), who in turn delegated the authority to the ORR Director, 74 FR 1232 (2009).
As discussed above, in the 1990s, the U.S. Government and
Paragraph 9 of the FSA explains its purpose: To establish a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Paragraph 4 defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” but the definition excludes minors who have been emancipated or incarcerated due to a criminal conviction as an adult. The FSA established procedures and conditions for processing, transportation, and detention following apprehension, and set forth the procedures and practices that the parties agreed should govern the INS's discretionary decisions to release or detain minors and to whom they should or may be released.
The FSA was originally set to expire within five years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” However, the proposed rule that was published for that purpose was never finalized.
On January 26, 2004, Plaintiffs filed their first motion to enforce the agreement, alleging, among other things, that CBP and ICE: (1) Regularly failed to release minors covered by the FSA to caregivers other than parents when parents refused to appear; (2) routinely failed to place detained class members in the least restrictive setting; (3) failed to provide class members adequate education and mental health services, and (4) exposed minors covered by the FSA to dangerous and unhealthy conditions. Ultimately, after a lengthy discovery process in which the government provided Plaintiffs numerous documents related to the government's compliance with the FSA, Plaintiffs filed a Notice of Withdrawal of Motion to Enforce Settlement on November 14, 2005. The court dismissed the matter on May 10, 2006.
On February 2, 2015, Plaintiffs filed a second motion to enforce the agreement, alleging that CBP and ICE were in violation of the FSA because: (1) ICE's supposed no-release policy—
On July 24, 2015, the district court granted Plaintiffs' second motion to enforce and denied Defendant DHS's contemporaneous motion to modify the agreement.
The government filed a response to the Court's order to show cause on August 6, 2015. On August 21, 2015, the court issued a subsequent remedial order for DHS to implement six remedies.
The government maintains that the terms of the FSA were intended to apply only to those alien children in custody who are unaccompanied.
Nonetheless, reflecting existing circuit precedent that the FSA applies to accompanied minors, this rule applies to both accompanied and unaccompanied minors.
On May 17, 2016, plaintiffs filed a third motion to enforce the agreement, claiming that DHS was violating the agreement by: (1) Holding class members in CBP facilities that did not meet the requirements of the FSA; (2) failing to advise class members of their rights under the FSA; (3) making no efforts to release or reunify class members with family members; (4) holding class members routinely with unrelated adults; (5) detaining class members for weeks or months in secure, unlicensed facilities in violation of the FSA; and (6) interfering with class members' right to counsel. The Government filed a response on June 3, 2016.
On June 27, 2017, the district court issued an opinion concluding that ICE had not complied with the FSA because it had failed to advise class members of their rights under the FSA, failed to make continuous efforts to release class members, and failed to release class members as required by FSA paragraphs 12(A) and 14. The Court also found that FRCs were unlicensed and secure.
The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range. The court ordered the appointment of a Juvenile Coordinator for ICE and CBP, responsible for monitoring the agencies' compliance with the Agreement. On August 15, 2019, the Ninth Circuit dismissed the Government's appeal of that decision based on a lack of jurisdiction.
On August 12, 2016, Plaintiffs filed a fourth motion to enforce the agreement, claiming that ORR violated the agreement by failing to provide UACs in ORR custody with a bond redetermination hearing by an immigration judge. The Government argued that the HSA and the TVPRA effectively superseded the FSA's bond-hearing requirement with respect to UACs, that only HHS could determine the suitability of a sponsor (an essential part of release decision-making), and that immigration judges lacked jurisdiction over UACs in ORR custody.
On January 20, 2017, the court found that HHS breached the FSA by denying UACs the right to a bond hearing as provided for in the FSA.
On April 16, 2018, Plaintiffs filed a fifth motion to enforce the agreement, claiming ORR unlawfully denied class members licensed placements, unlawfully medicated youth without parental authorization, and peremptorily extended minors' detention on suspicion that available custodians may be unfit. On July 30, 2018, the district court issued an Order.
On June 21, 2018, in accordance with the President's June 20, 2018, Executive Order “Affording Congress an Opportunity to Address Family Separation,” the Government sought limited emergency relief from two provisions of the FSA—the release provision of Paragraph 14, as well as the licensing requirements of Paragraph 19. This relief was sought in order to permit DHS to detain alien family units together for the pendency of their immigration proceedings. The court denied this motion on July 9, 2018, and denied reconsideration of the motion on November 5, 2018.
That motion sought relief consistent with the proposed rule, although the proposed rule included some affirmative proposals (like the Federal-licensing regime) that were not at issue in that motion. For example, as discussed below, by creating an alternative for meeting the “licensed facility” definition for FRCs, the final rule will eliminate a barrier to keeping family units in custody during their immigration proceedings, consistent with applicable law, while still providing similar substantive protections to minors.
The issue of family separation and reunification continues to be the subject of litigation in multiple jurisdictions. This rule does not directly address matters related to that litigation. A significant purpose of this rule with regard to accompanied minors is to allow DHS to make decisions regarding the detention of families applying a single legal framework, and to enable DHS to hold a family together as a unit in an FRC when lawful and appropriate.
On November 2, 2018, Plaintiffs filed their sixth motion to enforce, which requests the court to enjoin the Government from implementing regulations that fail to implement the FSA. Plaintiffs allege the Government's proposed rulemaking of September 2018 is an anticipatory breach of the FSA, claiming that DHS's portion of the proposed regulations proposed to detain accompanied children indefinitely and consign them to unlicensed family detention centers. Plaintiffs also claim that the proposed rule replaces mandatory protections with aspirational statements and does not provide certain the protections granted minors. Plaintiffs also requested the court to provisionally adjudicate the Government in civil contempt to make it clear to that implementing the proposed regulations would place it in contempt. The motion is held in abeyance pending publication of this final rule and further briefing from the parties.
On May 30, 2019, Plaintiffs filed a motion to enforce the FSA alleging that HHS' use of the Homestead influx shelter facility violates the FSA because the facility is not licensed, and, in Plaintiffs' opinion, HHS is not releasing UACs from the facility as expeditiously as possible. By agreement of the parties, the motion has been referred to mediation with the Monitor in order to avoid the need for adjudication by the district court.
On June 26, 2019, Plaintiffs filed an
1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA.
When DHS encounters a removable alien parent or legal guardian with his or her removable alien child(ren), it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Release all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer the juvenile to HHS as a UAC; or (3) detain the family unit together as a family by placing them at an appropriate FRC during their immigration proceedings. The practical implications of the FSA, as interpreted by the Federal district court and the court of appeals (and the lack of state licensing for FRCs), is to prevent the Government from using the third option for more than a limited period of time. This final rule will eliminate that barrier to the use of FRCs.
DHS believes there are several advantages to maintaining family unity during immigration proceedings. These include the child being under the care of the parent, immigration proceedings occurring together and any removal or release occurring at the same time. But the practical implications of the FSA, as recently interpreted, and in particular the lack of state licensing for FRCs and the release requirements for minors who are not in state-licensed facilities, have effectively prevented DHS from using family detention for more than a limited period of time (typically approximately 20 days), and in turn often required the release of families regardless of the flight risk posed. DHS believes that combination of factors creates a powerful incentive for adults to bring juveniles on the dangerous journey to the United States and then put them in further danger by illegally crossing the United States border, in the expectation that coming as a family will result in an immediate release into the United States. At the same time, the alternative—that of separating family members so the adult may be detained pending immigration proceedings—should be avoided when possible, and has generated significant litigation.
This final rule serves to clear the way for the sensible use of FRCs when it is lawful and appropriate, to allow custody over a family unit as such. In particular, it creates a Federal licensing process to resolve the current problem caused by the FSA's state-licensing requirement that is ill-suited to family detention, and allows for compatible treatment of a family unit in immigration custody and proceedings by eliminating artificial barriers to that compatibility imposed by the FSA. Further, it helps to ensure that decisions to detain a family unit can be made under a single legal framework and that take into account the interest in family unity. In particular, the rule will ensure that custody decisions for both the parent and minor will be made pursuant to the existing statutes and regulations governing release on bond or parole (not under a freestanding FSA standard). Moreover, when exercising its parole discretion, DHS will continue to consider a detainee's status as a minor as a factor in exercising its parole discretion, on a case-by-case basis, and consistent with all requisite statutory and regulatory authority.
It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing surge of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles
In the summer of 2014, an unprecedented number of family units from Central America illegally entered or were found inadmissible to the United States. In FY 2013, the total number of family units apprehended entering the United States illegally between ports of entry on the Southwest Border was 14,855. By FY 2014, that figure had increased to 68,445.
Prior to
DHS mounted a multi-pronged response to this situation. As one part of this response, DHS placed more families at the one existing FRC, stood up another FRC (which was later closed
Although the border crisis prompted DHS to increase its use of FRCs to hold family units together, DHS quickly faced legal challenges asserting that the FSA applied to accompanied minors and that family detention did not comply with the provisions of the FSA. In July 2015, the
When the courts then found the FSA to apply to accompanied minors—an interpretation with which the Government continues to disagree—the agencies faced new practical problems. Indeed, the government has never understood the FSA to apply to accompanied minors. The Supreme Court in
The FSA in turn has FSA has no language directly addressing the specific issues raised by custody over families as a unit. The FSA explains that the settlement arose from a lawsuit about “detention and release of
The FSA requires DHS to transfer minors to a non-secure, licensed facility “as expeditiously as possible,” and further provides that a “licensed” facility is one that is “licensed by a State agency.” FSA paragraphs 6, 12(A). That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs, as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together. Those limitations correlated with a sharp increase in family migration: The number of family units apprehended by CBP between the ports of entry along the Southwest Border again spiked—from 39,838 in FY 2015 to the highest level ever up until that time, 77,674 in FY 2016. In FY 2016, CBP also found 26,062 family units inadmissible at ports of entry along the Southwest Border. The number of such apprehensions and individuals found inadmissible along the Southwest Border has continued to rise, and reached 107,212 apprehensions between the ports of entry, and 53,901 family units found inadmissible at ports of entry in FY 2018. In the first nine months of FY 2019 (through June 30, 2019), the number of family unit apprehensions has already reached 390,308, a 469 percent increase from the same period in FY 2018. During this same time period, 37,573 family units have been found inadmissible at ports of entry along the Southwest Border.
As long as the licensing must come from a State specifically (rather than from the Federal Government), DHS's ability to effectively use family detention is unduly limited. A Federal program (especially immigration enforcement) that the Constitution and Congress commit to Federal authority and discretion should not depend on state licensing. And that is particularly true when a well-established state-licensing process does not already exist and the FSA, as the Ninth Circuit pointed out, “gave inadequate attention to some problems of accompanied minors” and “does not contain standards related to the detention of . . . family units.”
According to EOIR, 43 percent of cases completed from January 1, 2014 through March 31, 2019 involving family unit aliens who were in detention, released, failed to appear at the required proceedings, and were issued final orders of removal
Table 3 below reports DHS Office of Immigration Statistics (OIS) data on
Based on the similar timeframes of the two rates from EOIR and DHS OIS, DHS can assume that family units who did not start their cases in FRCs have a higher
ICE's mission is to remove individuals subject to final orders of removal. DHS OIS data show that, as of the end of FY 2018, aliens encountered from FY 2014 through FY 2018 and detained at the time a final order of removal was issued, were removed at a much higher rate than those not detained: 97 percent of aliens detained as compared to just over 18 percent of individuals not detained.
As described above, there have been several important changes in law and circumstance since the FSA was executed: (1) A significantly changed agency structure addressing the care and custody of juveniles, including the development of FRCs that can provide appropriate treatment for minors while allowing them to be held together with their families; (2) a new statutory framework that governs the treatment of UACs; (3) significant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; (4) a novel judicial interpretation that the FSA applies to accompanied minors; and (5) further recognition of the importance of keeping families together during immigration proceedings when appropriate, and the legal and practical implications of not providing uniform proceedings for family units in these circumstances. The Departments have thus determined that it is necessary to put into place regulations that will be consistent with the relevant and substantive terms of the FSA regarding the conditions for custodial settings for minors, but, through Federal licensing of FRCs, will provide the flexibility necessary to protect the public safety, enforce the immigration laws, and maintain family unity given current challenges that did not exist when the FSA was executed. This rule provides DHS the option of keeping together families who must or should be detained at appropriately licensed FRCs for the time needed to complete immigration proceedings, subject to the sound implementation of existing statutes and regulations governing release on parole or bond.
A principal purpose of this action is to implement the relevant and substantive terms of the FSA and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions, and taking into account the agencies' expertise in addressing current factual circumstances, thereby terminating the FSA, as provided for in FSA paragraph 40 as well as general principles governing termination of settlements or decrees in institutional litigation. As it accounts for circumstances that have changed since the FSA was entered into and agency expertise in addressing current circumstances, the rule does not always track the literal text of the FSA, but provides similar substantive protections to juveniles. For example, the rule allows for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a State). States generally do not have licensing schemes that apply to FRCs. Thus, the terms of the FSA currently impose a limitation on DHS's ability to detain family units together in an FRC during their immigration proceedings, consistent with applicable law. The Federal licensing process in turn will provide similar substantive protections regarding the conditions of such facilities, and thus implement the underlying purpose of the state-licensing requirement. These changes will allow for release in a manner consistent with the INA and applicable regulations. The rule also provides for third-party monitoring, and for publicizing the results of those inspections, to ensure that conditions
This rule conforms to the FSA's guiding principle that the Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for their particular vulnerability as minors.
The current DHS regulations on the detention and release of aliens under the age of 18 found at 8 CFR 236.3 have not been substantively updated since their promulgation in 1988.
As noted, these regulations implement the relevant and substantive terms of the FSA and related statutory provisions. Separate from the FSA, DHS has over time developed various policies and other sub-regulatory documents that address issues related to DHS custody of minor aliens and UACs.
Finally, this rule excludes those provisions of the FSA that are relevant solely by virtue of the FSA's existence as a settlement agreement. For instance, the FSA contains a number of provisions that relate specifically to class counsel and the supervising court with respect to the Departments' compliance with the FSA. Following termination of the FSA, such provisions will no longer be necessary, because compliance with the published regulations will replace compliance with the settlement agreement. As a result, they are not included in this rule.
To the extent that any portion of this final rule is declared invalid by a court, the Departments intend for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a court decision invalidating a portion of this final rule results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the final rule continue to operate, if at all possible in tandem with the reverted provisions.
Following careful consideration of public comments received and relevant data provided by stakeholders, DHS and HHS have amended the regulatory text proposed in the NPRM published in the
• Section 212.5(b) now considers that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.
• Section 236.3(b)(2) defines
• Section 236.3(b)(9), which defines
• In § 236.3(b)(11), which defines a
• In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that a UAC from a contiguous country who is not permitted to withdraw his or her application for admission, or if no determination can be made within 48 hours of apprehension or encounter, will be immediately transferred to HHS. The Departments believe that commenters misunderstood the intent of the regulatory text due to imprecise wording, which is now clarified by deleting “subject to the terms of” and replacing with “processed in accordance with.”
• In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make it clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the specific reference to unrelated “detained” adults, for clarity.
• In § 236.3(g)(1)(i) regarding DHS procedures in the apprehension and processing of minors or UACs, Notice of Rights and Request for Disposition, DHS is removing the qualification that the notice will be read and explained when the minor or UAC is believed to be less than 14 years of age or is unable to
• In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, the proposed regulatory text stated that UACs “may be housed with an unrelated adult for no more than 24 hours except in the case of an emergency or exigent circumstances.” Commenters objected to the use of the term “exigent circumstances” as it was not defined. DHS agrees to delete the term “exigent circumstances” as it is redundant to “emergency.”
• In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1. In response to these comments, DHS added language of FSA Ex. 1 paragraph.
• Section 236.3(j) and (n) now consider that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.
• DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS will also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining the detention of a minor.
• Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.
• In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”
• In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other in placing UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”
• In § 410.202, in response to commenters' concerns, HHS clarifies that ORR places UACs in licensed programs except if a reasonable person would conclude, “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.
• In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that ORR place UACs in the least restrictive setting appropriate to their age and any special needs.
• In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the UAC is in the care of the licensed program.
• In § 410.600(a) regarding transfer of UAC, the proposed regulatory text states that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.
• In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute.
• In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS does bear the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC must bear the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.
In § 212.5(b), DHS proposed to remove the cross-reference to § 235.3(b) as it currently appears in order to eliminate an ambiguity and to codify its longstanding understanding of how certain provisions in § 235.3(b)'s provisions relating to parole of aliens in expedited removal proceedings who lack a credible fear (or have not yet been found to have a credible fear) apply both to adults and minors. Accordingly, such minors will be paroled only in cases of medical necessity or when there is a law enforcement need. This is the same standard that applies to adults in these same circumstances. These proposed changes also eliminate an existing tension with the text of the relevant statutory provision.
One commenter stated that it agreed with the determination that parole should be limited to cases of medical necessity or law enforcement need and that parole must be within the discretion of DHS. Many commenters, however, disagreed with the proposal and expressed concern about more restrictive parole standards, the impact on asylum seekers, and questioned the necessity for the proposed changes given existing discretionary parole authority.
Multiple commenters stated that children with urgent humanitarian needs such as pregnant young women and children with physical disabilities, cognitive impairments, or chronic medical conditions would likely no longer qualify for parole under the proposed regulations and the medical emergency standard.
A few commenters stated that DHS should continue the general policy to prioritize parole to ensure the best interests of minors and their placement in the least restrictive setting appropriate. Another commenter stated that the proposed regulations should be withdrawn and asked the following questions: (i) How large was the
Multiple commenters stated that the proposed changes will result in children facing the same parole standards as adults and thereby being paroled less frequently. One of these commenters expressed concern that this would likely mean children will be detained beyond the 20 days that is generally the current practice permitted under the FSA. Another commenter stated that while the NPRM states that proposed § 236.3(j) “adds that any decision to release must follow a determination that such release is permitted by law, including parole regulations,” it does nothing to specify DHS parole procedures favoring the release of children, which the commenter contended was required by the FSA.
Multiple commenters expressed concern about how the proposed changes to parole would impact asylum seekers. One of these commenters stated that the proposed rule provides no explanation for eliminating DHS's authority to consider unique circumstances that may arise for children seeking asylum. Another commenter stated that asylum applicants in detention have historically had an opportunity to be released through parole provisions, and contended that the proposed parole standards would afford DHS broad discretion to apply a new narrow standard, leaving survivors of sexual violence and other forms of trauma with minimal hope of release pending a lengthy adjudication of their complex, evidence-driven asylum claims. A different commenter stated that the proposed rule uses the detention of children to disincentivize asylum seekers from going forward with their asylum claims and that the changes will make it more difficult for certain vulnerable children and families in DHS custody to be paroled as they await an assessment of whether they have a credible fear of persecution.
Other commenters pointed to existing discretionary parole authority and questioned the necessity of the proposed changes. One commenter likened the choice between detention and parole for children to the choice between incarcerating a minor or releasing them on probation, contending that detention alternatives are healthier for children and avoid expenses. Another commenter contended that ICE has the discretion to release on parole and that the new regulations place no meaningful limit on the ability of ICE to detain families during their proceedings. This commenter stated that DHS's proposed regulations provided no review of a parole denial, and that the Attorney General indicated his intention to review and possibly reverse the long-standing precedent providing for individualized ICE custody determinations with review in immigration court for asylum seekers who have passed a credible fear interview.
Several commenters objected to any attempt to curtail parole in the name of family unity, contending that detention significantly harms children. Another commenter, perceived that this rule would limit opportunities for minors to be released from detention and asserted that the Administration should make every effort to ensure that children, and as applicable, children with families, spend as little time in detention as possible. This commenter stated that, in the case of a minor who is traveling with a family member, absent an indication of trafficking or unfitness on the part of the relative, it is in the best interest of the child to be paroled from detention with the relative. A different commenter requested that the final rule provide that all minors are bond and parole eligible.
DHS provides the following counts of adults and minors who were released from FRCs on parole in FY 2014 through 2018 in response to comments. There are also other means to effectuate release.
DHS notes that the changes under this provision are limited in scope and intended not to foreclose the possibility of a minor's release, but to clarify that the provisions in § 235.3(b) governing the parole of aliens in expedited
DHS notes that many commenters appeared to confuse the proposed changes with changes that would be much broader in scope; for example, by eliminating from § 212.5(b) entire groups of aliens who have been or are detained from receiving case-by-case parole determinations and eliminating completely the “urgent humanitarian reasons” or “significant public benefit” justifications. As the regulatory language in the revised § 212.5(b) indicates, this is not the case. The intent of these provisions is only to remove the ambiguity in the current regulations that appears to erroneously apply the more flexible standard of parole for arriving aliens (“urgent humanitarian reasons or significant public benefit”) placed in section 240 proceedings to minors placed in expedited removal, rather than the standards generally applicable to all aliens placed in expedited removal who have yet to have a credible fear interview or who have been ordered removed (“required to meet a medical emergency or is necessary for a legitimate law enforcement objective”).
The Attorney General's recent decision in
Accordingly, DHS is finalizing its regulation at 8 CFR 212.5(b) as proposed but is adding language to permit release of a minor to someone other than a parent or legal guardian, specifically an adult relative (brother, sister, aunt, uncle, or grandparent) not in detention. The reason for this change is explained in the section below regarding comments on proposed 8 CFR 236.3(j).
DHS proposed revisions to § 236.3(b)(1) to define a minor as any alien under 18 years of age who has not been emancipated or incarcerated for an adult criminal offense. DHS proposed to remove the definition of juvenile as it is too broad and replace it with the more specific terms minor and UAC. The difference between minor and UAC is that the term “minor” captures any alien under the age of 18 that is not defined as a UAC, for example, minors accompanied by their parents. Also, under these definitions, a “minor” cannot be legally emancipated or have been incarcerated due to an adult conviction, whereas the definition of UAC does not exclude these categories.
DHS finalizes its definitions of minor and UAC as proposed and declines to make changes in response to public comments.
DHS did not propose any revisions to the FSA for the definition of special needs minor. Special needs minor is defined as any minor with physical disabilities, cognitive impairments or chronic medical conditions that was identified in the individualized needs assessment.
One commenter also condemned the use of the “outdated” term “retardation” in the definition of special needs minor. The commenter stated that the term is used as a slur that dehumanizes, demeans, and does very real emotional harm to people with mental and developmental disabilities. The commenter acknowledged the term was used in the FSA agreement, but argued that it is inappropriate in a modern-day regulation.
The proposed regulatory language contains multiple provisions requiring DHS and HHS to consider a minor or UAC's special needs, including provisions requiring consideration of special needs when determining placement. For example, 45 CFR 410.208 states that ORR will assess each UAC to determine if he or she has special needs and will, whenever possible, place a UAC with special needs in a licensed program that provides services and treatment for the UAC's special needs. Title 8 CFR 236.3(g)(2) requires DHS to place minors and UACs in the least restrictive setting appropriate to the minor or UAC's age and special needs. Title 8 CFR 236.3(i)(4) requires that facilities conduct a needs assessment for each minor, which would include both an educational assessment and a special needs assessment. Additionally, 8 CFR 236.3(g)(1) requires DHS to provide minors or UACs with Form I-770 and states that the notice shall be provided, read, or explained to the minor or UAC in a language and manner that he or she understands. These provisions ensure that a minor or UAC's special needs are taken into account, including when determining placement.
DHS is amending the regulatory language to delete the term “retardation” and insert the term “intellectual disability.” HHS has also deleted this term in its regulatory language.
DHS proposed to define a UAC as provided in 6 U.S.C. 279(g)(2), which states that a UAC is a child under the age of 18 who has no lawful immigration status in the United States and who has no parent or legal guardian present in the United States who is available to provide care and physical custody.
The comments received are discussed above in conjunction with the definition of “minor.”
DHS declines to change the proposed definition of UAC in response to public comments.
The term custody is not defined in the FSA. DHS has defined custody as the physical and legal control of an institution or person.
DHS did not receive any comments requesting a change to this definition.
DHS is not making changes from the proposed definition of custody in the final rule.
DHS proposed revisions to § 236.3(b)(5) to define emergency as an act or an event that prevents timely transport or placement of a minor, or could delay compliance with or temporarily excuse compliance with other provisions of the proposed rule. As discussed in the preamble to the proposed rule, the new definition of emergency has been added in the regulatory text. The new definition largely tracks the existing text of the FSA except that it reflects DHS's recognition that emergencies may not only delay placement of minors but could also delay compliance with other provisions of the proposed rule or excuse noncompliance on a temporary basis.
Some of these commenters contended that the definition would allow DHS to declare any situation an emergency and deny any and all protections to children Several commenters stated that the expanded definitions of emergency would make ignoring limitations on transfer the “default” and compliance with the FSA timeframe the exception
Other commenters had specific objections to the proposed definition. One contended that it was circular, defining an emergency primarily as an event that prevents compliance. Some expressed concern that events other than a natural disaster, facility fire, civil disturbance, and medical or public health concerns might also qualify as an emergency, leaving significant room for interpretation. Several commenters stated that the phrase “other conditions” would implicate the basic needs of the children which would further jeopardize their well-being, health, and safety and runs contrary to the explicit placement context of the FSA. Another commenter expressed concern that the language “medical or public health concerns at one or more facilities” which allow for a possible emergency in instances where several minors lack key vaccinations, or where a few minors may require treatment for chronic conditions such as asthma or diabetes.
With respect to the consequences of the emergency, commenters offered still other concerns. One commenter expressed concern with the language that minors must be transferred “as expeditiously as possible,” instead of including a defined period of 3 or 5 days, as the commenter believed required by the TVPRA.
A few commenters noted that, as a result of the proposed definition, minors may be held indefinitely in temporary CBP facilities that are intended only for short-term use and that are assertedly notorious for frigid temperature, deficient medical care, and other poor conditions (
Several commenters contended that the proposed definition contradicts FSA paragraph 12A which provides no exception for housing minors with unrelated adults for longer than 24 hours, because they viewed the broad interpretation of emergency as allowing DHS to house children with unrelated adults indefinitely and for virtually any reason.
One commenter stated that the example provided by DHS regarding delayed access to a snack or meal seems reasonable; however, it would provide DHS the flexibility to label any act or event an emergency and that recommended that DHS: (1) Look into the definition of emergency in the American Bar Association's (ABA) Unaccompanied Child Standards; and (2) adopt a more limited, non-circular definition of emergency, to avoid what the commenter considered an unnecessary relaxation of the FSA standards. Other commenters recommended that DHS instead ensure that non-perishable, nutritious food and bottled water in packs will be kept on site at all times in case of an emergency evacuation in order to ensure that nutritional needs of children are met.
Several commenters argued that DHS and HHS should provide more evidence and explanation of the need to expand the current definition; describe how the agencies arrived at these definitions; provide a timeframe for how long an emergency may last; and provide for the consequences for invoking the emergency when unwarranted.
One of these commenters recommended that DHS and HHS compile a comprehensive list of permissible emergency circumstances. One commenter noted that the proposed rule leaves the facility to decide the rationale and length of an emergency and recommended that DHS hold detainment centers accountable to the maximum safety and compliance requirements and make no exemptions to the minimum standards in FRCs for detainees.
Several commenters addressed conduct in the event of an emergency. Some, for example, recommended that the proposed rule should clarify the circumstances that the Government would consider constituting emergencies, establish that any corresponding exemptions be limited in scope, and ensure that the fundamental needs of children are met, regardless of the circumstances constituting the “emergency.”
One commenter suggested that in cases of emergency, rather than devising means to delay the provision of basic services or care and timely placement or transfer, DHS should consider how provisions could be made to serve the children during transport and should prioritize emergency preparedness planning to ensure readiness to respond. And several commenters recommended that, from a public health perspective, designation of an emergency should trigger additional resources, prepared in advance through contingency planning and made available through standing mechanisms.
DHS also notes that, during an emergency situation, it continues to make every effort to transfer minors and UACs as expeditiously as possible, and to provide all other required amenities as set out in the FSA. Depending on the severity of the emergency, the provision of one or more FSA requirements may be temporarily delayed for some minors and UACs. For instance, if a child in a CBP facility has a medical emergency such that he or she must be provided with urgent medical care, it may be necessary to temporarily delay the provision of meals to other minors and UACs during the time required to provide such medical care. As soon as the medical emergency subsides, however, CBP would resume the provision of meals to all other minors and UACs. Similarly, if a facility suffers an electrical failure, such that the air conditioning breaks, all minors and UACs in that facility may temporarily be
DHS disagrees with commenters' concern about minors being held “indefinitely” as a result of a declared emergency and emphasizes that when emergency conditions exist, transfer must still occur “as expeditiously as possible.” DHS notes that the “as expeditiously as possible” time frame is derived from the FSA itself. The existence of an emergency under these regulations does not excuse DHS from transferring minors or UACs to licensed programs or HHS custody, respectively. DHS must still move as expeditiously as possible, given the emergency, to place minors and/or UACs.
DHS notes that the ABA's Unaccompanied Child Standards' concept of “emergency” appears to apply to a much narrower situation than the concept of “emergency” in the FSA, and declines to apply these standards to DHS's regulatory definition of emergency. The ABA concept of “emergency” appears to govern when it may be permissible to house minors and UACs with unrelated adults. The FSA definition of emergency covers a wider variety of situations than the ABA's provision. Accordingly, DHS has described such situations in other provisions of this rule.
DHS declines to change its proposed definition of emergency in response to public comments.
The term “escape-risk” is defined in paragraph 22 of the FSA. DHS proposed to define escape-risk as a minor who attempts to escape from custody. DHS proposed requirements and clarification for the definition of escape-risk. A minor is an escape-risk if he or she is subject to a final order of removal, has a prior breach of bond, has failed to appear before DHS or immigration court, or has previously absconded from state or Federal custody.
DHS declines to change its proposed definition of escape risk in response to public comments.
The term family unit is not defined in the FSA. DHS proposed to define family unit as two or more aliens consisting of a minor accompanied by a parent or legal guardian. If evidence shows the minor has no relation to the purported parent or legal guardian, the individuals would not constitute a family unit, and, if no parent or legal guardian for the minor is in the United States or the/parent or legal guardian in the United States is not available to provide care and physical custody, the minor would be a UAC.
One commenter stated that the proposed definition violates the best interest of the child standard because it separates children from their related, non-parent caregivers. The commenter stated that, although the FSA mandates that UACs be “segregated from unrelated adults,” it requires that DHS provide access to “contact with family members that were arrested with the minor,” hence recognizing a broader definition of “family.” Likewise, the commenter stated that ORR's current definition of “family” and HHS' proposed regulations, which allow the release of a child to an adult seeking custody when family reunification is not possible, recognize a broader definition.
One commenter recommended that DHS adopt the broad definition of family similar to the “Standards for the Custody, Placement and Care; Legal Representation and Adjudication of Unaccompanied Alien Children in the United States” (UC Standards) and the ABA Civil Immigration Detention Standards. The commenter contends that nothing in the language of the TVPRA restricts DHS's ability to release a UAC to someone other than a parent or legal guardian and therefore there is no legal requirement to narrow the definition of “family member.”
In accordance with the TVPRA, only non-UACs can be held in DHS custody at an FRC. By definition, a minor is not a UAC if he or she has an adult parent or legal guardian in the United States who is available to provide care and physical custody. The term “family unit” is defined to include those alien juveniles—minors who are accompanied by his/her/their adult parent(s) or legal guardian(s)—who are not UACs. Absent additional information available to DHS at the time of encounter indicating a parent or legal guardian was present in the United States and available to provide care and physical custody, if a juvenile alien is encountered or apprehended with an adult relative other than a parent or legal guardian, that juvenile alien lacks a parent or legal guardian in the United States available to provide care and physical custody of the juvenile.
DHS notes that the commenter's suggestion that DHS adopt ORR's definition of “family” in the ORR proposed regulation at 45 CFR 410.300 is misguided, as that section does not contain a separate definition of “family” but instead identifies the types of potential sponsors to whom ORR may release a UAC. DHS notes that the term “family” encompasses a broader group of individuals than those individuals determined to be a “family unit.” HHS has unique authorities under the TVPRA and the HSA to determine whether release of a UAC to a sponsor—which may include an adult who is a member of the child's family, but who is not a parent or legal guardian—is appropriate. DHS does not have any similar authorities to release UACs to sponsors. For an additional discussion about the individuals to whom a non-UAC minor may be released, please see the discussion in Section B.10, Release of Minors from DHS Custody. The commenter also notes that the FSA requires DHS to provide “contact with family members that were arrested with the minor,” FSA paragraph 12, and thus “recognizes the broader definition of family.” However, this paragraph refers to procedures and temporary placement immediately following the arrest or apprehension of a minor. This paragraph acknowledges that a juvenile may be encountered with family members who are not parents or legal guardians, and that there is a meaningful benefit to providing contact with such family members. However, the FSA does not require DHS to detain juvenile aliens together with adult relatives who are not parents or legal guardians, and DHS is not permitted to detain UACs under the HSA and TVPRA.
DHS notes that the commenter recommends DHS adopt the broad definition of family similar to those described in the ABA “Standards for the Custody, Placement and Care; Legal Representation and Adjudication of Unaccompanied Alien Children in the United States” or the ABA Civil Immigration Detention Standards. However, those standards include family members who could not be detained together in DHS custody under the TVPRA and consistent with the HSA.
DHS also notes the commenter's disagreement with DHS's contention that the TVPRA restricts DHS's ability to release a UAC to someone other than a parent or a legal guardian. As stated in the proposed rule, following the passage of the TVPRA, HHS is solely responsible for the care and custody of UACs, and DHS no longer has the authority to release a UAC. However, upon further consideration of the commenter's contention and review of relevant statutes and case law, DHS has determined that the law does not prohibit DHS from releasing a non-UAC minor to someone who is not a parent or legal guardian. DHS acknowledges that this interpretation of the law differs from the interpretation represented to the U.S. Court of Appeals for the 9th Circuit in recent litigation, but is making this change upon due consideration.
DHS declines to change its proposed definition of family unit in response to public comments, but will change certain provisions regarding the release of minors as explained in subsequent sections.
In § 236.3(b)(9), DHS proposed a definition for “licensed facility.” To parallel the provisions of FSA paragraph 6, DHS proposed that facilities that temporarily detain minors obtain licensing where appropriate licenses are available from a State, county, or municipality in which the facility is located. The proposed rule also eliminated existing barriers to the continued use of FRCs by creating an alternative to meet the licensed facility definition for such detention to provide reasonable assurances about the conditions of confinement at that facility, and thus to implement the underlying purpose of the FSA's licensing requirement. DHS's proposed definition considers a “licensed facility” to be one that is licensed by the State, county, or municipality in which it is located. If no such licensing scheme exists, DHS's proposed that the facility will meet the definition of “licensed facility” if it complies with ICE's family residential standards as confirmed by a third-party with audit experience hired for such a purpose.
A few commenters stated that DHS's difficulty licensing facilities under state licensing regimes results from the unacceptable conditions of confinement within DHS's facilities rather than a failure of the state licensing processes. One commenter stated “In unlicensed facilities, children are at high risk for abuse and neglect, which in turn will ultimately result in high costs paid not only in the form of unnecessary suffering, the disintegration of the social fabric of our nation, but also by taxpayer money going towards Department of Children and Families, Department of Youth Services, and more state agencies responsible for welfare of youth.”
Numerous commenters stated that DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers.
Multiple commenters cited to a June 2018 report from the DHS Office of Inspector General (OIG), which found that the Nakamoto Group, the third-party contractor ICE has most frequently used to conduct inspections at adult detention facilities, did not always examine actual conditions, was not consistently thorough, and frequently failed to identify compliance deficiencies.
Commenters also discussed other aspects of the OIG report. One commenter noted that the OIG report found that DHS-ICE existing inspections and monitoring mechanisms for detention facilities neither “ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections.” Some commenters noted that typically three to five inspectors have only three days to interview 85-100 detainees and perform and document their inspection, an amount of time that the OIG found insufficient to see if the facility was actually implementing its required policies. According to the commenters, the OIG also found that it could not characterize the interviews with detainees as sufficient because the conversations with detainees were not conducted in private and were in English only.
Yet another commenter cited the OIG report to state that inspections by third-party contractors did not insure minimum child welfare standards were met, and that although ICE completed oversight inspections every three years, it did not correct the problems it found.
A commenter stated that reports from private inspections are rarely available and, even when they are, do not inform the public about what standards were used as a base and how long non-compliance issues took to be resolved. These commenters pointed to the case of Danya International, a private contractor hired by DHS to inspect family detention centers for compliance with ICE's internal standards, to highlight their concerns with the quality and lack of transparency in the inspections carried out by ICE's third-party vendors. They stated that only three reports from Danya's inspections have been released publicly. According to the commenters, the only information available about the remaining reports is an assertion by an ICE official in a court declaration that “Danya has generally found the FRCs to be compliant with a majority” of standards, and “[w]here Danya observed individual issues of non-compliance, the facilities took corrective action as appropriate and achieved compliance although this is a continuous process.” The commenters stated that the ICE descriptions were vague and provided very little information regarding which ICE standards were violated, or how severe or prolonged these violations were. The commenters claim that ICE denied requests for access to the reports even to DHS's Advisory Committee on Family Residential Centers. They also asserted that DHS's Office of Civil Rights and Civil Liberties (CRCL) has conducted more in-depth inspections of family detention centers, and what is publicly known from those inspections appears to undermine those conducted by DHS's third-party vendors.
After several years of operations and data collection through a rigorous monthly and semiannual inspection program, ICE commenced a top-to-bottom review of the first-edition FRS. This review included an analysis of past and current best practices at FRCs, and focused on improving the standards to more effectively accommodate a residential program. JFRMU established a review team led by a child-focused SME with proficiency in assessing conditions of confinement and residential programming. The team assessed FRC practices and policies, and conducted interviews with existing FRC management and direct care staff, as well as with FRC ICE/Enforcement and Removal Operations (ERO) staff, health care and mental health providers, and case management staff. These interviews allowed participants the opportunity to recommend improvements based on their experiences. The review team also sought to implement improvements to the standards that directly addressed feedback received from numerous private sector agencies and NGOs. The review team synthesized those findings and incorporated relevant changes into a second-edition FRS. The FRS continue to be improved based on best practices.
DHS notes that while the June 26, 2018, report issued by DHS OIG did make recommendations on how ICE could improve oversight over detention facilities, OIG did not specifically examine oversight of the FRCs as part of the report.
Despite the OIG report's limited relevance to this situation, however, DHS notes that ICE has already taken several steps to address the recommendations set forth by OIG in the June 26, 2018 report. For instance, ICE has requested that OIG consider recommendation three, which addressed the development of a follow-up inspection process, resolved and closed due to progress made by ICE towards achieving this goal. In FY 2018, ICE Office of Detention and Oversight (ODO) conducted two follow-up inspections focused on areas where deficiencies were previously identified. And although not eliminating advanced notice for inspections because unannounced inspections would disrupt facility operations and the pre-inspection documentation review, ODO has decreased the amount of advanced notice provided to facilities in preparation for an ODO inspection. Furthermore, ICE has continued to make progress addressing the other four recommendations.
The second recommendation regarded reinstatement of and documentation for a quality assurance program for contracted inspections of detention facilities, and in October 2018, the ERO Detention Standards Compliance Unit created a Quality Assurance Team (QAT) to perform quality management over ICE's contract inspectors. Moving forward, one QAT staff member will accompany ICE contract inspectors during their annual facility inspections. The fifth recommendation regarded the development of protocols for ERO field offices to require facilities to implement corrective actions resulting from Detention Service Managers' identification of noncompliance with detention standards. The ERO Headquarters Detention Monitoring Unit (DMU) is continuing to work with field offices and unit staff enforce facility compliance to the ICE detention standards and to address deficiencies identified by the on-site Detention Services Manager and Detention Standards Compliance Officers.
More recent developments, specifically the release of the Joint Explanatory Statement (JES) to the Consolidated Appropriations Act, 2019, Public Law 116-6, have affected ICE's efforts to address certain
ICE's existing commitment to seriously considering OIG's recommendations regarding detention facilities and instituting them as appropriate will not change as a result of this final rule.
DHS disagrees with the commenters' assertions that reports from CRCL inspections have undermined the results of third-party auditor inspection reports. DHS responds to the allegations raised by commenters about the July 17, 2018, correspondence from Dr. Scott Allen and Dr. Pamela McPherson elsewhere in this document but notes that the correspondence from these two CRCL contractors does not reflect the complete posture of CRCL inspection reports. In particular, many of the broad negative assessments raised in the contractors' correspondence are inconsistent with formal findings they provided to ICE in CRCL's Expert Reports. More importantly, however, DHS notes that nothing in this rule will negatively affect the frequency or manner in which CRCL conducts FRC inspections.
With respect to concerns raised about the use of specific third-party contractors the Nakamoto Group and Danya, DHS notes that all contractors used to conduct inspections of FRCs are required to have child welfare experience, a requirement that will not change as a result of this rulemaking. DHS declines to identify the names of particular contractors that DHS will employ to conduct compliance inspections through this rulemaking. DHS complies with Federal contracting law and cannot pre-determine which contractors to employ via this rulemaking.
In response to concerns raised by the commenters about transparency and accountability in the proposed FRC inspection process, the final rule includes a provision requiring the results of third-party audits to be posted publicly. Since May 2018, ICE has publicly posted the results of all facility inspection reports submitted by third-party contractors within 60 days of inspection.
For commenters' concerns about past failures to inspect facilities, please see the discussion in Section C. Other Comments Received, DHS Track Record with Detention.
One commenter stated that under the FSA, the Center for Human Rights and Constitutional Law must still be allowed to inspect every child detention site and to interview and evaluate the children.
Another commenter suggested that ICE and ORR consider issuing guidance to contractors, non-profits, and faith-based organizations that are tasked with assisting the Federal Government in the care or education of immigrant youth. The commenter also recommended the creation of a Blue Ribbon Panel to Assist with Creation of a new Federal Standard for dealing with asylum seekers. The commenter specifically suggested that ICE request the National Institute of Child Health and Human Development (NICHD) to establish such a panel to review standards for detaining family units and UACs.
Existing family residential standards were created with a view to care for vulnerable populations such as minors. DHS is currently working on updating these standards to implement further improvements at FRCs. For this reason, DHS declines to adopt commenter's suggestions to establish additional panels for this purpose.
Multiple commenters stated that the myriad of licensing challenges that have faced detention facilities demonstrate the importance of the state licensing requirement and the crucial role that licensing and monitoring can play in guarding against and identifying inappropriate conditions for children. The commenters cited, as an example, the closing of the T. Don Hutto Center in Texas after three years of operation due to lawsuits related to the center's poor conditions. The commenters also cited a 2016 revocation of a state child care license for the Berks County Residential Center contending that it demonstrated DHS's disregard for child care licensure standards and regulations. As a final example, the commenters stated that in late 2015, the Texas Department of Family Protective Services introduced a regulation called the “FRC rule” that would allow the Dilley detention center to detain children while exempt from statewide health and safety standards but that, in June 2016, a judge ruled that such an exemption could put children at risk of abuse, particularly due to shared sleeping spaces with non-related adults, a decision the commenter stated was upheld by a Federal judge in December 2016.
Regarding the Berks FRC, this facility has been licensed since December 1, 1999, as a Child Residential and Day Treatment Facility under 55 Pa. Code 3800. The facility has been used to house family units since 2001 and the State has been regularly subjecting the facility to inspections since that time. The license was renewed every year until October 22, 2015, when the Pennsylvania Department of Human Services sent a letter stating that the agency was unaware that Berks housed families and that the license for the facility would not be renewed unless it turned into a children-only facility. However, on November 9, 2015, a new license was issued for the 2016-2017 operating period. The licensing matter has been in active litigation since that time, but a state court has temporarily reinstated the license of this facility pending litigation.
In Texas, an appeals court reinstated the regulation that codifies licensing for FRCs.
Several commenters also wrote that the Federal Government lacks the authority to license facilities for children because ensuring child welfare is a police power reserved to the States. The commenters stated that, as a result of this responsibility, States have the licensing and child welfare infrastructure to care for the health and well-being of children in its custody.
Several commenters also stated that the proposed Federal licensing process fails to comply with the requirements of Executive Order 13132, which requires consultation with the states and a federalism impact statement when a proposed rule raises significant federalism concerns, which the commenters state this rule raises.
DHS has the sole legal authority to detain aliens for violations of immigration law; States do not. For this reason, the existence or non-existence of licensure in the States does not inform whether DHS can detain families who are in removal proceedings under Federal immigration law. DHS does not believe this rule raises significant federalism concerns under Executive Order 13132 because enforcing immigration laws falls within the sole purview of the Federal Government.
Many commenters stated that holding children in facilities that are not licensed by state child welfare agencies is inhumane, dangerous, or unethical. Some commenters stated that there is no assurance of quality standards when the entity being licensed is setting the licensing standards and monitoring compliance with those standards and that there must be review or oversight by another entity. One commenter noted that the courts have already rejected DHS-licensed facilities and held that children who are not released should be housed in state-licensed facilities. Another commenter urged DHS to specify clear criteria for third party audits to ensure that any third party auditors are qualified to oversee
Several commenters argued that DHS and HHS' track record for meeting state-licensing requirements heightened concerns that a self-licensing regime would not afford sufficient protection or oversight for children. A few commenters stated that self-inspections by DHS and its contractors are much weaker, and do not provide materially identical assurances about the conditions or protections that the FSA provides. One commenter pointed to its experience with the Pennsylvania facilities contracted to provide services to DHS, which had its license revoked by the State of Pennsylvania, and in the commenter's opinion reinforces the need for state licensing standards.
Several commenters stated that the lack of licensed facilities is due to problems with the facilities themselves, not with state licensing regimes. This commenter stated that a Texas judge denied licenses to family detention facilities in Karnes and Dilley because the emergency rule under which those facilities sought licenses would eliminate the minimum child safety standards applicable to childcare facilities in Texas. The commenter stated that, without accountability standards, there is no way to ensure conditions of care imposed by the Federal Government in detention facilities will meet the current minimum standard for keeping children safe. Another commenter stated that the absence of a general family detention licensing procedure is not an unexplained policy gap but the effect of a determination that such detention is neither recommended nor typically done.
The QASP contains a Performance Requirements Summary (PRS) which communicates what the Federal Government intends to qualitatively inspect. The PRS is based on the American Correctional Association (ACA) Standards for Adult Local Detention and ICE 2011 Performance Based National Detention Standards (PBNDS). The PRS identifies performance standards groups into nine functional areas, and quality levels essential for successful performance of each requirement. ICE uses the PRS when conducting quality assurance surveillance and oversight to guide inspections and review processes.
ICE monitors the Service Provider's compliance with performance standards using a variety of methods. All facilities are subject to a full annual inspection. Additionally, ICE may conduct routine, follow-up, or unscheduled ad hoc inspections as necessary (for instance, as a result of unusual incidents or data reflected in routine monitoring). At FRCs, ICE maintains an on-site presence in order to conduct more frequent oversight. Inspections and monitoring may involve direct observation of facility conditions and operations, review of documentation, and/or interviews with facility personnel and detainees.
In addition to routine and unscheduled monitoring, financial-based incentives are another way ICE holds Service Providers accountable. Performance of services and compliance with standards is essential for the Service Provider to receive the full payment identified in formal agreements or contracts. For example, ICE may withhold or deduct funds for unsatisfactory performance by the Service Provider that is recorded or observed through site inspections, document review, interviews, or other feedback. A Service Provider's performance is rated as either acceptable, deficient, or at-risk. Based on this rating, ICE may implement financial adjustments or penalties. Financial deductions or withholdings may be a one-time event, or alternatively, may continue until the Service Provider has corrected the identified deficiency or made substantial progress toward correction.
In response to the commenter's concern about the status and availability of state licensure in Texas, DHS notes, as mentioned above, that an appeals court recently reinstated the regulation that codifies licensing for FRCs.
Finally, DHS notes that although family detention is not needed as often at the state level does not mean that family detention is inappropriate in the Federal immigration context, particularly in circumstances involving control of the borders where Congress has generally expressed a mandate for detention of aliens pending removal proceedings and pending removal pursuant to a final order.
Some commenters stated that because of the unique vulnerability of children and their high risk for trauma, trafficking, and violence, independent licensing standards for detention facilities are of the utmost importance. One commenter stated that DHS should not be allowed to self-license because ICE's Inspector General has found self-auditing methods are “troubling and
Relying on the alleged conflict of interest, several other commenters contended that the proposal would violate the FSA. For example, several commenters claimed that the licensing proposal would not comply with the FSA's requirements to place detained minors in the “least restrictive setting” and treat minors with “dignity, respect and special concern for their particular vulnerability.” Another commenter stated that the licensing proposal is inconsistent with the FSA because it weakens oversight over FRCs and does not provide a way to ensure that residential standards set by ICE are a safe replacement for state licensing standards.
Another commenter stated that the purpose of the FSA, as confirmed by the district court, is to provide “the essential protection of regular and comprehensive oversight by an independent child welfare agency,” which the commenter stated is absent from the proposed regulation.
DHS reiterates that it will seek state licensing where available. However, DHS disagrees with commenters that suggest DHS is unable to provide care for families due to perceived conflicts of interest in its alternative licensing proposal. DHS notes that the DHS has held families (at the Berks FRC) since 2001, long before courts extended the protection of the FSA to minors accompanied by their parents. In the ensuing decades, DHS has refined its standards to better accommodate the needs of family units.
DHS is statutorily authorized and indeed mandated in many circumstances to detain aliens pending their removal from the United States. Congress has long been aware of the existence of alien family units seeking entry into the United States, but Congress has never specified the method through which DHS's detention facilities must obtain licensure. Thus while commenters perceive the application of standards developed by DHS and other stakeholders as a conflict of interest, Congress has not determined that the creation or application of these standards constitute a conflict of interest.
Further, in advocating for state licensure as the only method of meeting the “licensed program” requirement of the FSA, commenters appear to presume that States face no conflict of interest when they license facilities for the services or care of dependent children. DHS has created detention standards for all other facilities in which it detains aliens, just as the Bureau of Prisons has also created standards for their own detention operations. DHS believes that the Federal Government is equally capable of overseeing compliance with its standards, standards which incorporate and in certain cases go beyond the minimum requirements of the FSA, without negatively impacting the care of minors in its custody due to perceived conflicts of interest. Relatedly, the very financial incentive that commenters contend would bias third-party examiners is the same financial incentive that DHS uses to achieve quality control. If DHS's own inspections (
Aliens subject to final orders of removal may generally remain detained for a reasonable period necessary to effectuate removal. For aliens detained pursuant to INA 241, 8 U.S.C. 1231, this includes a presumptively reasonable period of 180 days after a final order of removal has been issued, and thereafter, the alien must generally be released absent a significant likelihood of removal in the reasonably foreseeable future (in compliance with current law and regulation).
As Congress has recognized, detention is an important tool to ensure that proceedings are completed and that the immigration laws are enforced. EOIR data shows that of closed cases from January 1, 2013 through March 31, 2019 that started in an FRC, 43 percent of family units have received
Several commenters suggested that FRCs do not exist under state licenses because States feel they are inadequate to house both adults and children. Such commenters noted that state agencies typically license only facilities for the care of children who are dependent on the State, typically due to child abuse and/or neglect and the need to be removed from the care of a parent or parents. The commenters argued that if parents are fit and available, a state government would never seek to lock up a child with a parent.
In response to public comments, DHS is adding to the definition of licensed facility that DHS will make the results of audits publicly available. In addition the definition also now includes that audits will occur upon the opening of a facility and on a regular basis thereafter.
The NPRM proposed to define
Many commenters expressed the view that DHS and HHS disingenuously argued that they operate within a constant state of influx even while overall border crossings are 20 percent of what they were when that term was defined in the FSA and border staffing has increased by almost three times.
A few commenters stated that the 130-influx standard also does not account for the expansions and contractions of the number of UACs in custody at the border, which have fluctuated by tens of thousands of juveniles every year since the peak in 2014. They contended that the variable number requires a more flexible influx baseline.
Some commenters objected to the proposed definition of influx on the basis that it enables each agency to excuse noncompliance even where it is not itself experiencing influx conditions. Commenters stated that DHS conceded in the NPRM that it has been dealing with an influx of minors for years. The commenters claimed that as a result, even where HHS may not satisfy its own “influx” criteria, it may rely on DHS “influx” conditions because the definition allows HHS criteria to be met “under . . . corresponding provisions of DHS regulations.”
One commenter recommended that the agencies include a third alternative criterion for designation of influx conditions to track the meaning of influx in the INA. The INA recognizes the threat posed to national security where the Secretary of Homeland Security “determines that an actual or imminent influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate federal response. . . .” 8 U.S.C. 1103(a)(10). The commenter urged the agencies to consider a regulation that would define “urgent circumstances” to include the release without bond of a significant percentage of such minors, with or without a parent or legal guardian, near to the relevant Coast Guard or Border Patrol sector. The commenter ultimately proposed that influx conditions could exist when some combination of three criteria were present—the legacy FSA criterion of 130 minors, an alternative criterion that takes into account the problems created by lack of resources other than bed space, and a third criterion that aligns influx designations for minors with designations of influx conditions applicable to humanitarian entry in general. The commenter contended that such a standard would provide flexibility to respond to migrant crises that involve minor aliens in unpredictably dangerous ways.
One commenter maintained that, because the proposed rule changes the word “program” to “facility,” it could permit lengthier detention by a determination that there is an influx when more than 130 children are eligible for placement in any of the program's facilities even if the program has the capacity to provide placement resources for well over 130 children. The commenter viewed the proposed definition of influx as placing less focus on the needs of children than on the proposed facilities to detain them.
Some commenters were concerned that the proposed definition of influx lifts the requirement that UACs be transferred from DHS to HHS custody within three to five days and allows for broad exemptions to existing child protections that could impact basic needs, such as the provision of snacks and meals to children in custody. The commenters stated the rule should be changed to clarify that any such exemptions must be limited in scope and ensure that the fundamental needs of children are met in a timely manner.
DHS believes that the FSA's definition of influx is still relevant to today's operations. Indeed, it is obvious that DHS has been in a state of influx, and has been for some period of time. As further explained in the proposed rule, the main implication of the threshold for an influx is that in general, under the FSA, DHS is required to transfer non-UAC minors to licensed facilities “as expeditiously as possible” rather than within either a 3- or 5-day timeframe. This makes sense given the need for DHS to have additional flexibility when it is dealing with anything other than a very small and manageable number of minors in its custody. Given that DHS is currently operating under an influx pursuant to the FSA, DHS currently moves to transfer all minors into licensed facilities as expeditiously as possible. CBP facilities are, as recognized by Congress in the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), intended to be short-term detention facilities, generally designed to hold individuals for 72 hours or less, during the duration of their immigration processing.
DHS reiterates that the transfer time frames for the transfer of UACs from DHS to HHS are now governed by the TVPRA, rather than the timelines included in the FSA. The TVPRA requires DHS to transfer UACs to HHS within 72 hours of determining that an alien is a UAC, absent exceptional circumstances. This statute overrides any different period set out in the FSA.
As for the assertion that the proposed definition of influx could excuse non-compliance by one agency due to an influx facing the other, DHS notes that the definition as provided in the FSA does not establish the existence of an influx vis-à-vis each agency involved in the implementation of its terms. The 130 threshold in the FSA is the number of “minors eligible for placement in a licensed program . . . including those who have been so placed or are awaiting such placement.” FSA paragraph 12(B).
DHS disagrees with commenters' contention that changing the term “licensed program” to “licensed facility” has any impact on the understanding of what constitutes an influx. Changing the term from “program” to “facility” does not affect the requirement to transfer minors as expeditiously as possible during an influx. As previously stated, the definition of influx as proposed is designed to implement the terms of the FSA while accounting for current operations of the Agency and the TVPRA.
DHS declines to change its proposed definition of influx in response to public comments.
Non-Secure Facility is not defined in the FSA, other than to say that “homes and facilities operated by licensed programs, including facilities for special needs minors, shall be non-secure as required under state law.” FSA paragraph 6. DHS proposed to define a non-secure facility as a facility that meets the applicable State or locality's definition of non-secure. If a State does not define “non-secure,” then a DHS facility shall be deemed non-secure if egress from a portion of the facility's building is not prohibited through internal locks within the building or exterior locks and egress from the facility's premises is not prohibited through secure fencing around the perimeter of the building.
One commenter suggested that the proposed definition should explicitly defer to the definition of non-secure “under state law,” in order to comply with the language of FSA paragraph 6.
Several commenters objected to the idea that the definition would allow a family detention center to be a non-secure facility, stating that they were opposed to holding children in jail-like settings. One commenter stated that the fact that family detention centers are patrolled by ICE officers, commonly surrounded by barbed wire fencing, and have locked points of ingress and egress, invalidates the definition of non-secure. Another commenter stated that an environment that contains locks and fences does not align with the FSA which, though it did not define non-secure, said that children should be in the least restrictive environment. Another commenter expressed concerned that there is no provision stating families can come and go as they desire, so families would be restricted in their movements or freedom.
DHS disagrees with the commenters' assertions that FRCs are “jail-like settings.” Factors identified by commenters that commenters feel make FRCs secure do more to prevent unwanted intrusions into FRC properties than they do to prevent individuals housed at FRCs from leaving the property. Protections such as fencing, staff monitoring, and locks on doors that lead to the outside are basic safety measures that are often a part of facilities that are responsible for the care
DHS agrees to amend the definition of
The definition of ORR is not defined in the FSA. DHS proposed to define ORR as the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement.
DHS received no requests to change the definition as proposed in the regulatory text.
DHS is not changing the definition of ORR in the final rule.
DHS proposed to codify in § 236.3(c) the FSA's reasonable person standard to determine whether a child is under or over the age of 18 and proposed adding that age determinations shall be based on the “totality of the evidence and circumstances.” At times, making age determinations could include medical or dental examinations.
Commenters generally expressed concern about how the proposed changes incorporate the FSA's reasonable person standard and standards regarding medical and dental examinations. They also questioned whether the proposed procedures are consistent with the TVPRA's requirement to rely on multiple forms of evidence for determining whether an alien is under or over the age of 18. Commenters expressed concern about a lack of sufficient guidance informing the totality of the evidence and circumstances threshold and an apparent lack of an appeals process for challenging incorrect age determinations.
Multiple commenters expressed concern that the proposed procedures place inappropriate weight on medical tests to determine whether children are younger than or older than 18 years of age. The commenters stated that the proposed procedures do not match FSA or TVPRA requirements for considering medical tests and are inconsistent with agency practice. For example, the commenters stated that the proposed procedures fail to indicate that medical tests cannot serve as the sole basis for age determinations, limit medical testing to bone and dental radiographs, and to account for evidence demonstrating the unreliability of medical tests to make accurate age determinations. One commenter expressed concern about the lack of specificity governing when medical and dental examinations will be used, the absence of guidance regarding who will make the age determination, and the level of training or expertise required to conduct such examinations and determinations. Some commenters stated that medical and dental examinations have been used abusively by DHS in the past.
Multiple commenters recommended that age determination procedures be used as a last resort, that age determination findings be shared with the child in writing and in a language he/she understands, that the findings be subject to appeal, and that age determination procedures be conducted by an independent, multidisciplinary team of medical and mental health professionals, social workers, and legal counsel. The commenters also recommended that children have the right to refuse a procedure which subjects them to medical risks, pursuant to the international norm of what is in the best interest(s) of the child as well as medical ethical principles of patient autonomy.
Another commenter expressed support for DHS and HHS personnel maintaining the flexibility to use multiple methods for age determinations. The commenter stated that the proposed standards and thresholds are mandated for jurisdictional as well as medical reasons, because ORR does not have
Many commentators expressed concern that the rule promotes the discriminatory and xenophobic treatment of immigrant people based on their race, ethnicity, and national origin. Multiple commenters noted that differences in race, ethnicity, gender, nutritional standards, and poverty impact perceptions of age and may negatively influence the age determination process leading to inaccurate age determinations. For example, one commenter cited articles concluding that the age of young people is often overestimated and exacerbated when there are differences in race. This commenter expressed concern that this would have disproportionate effects on certain indigenous populations. Another commenter cited a study indicating that “black felony suspects were seen as 4.53 years older than they actually were.”
Multiple commenters expressed concern about the lack of age determination appeal procedures. One of the commenters stated that the lack of an appeal mechanism compounds the possibility of arbitrary or baseless assessments, with serious consequences for minors in terms of their placement in and release from detention. Another commenter asked what remedy exists for a child falsely categorized as an adult and what repercussion a government official would face if he/she negligently or intentionally categorizes a child as an adult under this regulation. Another commenter stated that the ability to continually redetermine a child's age, as permitted under the proposed procedures, puts children at risk of losing critical and necessary substantive and procedural protections.
One commenter suggested that providing a presumption of minor status when there is doubt, considering only reliable evidence, and providing an appeals process would ensure fewer children find themselves incorrectly designated as adults. Another commenter suggested placing individuals in HHS custody, not DHS custody, during the age determination process.
Finally, one commenter expressed general concern about DHS and HHS using different language within the proposed regulations that may lead to disparate processes for determining age. The commenter stated that the proposed HHS language does not discuss the reasonable person standard, does not include a specific evidentiary standard through which to assess multiple forms of evidence, does discuss the non-exclusive use of radiographs where the DHS language does not mention radiographs as an option, and does not require a medical professional to administer the radiographs. The commenter suggested that DHS and HHS propose specific and identical language regarding age determination procedures and requirements.
DHS also disagrees with commenters that the text of this rule does not adhere to the FSA. First, FSA paragraph 13 states that aliens may be required to submit to a medical or dental examination or “other appropriate procedures” to verify his or her age. Second, despite commenters' concerns about the use of radiographs, this method of age determination is specifically authorized by Congress as one form of evidence in the multiple forms of evidence to support a determination of age; DHS lacks the authority to amend the TVPRA that codified this practice.
Commenters who proposed that age determination findings be shared with the child in writing, be subject to appeal, and be made by a multidisciplinary team of third parties fail to appreciate the operational necessity of determining an individual's age as quickly as possible. If CBP encounters an individual at a port of entry who claims to be a minor, and has no accompanying parent or legal guardian, CBP must immediately determine the age of the individual, and accordingly whether the individual is a UAC, because DHS must transfer UACs to HHS custody within 72 hours of determining that a juvenile is a UAC. The volume of apprehensions and encounters at the border has increased so significantly in recent months that instituting appeal procedures and assessments by third-party committees could unnecessarily delay the UAC from receiving the services that he or she is otherwise provided under the law. Additionally, while commenters were concerned that the rule does not provide for an individual to decline the medical or dental examination for the purposes of age determinations, the TVPRA authorizes requiring such examinations. DHS also believes that the type of medical and dental examinations conducted for the purpose of age determination are not so invasive as to present significant medical risks such that an individual would want to decline the examination, particularly if the results of the examination can help demonstrate that the individual is a minor where other evidence would suggest the individual is an adult.
DHS disagrees with commenters that the “totality of the evidence and circumstances” standard conflicts with the TVPRA's “multiple forms of evidence” requirement. DHS drafted the text of proposed 8 CFR 236.3(c)(1) specifically referencing 8 U.S.C. 1232(b)(4) to ensure that multiple forms of evidence were used in considering the totality of the evidence and circumstances. DHS declines to codify more specific processes for age determinations given the need for
Further, DHS notes that medical and dental examinations used in conjunction with the FSA's reasonable person standard are designed to protect against a situation in which a purported minor, who is in fact an adult, is placed in a facility with minors simply because he/she claims to be a minor. One commenter asserted that it is more dangerous for a minor to be detained with adults than to have an individual who claims to be a minor, but is not, detained with other minors. This commenter failed to appreciate, however, that the individual who claims to be a minor, but is not, is in fact, an adult. Similar to the commenter's initial concern, DHS strives to avoid situations in which an adult is unintentionally detained with minors simply because the adult claimed to be a minor because such situations may present danger to the minors. DHS also notes that the reasonable person standard coupled with the ability to conduct medical and dental examinations or other appropriate procedures is intended to defend against the effect of variables such as race, ethnicity, gender, etc., which could otherwise negatively impact an age determination. DHS strives to make the most accurate age determination possible, and may require various forms of evidence in order to make a valid assessment.
DHS declines to amend the proposed regulatory text regarding procedures for age determination in response to public comments.
DHS proposed to determine whether an alien is an UAC at the time of encounter or apprehension by an immigration officer and to allow immigration officers to re-evaluate a child's UAC status at each encounter consistent with the statutory definition of a UAC. Once the alien has reached the age of 18, has obtained lawful immigration status, or has a parent or legal guardian in the United States available to provide care and physical custody to the alien, the alien is no longer a UAC. When an alien minor is no longer a UAC, relevant ORR and ICE procedures shall apply.
The commenters provided examples of the proposed provision undermining specific protections afforded by the TVPRA. Numerous commenters noted that the TVPRA provides UACs with a non-adversarial determination of their initial asylum claim at the USCIS Asylum Office, whereas the proposed provision would force children reuniting with their parent or turning 18 to immediately testify before an immigration judge in a more adversarial setting.
Another commenter stated that the one-year exemption given to UACs to file asylum claims is particularly important because it accommodates the needs and vulnerabilities of children fleeing persecution, who often require time before they feel comfortable confiding with the professionals preparing their legal cases.
Another commenter stated that the TVPRA requires HHS to make counsel available to UACs to the greatest extent practicable, including the appointment of counsel at government expense, where necessary, for all immigration processes and proceedings. The commenter suggested that UAC status should remain valid until the UAC's case concludes to ensure access to the resources needed to navigate the court system.
The commenters challenged the rationale for the proposed provision, stating that the act of reunifying with a parent or legal guardian or turning 18 does not eliminate the trauma and persecution a child may have experienced in his/her country or diminish the child's vulnerability in the U.S. immigration system. Nor do either of these conditions lead to the automatic joinder of the child's case with that of the adult. And the commenters contended that UACs often have a need for the protections and specialized services that UAC status affords them even after reaching age 18 or being reunited with a parent or legal guardian. One commenter cited the findings of “Children on the Run,” a report issued by the United Nations High Commissioner for Refugees (UNHCR) that found that the majority of children from the Northern Triangle countries and Mexico needed protection under international law.
The commenters expressed concerns over due process and administrative costs and delays related to changing UAC status mid-stream. One commenter contended that the screening of UACs by child welfare professionals for protection needs and by legal service providers for eligibility for legal relief, facilitates efficient filings and adjudications. According to that commenter, stripping children of the UAC-related protections would create and compound burdens on the system and the child.
Another commenter predicted a rush to file claims before a change in the child's status occurs, resulting in less comprehensive and well-prepared filings. The commenter stated that the proposed provision duplicates the labor of Federal agencies, as claims first filed with USCIS may be shifted to the caseload of EOIR.
Still another commenter stated that UAC's immigration proceedings can take several years to conclude, and if a minor reaches 18 in that time, this will create logistical burdens for the EOIR and DHS as cases currently in process will suddenly need to be handled differently.
Some commenters complained that § 236.3(d) lacks guidance on the methods immigration officers would use to make determinations at each encounter, thereby heightening the potential for arbitrary and capricious decision-making. They also thought the rule should address the consequences of erroneous re-determinations.
One commenter stated that § 236.3(d) raises due process, economic, and judicial resource concerns and DHS should withdraw the proposal.
DHS believes the proposal for immigration officers to make UAC determinations at each encounter will ensure greater fidelity to the laws affording special legal protections to UACs, including USCIS' initial jurisdiction over any asylum application filed by a UAC, by limiting treatment of individuals as UACs to those who are, in fact, UACs. Ensuring the correct classification and treatment of individuals as either a UAC or not for jurisdictional and other purposes is, by definition, consistent with and reinforcing of the effective administration of judicial (and other) resources. Although in some instances the proposal may result in DHS expending additional resources to make more UAC determinations and may lead to more asylum claims being initially heard in immigration proceedings before EOIR rather than adjudicated by an asylum officer, there may also be instances wherein UAC redeterminations conserve resources by vesting jurisdiction with the proper entity at an earlier juncture. Whether resources are ultimately conserved or not will depend on the specific facts of the case at hand. Additionally, the TVPRA, 8 U.S.C. 1232(c)(5), does not require that counsel be provided at government expense to UACs. Rather, HHS is encouraged to use pro bono services, and the statute specifically says that counsel is at no expense to the government.
This final rule adopts the language of the proposed rule without change.
DHS proposed that if there is an influx or emergency, DHS would transfer a minor who is not a UAC and who does not meet the criteria for secure detention to a licensed facility as expeditiously as possible. The proposed rule also stated that DHS will abide by written guidance detailing all reasonable efforts that it takes to transfer non-UACs. The proposed provisions would make “as expeditiously as possible” a default for all transfers of non-UACs in an influx or emergency. The proposed provisions also made it clear that if an influx or emergency ceases to exist, the associated timelines for non-UAC minors would continue to apply.
One commenter objected that the ORR regulation does not clearly identify specific behaviors or offenses that allow placement of a juvenile in a secure facility. The commenter further contended that the broad and non-specific list provided is not clear enough for children to understand and thus fails to put them on notice of the rules that may result in their being detained in a jail-like setting.
One commenter stated that the entire transfer section does not speak to a minor who is not a UAC being transported to a facility that is an FRC or being held with their family. The commenter believes this could potentially create situations where children are separated from their parents, contrary to the intent of the FSA. The commenter is also concerned that future guidance about transportation requirements may not align with the FSA after the FSA is terminated. Another commenter stated that the proposal excludes transfers between DHS facilities of minors who are subject to secure detention, which means that they will not be transferred to a licensed facility in case of an emergency or influx nor transferred within the required time frame under the FSA.
One commenter stated that the proposed rule is an attempt to undermine DHS's obligations to quickly transfer children out of inappropriate facilities and to provide children with care within a licensed facility. The commenter opined that not transferring the children into licensed facilities quickly would impede the children's ability to meet with counsel, have privacy and liberty rights, be educated, have access to social services, and protect their due process rights. In this commenter's estimation, this would lead to increased likelihood of abuse and violations of children's human rights as protected under domestic and international law.
Another commenter stated that this section will result in the disparate treatment between accompanied minors and UACs. This commenter stated that the perceived disparate treatment is contrary to the FSA and not mandated by Federal law and will, therefore, prevent the termination of the FSA if left in the final rule.
In response to one commenter's statement that this provision does not speak to FRCs, and another commenter's statement that it fails to address secure facilities, DHS notes that the NPRM specifically stated that licensed facilities must be non-secure and that “the only non-secure facilities in which ICE detains minors who are not UACs are the FRCs.”
DHS notes that one commenter expressed concern about disparate treatment between accompanied minors and UACs. As noted in the NPRM, UAC transfer requirements are specifically governed by the TVPRA, whereas this provision codifies transfer requirements of non-UAC minors pursuant to
The Department is finalizing this section as proposed with no changes.
The standards contained in the proposed rule would require DHS to transfer UACs apprehended by DHS to ORR for care, custody, and placement. DHS would notify ORR of the apprehension within 48 hours and, transfer custody within 72 hours of determining that the juvenile is a UAC, absent exceptional circumstances. The proposed regulation recommended procedures for such transfer. For example, the proposed rule required that UACs only be transferred with an unrelated detained adult during initial encounter or apprehension to a DHS facility, or if separate transportation is impractical or unavailable. The proposal also provided that requirements consistent with TVPRA would govern the processing and transfer of UACs.
Other commenters also took issue with the use of the word “unavailable” and “impractical.” One of these commenters did not agree with the government's characterization that “unavailable” is added for clarification. This commenter contended that statutory construction says that every word should be considered, and none ignored; therefore, the addition of the word “unavailable” is neither supplemental nor clarifying and does not comply with the FSA. Another commenter was concerned that this provision would allow DHS to transport UACs with unrelated adults due to poor planning by DHS causing vehicles to be unavailable and placing vulnerable children at risk of harm. This commenter also took issue with the use of the term “DHS facility” as a place to which transportation with unrelated adults can take place, which could encompass facilities much farther away than Border Patrol stations and ports of entry near the site of apprehension.
DHS notes that there may be situations in which separate transportation for UACs and unrelated adults is unavailable or impractical. For instance, in situations in which CBP apprehends a large group of aliens in a remote location, it would be impractical to transport any UACs in that group separately from unrelated adults in separate vehicles. To do so would cause a significant delay in transporting all of the aliens to the nearest DHS facility for processing and all appropriate amenities (
Additionally, as the proposed regulation notes, where separate transportation is impractical or unavailable, DHS is committed to ensuring that necessary precautions will be taken to ensure the UAC's safety, security, and well-being. One of these precautions is ensuring that when a UAC is transported with any unrelated detained adult, DHS will separate the UAC from the unrelated adult(s) to the extent “operationally feasible.” In this context, “operationally feasible” can be described as mitigating all risk factors associated with transporting UACs with unrelated adults to the extent that the benefit of doing so favors the UAC, other aliens, and DHS. For instance, UACs may be separated from unrelated adults by either a separate passenger compartment or an empty row of seats.
With respect to the commenters who were concerned about the addition of the term “or unavailable” to the conditions of transfer standard, DHS reiterates that it considers the term “unavailable” to be clarification only and not a substantive change to the current standard set forth in paragraph 25 of the FSA.
A commenter also took issue with the term “DHS facility,” but this language is consistent with paragraph 25A of the FSA, which states that “unaccompanied minors arrested or taken into custody by the INS should not be transported by the INS in vehicles with detained adults except when being transported from the place of arrest or apprehension to an INS office.” DHS believes that the term “DHS facility” is equivalent to “INS office” after the reorganization under the HSA. As described above, there are occasions where it is impractical to transport UACs without unrelated adults. For instance, if DHS encounters a large group of aliens in a remote area, it is in the best interest of both the aliens and DHS to transport the aliens for humanitarian reasons to the nearest DHS facility for processing and assessment. This provision is not intended to permit DHS to transport UACs beyond the minimum distance required to accomplish the operational necessity.
DHS disagrees with the assertion that the proposed rule includes exceptions to the 72-hour timeframe that are inconsistent with the TVPRA. Section 236.3(f)(3) states that “unless exceptional circumstances are present, DHS will transfer custody of a UAC as soon as practicable after receiving notification of an ORR placement, but no later than 72 hours after determining that the minor is a UAC.” This strictly conforms to the TVPRA.
In response to commenters' concerns about the operation of 8 U.S.C. 1232(a)(2), DHS is amending the proposed regulatory text in § 236.3(f)(1) to clarify that UACs from contiguous countries are be treated in accordance with the TVPRA; specifically, if a UAC from contiguous country is not permitted to withdraw his or her application for admission or if no determination can be made within 48 hours of apprehension, then the UAC will be immediately transferred to HHS.
Additionally, DHS is amending the proposed regulatory text in § 236.3(f)(4)(i) regarding conditions of transfer of UACs with unrelated adults. The revisions better reflect current operational practices and clarify that generally UACs will not be transported with unrelated detained adults. DHS has added the specific reference to unrelated “detained” adults, for clarity on this point.
The proposed rule would require DHS to issue a Notice of Rights (Form I-770) and Request for Disposition and Custodial Care. It would also require the Form I-770 to be provided, read, or explained to the minor or UAC in a language or manner that the minor or UAC understands. The proposed regulation would also provide that the minors or UACs who enter DHS custody would be able to make a telephone call to a parent or close friend. The proposal would also require that every minor who is not a UAC and is in DHS custody will be given a list of free legal service providers. Additionally, section 236.3(g)(2) provides custodial standards immediately following apprehension.
Some commenters found § 236.3(g)(1) problematic because it does not provide a timeframe for the processing of children immediately following apprehension. A commenter asserted that the use of “as expeditiously as possible” rather than a specific timeframe will result in the indefinite detention of children and violate the protections afforded children under the International Covenant on Civil and Political Rights (ICCPR) Article 9. The commenter also raised concerns about the requirement that a child must request a voluntary departure or withdraw their application for admission before they are informed about the possibility of administrative or judicial review. The commenter asserted that a child has “no practical mechanism to assert his or her rights under the ICCPR until after they are processed by DHS, yet the child can be detained for an indefinite period prior to processing.”
Another commenter objected to language in the proposed regulation stating that all minors or UACs who enter DHS custody will be issued Form I-770, as compared to the requirement that minors be issued the form upon apprehension. The commenter stated that apprehension at the border does not equate to being in DHS custody nor does it always prompt DHS custody. The commenter argued that notifying children of their rights at the earliest point of contact with DHS will ensure that all children will receive information that will benefit them thereafter and that DHS officers are reminded of their obligations when apprehending children.
One commenter claimed that the proposed regulation deviates from referenced paragraph 12(A) of the FSA by not requiring notification to minors of their rights, including the right to a bond redetermination hearing, if applicable, and that the Form I-770 does not include such notice.
With regard to the TVPRA, DHS currently screens all UACs from contiguous countries upon encounter and initial processing to determine whether such a UAC may be permitted to withdraw his or her application for admission. As stated in the NPRM, a UAC is provided with a Form I-770 Notice of Rights during this screening and initial processing. UACs from non-contiguous countries are not permitted to withdraw their application for admission under the TVPRA, but are nevertheless provided with a Form I-770 Notice of Rights.
DHS disagrees with the commenter that the proposed regulations violate Article 9 of the ICCPR. Detention under these regulations is in accordance with procedures established by law.
DHS notes that the notice is confusing is some respects, because 8 U.S.C. 1226(e) broadly prohibits judicial review of custody determinations both in bond hearings and via parole. A regulation (and a form) cannot vest Federal courts with jurisdiction. DHS accordingly will, in a future action,
Additionally, the commenter's statement that a child has “no practical mechanism to assert his or her rights under the ICCPR until after they are processed by DHS,” reflects a misunderstanding of Article 9 of the ICCPR. Article 9 does not grant an individual the right to contest the grounds for his or her detention before he or she is detained.
With respect to paragraph 12(A) of the FSA, DHS reiterates that all minors taken into DHS custody will be notified of rights, including a bond redetermination hearing where applicable. Section 236.3(g) of the final rule preserves the requirement of notification of rights using Form I-770, Notice of Rights and Request for Disposition. All minors who are not UACs who are transferred to or who remain in DHS custody in removal proceedings will be given a Notice of Right to Judicial Review, which notifies the minor of the right to seek judicial review in appropriate circumstances. In addition, DHS serves all aliens, including minors, with a custody determination form that indicates whether they have the right to seek a bond redetermination. These actions are consistent with the requirements of FSA paragraphs 12(A) and 24(A).
One commenter cited research and experience with family detention centers in the U.S. that shows that access to quality medical, dental and mental health care is limited for detainees. Specifically, the commenter contended that preventative care and mental health services are often lacking, and most detention centers relied on expensive emergency room visits to provide medical care, often after delay, increasing the detainees' severity of illness. The commenter also stated that the Infectious Disease Society of America has already found outbreaks of chicken pox, scabies and other infections among detainees, and that detention facilities are lacking in practices of hygiene and infection control, leading to conditions that will fuel the spread of infections.
One commenter also pointed out that contact with family members arrested at the same time should not be an issue because the family should all be housed together and this section should reflect the concept of family unity during apprehension and initial processing.
DHS also notes that CBP policies serve to implement these protections and go beyond the requirements of the FSA and these regulations. Specifically, CBP's policy states that all individuals who may require additional care or oversight while in custody, including minors and UACs, will be treated with dignity, respect, and special concern for their particular vulnerability. TEDS also addresses the provision of all amenities provided for by the FSA. For example, TEDS provides that minors and UACs in CBP custody have access to restrooms and appropriate toiletry items (
CBP also notes that it has recently taken several steps to enhance the provision of medical care to minors and UACs in its custody. Specifically, CBP currently provides medical screening and triage for all UACs and minors along the southwest border. Following a screening, any minor or UAC who requires emergency medical care is transferred to the hospital or other nearby medical facility for appropriate emergency treatment.
DHS declines to add “bedding” to the list of items provided by facilities, as that term does not appear and is not defined in the FSA. DHS notes, however, that generally CBP provides clean bedding to all minors and UACs,
DHS notes that CBP facilities are also subject to several areas of oversight to ensure compliance with CBP policy and with the FSA requirements. First, CBP's Juvenile Coordinator conducts regular visits to CBP facilities across the southwest border, both announced and unannounced, to monitor compliance with the FSA requirements and with CBP policy related to the treatment of minors and UACs in CBP custody (including, for instance, determining whether facilities are safe and sanitary and whether minors and UACs have access to adequate food and water). The Juvenile Coordinator also conducts reviews of juvenile custodial records as part of this monitoring roles. CBP also has Juvenile Coordinators in its field offices and sectors, who are responsible for managing all policies on the processing of juveniles within CBP facilities, coordinating within CBP and across DHS components to ensure the expeditious placement and transport of juveniles placed into removal proceedings by CBP, and informing CBP operational offices of any policy updates related to the processing of juveniles (
CBP's own Management Inspections Division (MID) also conducts visits to CBP facilities and monitors compliance with CBP's policies. Additionally, CBP is subject to regular oversight and inspection by CBP's Office of Professional Responsibility (OPR), DHS' Office of Inspector General, DHS' Office of Civil Rights and Civil Liberties, and the Government Accountability Office. Such inspection and oversight helps ensure that CBP facilities continue to meet the FSA requirements and remain safe and sanitary for minors and UACs.
Several commenters raised concerns that proposed language in 8 CFR 236.3(g) stating that children will be provided contact with family members only to the extent that it does not pose an “undue burden on agency operations” will weaken the protections against family separation and allow CBP to separate children from their families if the agency is merely inconvenienced. One commenter recommended that the rule should provide in § 236.3(g)(1) that every minor or UAC must receive assistance with contacting his or her parent, legal guardian, and/or counsel.
Another commenter objected to the provision that a child be provided contact with family members with whom the child was arrested “in consideration of the safety and well-being of the minor or UAC, and operational feasibility.” The commenter claimed the reference to “operational feasibility” is not found in the FSA, which requires facilities to provide “contact with family members who were arrested with the minor” without qualification.
DHS reiterates its reasoning from the NPRM that CBP provides contact between the minor or UAC and accompanying family members unless CBP is concerned about the safety of the minor or UAC or there is a legitimate law enforcement reason not to provide contact on a temporary basis. It is never a matter of inconvenience. The proposed rule is much more detailed than FSA paragraph 12(A), which requires that the juvenile be provided contact with family members with whom he or she was arrested, and consistent with both FSA paragraph 11 and other DHS regulations on the prevention of sexual abuse and assault in its facilities. This provision takes into account the safety of the minor or UAC, and acknowledges that there may be some limited situations in which providing contact may not be in the minor or UAC's best interests (
A few commenters stated that the provision allowing DHS to house UACs with unrelated adults for more than 24 hours based on emergencies or exigent circumstances is inappropriate and is contrary to 6 CFR 115.14(b), which prohibits the housing of children with adults unless the child is in the presence of an adult family member. And a different commenter took issue with the proposed rule's distinction between UACs and minors when it comes to housing UACs with unrelated adults for up to 24 hours because minors should also not have to be housed with unrelated adults for more than 24 hours.
Other commenters focused on the term “operationally feasible” for purposes of the requirement to separate children from unrelated adults. Some commenters argued that the failure to define the term rendered the regulation unconstitutionally vague. One commenter requested that DHS and HHS clarify the percent of time they expect it will be operationally feasible to successfully transport and hold UACs separately from unrelated adults. The commenter asked whether DHS and HHS intend to rescind this policy and make it compliant with the FSA if they find that UACs are not held and transported separately from unrelated adults in most cases.
Another commenter asserted that DHS could dispense with contact with family members to accommodate “operational concerns” at a time when children need their family to insulate them from trauma and provide them comfort.
DHS provides examples in the regulations of when it may be necessary to hold UACs with unrelated adults for more than 24 hours, including during a weather-related disaster or if an outbreak of a communicable disease requires the temporary commingling of the detainee population. These examples confirm that any emergencies would address temporary and unforeseen dangers or public safety threats. DHS is unable to provide an exact length of time, beyond 24 hours, that it may be necessary to house a UAC with an unrelated adult, as the length of time will vary based on the particular emergency warranting such a situation. However, DHS will not house a UAC with an unrelated adult for any longer than is required based on the specific facts of the particular emergency. Moreover, even under emergency circumstances, appropriate consideration is given to age, mental condition, physical condition, and other factors when placing UACs into space with unrelated adults.
Concerns about recognizing an exception to the 24-hour limit in an “emergency” are unfounded. The exceptions would only apply to the extent consistent with the existing DHS regulations on the prevention of sexual abuse and assault in DHS facilities at 6 CFR 115.14(b) and 115.114(b).
Similarly, the commenter's concerns about distinguishing between UACs and minors for this requirement is misplaced because the FSA's provision on the amount of time UACs can be housed with an unrelated adult applies only to unaccompanied
DHS also disagrees with commenters' concerns about the term “operationally feasible” because that term does not appear in the proposed regulatory text concerning the amount of time a UAC can be housed with an unrelated adult. This term is addressed above, in the discussion of providing contact between minors and UACs and family members with whom they were apprehended. And the proposed DHS regulatory text at § 236.3(f) contains a prohibition on transportation of UACs with unrelated adults in keeping with the FSA: A “UAC will not be transported with an unrelated detained adult(s) unless the UAC is being transported from the place of apprehension to a DHS facility or if separate transportation is otherwise impractical or unavailable.”
DHS is amending the proposed regulatory text to remove the language “exigent circumstances” in response to public comments. DHS is also amending the regulatory text to clarify that the Form I-770 will be provided, read, or explained to all minors and UACs in a language and manner that they understand.
DHS proposed to clarify that DHS may, pursuant to existing legal authorities, maintain and detain family units together in ICE custody. The proposal also provided that DHS would transfer family units to an FRC if DHS determined that detention of family units is required. The terms contained in the proposed rule set out and clarify requirements that must be met for a family to be detained together in an FRC.
With regard to the impact of family detention on family units, numerous commenters stated possible effects could include emotional distress, damage to family stability, the undermining of a parent's ability to appear as an authority figure and provide emotional support, and disruption of the parent/child bond, potentially leading to attachment issues. Several commenters also noted that, while they support the notion of family unity, they disagree with unity being created or maintained by family detention. Many commenters described the detention of family units as “inhumane,” “immoral,” “cruel,” or contrary to our country's values. One commenter stated that the detention of family units is rooted in a white nationalist agenda.
One commenter stated that parents who find themselves in this highly stressful situation are at risk of developing similar emotional problems, in addition to being less available and responsive to their children which, in turn, can interrupt the natural attachment between children and parents. One commenter, relying on such possible effects, stated that detention of innocent children should never occur in a civilized society, especially if there are less restrictive options, such as parole, because the risk of harm to children simply cannot be justified.
Several commenters relied on research in this area to support their comments. For example, one commenter cited to a body of research linking the trauma of childhood detention with adverse outcomes, and a collection of articles that discusses the harm done to children from the toxic levels of stress and disruption in normal development that are inherent in being detained in U.S. custody.
Another commenter cited research to show that 44 percent of asylum seekers in the United States were torture survivors, and that detention was likely to compound the trauma already experienced by these individuals. Several commenters noted that detention is likely to re-traumatize mothers and children fleeing gender-based violence. Some commenters cited to the DHS Advisory Committee on Family Residential Centers Report that recommended DHS not detain families. One commenter suggested changes to the last sentence of the provision, “If DHS determines that detention of a family unit is required by law, or is otherwise appropriate, the family unit may be transferred to an FRC which is a licensed facility and non-secure.” Specifically, the commenter suggested changing “may be” to “shall be.” The commenter suggested adding “as available” or “as reasonably possible” to address a lack of space in FRCs.
Many commenters expressed concern that detention of family units would lead to prolonged or indefinite detention. For further discussion of this topic, see section “Indefinite Detention due to Alternative Licensing.”
FRCs serve to encourage and strengthen family interaction and growth. Parents are expected to be responsible for their children and are encouraged to take an active role in their development. FRC staff counsel and mentor parents in appropriate non-physical behavior management techniques. Family units normally are assigned bedrooms together to further familial bonds. Centers provide age-appropriate play structures and recreational equipment for all residents. Mental health providers conduct weekly wellness checks on all juvenile residents. If additional treatment needs are identified during these checks, separate therapy sessions may also be established. Additionally, mental health providers are available to residents for adult counseling and family counseling needs. FRCs are not staffed by armed guards or uniformed ICE officers, rather they are staffed by facility counselors.
FRCs also provide liberal access to legal counsel and non-profit groups providing legal services. Interpreter services are available 24/7 via telephone. Private meetings rooms are available as is direct communication with the immigration courts.
FRCs also afford parents the ability to be parents; they exercise full parental rights. FRC staff do not make any decisions for the parents. If the parents do not want their children to participate in group activities, it is their choice. Similarly, if they do not want their children to be part of the individual or group mental health counseling sessions, it is the parent's choice. FRCs give parents and their children a chance to acclimate to the United States, get their bearings, find legal counsel, prepare their immigration cases, and in many cases be released after a finding of credible fear.
Medical issues at FRCs are managed by the ICE Health Service Corps (IHSC). The IHSC is responsible for providing direct care or oversight of care at FRCs to include medical, dental, and behavioral health care, and public health services. IHSC is made up of a multi-sector, multidisciplinary workforce of over 1,100 employees that include U.S. Public Health Service (PHS) Commissioned Corps officers, Federal civil servants, and contract health professionals. IHSC provides medical case management and oversight of detainees housed at non-IHSC staffed detention facilities and also oversees the management of off-site specialty and emergency care services for all detainees in ICE custody.
IHSC utilizes health care standards drawn from the American Correctional Association (ACA), the National Commission on Correctional Health Care (NCCHC), the ICE National Performance-Based Detention Standards (PBNDS), as well as the ICE Family Residential Standards to ensure that quality, culturally competent, and trauma-informed care is provided to detainees in ICE custody. These standards support IHSC's internal quality improvement program. Moreover, IHSC employs staffing models at its facilities tailored to the population and needs of the community under its care. IHSC's mandate to provide direct care for ICE detainees obligates IHSC to deliver individualized care that must be properly documented in medical records for the well-being of the detainees. IHSC takes seriously all allegations of inappropriate health care and investigates these allegations to remedy any identified deficiencies and ensure the integrity of the care it provides to ICE detainees.
With respect to the report of that the DHS Advisory Committee on Family Residential Centers, DHS notes that the report was issued by a committee of private citizens acting outside the scope of the committee's charter. The report states that any detention of families “should be only long enough to process a family for release into alternatives to detention.” But the report ignored DHS's legal authority to detain aliens in removal proceedings when legally required and when appropriate to ensure the alien presents himself for removal.
While DHS respects the views of the writers of the report, alternatives to detention (ATD) do not provide a means to effectively remove those who subject to a final removal order. For further discussion of this topic, see section on Alternatives to Detention.
Lastly, DHS does not concur with commenters' suggested changes to the text of the regulation. The word “may” in the proposed regulation accounts for the possibility that family units may be released at the time of encounter. The language in the regulation that states “as reasonably possible” also accounts for a lack of bedspace.
DHS declines to change the proposed regulatory text in response to public comments.
The Departments proposed that a minor who is not a UAC and not released by DHS, may be held in DHS custody where he/she is detained in the least restrictive setting appropriate to the minor's age and special needs. Additionally, the proposal would permit minors to be placed temporarily in a non-secure licensed facility until they are released.
Section 236.3(i)(1) proposed to require that a minor who is not a UAC be transferred to state or county juvenile detention facilities, a secure DHS detention facility, or a DHS-contracted facility having separate accommodations for minors if the minor meets certain criteria, including the minor is charged with, is chargeable with, or convicted of a crime or has been charged with, is chargeable with, is the subject of delinquency proceedings or has been adjudicated as delinquent, committing, or making credible threats to commit, a violent or malicious act while in custody or while in the presence of an immigration officer; engaging, while in a licensed facility, in certain conduct that is unacceptably disruptive of the normal functioning of the licensed facility; being an escape risk; or for the minor's own security.
Section 236.3(i)(2) proposed to require DHS to place a minor in a less restrictive alternative if such an alternative is available and appropriate in the circumstances, even if the provisions of § 236.3(i)(1) apply. Additionally, it would require that the secure facilities used by DHS to detain non-UAC minors shall also permit attorney-client visits pursuant to applicable facility rules and regulations.
Section 236.3(i)(3) proposed that, unless a detention in a secure facility is otherwise required, DHS facilities used for the detention of minors would be non-secure.
Section 236.3(i)(4) proposed that all non-secure facilities used for the detention of non-UAC minors abide by the standards for “licensed programs.” At a minimum, these standards must include, but are not limited to, proper physical care, including living accommodations, food, clothing, routine
Section 236.3(i)(5) would permit “licensed, non-secure facilities” to transfer temporary physical custody of minors prior to securing permission from the Government in the event of an emergency, provided that they notify the Government as soon as practicable, but in all cases within 8 hours.
One commenter stated that § 236.3(i)(4) omits several provisions that were standards in the FSA, including family reunification services; the prohibition of “corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping;” the development of a “comprehensive, realistic individual plan for the care of each minor,” coordinated through a case management system, which should be safeguarded to preserve and protect confidential records; and regular record keeping and reporting. The commenter acknowledged that these provisions are found in other parts of the proposed rule concerning children in HHS custody, but asserted that there is no reason for a distinction between “alien minors” and “UACs” when it comes to these issues.
DHS disagrees with the commenter that this regulation does not provide services in a manner that is sensitive to the age, culture, native language, and complex needs of each minor. DHS has put numerous programs in place since the FSA was signed to take into account such needs. For example, it can generally provide interpretation services 24 hours a day via telephone. Further, DHS abides by language access policies that comply with the Executive Order 13166,
DHS does not believe there is a need for advisals at FRCs regarding a minor's right to request voluntary departure in lieu of deportation. This is true because, DHS acknowledges parental rights for family units housed at FRCs and families are likely to make such decisions as a unit.
With respect to acculturation programs, DHS notes that the only difference between the FSA and the proposed language is that the FSA requires that the acculturation services contribute to the ability to “live independently and responsibly,” whereas the proposed language requires that the services would contribute to the abilities needed “as age appropriate.” After many years of experience, DHS has found that what a five-year-old needs to know about America is different from what teenager needs to know to successfully integrate into society.
DHS agrees to add the prohibitions in the FSA against corporal punishment, humiliation, mental abuse, and punitive interference with the daily functions of living, such as eating or sleeping to the regulation. DHS notes that these prohibitions have always been incorporated into personnel policies and contract vehicles with contractors who run ICE facilities. There are also mechanisms in place to monitor for such abuses. But DHS will add these provisions into the text of the regulation in response to commenters noting a lack of specific language addressing these issues in the proposed text. Such conduct is obviously inappropriate and has no place in any DHS facility.
Several commenters stated that there are not standards that limit the number
Several commenters commented that placing children in detention is inherently abusive, that children are at an increased risk of physical, verbal, mental, and sexual abuse in detention, and cited reports of sexual or physical abuse in detention facilities. One commenter referenced a guard at the Berks facility who was convicted of raping a woman in front of her three-year old son. One commenter referenced a ProPublica investigation that found patterns of abuse of immigrant children in Federal custody.
Regarding the commenter's reference to the incident at Berks, DHS followed the Prison Rape Elimination Act of 2003 (PREA) protocol and other applicable policies to appropriately address the situation. The guard involved was immediately terminated from his position and ultimately prosecuted for his crime. ICE fully cooperated with local law enforcement in all stages of the investigation and prosecution of the case. DHS strives to ensure that nothing remotely similar ever occurs in its facilities.
DHS notes that all ICE facilities, including FRCs, are subject to PREA regulations. DHS also has several policies on point and requires staff to participate in annual training related to PREA and sexual abuse and prevention initiatives.
Several commenters wrote that § 236.3(i) affords an inappropriate level of discretion to DHS and shelter staff in determining a minor's placement in a secure facility. The commenters stated that this section provides no clarity as to what would constitute an unacceptable level of disruption, how or on what basis staff will make the dangerousness determination, and which party will be responsible for making the determinations. One commenter recommended deleting provisions (i)(1)(i), (ii), (iv), and (v) as unacceptably broad and arbitrary language and noted that similar language included in the FSA has been interpreted by immigration officers to allow placement of a child in secure detention for minor matters such as shouting or smoking a cigarette. With respect to the language at (i)(1)(vi), the commenter recommended that the proposed rule add a separate provision that when a minor is at a demonstrated risk of harm from smugglers, traffickers, or others who might seek to victimize or otherwise engage him in criminal, harmful, or exploitative activity, the minor shall be placed in the least restrictive developmentally appropriate placement consistent with his safety and the safety of others. A few commenters stated that the rule must include a provision) for a periodic reassessment of a minor's placement in a secured facility at least every 30 days, as required by the TVPRA and a provision for independent review of a placement decision that satisfies due process requirements.
A few commenters wrote that studies show that LGBT youth face harsher penalties when engaging in the same behavior as their straight and cisgender counterparts, and that therefore the proposed rule's inclusion of “chargeable” offenses is more likely to subject LGBT youth to placement in secure facilities. One of the commenter also wrote that including “engagement in unacceptably disruptive behavior that interferes with the normal functioning” of the shelter as a chargeable offense will likely lead to placement of more LGBT in secured facilities, because studies have shown that in the juvenile justice context LGBT youth are more likely to face criminal consequences for engaging in consensual sexual activity than straight or cisgender youth, and also that such conduct may be considered “unacceptably disruptive behavior” in detention facilities. These commenters also wrote that the placement of more LGBT youth in restrictive settings would increase the vulnerability of those minors to abuse.
One commenter wrote that the proposed rule's omission of medium security facilities as an alternative detention facility is in violation of the FSA. The commenter noted that paragraph 23 of the FSA requires medium security facilities as one alternative in certain circumstances, but that the proposed rule states that because DHS only operates secure and non-secure facilities, a definition for medium security facilities is unnecessary. The commenter believed the proposed rule should be amended in order to implement the FSA's terms.
Other commenters argued for additional provisions that should have been included relating to the placement of children in restrictive settings. This included a proposal that in determining placement in a secure facility, threats from a juvenile be “credible
DHS also notes that the FSA did not define probable cause and neither did the proposed regulation, because this is a legal term of art that is already well-defined in case law and does not need to be defined in regulation. DHS also disagrees with one commenter's assertion that the secure placement provisions conflict with the TVPRA's requirements. Section 235(c)(2) of the TVPRA applies specifically to UACs, and does not apply to the minors in DHS custody who are not UACs.
One commenter brought up the possible disparity in treatment for LGBT youth. Specifically, this commenter presented data that LGBT youth are more likely to be charged with crimes because they are more likely to get into altercations due to their LGBT status. DHS takes all of this into consideration, and as stated above uses its discretion to ensure that no one is placed in secure facility that does not need to be in one. DHS believes that the proposed text rewording this provision actually lowers the chance for LGBT youth to be placed in secure facilities, rather than increasing it.
DHS declines to implement one commenter's suggestion that threats be “verified” in addition to “credible.” The language of the FSA permits detention in a secure facility for “credible threats.” Implementing an additional requirement that the threat be “verified” imposes a vague, unduly restrictive requirement upon DHS officers that is not otherwise required under the law and could ultimately place other minors at risk.
DHS disagrees with one commenter's assertion that FSA paragraph 23 requires the use of medium security facilities as part of DHS operations and that DHS is accordingly failing to implement the terms of the FSA by not using medium security facilities. The purpose of FSA paragraph 23 is to ensure that minors are not placed in a secure facility if less restrictive alternatives are available. Thus the paragraph, by its terms, does not require DHS to use medium security facilities for this purpose. DHS abides by the criteria of the FSA when determining whether a minor should be placed in a secure facility. Those requirements are codified in regulation through this final rule.
Numerous commenters raised concerns about reports of children suffering from subpar conditions and abusive treatment in detention centers. One commenter argued that existing facilities fail to comply with nutritional standards of the FSA and that families often do not have access to adequate food, water, or clothing. Some commenters asserted that the current detention centers fail to provide basic necessities, with children being unable to sleep from the lights shining all night, a lack of bedding, open toilets, being crammed into cages, icy temperatures and a lack of pediatricians, child and adolescent psychiatrists and pediatric nurses. Some of these commenters stated that constant illumination causes sleep deprivation, affects circadian rhythms, and causes loss of muscle strength and inflammation. One commenter reported that she had twice toured the Tornillo Port of Entry Shelter and witnessed young children suffering from separation anxiety and other negative mental and physical effects due to incarceration and separation from their families. Two DHS medical professionals who had inspected existing facilities reported instances of neglect of children caused by failure to assess or accommodate the nutritional and medical needs of child detainees, including an infant who lost a third of its body weight due to an untreated disease, children vaccinated with adult doses, and children not being visited by a pediatrician in a timely manner.
Several commenters objected to the proposed regulations on the ground that they would permit facilities to deny access to food, water or medical care in the event of an emergency. These commenters stated that emergency food and water should be readily available in advance of such emergencies and that the regulations should be amended to require provision for the basic needs of minors, regardless of whether there is an emergency. One commenter encouraged DHS to ensure that meals meet nutrition standards established by the U.S. Departments of Agriculture and Health and Human Services. The commenter said that breast-feeding infants should continue to have access to milk from
DHS reiterates that these standards in § 236.3(i)(4) apply to the non-secure, licensed facilities used for housing family units—FRCs. At least some of the comments, however, appear to describe conditions at CBP facilities, which aliens may pass through during initial processing when first encountered. These facilities are not required to abide by the same Exhibit 1 standards under the FSA, which § 236.3(i)(4) incorporates. For instance, CBP processing facilities are very different from ICE FRCs. They operate 24/7 and thus need to have lights on at all times. These CBP facilities may also have temporary holding areas that are divided up that help separate minors and UACs from unrelated adults for the safety and protection of the children. Regardless of facility type, all DHS facilities (including CBP and ICE facilities) will continue to abide by the applicable standards that are consistent with the FSA, which are substantively incorporated into these regulations. Additionally, as described above, all DHS facilities are subject to inspection and monitoring by bodies such as the DHS OIG, DHS CRCL, and the GAO. CBP also has various internal methods for monitoring compliance with requirements that derive from the FSA, including the requirement that agents and officers document the provision or availability of all those requirements, as well as monitoring and inspection by CBP's Juvenile Coordinator and CBP's MID and OPR.
Regarding the comments relating to specific allegations of mistreatment and neglect of individuals in DHS custody, without sufficiently detailed information DHS is unable to investigate or otherwise substantiate these claims. DHS takes all allegations of misconduct seriously, and all allegations are referred to the appropriate investigative entity (
Regarding comments related to emergencies, DHS notes that DHS facilities are equipped to provide bare essentials during emergencies; however, if evacuation is warranted during weather-related or other situations, it may become necessary to abandon everything and move minors and UACs to safety, which may include not providing them with a meal or snack at the designated time. The FSA does not speak to the issue of meals during emergencies. It only spoke to the ability to transfer children during an emergency. The proposed regulations speak to the same provisions during emergencies, recognizing that true emergencies are fluid and it is thus difficult to codify specific requirements in regulations in advance.
Regarding the comments about the use of psychotropic drugs, DHS notes that the news articles mentioned referred to allegations against HHS. HHS emphasizes that the primary mission and daily commitment of its UAC Program is to safeguard the health and wellbeing of children in our custody and care. HHS does not condone medicating a child for punitive reasons. All ORR staff and contractors engaged in the direct care of UACs are mandated reporters with the expectation that they will immediately seek to protect any UAC in our care from such harm and report to law enforcement and other appropriate authorities any allegation of abuse. Many UACs have endured extraordinarily challenging and traumatic childhood experiences that can manifest into mental illnesses—whether acute or chronic. In some cases, UACs are diagnosed and prescribed psychotropic medication by licensed psychiatrists. Furthermore, ORR only authorizes UACs to receive psychotropic medication to treat the specific diagnosis identified by licensed mental health professionals. In cases where ORR is able to locate and correspond with a UAC's parent or legal guardian, ORR informs the parent of the UAC's diagnosis, seeks their input on the course of treatment, and obtains their consent to administer medication. ORR care provider facilities are required to abide by state law. State law regulates the facility and mental health professionals' usage of psychotropic medication as well as the manner and reasons for administering the medication.
One commenter stated that the proposed regulations create an
Several commenters stated that while ICE detention facilities are legally required to act affirmatively to prevent disability discrimination, minors with disabilities in detention centers have not been consistently provided appropriate accommodations, specialized medical care necessary to treat minors with disabilities and chronic health problems is nonexistent, and other critical services such as physical, occupational, and speech therapy and other early interventions are not generally available. These commenters note that these minors are particularly vulnerable, particularly when separated from their parents they lose their primary caregivers who possess knowledge of their health problems and the care they need. One commenter noted that there are reports of children with disabilities being restrained or sent to psychiatric hospitals or secure facilities because of behavioral issues that they cannot control except with proper medical care.
One commenter wrote that long-term detention of alien children constitutes a serious risk for infection disease and that those coming from particular geographic regions or at-risk populations are more prone to serious, and highly infectious, diseases such as tuberculosis and pneumonia. This commenter wrote that a minimum standard of care in a detention setting requires administration of appropriate screening tests (including for tuberculosis, pneumonia, and sexually transmitted diseases), interpretation and patient follow up for at-risk individuals, and sufficient resources for separation or isolation of potentially infectious individuals.
In addition to these provisions, ICE has policies and regulations in place that protect individuals with disabilities and implement section 504 of the Rehabilitation Act of 1973. For example, 8 CFR part 15 prohibits discrimination against individuals with a disability, and requires that DHS facilities be accessible. In addition, specific policies prohibit discrimination and address how detainees with a disability may be provided with a reasonable accommodation. The Family Residential Standards require that minors have an Initial Education Assessment completed within three days of their arrival at the facility. Through this process, minors with learning disabilities are identified and provided with an Individual Education Program and access to special education services.
One commenter stated that the minors should be placed in public schools in order to obtain necessary health socialization with other children and adults and avoid becoming second class citizens. Other commenters cited reports to show that children succeed emotionally and academically when they live in a stable home with an adult they trust and learn in a normal, structured and supportive classroom and not when the children are kept in indefinite detention without adequate services and protections. Commenters also cited to a study of children in immigration detention facilities in Australia, the United Kingdom, and the United States that shows that children react to detention with extreme distress, fear, and helplessness, all of which can result in a deterioration of functioning and impair the ability to learn.
Commenters stated that the proposed rule provides no assurance that the detention facilities will comply with the FSA's minimum standards for educational services and that the proposed rule does not address how DHS and HHS specifically intend to provide educational services appropriate to the minor's level of development in a structured classroom setting, as required by the FSA. One commenter stated that the proposed standards eliminate the requirement to provide education in languages other than English and, as a result, fail to ensure the minors are instructed in a language they can understand. Some commenters noted that DHS has had problems staffing detention facilities with bilingual teachers to meet the necessary educational needs, including special education services. Other commenters asserted that in unlicensed “emergency” or “influx” facilities, the Departments may opt to provide no educational services at all.
It is unclear why commenters believe that this regulatory requirement would allow DHS not to provide educational services. The same requirements for a structured classroom setting are in both the FSA and the proposed regulation. There is no requirement in the FSA requiring the government to explain how it plans to provide the educational services. It has been doing so for 20 years and the regulations will mandate that it continue to do so.
A mental health professional wrote that adequate opportunities for play should be provided for young children separated from their parents because at that age all psychological issues, including grieving, are resolved primarily through play. According to the commenter, younger children will need opportunities to focus on grieving to allow them to focus on other tasks when needed, and that adolescent children need structured opportunities to gain a sense of control in their lives and information about their early history so as to avoid suicidal or antisocial tendencies.
A different commenter stated that providing daily activities for minors in the detention center means that detention facility staff replace parents as authority figures, parents do not have a say in how their children are treated, and the staff that interact most with minors during their recreation time are the lowest paid staff with the least amount of training and experience, which leads to widespread behavioral problems and mistreatment of the children by the staff.
In response to the comment about “tent cities,” DHS believes commenters are referring to HHS operations. The commenter may be addressing concerns regarding the Tornillo Influx Care Facility, which was closed and dismantled in January 2019. HHS notes that at no point did ORR house 13,000 UAC in “tent cities.” HHS addresses concerns and comments on the Tornillo Influx Care Facility in its response below at “Procedures During an Emergency or Influx (45 CFR 410.209).”
The effects of trauma from the journey to the United States and detention in general are discussed in the trauma section.
Several commenters expressed concern that the FRCs would be unable
With respect to the remaining concerns about the provisions related to mental health counseling, DHS notes that the proposed regulatory text mirrored Exhibit 1, paragraphs 6 and 7 of the FSA regarding individual and group counseling sessions. DHS added provisions to allow for assessments when minors refused to participate in counseling sessions and to combine the group sessions with other structured activities to remove the stigma of a “group counseling session” and encourage all minors to attend. DHS's years of experience have shown that too many minors decline to participate in counseling sessions when they are designated as such, and that children are more likely to participate in DHS group sessions are combined with other events. For those instances where children decline individual sessions, a mental health wellness interaction at least allows a counselor to do a wellness check and may be to get the minor to open up and have what professionals would call a counseling session. Adhering to the strict requirements of the FSA would not be workable, especially for teenagers who do not believe they will benefit from counseling.
One commenter stated that proposed § 236.3(i)(4)(xiii) inappropriately restricts a child's ability to communicate with adult relatives in the United States and abroad to legal issues only when it is deemed “necessary.” This commenter noted that there is no definition of “necessary” or who makes that determination, and no justification for why detained minors should not universally be afforded visitation and contact with family members.
A foreign government wrote that, in accordance with the provisions of the Vienna Convention on Consular Relations, the proposed rule should grant access to consular officials to visit and interview alien children in the different stages of their processing.
One commenter stated that the regulations should grant access to consular officials to visit and interview minors in the different stages of their processing. The Vienna Convention on Consular Relations notes that consular functions include helping and assisting nationals, both individual and corporate, of the sending State; safeguarding the interests of minors; and representing or arranging appropriate representation for nationals of the sending State before tribunals and other authorities of the receiving State.
Several commenters expressed concern that the proposed rule would fail to provide minors with adequate access to legal services. Many commenters were concerned about how minors in detention centers would obtain access to legal services and whether minors were being properly apprised of their legal rights. Several commenters stated that minors would not have access to adequate legal services because most detention centers are located in rural and remote areas of the country where there is limited access to qualified immigration legal assistance. A commenter noted that non-profit organizations that provide pro bono immigration services to minors have encountered logistical difficulties accessing minors in detention and more resources must be allocated for each client.
Multiple commenters stated that numerous studies and data show that detention significantly raises barriers to access to legal counsel, but that legal representation was critical to obtaining relief before an immigration judge. One commenter cited research explaining that in Houston from 2007-2012, 13 percent of detained respondents had counsel as opposed to 69 percent of those that were not detained. This commenter noted that immigrants without counsel are significantly more likely to be ordered removed than those with representation and cited supporting data including one study that stated that individuals without attorneys were granted relief at a rate of 4 percent compared to when all indigent immigrants in removal proceedings were provided attorneys and the rate increased to 48 percent.
Some commenters stated that the proposed rule improperly eliminates FSA provisions requiring class counsel's right to attorney-client visits for all types of placements and counsel's right to access facilities where minors have been placed. Another commenter stated that paragraph 32(A) of the FSA provided access to counsel to all children in custody including those whom counsel may not have met before the visit and expressed concern that the proposed regulations do not contain comparable language. One commenter recommended that the proposed rule should guarantee that minors will be permitted to visit with their attorney, child advocate, or other persons necessary for their representation, any day of the week, including holidays, and that such visits should be permitted at any time during the period of at least eight hours a day.
Every minor who enters DHS custody, including minors and UACs who request voluntary departure or request to withdraw their application for admission, will be issued a Form I-770, Notice of Rights and Request for Disposition.
Additional protections support the right to counsel. Upon admission to a non-secure facility, a minor is provided with a comprehensive orientation including information about the availability of legal assistance, the availability of free legal assistance, the right to be represented by counsel at no expense to the Government, the right to apply to asylum or to request voluntary departure, and the right to attorney-client visits in accordance with applicable facility rules and regulations.
Regarding one commenter's example of a five-year old child signing a legal document that deprived her of her rights, the example may be referring to a
One commenter said that, nevertheless, facilities for minors required badge checks three times a day, used electronically locked doors for access to basic areas such as the library, and limited and monitored access to telephones and email. Other commenters said that the detention standards would severely restrict the movement and freedom of minors, regulate meal breaks, and result in disruptive bed-checks every 15 minutes at night. They note that “non-secure” as defined in the regulation does not mean that families can come and go as they please, but rather that only one small portion of the facility must be unlocked.
Although DHS maintains that its FRCs have been and continue to be non-secure, the comments received on this point demonstrate that DHS could take additional steps to ensure the public that DHS has no intention of running FRCs as secure facilities. To that end, DHS will be adding additional points of egress to the Dilley and Karnes facilities by September 30, 2019.
In response to comments, DHS adds additional language from FSA Exhibit 1 to the regulatory text at 8 CFR 236.3(i)(4).
The terms contained in paragraph (j)(1) permitted release of a minor only to a parent or legal guardian who is available to provide care and custody, in accordance with the TVPRA, using the same factors for determining whether release is appropriate as are contained in paragraph 14 of the FSA, once it is determined that the applicable statutes and regulations permit release. Included in the relevant factors typically is consideration of whether detention is “required either to secure his or her timely appearance before [DHS] or the immigration court, or to ensure the minor's safety or that of others.”
The terms contained in paragraph (j)(2) required DHS to use all available evidence, such as birth certificates or other available documentation, to ensure the parental relationship or legal guardianship is bona fide when determining whether an individual is a parent or legal guardian. Additionally, the terms contained in this sub-paragraph required DHS to treat a juvenile as a UAC and transfer him or her into HHS custody, if the relationship cannot be established.
The terms contained in paragraph (j)(3) required DHS to assist with making arrangements for transportation and maintaining the discretion to provide transportation to the DHS office nearest the parent or legal guardian, if the relationship is established, but the parent or legal guardian lives far away.
The terms contained in paragraph (j)(4) required DHS to not release a minor to any person or agency whom DHS has reason to believe may harm or neglect the minor or fail to comply with requirements to secure the minor's timely appearance before DHS or the immigration court.
A significant number of commenters expressed concern that the TVPRA did not justify changing the conditions imposed by paragraph 14 of the FSA with regard to families with children, because the TVPRA only addresses unaccompanied children. These commenters further noted that a District Court has held that the TVPRA is not inconsistent with the FSA, and the government abandoned its appeal.
Multiple commenters asked DHS to provide a more detailed justification to
Multiple commenters stated that the proposed changes create an inconsistency between DHS and HHS release procedures. These commenters stated that it makes no sense for DHS to separate a child from his or her parent, re-designate that child as a UAC, and transfer the child into HHS custody, only to have HHS potentially release that same child to an adult relative sponsor. They questioned why DHS could not simply maintain existing procedures and release minors to adult relatives, as appropriate.
A commenter stated that children who do not have a parent or legal guardian to whom they can be released often have a stronger defense against removal, including but not limited to eligibility for Special Immigrant Juvenile status. One commenter stated that restricting release to parents and legal guardians goes against common cultural practices in other parts of the world where extended family members play a prominent role in providing care and custody of children. Another commenter stated that many refugee children do not have parents in-country and disallowing extended family members from accepting immigrant minors would keep many refugee children in detention unnecessarily.
Multiple commenters expressed concern about DHS not implementing paragraph 15 of the FSA, which according to commenters, allows a parent to appoint a guardian with a notarized affidavit. One of these commenters stated that discontinuing the use of affidavits allowing parents to approve release of their child to an adult relative unnecessarily limits the options available and goes against the FSA's general policy favoring release.
However, one commenter expressed support for the proposed changes and stated that given high absconder rates for minors and UACs, releasing minors to parents or legal guardians places the child in the best position to prepare for immigration proceedings. This commenter noted that the HSA and TVPRA supersede the FSA and therefore DHS does not have statutory authority to release minors to anyone other than parents, legal guardians, or HHS.
One commenter expressed concern that eliminating current requirements to consider simultaneous release of parent and child will lead to either longer detention time for children and/or increased instances of family separation. Other commenters said the proposed changes go too far and eliminate the required evaluation, thereby reducing the likelihood of discretionary exercises of this existing authority. Another commenter stated that forcible separation of children from their parents is generally considered a war crime, or at least morally reprehensible.
The TVPRA mandates that the care and custody of UACs is solely the domain of HHS. Absent exceptional circumstances, DHS is required to transfer UACs to HHS within 72 hours of determining that an individual is a UAC. By definition, a UAC is a child
If the juvenile becomes a UAC, DHS no longer has the legal authority to provide for the care and custody of the juvenile and must transfer the juvenile to HHS. Because DHS has no authority to provide for the care and custody of UACs, DHS cannot release a UAC but instead must transfer a UAC to HHS.
Regarding commenters' concerns about the implementation of paragraph 15 of the FSA, DHS notes that paragraph 15 does not provide a means by which a parent can appoint a guardian; rather, it requires that a potential sponsor sign an affidavit of support. With respect to the Tornillo facility, DHS notes that it is an HHS facility and § 236.3 does not apply to HHS facilities.
Upon consideration of the comments, however, DHS now agrees that DHS is not statutorily barred by the HSA and TVPRA from releasing a non-UAC minor to someone other than a parent or legal guardian. DHS acknowledges that this interpretation of the law differs from the interpretation DHS represented to the U.S. Court of Appeals for the 9th Circuit in recent litigation,
The current text of 8 CFR 236.3(b) permits release of a juvenile to an adult relative, specifically a brother, sister, aunt, uncle, or grandparent, who is not presently in detention. DHS believes that release of non-UAC minors to these other adult relatives may be lawful and appropriate in certain circumstances, provided that the Government has no concerns about the minor's safety upon such release, and it has no concerns about the adult relative's ability to secure the non-UAC minor's timely appearance before DHS or the immigration courts. However, DHS will maintain a presumption for keeping minors with parents or legal guardians. Any release of a non-UAC minor to an adult relative other than a parent or legal guardian will be within the unreviewable discretion of DHS. DHS notes that the TVPRA and HSA provisions that apply to UACs cannot be superseded by the FSA or by existing regulations. The court decisions cited by commenters state that the TVPRA and HSA do not supersede the FSA solely as to the point that the FSA applies to both minors and UACs, and the Government is currently appealing these decisions.
DHS reiterates that it does not hold minors for extended periods of time without their parents or legal guardians, unless these minors are subject to secure detention. Regarding the comments about the FSA generally favoring release, DHS must release minors pursuant to the existing statutes and regulations; this includes release on parole. Consistent with the language of paragraph 14 of the FSA, DHS will consider parole for all minors in its custody who are eligible, and such consideration will include whether the minor presents a safety risk or risk of absconding. DHS believes that paroling such eligible minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who present neither a safety risk or risk of absconding will generally present an urgent humanitarian need. For more general concerns about parole, see the discussion above regarding § 212.5.
Accordingly, DHS amends its proposed regulatory text in 8 CFR 236.3(j) to not preclude release of a non-UAC minor to an adult relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and is available to provide care and physical custody. Such release, if deemed appropriate, will be effectuated within the discretion of DHS. DHS also adds paragraph (j)(4) stating that DHS will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason, and may also consider the minor's well-being. Lastly, DHS adds that it may consider aggregate and historical data, officer experience, statistical information, or any other probative information in making these determinations.
DHS proposed revisions to § 236.3(k) state that all minors or UACs transferred from one ICE placement to another will be transferred with all possessions and legal property. The proposed regulations added that a minor or UAC will not be transferred until a notice has been provided to their counsel, except in an unusual or compelling circumstance.
The ABA UC Standards further recommend that the notice include the date of transfer and the location, address, and phone number of the new detention facility, and the commenter urged DHS to include these provisions in the rule.
The commenter also raised a concern with the use of the terms “unusual and compelling circumstance” without further guidance. The commenter suggested that DHS adopt the language from the ABA UC Standards, which define “compelling and unusual circumstances” as the child posing an immediate threat to himself or others or the child posing an escape risk. A state agency similarly commented that the exception to providing prior notice to counsel in “unusual and compelling circumstances” is too broad and will “result in arbitrary and capricious application.” Finally, a commenter urged DHS to include language from the ABA UC Standards addressing a right to an independent review of a transfer decision that places the burden of persuasion that a transfer is necessary on DHS and allows a dissatisfied minor or UAC to seek further
The FSA does not require DHS to provide notice of the transfer of a UAC or minor to anyone other than legal counsel. The FSA does not specify the form in which notice be provided nor does it specify that any other details (
DHS notes that the commenter's concern about the use of the term “unusual and compelling circumstances” without further guidance is misplaced, because the term is taken from paragraph 27 of the FSA. Paragraph 27 provides guidance on what could be “unusual and compelling circumstances,” including “where the safety of the minor or others is threatened, or the minor has been determined to be an escape-risk, or where counsel has waived such notice.” FSA paragraph 27. These illustrative definitions are included in proposed regulation § 236.3(k).
DHS declines to adopt the commenter's suggestion to substitute “unusual and compelling circumstances” as defined in the FSA with the ABA's definition of “compelling and unusual circumstances”; namely: “i. the Child poses an immediate threat to himself or others; or ii. the Custodial Agency has made an individualized determination that the Child poses a substantial and immediate escape risk.” UC Standards section VII.H.2.c. By imposing a heightened standard of danger and escape risk to trigger the exception, the UC Standard definition potentially exposes the UAC or minor and others to a risk of harm or flight that was otherwise mitigated in the FSA. The definition is also unworkable as applied to DHS, because the UC Standards define “Custodial Agency” to exclude an Immigration Enforcement Agency. The UC Standards definition places undue burden on DHS operations and compromises the security of UACs and/or minors and DHS personnel and facilities.
Accordingly, DHS declines to amend the proposed regulatory provisions regarding monitoring based on public comments, and adopts the language proposed in the NPRM through this final rule.
DHS proposed to move and clarify current regulatory provisions in § 236.3(e) and (f) to a new § 236.3(l) to state that a parent shall be notified if a minor or UAC in DHS custody refuses to be released to his or her parent; or if the minor or UAC request any type of relief from DHS that would terminate the parent-child relationship, or the rights or interest are adverse to that of the parent(s). The proposed regulation balances the minor's or UAC's desire to take an action adverse to the wishes of his/her parent with the parent's or legal guardian's right to be notified and present their views to DHS, especially if the adverse action would terminate the parent-child relationship. The proposed regulatory text, as with existing regulations, does not allow the parent to request a hearing on the matter before an immigration judge.
When the original regulations were promulgated, the INS adjudicated applications and had custody of the children. Some commenters believe that ICE and CBP inherently lack the knowledge needed to understand the risks of revealing the type of application filed by a minor because neither organization knows about the content of immigration applications and might inadvertently put the child at risk or thwart the child's ability to obtain humanitarian relief. These commenters suggest that the complex nature of the issues raised by this provision underscore the need for appointed counsel in immigration proceedings.
Several commenters recommended that DHS be required to appoint an independent advocate to be appointed for each child; one who represents the individual child's best interest and legal needs through the maze of bureaucracy.
DHS declines to expand the provisions of 8 CFR 236.3(l) to provide a detailed explanation of the meaning of the terms in this paragraph.
DHS's proposed revisions to § 236.3(m) state that bond hearings are only applicable to minors who are in removal proceedings under INA 240, to the extent permitted by 8 CFR 1003.19, and who are in DHS custody. DHS has also removed the term “deportation proceeding” from the existing regulation and updated the language with bond hearings to be consistent with the changes in immigration law. The proposed rule also adds language to specifically exclude certain categories of minors over whose custody immigration judges do not have jurisdiction.
The most frequent comment was that the proposed transition of bond hearings from an immigration court to an
Many commenters wrote that the change threatened the due process rights of UACs. They stated that the proposed rule reverses a child's right to a bond hearing and instead creates an agency-run administrative process that poses threats to due process. These commenters wrote that as a matter of policy, immigration judges are best suited to rule on UAC bond hearings, as they have the relevant background and knowledge base to understand the situation and determine the appropriate course of action. Some of these commenters objected to the standard of proof required in bond hearings and said it should be by clear and convincing evidence. They reasoned that the clear and convincing evidence standard governs almost all civil detentions, with the exception of immigration detention, and a higher standard of proof should be applied where children's rights are at stake. Similarly, one commenter stated that the burden should never be on the child to show that he or she is not a danger to the community or a flight risk and asked that the burden be on the government, not the minor. Commenters also suggested that children and families should have access to legal counsel throughout the “immigration pathway” and that alternatives to detention, specifically “community-based case management” should be the government's default policy. Another commenter wrote urging the appointment of child advocates, hearings within 48 hours of request by child or counsel, and procedures to ensure that all minors are informed of their right to request review of continued detention.
Some commenters who differentiated between the provisions applicable to DHS and HHS, supported or acknowledged that proposed 8 CFR 236.3(m) maintained the process required by FSA paragraph 24(A). One commenter wrote in support of proposed 8 CFR 236.3(m) because the provision clarifies that minors detained in DHS custody but
DHS agrees with commenters that the proposed regulatory text at 8 CFR 236.3(m) reflects the requirements of the FSA regarding existence of bond redetermination hearings for minors in DHS custody who are in removal proceedings pursuant to INA 240. The understanding that the term “deportation hearings” in paragraph 24(A) of the FSA refers to what are now known as removal proceedings has been reiterated throughout the
DHS reiterates that the provision applies to minors in DHS custody; DHS has no authority to regulate custody determinations for individuals in the custody of another agency.
Proposed § 236.3(a)(1) codifies the FSA's general policy statement, found in paragraph 11 of the FSA, that minors and UACs in DHS custody shall be
Moreover, minors in DHS custody are accorded rights in bond proceedings that extend to aliens generally. An alien in DHS custody who is otherwise entitled to bond may seek a bond hearing before an immigration judge prior to the filing of the Notice to Appear containing the charges of removability. An alien may submit evidence and present arguments as to whether his or her release is authorized under the immigration laws and whether he or she merits release as a matter of discretion. An alien may be represented by an attorney or other representative of his or her choice at no expense to the government; Congress has not provided for government-funded counsel in bond proceedings, or in fact, in any immigration proceedings. Minors subject to 236.3(m) are necessarily not UACs without a parent or legal guardian in the United States available to provide for their care and physical custody. Moreover, bond hearing standards are not so complicated that many minors without representation would be unable to participate in a bond hearing with the assistance of an immigration judge. Aliens may appeal bond redetermination decisions made by an immigration judge to the Board of Immigration Appeals and are informed of their right to review.
DHS declines to amend the proposed regulatory provisions regarding bond hearings based on public comments.
DHS proposed revisions to § 236.3(n) to state that if a minor is an escape-risk (as defined at § 236.3(b)(6)), a danger to the community or has a final order of removal, DHS may take the minor back into custody. The proposed regulation adds language to explain that if the minor no longer has a parent or legal guardian available to provide care and physical custody, the minor will be treated as a UAC and DHS will transfer him or her to the custody of HHS.
One commenter stated that neither the FSA nor the current regulations provide for retaking custody of previously released juveniles if a juvenile becomes an escape-risk, becomes a danger to the community, or receives a final order of removal after being released. The commenter stated that this violates the FSA and lacks any limitations or procedural safeguards, including any independent review of the decision to retake custody of a child following release from ORR. The commenter additionally suggested, without providing any data to support this, that for-profit detention facilities would benefit from this as it would increase the number of detained persons and DHS could use the proposed regulation to retake custody of a child following an accidental or erroneous
Another commenter expressed concern that the proposed rule presents a danger for arbitrary application and needless traumatization. In considering retaking custody, this commenter recommended applying the standards for transfer outlined in the ABA's UC Standards.
Several commenters also stated concerns about adequate procedural protections to challenge DHS's actions after retaking custody of a previously released minor. One commenter wrote that the regulation is silent on who bears the burden of proof that there is a material change in circumstances. Several commenters cited a recent ruling on
One commenter stated that children who have been released from custody are at risk of receiving a final order of removal, and thus subject to DHS retaking custody, because they have a higher risk of missing a court appearance for reasons that are not intentional. This may be because they are under the control of the sponsor, lack the resources to travel to the immigration court, or are unable to independently seek legal counsel to assist with attendance. Several commenters opined that the rule would result in the increased policing of immigrant and non-immigrant members of communities of color in the country.
In response to comments about the lack of procedural safeguards, including burden of proof and independent review of custody determinations, DHS notes that minors who are not UACs and who are taken back into DHS custody may request a custody redetermination hearing in accordance with 8 CFR 236.3(m) of this rule and to the extent permitted by 8 CFR 1003.19.
DHS notes the recommendation to ensure that minors and UACs who are taken back into custody are immediately provided with an opportunity to contact family members or legal counsel. These provisions and other detention standards are incorporated into § 236.3(i) describing standards for detention of minors in DHS custody who are not UACs.
DHS declines to amend the proposed regulatory provisions regarding retaking custody of previously released minors based on public comments.
The terms contained in the proposed rule required CBP and ICE each to identify a Juvenile Coordinator for the purpose of monitoring statistics about UACs and minors who remain in DHS custody for longer than 72 hours. The statistical information may include, but would not be limited to, biographical information, dates of custody, placement, transfers, removals, or releases from custody. The juvenile coordinators may collect such data, if appropriate, and may also review additional data points should they deem it appropriate given operational changes and other considerations.
Some commenters expressed concern with respect to the proposed rule's Juvenile Coordinator monitor provision. Although a few of the commenters acknowledged that language in the proposed rule in part reflects monitoring provisions in FSA paragraph 28A, the commenters argued that the proposed rule omits important collections of information regarding the placement of minors in more restrictive or secure facilities. Additionally, the commenters claimed that the proposed regulation omits associated FSA provisions requiring the Juvenile Coordinator to share reports with Plaintiffs' counsel and permit Plaintiffs' counsel to engage with the Juvenile Coordinator regarding implementation of the FSA. Another commenter complained that the proposed rule would direct the collection of information about minors who had been held in CBP or ICE custody for longer than 72 hours, but this scenario would not require DHS to do anything with this information or to provide it for independent oversight and review, or corrective action. A few commenters cited that paragraph 28(A) of the FSA requires a weekly collection of specific data from all ICE and CBP district offices and Border Patrol stations; however, the proposed rule does not set forth how frequently data collection is required, nor does it require CBP/ICE to collect the same types of information. Another commenter added that the proposed regulations provided no mandatory qualifications for the Juvenile Coordinator and the requirements necessary to become one are broad and unclear. As general practice, the commenter advised that any government official charged with making placement determinations for children, particularly children who have experienced trauma, should be required to have child welfare experience and qualifications, rather than law enforcement expertise. Another commenter recommended expanding immigration courts and appointing guardians for children so they are not alone in the process.
Commenters expressed concern with the Juvenile Coordinators provision, which allows for collection of hearing dates and “additional data points should they deem it appropriate given operational changes and other considerations” for aliens in DHS custody. The commenters voiced concern that statement is extremely broad and does not provide meaningful standards for monitoring. The commenter cited the legal case of
Some commenters objected to the elimination of the third-party monitoring by
The current regulations at 8 CFR 236.3(c) describe the duties of the Juvenile Coordinator, including the responsibility of locating suitable placements for juveniles. The language proposed at § 236.3(o) will provide for monitoring by the Juvenile Coordinators. This regulation will also eliminate the requirement in the current regulations that the Juvenile Coordinator locate a suitable placement for minors, as these duties are generally exercised by immigration officers and other employees at DHS (or by HHS and its grantees for UACs). The Juvenile Coordinator as described in the FSA is tasked with overseeing the compliance with the FSA. The CBP and ICE Juvenile Coordinators as described in the proposed regulation will be tasked with overseeing CBP and ICE's compliance with the regulations. This monitoring may involve whatever actions the Juvenile Coordinators determine is appropriate to monitor compliance, (including, for instance, conducting facility visits, reviewing agency policies and procedures, or interviewing employees and/or detainees). They will not make placement decisions.
As the FSA requires, the Juvenile Coordinators will also continue to collect data about placement in a detention facility. DHS notes that this data is currently collected by the ICE Juvenile Coordinator, as CBP does not maintain data about a minor's placement in a detention facility. Collecting data will be an additional part of the Juvenile Coordinator's duties (in addition to their role monitoring compliance with the terms of the regulations). In this final rule, DHS is amending the regulatory text to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.
The commenters' concerns that this rule omits important collection of information regarding the placement of minors in more restrictive or secure facilities misapprehends the omission of collection of reasons for placement in a detention facility or medium secure facility. In the discussion to proposed regulation § 236.3(b)—Definitions, DHS explains that it does not propose to adopt the FSA's term “medium security facility” because DHS does not maintain any medium security facilities for the temporary detention of minors and the definition is now unnecessary. In addition, § 236.3(o) includes the “reasons for a particular placement” in the list of statistical information that may be collected routinely by the Juvenile Coordinators, and both the discussion of the proposed regulation and § 236.3(o) itself propose two Juvenile Coordinators—one for ICE and one for CBP—and charge each with monitoring compliance with the requirements of these regulations, and with monitoring statistics about UACs and minors who remain in DHS custody for longer than 72 hours.
This requirement to collect statistical information about UACs and minors who remain in CBP or ICE custody for longer than 72 hours will necessarily capture the data set forth in paragraph 28A of the FSA without reference to location or frequency of collection. The proposed regulation specifies the statistical information to be collected as a baseline and allows the Juvenile Coordinators to review additional data points as appropriate given operational changes or other considerations. DHS believes that the commenter's concern that the proposed regulation contains no mandatory qualifications for the Juvenile Coordinator and that any government official charged with making placement decisions should be required to have child welfare experience is misplaced. Section 236.3(o) eliminates the requirement in the current regulation at 8 CFR 236.3(c) that the Juvenile Coordinator locate suitable placements for minors. DHS declines to adopt the commenter's suggestion as the Juvenile Coordinators are not responsible for placement determinations.
DHS rejects the suggestion that the text allowing Juvenile Coordinators to collect information on hearing dates if appropriate and “additional data points should they deem it appropriate given operational changes and other considerations” is overbroad and ill-defined. The proposed regulation allows the Juvenile Coordinators to collect the statistical information, as under paragraph 28A of the FSA, relevant to monitor compliance and allows the Juvenile Coordinators flexibility to consider other data points (including immigration court hearing dates) as appropriate given operational changes and other considerations.
DHS has carefully considered commenters' proposal to continue monitoring by and reporting to
DHS also disagrees with the suggestion that it has failed to provide adequate oversight over its detention facilities. DHS is committed to ensuring adequate oversight over its facilities. As described above, ICE FRCs are subject to regular audits by outside entities. Additionally, all DHS facilities (both CBP and ICE) are subject to inspection and monitoring by bodies such as the DHS OIG, DHS CRCL, and the GAO. DHS is also making it clear in this final rule that the CBP and ICE Juvenile Coordinators will have responsibility for monitoring compliance with these regulations, and not merely the responsibility to maintain statistics. Such monitoring of ongoing compliance may include oversight of DHS facilities. The purpose of this change is to ensure that an independent monitor will remain in place to help to ensure that all DHS facilities satisfy applicable standards at all times.
DHS is amending the regulatory provisions to make it more clear that the
HHS proposed to define “DHS” as the Department of Homeland Security. This term is not defined in the FSA.
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define “director” as the Director of the Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), Department of Health and Human Services. This term is not defined in the FSA.
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define “emergency” as an act or event (including, but not limited to, a natural disaster, facility fire, civil disturbance, or medical or public health concerns at one or more ORR facility) that prevents timely transport or placement of UACs, or impacts other conditions provided by this part. This definition incorporates the existing text of the FSA except for HHS' recognition that emergencies may not only delay placement of UACs, but could also delay compliance with other provisions of the proposed rule or excuse noncompliance on a temporary basis.
Some commenters expressed concern that events other than a natural disaster, facility fire, civil disturbance, medical or public health concerns might also qualify as an emergency, leaving significant room for interpretation. Several commenters argued that the phrase “other conditions” would implicate the basic needs of the children, including timely transfer, provision of snacks and meals, prolonged detention, and would further jeopardize their well-being, health, and safety and runs contrary to the explicit placement context of the FSA.
Other commenters had specific objections to the proposed definition. One organization argued that the proposed rule defines emergency in a circular manner because the term is primarily defined as an event that prevents compliance.
A coalition expressed concern that the proposed provision that minors must be transferred “as expeditiously as possible,” can be broadly interpreted, instead of a defined period of three to five days. The same commenter also argued that this provision contravenes the TVPRA because it creates exceptions to the 72-hour timeframe for the required transfer of UACs to ORR that do not meet the high bar of “exceptional circumstances” as intended under the TVPRA.
An organization expressed concern that the proposed rule replaces the term “medical emergencies” with “medical or public health concerns at one or more facilities,” which would broaden the possible application of emergencies, allowing for a possible emergency in instances where several minors lack key vaccinations, or where a few minors may require treatment for chronic conditions such as asthma or diabetes.
An organization expressed concern that implementation of the proposed definition would take away the ability to monitor or check the decision whether to deem a situation as an emergency, as well as the conditions that would result from such a determination and recommended that the Departments provide the basis arriving at these definitions; provide a timeframe for how long may an emergency last; and provide for the consequences for invoking the emergency when unwarranted.
An organization recommended that DHS and HHS provide explanation and evidence of the need to expand the current definition and compile a comprehensive list of permissible emergency circumstances.
Two organizations recommended that the proposed rule should clarify the circumstances under which emergency waivers would be implemented, that any such exemptions be limited in scope and ensure that the fundamental needs of children are met, regardless of the circumstances requiring a waiver.
Several organizations and individual commenters recommended that from a public health perspective, designation of an emergency should trigger additional resources, prepared in advance through contingency planning and made available through standing mechanisms.
HHS also notes that, during an emergency situation, it continues to make every effort to provide all required services and provide for UACs' needs under the FSA as expeditiously as possible. Depending on the severity of the emergency, however, the provision of one or more FSA requirements may be temporarily delayed for some UACs.
HHS also notes that placing UACs in licensed programs “as expeditiously as possible” is consistent with the spirit of the FSA's language, but is also a more appropriate standard, since it provides the flexibility needed to respond to emergencies on a case-by-case basis. We interpret “as expeditiously as possible” as what is reasonably possible considering the circumstances of the particular emergency. At the same time, HHS notes that the requirements of the TVPRA still apply to transfers of UACs to ORR custody, and that the “exceptional circumstances” standard would still apply even with the publication of this final rule.
In response to one commenter's concern that the proposed rule replaces the term “medical emergencies” with “medical or public health concerns at one or more facilities,” which would broaden the possible application of emergencies, HHS respectfully disagrees, and notes that the rule is consistent with the FSA. The FSA provides, as an example of a medical emergency, “a chicken pox epidemic among a group of minors.” The language of the rule is consistent with this example. HHS disagrees that the rule would broaden the scope of medical emergencies beyond what is already contemplated by the FSA.
Although many of the comments are beyond the scope of the FSA and the purposes of this rule in implementing the FSA, HHS will consider incorporating commenters' recommendations into the written guidance implementing this provision, as appropriate and to the extent they do not conflict with the FSA or other governing statutes. This includes but is not limited to the recommendations to mandate contingency planning if an emergency situation can be anticipated, reviewing the American Bar Association's UC Standards, and clarifying roles and responsibilities regarding the officials who have the authority to declare an emergency.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define “escape risk” as a serious risk that a UAC will attempt to escape from custody. HHS is adopting this definition without change from the FSA.
HHS did not receive any comments requesting a change to this definition that specifically named HHS, although please see the section of the preamble discussing § 236.3(b)(6
HHS will not be making any changes to this definition in the final rule.
The NPRM proposed to define “influx” as a situation when 130 or more minors or UACs are eligible for placement in a licensed facility under this part or corresponding provisions of DHS regulations, including those who have been so placed or are awaiting such placement. HHS is adopting this definition without change from the FSA with the clarification that DHS will maintain custody of UACs pending their transfer to ORR.
Many commenters expressed the view that DHS and HHS disingenuously argued that they operate within a constant state of influx even while overall border crossings are 20 percent of what they were when that term was defined in the FSA and border staffing has increased by almost three times.
A few commenters argued that the 130-influx standard also failed to account for the expansions and contractions of the number of UACs in border custody, which have fluctuated by tens of thousands of juveniles every year since the peak in 2014. The variable yearly numbers of UACs require a more flexible influx baseline.
Some commenters objected to the proposed definition of influx on the basis that it enables each agency to excuse noncompliance even where it is not itself experiencing influx conditions. Commenters stated that DHS conceded in the NPRM that it has continuously been dealing with an influx of minors for years. The commenters claimed that as a result, even where HHS may not satisfy the “influx” criteria itself, it may rely on DHS's “influx” conditions because the definition allows HHS criteria to be met “under . . . corresponding provisions of DHS regulations.”
One commenter recommended that the agencies include a third alternative criterion for designation of influx conditions to track the meaning of influx in the INA. The INA recognizes the threat posed to national security where the Secretary of Homeland Security “determines that an actual or imminent influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate federal response.” 8 U.S.C. 1103(a)(10). The commenter urged the agencies to consider a regulation that would define “urgent circumstances” to include the release without bond of a significant percentage of such minors, with or without a parent or legal guardian, near to the relevant Coast Guard or Border Patrol sector. The commenter ultimately proposed that influx conditions could exist when some combination of three criteria were present—the legacy FSA criterion of 130 minors, an alternative criterion that takes into account the problems created by lack of resources other than bed space, and a third criterion that aligns influx designations for minors with designations of influx conditions applicable to humanitarian entry in general. The commenter contended that such a standard would provide flexibility to respond effectively to migrant crises that involve minor aliens in unpredictably dangerous ways.
One commenter maintained that, because the proposed rule changes the
Some commenters were concerned that the proposed definition of influx lifts the requirement that UACs be transferred from DHS to HHS custody within three to five days, and allows for broad exemptions to existing child protections that could impact basic needs, such as the provision of snacks and meals to children in custody. The commenters stated the rule should be changed to clarify that any such exemptions must be limited in scope and ensure that the fundamental needs of children are met in a timely manner.
Periodically, ORR operates influx care facilities to meet its statutory obligations to care for UACs transferred from DHS, during a time of high numbers of arrivals. ORR maintains the ability to rapidly set-up, expand, or contract influx infrastructure and services as needed. ORR has detailed policies that set forth criteria for when UACs may be placed at an influx care facility. Some of the criteria include a minor's age (the minor must be between 13 and 17 years of age), medical and behavioral health conditions (no known special needs or issues), sibling status (no accompanying siblings below the age of 12), and pending reunification status (ability to be discharged to a sponsor expeditiously), among other considerations. (For a complete list of the requirements, please see the
HHS is the primary regulator of influx care facilities and is responsible for their oversight, operations, physical plant conditions, and service provision. States do not license or monitor ORR influx care facilities because they are located on Federal enclaves. However, ORR influx care facilities operate in accordance with applicable provisions of the FSA, HSA of 2002, TVPRA, the Interim Final Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Alien Children, as well as ORR policy.
For the purposes of continuity of joint operations and for the reasons DHS explains above, HHS adopts the same definition of influx. DHS's response to comments related to the definition of influx can be found above in the Section-by-Section Discussion under Influx § 236.3(b)(10).
HHS is not making any changes to this definition in the final rule.
HHS proposed to define a “licensed program” as any program, agency, or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs UACs. All homes and facilities operated by a licensed program, including facilities for special needs UACs, are non-secure as required under State law. However, a facility for special needs UACs may maintain a level of security permitted under State law which is necessary for the protection of UACs or others in appropriate circumstances (
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define “ORR” as the Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services. This term is not defined in the FSA.
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define a “secure facility” as a State or county juvenile detention facility or a secure ORR detention facility, or a facility with an ORR contract or cooperative agreement having separate accommodations for minors. A secure facility does not need to meet the requirements of § 410.402, and is not defined as a “licensed program” or “shelter” under this part. This term is not defined in the FSA, but is consistent with the provisions of the FSA applying to secure facilities.
HHS will not be making any changes to this definition in the final rule.
HHS proposed to define “shelter” as a licensed program that meets the standards set forth in § 410.402. Shelters include facilities defined as “licensed facilities” under the FSA, and also includes staff secure facilities (
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define a “special needs minor” as a UAC whose mental and/or physical condition requires special services and treatment by staff. A UAC may have special needs due to drug or alcohol abuse, serious emotional disturbance, mental illness or retardation, or a physical condition or chronic illness that requires special services or treatment. A UAC who has suffered serious neglect or abuse may be considered a special needs minor if the UAC requires special services or treatment as a result of neglect or abuse. This definition was adopted without change from the FSA.
Another commenter contended that the proposed rule does not adequately discuss special needs, even though many immigrant children entering the United States have disabilities.
The commenter also condemned the use of the outdated term “retardation” in the definition of special needs minor, stating that the term is used as a slur that dehumanizes, demeans, and does real emotional harm to people with mental and developmental disabilities. The commenter acknowledged the term was used in the FSA agreement, but argued that it is inappropriate in a modern-day regulation.
The proposed regulatory language contains multiple provisions requiring DHS and HHS to consider a UAC's special needs, including provisions requiring consideration of special needs when determining placement. For example, section 45 CFR 410.208 states that ORR will assess each UAC to determine if he or she has special needs and will, whenever possible, place a UAC with special needs in a licensed program that provides services and treatment for the UAC's special needs. Section 8 CFR 236.3(g)(2) requires DHS to place minors and UACs in the least restrictive setting appropriate to the minor or UAC's age and special needs. Section 8 CFR 236.3(i)(4) requires that facilities conduct a needs assessment for each minor, which would include both an educational assessment and a special needs assessment. Additionally, section 8 CFR 236.3(g)(1) requires DHS to provide minors and UACs with Form I-770 and states that the notice shall be provided, read, or explained to the minor or UAC in a language and manner that he or she understands. These provisions ensure that a minor's or UAC's special needs are taken into account, including when determining placement.
HHS agrees that the term “retardation” is outdated and is amending the regulatory language to delete this term. DHS has also deleted this term in its regulatory language.
HHS removed the term “retardation” from the final rule.
HHS proposed to define “sponsor” as an individual (or entity) to whom ORR releases a UAC out of ORR custody. Sponsor is comparable to the term custodian, which is used but not defined in the FSA.
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define a “staff secure facility” as a facility that is operated by a program, agency, or organization licensed by an appropriate State agency and that meets the standards for licensed programs set forth in § 410.402. A staff secure facility is designed for a UAC who requires close supervision but does not need placement in a secure facility. It provides 24-hour awake supervision, custody, care, and treatment. It maintains stricter security measures, such as intensive staff supervision, than a shelter in order to control problem behavior and to prevent escape. A staff secure facility may have a secure perimeter but is not equipped internally with major restraining construction or procedures typically associated with correctional facilities. The term “staff secure facility” is used in the same sense as the FSA uses the term “medium security facility.”
HHS did not receive any comments requesting a change to this definition.
HHS is not making any changes to this definition in the final rule.
HHS proposed to define a “UAC” as provided in 6 U.S.C 279(g)(2), which states that a UAC is a child under the age of 18 who has no lawful immigration status in the United States and who has no parent or legal guardian present in the United States or no parent or legal guardian in the United States is available to provide care and physical custody. When a child previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such a child, or when such a child has obtained lawful immigration status, the child is no longer a UAC. A child who is no longer a UAC is not eligible to receive legal protections limited to UACs.
One commenter recommended striking proposed § 236.3(d) and the final sentence of proposed § 410.101 and codifying the current initial jurisdiction policy, as set forth in USCIS' 2013 guidance, which provided that USCIS would take initial jurisdiction based on a previous UAC determination even after the applicant turns 18 or is reunited with a parent or legal guardian.
Comments related to separate definitions for minor and UAC, as proposed by DHS in § 236.3(b)(1), are discussed above under the Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule.
Between the FSA and final rule, the only change HHS is making is substitution of the word “minor” with the word “UAC.” The text of the FSA only uses the term minors, and HHS has interpreted this term to include UACs who may or may not meet the definition of “minor” in the FSA. Given the subsequent enactment of the TVPRA, and the fact that HHS does not have custody of juveniles who are not UAC, HHS is expressly stating in this subpart that the provision applies to UACs and not “minors” as a whole.
As stated in § 410.200, this subpart of the proposed rule set forth factors that ORR considers when placing UACs.
None.
This subpart sets forth what ORR considers when placing a UAC in a particular ORR facility, in accordance with the FSA.
Section 410.201 of the proposed rule addressed the considerations that generally apply to the placement of UAC. The provision generally paralleled the FSA requirements. The provision noted that ORR makes reasonable efforts to provide placements in the geographic areas where DHS apprehends the majority of UACs. ORR complied with this provision, as ORR maintains the highest number of UAC beds in the state of Texas where most UACs are currently apprehended.
In jointly submitted comments, multiple legal advocacy organizations argued that secure placement based on a lack of availability of licensed placements is statutorily barred by the TVPRA. The commenters cited the TVPRA's requirement that children under HHS custody “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. 1232(c)(2)(A). In making such placements, “the [HHS] Secretary may consider danger to self, danger to the community, and risk of flight.”
The commenter further expressed concern that even though a minor who is in ORR custody may have contact with their family members who are not parents or legal guardians (for example, siblings) with whom they traveled to the United States and were arrested, the child should be permitted to be housed in family detention with those relatives consistent with their best interest.
Additionally, § 410.101 defines UAC according to the definition set forth in the HSA. The HSA and the TVPRA only give ORR the authority to provide care and custody to individuals who meet that definition. DHS, not ORR, has the authority to detain minors and their family members together.
Some commenters cited an investigative report which they say showed that the Federal Government continues to place alien children in for-profit residential facilities where allegations of abuse have been raised and where the facilities have been cited for serious deficiencies. Allegations include failure to treat children's sickness and injuries; staff drunkenness; sexual assault; failure to check employees' backgrounds; failure to provide appropriate clothing for children; drugging; and deaths from restraint. The commenters stated that few companies lose grants from HHS based on such allegations.
In response to public comments from multiple legal advocacy organizations that the FSA and TVPRA run in contradiction to each other on the placing of UACs in secure facilities based solely on the lack of appropriate licensed program availability, ORR is striking the following clause from § 410.201(e): “. . . or a State or county juvenile detention facility.”
Section 410.202 of the proposed rule stated that ORR places a UAC into a licensed program promptly after a UAC is referred to ORR custody, except in certain enumerated circumstances. The FSA also recognized that in some circumstances, a UAC may not be placed in a licensed program. These circumstances include emergencies or an influx as defined in § 410.101 (in which case the UAC shall be placed in a licensed program as expeditiously as possible); where the UAC meets the criteria for placement in a secure facility; and as otherwise required by any court decree or court-approved settlement. Like the DHS portion of the proposed rule, proposed § 410.202 did not include the exception, which appears at paragraph 12(A)(4) of the FSA, that allows transfer within 5 days instead of 3 days in cases involving transport from remote areas or where an alien speaks an “unusual” language that requires the Government to locate an interpreter. As noted above, DHS has matured its operations such that these factors no longer materially delay transfer.
As the proposed rule indicates ORR only places a UAC in a secure facility in limited, enumerated circumstances where the UAC has been charged with a crime or is chargeable with a crime, or when the UAC is similarly a danger to self or others. This will be read in light of the other criteria in the regulations. In addition, the proposed rule is consistent with and does not abrogate ORR policies, under which the decision to place a UAC in a secure facility is then reviewed at least once monthly (
The criteria for placement of UAC in a secure facility are discussed in accordance with section 410.203 of this part.
HHS is not making any changes in the final rule to proposed § 410.202 which is consistent with the FSA and the TVPRA. However, HHS clarifies that it places UACs in licensed programs except if a reasonable person would conclude “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.
Section 410.203 of the proposed rule set forth criteria for placing UACs in secure facilities. HHS followed the FSA criteria, except that under the TVPRA, “[a] child shall not be placed in a secure
In addition, HHS chose not to include in the proposed regulatory text the specific examples of behavior or offense that could result in the secure detention of a UAC under paragraph 21 of the FSA, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered non-violent, isolated offenses (
Under the proposed regulations, a UAC may be placed in a secure facility if ORR determines that the UAC has been charged with, is chargeable,
• Isolated offenses that (1) were not within a pattern or practice of criminal activity and (2) did not involve violence against a person, or the use or carrying of a weapon; or
• Petty offenses, which are not considered grounds for a stricter means of detention in any case.
• While in DHS or ORR's custody or while in the presence of an immigration officer, has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself/herself or others). Note: Because the FSA states that such acts would have occurred “while in INS custody” or “in the presence of an INS officer,” we proposed to evaluate such activities in either DHS or HHS custody or in the presence of an “immigration officer.”
• Has engaged while in a licensed program in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program in which the UAC is placed such that transfer is necessary to ensure the welfare of the UAC or others, as determined by the staff of the licensed program.
In addition, ORR proposed the following as warranting placement in a secure facility, even though the FSA does not specifically mention such criteria, if a UAC engages in unacceptably disruptive behavior that interferes with the normal functioning of a “staff secure” shelter, then the UAC may be transferred to secure facility. The FSA looks only to such disruptive behavior when it occurs in a “licensed” facility—which under the strict terms of the FSA does not include staff-secure facilities—even though all such facilities are indeed state-licensed, and the vast majority of such facilities receive the same licenses as non-secure shelters. Thus, under a strict interpretation of the FSA, UACs could be immediately transferred to a secure facility for disruptive behavior in a non-secure shelter, without first evaluating the UAC in a staff secure setting, where further disruption might lead a higher level of restriction in care.
The proposed rule would afford HHS the flexibility to first evaluate the UAC in a staff-secure setting, and then, if a UAC is significantly disrupting the operations of a staff-secure facility, transfer the UAC to protect the other children who remain within the staff secure facility.
In addition to the behaviors listed in paragraph 21 of the FSA as unacceptably disruptive—(
In keeping with the July 30, 2018 order in
Section 410.203 also sets forth review and approval of the decision to place a UAC in a secure facility consistent with the FSA. The FSA states that the determination to place a minor in a secure facility shall be reviewed and approved by the “regional juvenile coordinator.” The proposed rule used the term “Federal Field Specialist,” as this is the official closest to such juvenile coordinator for ORR. (Note: Although not covered in the proposed rule, ORR also recognizes that the TVPRA at 8 U.S.C. 1232(c)(2)(A) delegates to the Secretary of HHS the requirement for prescribing procedures governing agency review, on a monthly basis, of secure placements. ORR directs readers to sections 1.4.2. and 1.4.7 of the ORR Policy Guide (available at:
A couple of commenters discussed alleged missing provisions or provisions that should have been included related to the placement of children in restrictive settings. This included a proposal that HHS consider that in determining threats from children who the agency sought placement in a secure facility that those threats be “credible
HHS discusses notification of secure placement further under § 410.206—Information for UACs concerning the reasons for his or her placement in a secure or staff secure facility. ORR also notes that all ORR programs have clinicians (see subpart D) that provide mental health services for UAC regardless of program type.
In response to public comments, HHS clarifies that it reviews placements of UACs in secure facilities on at least a monthly basis, and that, notwithstanding its ability under the rule to place UACs who are “otherwise a danger to self or others” in secure placements, this provision does not abrogate any requirements that HHS place UACs in the least restrictive
Section 410.204 of the proposed rule described the considerations ORR takes into account when determining whether a UAC is an escape risk. This part is consistent with how the term “escape risk” is used in the FSA. Although the TVPRA removes the factor of being an escape risk as a ground upon which ORR may place a UAC in a secure facility, the factor of escape risk is still relevant to the evaluation of transfers between ORR facilities under the FSA as being an escape risk might cause a UAC to be stepped up from a non-secure level of care to a staff secure level of care where there is a higher staff-UAC ratio and a secure perimeter at the facility. Notably, an escape risk differs from a “risk of flight,” which is a term of art used in immigration law regarding an alien's risk of not appearing for his or her immigration proceedings.
HHS is not making any changes to proposed § 410.204 in the final rule.
Section 410.205 of the proposed rule provided that ORR does not place a UAC in a secure facility pursuant to § 410.203 if less restrictive alternatives, such as a staff secure facility or another licensed program, are available and appropriate in the circumstances.
HHS is not making any changes in the final rule to proposed § 410.205 which is consistent with the FSA and the TVPRA.
Section 410.206 of the proposed rule specified that, within a reasonable period of time, ORR must provide each UAC placed in or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands.
Consistent with the Ninth Circuit Court of Appeals decision in
HHS notes that further information about the placement of special needs minors in ORR care is found in the discussion regarding proposed rule, § 410.208.
HHS is not making any changes in the final rule to proposed § 410.206 which is consistent with the FSA.
Section 410.207 of the proposed rule specified who has custody of a UAC under subpart B of these rules. The proposed regulation specified that upon release to an approved sponsor, a UAC is no longer in the custody of ORR. ORR would continue to have ongoing monitoring responsibilities under the HSA and TVPRA, but would not be the legal or physical custodian.
HHS is not making any changes to the proposed rule.
In the proposed rule, ORR described ORR's policy regarding placement of a special needs minor. ORR also noted that an RTC may be considered a secure level of care and is discussed in proposed § 410.203.
Multiple legal and advocacy organizations noted that research shows that children with disabilities placed in secure facilities may not have their individual needs met. One of these commenters stated that the proposed rule should take into account studies suggesting youth with disabilities who are placed in secure facilities are at high risk of unmet health needs, fail to receive appropriate accommodations for their disabilities, and are subject to harmful conditions, including the use of restraints and solitary confinement. Another organization asserted that the proposed rule contains inadequate standards to address the needs of children with disabilities and fails to guarantee special education for children with disabilities, in conflict with the U.S. Supreme Court case
Several organizations commented that education and special needs plans for UACs in ORR care are vague and that educational assessment needs to be defined. In addition, the organizations contended that the proposed rule needs to be more specific regarding how children's individualized educational needs will be met.
All UACs in ORR custody are provided access to educational services while in care. Under § 410.402, all licensed programs must identify a UAC's special needs, including any specific problems that appear to require immediate intervention, as well as develop an individualized educational assessment and plan for each minor. ORR care providers must provide educational services appropriate to the UAC's level of development, literacy level, and linguistic or communication skills in a structured classroom setting, which concentrate mainly on the development of basic academic competencies and secondarily on English Language Training (ELT). Further guidance regarding academic educational services provided to UAC is included in ORR Guide, section 3.3.5, which again is consistent with and not abrogated by the rule. Care providers adapt or modify local educational standards to develop curricula and assessments, which must reflect cultural diversity and sensitivity. Remedial education and after school tutoring is provided as needed. Academic reports and progress notes are included and updated in the UAC's case file.
HHS is not making any changes to proposed § 410.208 in the final rule, which adopts the special needs provision as found in the FSA, paragraph 7.
Section 410.209 describes the procedures ORR follows during an emergency or influx. The FSA defines “emergency” and “influx.” Consistent with the FSA, the proposed rule states that UACs should be placed in a licensed program as “expeditiously as possible.”
HHS proposed a written plan describing the reasonable efforts it will take to place all UACs as expeditiously as possible into a licensed shelter when there is an influx or emergency consistent with proposed § 410.209.
Commenters were concerned with ORR's use of unlicensed soft-sided structures to house UACs during an influx, referring to them as “tent cities.” Commenters were concerned about the location of the Tornillo Influx Care Facility, especially the distance from El Paso, available services, and accommodations. Another commenter compared “tent cities” to Japanese and German internment camps.
The commenters highlighted the facility's exemption from state oversight and licensing requirements and described cramped detention conditions existing there. Several commenters argued that placement of UACs in such facilities would be contrary to the TVPRA and the HSA, and undermine the FSA.
When there is a sharp increase, or “influx,” in the number of UACs entering the United States and Federal agencies are unable to transfer them into state-licensed, ORR-funded care provider facilities in a timely manner, HHS may place certain UACs at influx care facilities. HHS has detailed policies for when children can be sheltered at a temporary influx care facility. The minor must be a youth between 13 and 17 years of age; have no known special medical or behavioral health conditions; have no accompanying siblings age 12 years or younger; and be able to be discharged to a sponsor quickly—among other considerations. (
HHS is the primary regulator of temporary influx care facilities and is responsible for their oversight, operations, physical plant conditions, and service provision. While states do not license or monitor influx care facilities, they operate in accordance with applicable provisions of the FSA, HSA, TVPRA, interim Final Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Alien Children, and ORR policy and procedures, and contract requirements.
HHS monitors temporary influx care facilities through assigned Project Officers, Federal Field Specialists, Program Monitors, and an Abuse Review Team, and all have the authority to issue corrective actions if needed to ensure the safety and wellbeing of all children in HHS' care.
HHS choses locations for temporary influx care facilities based on a number of factors relevant to child welfare, which included size, types of housing structures, and time considerations. HHS assesses possible influx sites for suitability to temporarily house UACs.
HHS strives to provide a quality of care at temporary influx care facilities that is parallel to our state-licensed programs. Children in these facilities can participate in recreational activities and religious services appropriate to the child's faith, and receive case management, on-site education, medical care, legal services, and counseling.
HHS' goal is to place as many UACs as possible into permanent state-licensed facilities or transitional foster care while their sponsorship suitability determinations or immigration cases are adjudicated (in the event there is no sponsor available).
HHS is not making any changes in the final rule to proposed § 410.209.
This subpart covers the policies and procedures used to release, without unnecessary delay, a UAC from ORR custody to an approved sponsor.
In the proposed rule, HHS described the policies and procedures used to release a UAC from ORR custody to an approved sponsor.
HHS adopts the standard in the proposed rule.
In the NPRM, HHS proposed that it would release a UAC to a sponsor without unnecessary delay when ORR determines that continued custody of the UAC is not required to either secure the UAC's timely appearance before DHS or the Immigration Courts or to ensure the UAC's safety or the safety of others. HHS also listed individuals (and entities) to whom ORR releases a UAC. HHS refers to the individuals and entities in this list as `”approved sponsors,” regardless of their specific relationship with the UAC. The list of approved sponsors follows the order of preference set out in the FSA.
Two commenters highlighted that the process also lacks a delineated timeline for decision-making or release. Multiple organizations argued that reuniting children with their families as quickly as possible is in the child's best interest. These organizations noted that it is in recognition of this interest that the FSA requires ORR to make “prompt and continuous efforts” towards family reunifications and to release children from immigration related custody “without unnecessary delay.”
While recognizing that ORR policy includes some of the process urged by commenters, the purpose of this final rule is to implement provisions of the FSA. HHS accordingly is not deviating from the language of the proposed rule. The rule adopts the substantive terms of the corresponding release provisions of the FSA, paragraph 14.
In the proposed rule, HHS outlined the process requirements leading to release of a UAC from ORR custody to a sponsor (also referred to as a “custodian”). The FSA at paragraph 17 allows ORR the discretion to require a suitability assessment prior to release, and the TVPRA provides that ORR may not release a UAC to a potential sponsor unless ORR makes a determination that the proposed custodian is “capable of providing for the child's physical and mental well-being. Such determination shall, at a minimum, include verification of the custodian's identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. 1232(c)(3)(A). As such, the proposed rule requires a background check, including at least a verification of identity for potential sponsors in all circumstances. In accordance with the FSA, under the proposed rule, suitability assessments can include an investigation of the living conditions in which the UAC would be placed; the standard of care he or she would receive; interviews of household members; a home visit if necessary; and, follow-up visits after the child's release from care. Furthermore, where the TVPRA requires a home study, as specified in 8 U.S.C. 1232(c)(3)(B), the proposed regulations acknowledge such requirement. The FSA says that the proposed sponsor must agree to the conditions of release by signing a custodial affidavit (Form I-134) and release agreement. However, the Form I-134 is a DHS form, and ORR does not use this form. Therefore, the proposed rule would have the sponsor sign an affirmation agreeing to abide by the sponsor care agreement, which is the agreement and accompanying form ORR has used so that the sponsor acknowledges his or her responsibilities.
Further, consistent with the FSA and the TVPRA, ORR's suitability assessment includes biographic background checks (such as public records checks and sex offender registry checks) of potential sponsors, including biological parents, and household members, as well as fingerprinting only as is needed to ensure that release of a UAC to prospective sponsors is safe. Of note is that, in many, if not most cases, as well, while a sponsor may be a biological parent, the child arrived unaccompanied, and may not have lived with the parent for much or a significant portion of his or her childhood, so background checks remain important for safety reasons. Such background checks of all potential sponsors and household members are consistent with various state child welfare provisions. For example, all states require background checks for prospective foster care and adoptive parents, and kinship caregivers typically must meet most of these same requirements.
In § 410.302(e), HHS ORR proposed a list of conditions and principles of release. ORR also invited public comment on whether to set forth in the final rule ORR's general policies concerning the following:
1. Requirements for home studies (
2. Denial of release to a prospective sponsor, criteria for such denial, and appeal; and
3. Post-release services requirements.
ORR notifies sponsors following its policies and procedures on the home study process.
Lastly, with regard to obtaining information through the Central Index System, HHS notes that this system is actually maintained by the U.S. Citizenship and Immigration Service, an agency within DHS.
In order to carry out the Department's mission to ensure safe release of UAC to their sponsors, while protecting vulnerable children from traffickers or others seeking to victimize or exploit them, ORR must be able to fingerprint or apply suitability assessments as appropriate. The rule does not require fingerprinting or immigration status checks for all cases; ORR uses the information from background check results to make release decisions in the child's best interest. ORR also engages in information sharing with other Federal agencies to ensure that children are protected from smugglers, traffickers, or others who might seek to victimize or otherwise engage the child in criminal, harmful or exploitative activity, as required by the TVPRA, 8 U.S.C. 1232(c)(1). HHS acknowledges that some requirements of suitability assessments and information sharing are factors that may contribute to a longer reunification process in some cases, however, HHS must balance its mandate to promptly release the child with its equally important mandate of ensuring that the child be released into a safe environment.
HHS continuously evaluates its UAC Program and operations. As part of this ongoing review process, ORR evaluated the effect expanded suitability assessments had on its mission of safe and timely release of UACs. This included evaluation of whether the expanded biometric background checks, as described in the ORR-ICE-CBP Information Sharing Memorandum of Agreement (Apr. 2018), yielded new information that enabled ORR to identify child welfare risks that the office would not have found under the prior policy, as well as whether a correlation existed between the expanded biometric background checks and UAC length of care in ORR custody (“length of care” refers to the total time that a UAC is under ORR care and custody; whereas “length of stay” refers to a UAC's placement at one specific care provider facility and does not account for time a UAC may have been placed at another care provider facility). ORR then issued a series of four operational directives (one in December 2018, one in March 2019, and two in June 2019) that modified the suitability assessment process to achieve an appropriate balance between safety and timeliness under the operating conditions faced by ORR.
Under the operational directives, ORR completes individualized suitability assessments of sponsors without obtaining fingerprints from all household members, or all parent/legal guardian or close relative sponsors in appropriate cases. ORR also permits under certain circumstances the release of children to other relatives who were their primary caregivers prior to receiving the results of a fingerprinting background check. Further, ORR no longer requires verification of immigration status information before releasing UAC to sponsors, or mandates Child Abuse and Neglect (CA/N) checks unless there is a specific and substantial child welfare concern.
Congress has prohibited HHS from using funds provided in the Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019 (Pub. L. 116-26) or previously appropriated funding to reverse the procedures of the first three operational directives, unless the Secretary determines that a change is necessary to protect an unaccompanied alien child from being placed in danger. Further the Secretary is required to submit the justification for the change in writing to the HHS/Office of Inspector General and to Congress prior to implementation of the proposed change.
HHS disagrees with the commenters' assertion that immigration status checks are unnecessary. While ORR does not use immigration status to disqualify a proposed sponsor, ORR does use the proposed sponsor's immigration status to determine whether a sponsor care plan is necessary in the event the sponsor is required to leave the United States.
Additionally, HHS notes section 224(a) of DHS's fiscal year 2019 appropriations bars DHS from taking certain enforcement actions “against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child [`UAC'] . . . based on information shared by” HHS. Per the June 10, 2019 Operational Directive, case managers working with ORR grantee care providers are to share this information with persons subject to fingerprint background checks.
The commenters believe that meaningful consent is impossible here because HHS presents parents with a Hobson's choice: Either consent to the release of your personal information to DHS and face possible deportation, or allow your child to languish in Federal custody until he or she turns 18 and is transferred into ICE custody.
One organization proposed expanding the use of affidavits to require sponsors of children to submit sworn statements attesting that their homes are safe for children. Additionally, the commenter proposed that HHS create an appeals process for denying sponsorship and produce aggregated annual reports on sponsors it denies. Another commenter urged HHS to put requirements regarding home studies, denial of release to sponsors, and post release services in the policy and procedure guide, not the final rule.
The rule adopts the substantive terms of the corresponding release and suitability provisions of the FSA, paragraphs 14 and 17. However, in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the UAC is in the care of the licensed program.
In this subpart, HHS described the standards that licensed programs must meet in keeping with the FSA, including the general principles of the settlement agreement of treating all minors in custody with dignity, respect, and special concern for their particular vulnerability.
HHS is not making any changes in the final rule to § 410.400.
This subpart applies to all ORR licensed facilities providing care in shelters, staff secure facilities, residential treatment centers, or foster care and group homes.
HHS is not making any changes in the final rule to § 410.401.
In this subpart, ORR described the specific minimum standards of care each licensed program must follow.
Section 410.402 reflected the minimum standards of care listed in Exhibit 1 of the FSA, which are consistent with the
One commenter stated harms may surface or be aggravated when unaccompanied minors are placed in confined, institutional settings and are separated from family members and other community affiliations.
Several commenters cited government statistics
HHS is not making any changes in the final rule to § 410.402.
In this subpart, HHS describes how ORR will ensure licensed programs are providing the services required under § 410.402. As stated in this section, to ensure that licensed programs continually meet the minimum standards and are consistent in their provision of services, ORR monitors compliance with these rules. The FSA does not contain standards for how often monitoring shall occur, and this regulation does not propose to do so. At present, ORR provides further information on such monitoring in section 5.5 of the ORR Policy Guide (available at:
Commenters also cited an investigative report claiming that the Federal Government continues to place migrant children in for-profit residential facilities where allegations of abuse have been raised and where the facilities have been cited for serious deficiencies. Allegations include failure to treat children's sickness and injuries; staff drunkenness; sexual assault; failure to check employees' backgrounds; failure to provide appropriate clothing for children; drugging; and deaths from restraint. According to the commenters, few companies lose grants from DHS and HHS based on such allegations.
HHS is not making any changes in the final rule to § 410.403.
In the proposed rule, HHS described how ORR conducts transportation for UACs in ORR's custody, substantively adopting the two provisions of the FSA that govern transportation. ORR proposed that UACs cannot be transported with unrelated detained adult aliens. The proposed rule also stated that when ORR plans to release a UAC from its custody under family reunification provisions (found in §§ 410.201 and 410.302), ORR assists without undue delay in making transportation arrangements. ORR may, in its discretion, provide transportation to a UAC.
Another individual suggested that the government should provide families and minors transportation to and from their immigration hearings.
Several advocacy organizations and a state's department of social services provided comments specific to DHS regarding a similar transportation provision in DHS's proposed rule as it related to transportation of children with unrelated detained adults. For more information on those comments please refer to the DHS comment sections regarding 8 CFR 236.3(f).
There are only a few instances where ORR might transport an adult alien—in extremely limited emergency circumstances (
Generally speaking, existing protocols between HHS and DHS provide that DHS is responsible for transferring a detained adult alien from ORR's care to DHS custody.
In response to the comments regarding assisting UACs with transportation to immigration hearings, HHS notes that it is already required to transport UACs to immigration hearings by statute.
HHS is not deviating from the language of the proposed rule. The rule adopts the substantive terms of the corresponding transportation provisions of the FSA, paragraphs 25 and 26.
In this subpart, HHS set forth provisions for transferring a UAC between HHS facilities. In some cases, HHS may need to change the placement of a UAC. This may occur for a variety of reasons, including a lack of detailed information at the time of apprehension, a change in the availability of licensed placements, or a change in the UAC's behavior, mental health situation, or immigration case.
As specified in 45 CFR 410.600, HHS would adopt the FSA provisions concerning transfer of a UAC to ensure: (1) That a UAC is transferred with all of his or her possessions and legal papers, and (2) that the UAC's attorney, if the UAC has one, is notified prior to a transfer, with some exceptions.
The same commenter, along with a state agency, raised a concern that the exception to providing prior notice to counsel in “unusual and compelling circumstances” is too broad and will “result in arbitrary and capricious application.”
In the proposed rule, HHS stated that it would take all necessary precautions for the protection of UAC during transportation with adults. This language runs in contradiction to 45 CFR 410.500(a), which states that ORR does not transport UAC with unrelated detained adult aliens. Therefore, the sentence from 45 CFR 410.600(a) that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults,” will be struck from the final rule.
HHS notes that there will be instances when UACs are transferred with adult staff members. These situations are covered under 45 CFR 411.13(a) of the Interim Final Rule (IFR) on the Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Children. The IFR states, “Care provider facilities must develop, document, and make their best effort to comply with a staffing plan that provides for adequate levels of staffing, and, where applicable under State and local licensing standards, video monitoring, to protect [UACs] from sexual abuse and sexual harassment.” This provision applies to transfers as well.
Section 410.700 incorporates both the provisions of the TVPRA, 8 U.S.C.1232(b)(4), and the requirements of the FSA, in setting forth standards for age determinations. These take into account multiple forms of evidence, including the non-exclusive use of radiographs, and may involve medical, dental, or other appropriate procedures to verify age.
Multiple commenters expressed concern that the proposed procedures place inappropriate weight on medical tests to determine whether children are younger than or older than 18 years of age. The commenters stated that the proposed procedures do not match FSA or TVPRA requirements for considering medical tests and are inconsistent with agency practice. For example, the commenters stated that the proposed procedures fail to indicate that medical tests cannot serve as the sole basis for age determinations, limit medical testing to bone and dental radiographs, and to account for evidence demonstrating the unreliability of medical tests to make accurate age determinations.
Multiple commenters recommended that age determination procedures be used as a last resort, that age determination findings be shared with the child in writing and in a language he/she understands, that the findings be subject to appeal, and that age
Several commenters expressed concern about age determinations being based on the “totality of the evidence and circumstances” and questioned whether that basis is consistent with the TVPRA's requirement to use multiple forms of evidence for determining whether a child is under or over 18 years of age. Another commenter expressed support for DHS and HHS personnel maintaining the flexibility to use multiple methods for age determinations. The commenter stated that the proposed standards and thresholds are mandated for jurisdictional as well as medical reasons, because ORR does not have custodial authority over individuals 18 years of age or older.
A number of commenters expressed concern about the possibility of incorrect age determinations. For example, one commenter stated that the rule would reduce or eliminate that the current ORR policy requiring a 75 percent probability threshold for age determinations.
Multiple commenters noted that differences in race, ethnicity, gender, nutritional standards, and poverty impact perceptions of age and may negatively influence the age determination process leading to inaccurate age determinations. For example, one commenter cited articles concluding that the age of young people is often overestimated and exacerbated when there are differences in race. This commenter expressed concern that this would have disproportionate effects on certain indigenous populations. Another commenter cited a study indicating that “black felony suspects were seen as 4.53 years older than they actually were.”
Multiple commenters expressed concern about the lack of age determination appeal procedures. One of the commenters stated that the lack of an appeal mechanism compounds the possibility of arbitrary or baseless assessments, with serious consequences for minors in terms of their placement in and release from detention. Another commenter asked what remedy exists for a child falsely categorized as an adult and what repercussion a government official would face if he/she negligently or intentionally categorizes a child as an adult under this regulation. Commenters and organizations argued that the continual re-determination of a child's UAC status would deny children of their right to due process, legal protections and access to social services if they were determined to not be a UAC.
One organization noted that the reassessment of a child exacerbates their vulnerability and contradicts the very purpose of U.S. anti-trafficking law. Organizations and commenters further noted if a child was determined to not be a UAC, many rights would be stripped from the child, including the right to have their asylum claims heard before the asylum office and the exception to the one-year filing deadline.
One commenter suggested that providing a presumption of minor status when there is doubt, considering only reliable evidence, and providing an appeals process would ensure fewer children find themselves incorrectly designated as adults. Another commenter suggested placing individuals in HHS custody, not DHS custody, during the age determination process.
One commenter expressed general concern about DHS and HHS using different language within the proposed regulations that may lead to disparate processes for determining age. The commenter stated that the proposed HHS language does not discuss the reasonable person standard, does not include a specific evidentiary standard through which to assess multiple forms of evidence, does discuss the non-exclusive use of radiographs whereas the DHS language does not mention radiographs as an option, and does not require a medical professional to administer the radiographs. The commenter suggested that DHS and HHS propose specific and identical language regarding age determination procedures and requirements.
Organizations and commenters argued that HHS should not have the authority to re-determine if a minor is a UAC or not because it impacts their immigration benefits and this is contrary to Federal law,
Commenters suggested types of information that an agency can use in addition to medical and dental examinations and radiographs. While the FSA, the TVPRA and the proposed rule specifically list medical and dental examinations and radiographs, HHS provides, in policy, a list of additional information that can be considered, including the types of evidence suggested by commenters like the child's statements.
HHS believes the commenters' concerns about the reliability of
In addition, ORR states through guidance that the medical and dental examinations and radiographs, will be conducted by medical professionals with experience conducting age determinations and will take into account the child's ethnic and genetic background.
Similarly, HHS expects those professionals who perform those tests to do so in accordance with medical and ethical standards. HHS declines to add additional standards beyond the current standards that apply to all medical professionals.
HHS agrees with the commenter who noted the importance of age determination because HHS only has jurisdiction over persons under 18. If a person is determined to be an adult, that person cannot be placed in HHS custody even if that person is undergoing an age redetermination. If DHS has determined that an individual in its custody is an adult, but the individual claims otherwise, HHS cannot place an alien into HHS custody while the individual contests DHS's determination.
Many commenters wrote about the requirement that age determinations be based on the “totality of the evidence and circumstances” DHS proposed in § 236.3(c). One commenter noted that HHS did not include this language in subpart G and expressed concern that this might create disparate processes. Based on the TVPRA, which requires HHS and DHS to use the same procedures, HHS has added the totality of the circumstances language to § 410.700 in this final rule. The explicit instruction that agencies use the totality of the evidence and circumstances when making an age determination enhances the TVPRA's language of “multiple sources.”
In response to the request for additional clarity about what constitutes the totality of the evidence and the circumstances, HHS notes that each age determination is an adjudication, where the ORR responsible staff review the evidence in its totality. The ORR Guide at section 1.6 provides ample description of how ORR reviews the age determination process. While some evidence may be weighted more than other evidence, HHS will only make an age determination adjudication after weighing all of the evidence. Adding more specificity would take away from the holistic approach envisioned with the totality language and could lead to a situation where the agency is unable to consider relevant information because it was not listed.
One commenter was concerned that the totality of the evidence and circumstances language would impact HHS' 75 percent probability threshold for age determinations. Under current HHS policy, “[I]f an individual's estimated probability of being 18 or older is 75 percent or greater according to a medical age assessment, and this evidence has been considered in conjunction with the totality of the evidence, ORR may refer the individual to DHS.”
Several commenters raised concerns that the rule does not provide for an appeals process or a limit on the number of age determinations, allowing for continuous redeterminations. HHS policy allows an individual or his/her designated legal representative to present new information or evidence related to an age determination at any time.
HHS will add the “totality of the evidence and circumstances” language into § 410.700 so that the age determinations decisions by HHS and DHS have the same standard. While the language of the DHS regulation differs slightly from the HHS language, primarily because DHS transfers adults and HHS does not, both provisions contain the same fundamental standards. These standards are the use of a totality of the evidence standard, including the non-exclusive use of radiographs; compliance with the FSA reasonable person standard; and authorization to require an individual to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify age.
Section 410.701 states that if the procedures of § 410.700 would result in a reasonable person concluding that an individual is an adult, despite his or her claim to be a minor, ORR must treat that person as an adult for all purposes. As
Several commenters expressed concern about how DHS would interpret and apply the FSA's reasonable person standard and pointed to what they perceived as a lack of clarity on how the standard is defined. Multiple commenters expressed concern that the proposed language fails to provide adequate specificity about the type and amount of evidence used to inform the standard. For example, one commenter stated that the reasonable person standard must be informed by consideration of multiple forms of evidence pursuant to the TVPRA, whereas another commenter suggested incorporating informational interviews and attempts to gather documentary evidence as part of the standard. Another commenter stated that, pursuant to the FSA, the reasonable person standard must be initially informed by the child's own statements regarding his or her own age. Multiple commenters expressed concern about how medical or dental examinations will or will not inform the reasonable person standard, with one commenter stating that the inclusion of unreliable medical procedures in the reasonable person standard introduces a further layer of arbitrariness to the process of age determination.
Other commenters stated that an individual claiming to be a minor should continue to be treated as a minor until age is confirmed through multiple forms of evidence. One of these commenters stated that it is more dangerous for a minor to be detained with adults than to have an individual who claims to be a minor, but is not, detained with other minors.
Organizations noted that in the interest of administrative consistency, children designated as UACs should keep this designation throughout their removal proceedings.
HHS declines to adopt a presumption that an individual is a minor until proven otherwise. Section 410.701 requires HHS to treat a person determined to be an adult as an adult and to follow the process outlined in § 410.700 to change an individual's status from a minor to adult. Additionally, in policy, HHS provides “[u]ntil the age determination is made, the unaccompanied alien child is entitled to all services provided to UAC in HHS care and custody.”
Relatedly, a commenter raised a concern that it is more dangerous for a minor to be housed with adults than it is for an adult to be housed with minors. However, this comment focused only on the individual adult who is the subject of the age determination and not the other UACs housed alongside him or her in a group home setting. HHS believes that both scenarios present a risk of harm and will not transfer a person until an age determination has been made.
Commenters wrote that, for administrative consistency, agencies should not conduct age determinations and the designation of UAC should last through the individual's removal proceedings. The comment about the UAC designation lasting throughout removal proceedings is not related to the age determination regulation—which is about the proper placement of an individual (in DHS or ORR legal custody) and not removal proceedings. In addition, the suggestion is inconsistent with the FSA, which set standards specifically for people under 18. The suggestion also would violate the HSA and the TVPRA, both of which intended specific protections for people under 18. Congress also granted HHS and DHS the authority to conduct age determinations in 8 U.S.C. 1232(b)(4). The fact that Congress created the authority for DHS and HHS to conduct age determinations demonstrates that Congress recognized that children need protection and intended accuracy over administrative consistency.
HHS is not making any changes to the rule for § 410.701, but states that because such regulation refers back to § 410.700, it also will incorporate a totality of the evidence and circumstances standard.
While the FSA at paragraph 24(B) and 24(C) contains procedures for judicial review of a UAC's shelter placement (including in secure or staff-secure), and a standard of review, the agreement is clear that a reviewing Federal District Court must have both “jurisdiction and venue.” Once these regulations are finalized and the FSA is terminated, it would be even clearer that any review by judicial action must occur under a statute where the government has waived sovereign immunity, such as the Administrative Procedure Act. Therefore, HHS did not propose regulations for most of paragraphs 24(B) and 24(C) of the FSA, although it did propose that all UACs continue to receive a notice stating as follows: “ORR usually houses persons under the age of 18 in an open setting, such as a foster or group home, and not in detention facilities. If you believe that you have not been properly placed or that you have been treated improperly, you may call a lawyer to seek assistance. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.” The proposed rule also contained a requirement parallel to that of the FSA that when UACs are placed in a more restrictive level of care, such as a secure or staff secure facility, they receive a notice—
HHS has made no changes to the rule text at §§ 410.800-410.801 because the rule fully the relevant requirements of the FSA and TVPRA.
Consistent with subpart C,
The proposed rule made no provision for immigration judges employed by the DOJ to conduct bond redetermination hearings for UACs under paragraph 24(A) of the FSA. DOJ has concluded that it no longer has statutory authority to conduct such hearings. In the HSA, Congress assigned responsibility for the “care and placement” of UACs to HHS' ORR, and specifically barred ORR from requiring “that a bond be posted for [a UAC] who is released to a qualified sponsor.” 6 U.S.C. 279(b)(1)(A), (4). In the TVPRA, Congress reaffirmed HHS' responsibility for the custody and placement of UACs. 8 U.S.C. 1232(b)(1), (c), and imposed detailed requirements on ORR's release of UACs to proposed custodians—including, for example, a provision authorizing ORR to consider a UAC's dangerousness and risk of flight in making placement decisions. 8 U.S.C. 1232(c)(2)(A). Congress thus appears to have vested HHS, not DOJ, with control over the custody and release of UACs, and to have deliberately omitted any role for immigration judges in this area.
Although in
HHS thus proposed regulations to afford the same type of hearing paragraph 24(A) calls for, while recognizing the transfer of responsibility of care and custody of UAC from the former INS to HHS ORR. Specifically, the proposed rule included provisions whereby HHS would create an independent hearing process that would be guided by the immigration judge bond hearing process currently in place for UACs under the FSA. The idea was to provide essentially the same substantive protections as immigration court custody hearings, but through a neutral adjudicator at HHS rather than DOJ.
Under the proposal, the Secretary would appoint independent hearing officers to determine whether a UAC, if released, would present a danger to community (or flight risk). The hearing officer would not have the authority to release a UAC, as the
Thus, the hearing officer would decide only the issues presented by paragraph 24(A) of the FSA—whether the UAC would present a danger to the community or a risk of flight (that is, not appearing for his or her immigration hearing) if released. For the majority of UACs in ORR custody, ORR has determined they are not a danger and therefore has placed them in shelters, group homes, and in some cases, staff secure facilities. For UACs that request a hearing, but ORR does not consider a danger, ORR will concur in writing and a hearing will not need to take place. In these cases, a hearing is not necessary or even beneficial and would simply be a misuse of limited government resources. However, for some children placed in secure facilities (or otherwise assessed as a danger to self or others), the hearing may assist them in ultimately being released from ORR custody in the event a suitable sponsor is or becomes available.
As is the case now, under section 2.9 of the ORR Policy Guide (available at:
In accordance with the
Under the proposed rule, ORR also would take into consideration the hearing officer's decision on a UAC's level of dangerousness when assessing the UAC's placement and conditions of placement, but, consistent with current practice under the FSA, the hearing officer would not have the authority to order a particular placement for a UAC.
If the hearing officer determines that the UAC would be a danger to the community (or a flight risk) if released, the decision would be final unless the UAC later demonstrates a material change in circumstances to support a second request for a hearing. Similarly, because ORR might not have yet located a suitable sponsor at the time a hearing officer issues a decision, ORR might find that circumstances have changed by the time a sponsor is found such that the original hearing officer decision should no longer apply. Therefore, the proposed regulation stated that ORR could request the hearing officer to make a new determination if at least one month had passed since the original decision, and ORR could show that a material change in circumstances meant the UAC should no longer be released due to danger (or flight risk).
Requests for hearings under this section (“810 hearings”) could be made by the child in ORR care, by a legal representative of the child, or by parents/legal guardians on their child's behalf. These parties could submit a written request for the 810 hearing to the care provider using an ORR form
Because the 810 hearing process would be unique to ORR and HHS, if a UAC turned 18 years old during the pendency of the hearing, the deliberations would have no effect on DHS detention (if any).
HHS invited public comment on whether the hearing officers for the 810 hearings should be employed by the Departmental Appeals Board, either as Administrative Law Judges or hearing officers, or whether HHS would create a separate office for hearings, similar to the Office of Hearings in the Centers for Medicare & Medicaid Services.
While the FSA contains procedures for judicial review of a UAC's placement in a secure or staff secure shelter, and a standard of review, once these regulations are finalized and the FSA is vacated, HHS did not propose any regulations for such review by Federal courts should occur under extant statutory authorizations, including, where applicable, the APA, and not via HHS regulations or a consent decree.
Several commenters wrote about the proposal to update the provision for bond hearings under DHS proposed 8 CFR 236.3(m) and “810 hearings” under HHS proposed 45 CFR 410.810. Because both provisions related to paragraph 24A of the FSA, comments sometimes transitioned fluidly between being directed toward DHS and HHS. As with the comments related to 8 CFR 236.3(m), the comments related to 810 hearings largely concerned compatibility with the text of the FSA and case law interpreting the FSA, and due process concerns. However,
With respect to comments arguing that the government has a moral duty to keep families together, HHS believes that these comments are really about other issues addressed in this preamble, not about the 810 hearings and exceed the scope of this rulemaking, especially because neither bond hearings under the FSA nor 810 hearings, in and of themselves, prevent family reunification. In providing for an independent review of ORR determinations of a child's dangerousness and risk of flight, 810 hearings serve a similar function to the bond hearings described by the Ninth Circuit in 2017 and thus may serve to promote family integrity. But ultimately, ORR has a statutory duty to ensure safe release of UACs under the HSA and TVPRA, and a similar duty under the FSA.
With respect to the comment that immigration judges are best situated to decide on the questions raised by these hearings, HHS respectfully disagrees. HHS believes that an independent hearing office within HHS, the government agency with specific and relevant expertise in child welfare, would be best suited to adjudicate 810 hearings. As acknowledged by the Ninth Circuit, in
Congress itself endorsed HHS' child welfare expertise when it transferred responsibility for the care and custody of UACs from the former INS to HHS Immigration courts adhere closely to the language of the 9th Circuit decision in 2017 on bond hearings, including its understanding of the limited scope of the hearings (
Regarding the commenter's suggestion that hearings be scheduled within 48 hours of request, HHS notes that bond hearings in the immigration court have rarely, if ever, occurred within 48 hours of the initial request. Where there have been special circumstances (
Regarding review of placement, § 410.810 already states that UACs placed in secure or staff secure facilities will receive a notice of the procedures under this section and may use a form to make a written request for an 810 hearing. Because the questions at issue in 810 hearings are dangerousness and flight risk, 810 hearings are relevant in almost all cases only to children in secure, and potentially staff secure facilities. For purposes of 810 hearings, HHS plans to treat RTCs as secure facilities. HHS does not consider children in shelter or other less restrictive placements to be dangerous or flight risks; if they were, they would not be placed there. As a result, such children would not require 810 hearings—though the rule would not preclude such children from requesting them. Based on HHS' experiences with bond hearings, except in unusual circumstances, in these cases ORR would stipulate to the independent hearing officer that it does not consider the children to be dangerous or flight risks.
With respect to the commenter's claim that this rule would violate a 2016 decision of the Eastern District of Virginia,
810 hearings are not removal hearings, nor adjudications required by statute to be determined on the record after opportunity for an agency hearing. Where matters of immigration detention and removal are involved, this rule provides for bond hearings for accompanied children in § 236.3(m). HHS notes that 810 hearings flow from HHS' duty to provide care and custody to UACs, and the APA is satisfied by HHS' promulgation of this rule after notice and comment.
Requiring UACs to bear the burden of persuasion under a preponderance of the evidence standard allows HHS to balance the equities of UACs in care with its responsibility under the FSA to ensure public safety.
HHS declines to require the hearing officer's work be reviewed under “substantial evidence.” As already explained, HHS will apply a preponderance of the evidence standard of evidence for 810 hearings.
BIA precedent is not dispositive on the question of whether immigration judges may review custodial determinations of ORR. While the district court and Ninth Circuit may have altered this ruling as it pertained to implementation of the FSA, a final rule that provides the substantive elements and practical benefits of bond hearings, especially protection of UACs' due process rights, settles the matter as it relates to HHS custody of UACs. DHS immigration detention is a separate matter, and this rule provides for bond hearings for minors in DHS custody.
HHS has changed the final rule text to make clear that once the UAC has made a claim that s/he is not dangerous or a risk of flight, HHS bears the initial burden to produce evidence supporting its determination of dangerousness or flight risk; however, the UAC, who may introduce his or her own evidence, bears the burden of persuading the independent hearing officer to overrule HHS, under a preponderance of the evidence standard.
Various commenters asserted that using detention of families or individuals as a way to deter migration is unlawful. One commenter added that deterrence is a concept that applies in the criminal justice system, not the civil immigration context. Commenters pointed out that the Supreme Court has ruled that civil detention may not be used as a mechanism for deterrence and that detention used as a deterrent abandons the protections of the due process clause of the Fifth Amendment. A few commenters insisted that the government must show the justification for detaining immigrants outweighs countervailing liberty interests and that detaining asylum seekers to deter other migrants does not meet the standard. A few commenters stated that detention as a deterrent has been both proven ineffective and decried as unlawful by a Federal judge.
Multiple commenters stated that DHS makes a flawed assertion in the proposed rule by stating that a 20-day limit on family detention imposed as part of a July 2015 court ruling “correlated with a sharp increase in family migration.” These commenters argued that available evidence indicates the increase in migration is more directly related to root causes of poverty and violence in migrants' home countries and that the NPRM erroneously presented correlation as causation.
Numerous commenters cited research and testimonials indicating that the migration trend from the Northern Triangle is due to high rates of violence in that region. They cited statistics about significant danger accompanying travel to the United States to underscore the severity of the situation that they are fleeing. Several commenters asserted that the families who would be affected by this rule have grounds for asylum, citing USCIS data showing that nearly 88 percent of families in its detention centers have exhibited credible fear. The commenters stated that the rules set forth in the NPRM will not deter these individuals who are trying to save their lives and the lives of their children. Commenters suggested that by ignoring violence and persecution as a migratory cause, DHS evades its responsibilities as a signatory to the 1967 Protocol Relating to the Status of Refugees; increases likely litigation regarding protection of asylum seekers; risks returning asylum seekers to persecutory harm; and risks undermining confidence in the rule of law in the United States by both asylum seekers and U.S. citizens.
Several commenters mentioned that the migrants have no or minimal knowledge of U.S. immigration laws, while others noted that the policy is ineffective even if migrants are aware of the consequences of entering the United States illegally.
One commenter stated that the NPRM shows the government is struggling to comply with the FSA and is attempting to alter the standards agreed upon by the parties in the FSA. The commenter stated that the FSA was focused on establishing procedures and conditions that meet child welfare principles, but the purposes demonstrated in the NPRM are in direct contrast to the FSA's intent. The commenter asserted that the proposed rule cannot be interpreted as a good faith attempt to be consistent with the FSA's provisions.
Commenters also stated concern with family “incarceration.” For example, one commenter stated that incarceration of families is a cruel response to the humanitarian crisis at the border and will exacerbate the trauma that survivors of violence have endured. The commenter stated that many women and children arriving at the border from the Northern Triangle are fleeing terrible violence at the hands of intimate partners, criminal gangs, or police or other authorities, who perpetrate these acts of violence without any accountability.
Commenters misinterpreted DHS's position concerning the operational consequences of the FSA. In particular, the absence of state licensing for FRCs has prevented the Government from maintaining custody of many families for a period of time sufficient to resolve their immigration cases, including expedited removal proceedings. This often leads to the release of families, many of whom abscond, adding to a large alien fugitive backlog, as discussed elsewhere in this rule. DHS has encountered cases where this confluence of the FSA and its interpretation have created an incentive for adults to bring minors to the United States with the aim of securing prompt release from custody. That being said, consistent with the view expressed by many commenters, DHS acknowledges that the incentive structure informing the decision of migrants whether to travel to the United States is complex and multifaceted, and that potential detention for criminal or civil violations of U.S. law is not the only consideration at issue. This rule does not purport to—and indeed, cannot—address all potential incentives for migrants to travel to the United States, including “push factors” such as those described in the comments.
DHS declines to amend the proposed regulatory text in the final rule in response to these public comments.
Many commenters stated that the proposed rule is contrary to the principles underlying the FSA, namely that immigrant children are uniquely vulnerable and, thus, should be released from detention as quickly as possible. These commenters expressed concern that the proposed rule fails to prioritize community placement, and they argued that elimination of the 20-day limitation on detention conflicts with the FSA's general policy favoring release as “expeditiously as possible” without “unnecessary delay.” Many commenters wrote that the proposed rule constitutes a modification of the FSA, rather than a codification of it, and could not be used to justify termination of the FSA. These commenters noted that the FSA's detention limitation applies to both accompanied and unaccompanied children under a 2015 District Court ruling.
Several other commenters stated that the proposed rule violates the FSA's requirement that children be placed in the least restrictive setting, along with additional Federal laws. One commenter stated that the least restrictive setting requirement should be interpreted consistently with similar language in the Individuals with Disabilities Education Act (IDEA), which requires that students with disabilities be placed in the least restrictive appropriate setting possible. The commenter wrote that the IDEA and the FSA are both intended to prevent disadvantaged children from being taken advantage of by those in power, and that the FSA's “least restrictive setting” language should therefore be interpreted to prohibit detention in most circumstances. Another commenter stated that indefinite detention of children would violate the Child Abuse Prevention and Treatment Act, a Federal law which prohibits caretakers of children from causing, or failing to mitigate serious imminent threats of, physical and emotional harm. Still other commenters wrote that indefinite detention runs contrary to the spirit of the Family First Prevention Services Act, a Federal law which attempted to reduce the number of children in congregate settings. These commenters stated that indefinite detention contradicts best practices, state policy, and Federal policy in the criminal justice, juvenile detention, and child welfare areas.
Other commenters recommended specific changes to the language of the rule to avoid the prospect of indefinite detention. One commenter recommended adding language regarding continuing efforts to release minors and reunify families for the duration of a child's time in custody to § 410.201(f). Another commenter wrote that the possibility of indefinite detention is exacerbated by the use of permissive and future-tense verbs (“may” and “will”) rather than the mandatory verbs found in the FSA (“shall” and “must”). This commenter recommended retaining the verbs used in the FSA. This commenter also wrote that the “or is otherwise appropriate” clause should be stricken from § 236.3(h) because it provides an opportunity for indefinite detention.
Many commenters stated that the TVPRA did not justify changing the conditions imposed by paragraph 14 of the FSA with regard to accompanied minors, because the TVPRA only addresses UACs and, in any event, is not inconsistent with the FSA.
Many commenters expressed concern that indefinite detention would violate detained children's human rights or civil liberties. These commenters asserted that detaining migrants in order to deter migration violates international prohibitions on torture. One commenter stated that prolonged detention of asylum seekers violates Article 31(1) of the UN Refugee Convention. Another commenter stated that detaining children for prolonged periods of time violates international law protecting the dignity of the family unit as well as guidance from the United Nations that children should not be detained due to migration status. Another commenter wrote that the indefinite detention of children violates Articles 37, 22, and 9 of the United Nations Convention on the Rights of the Child. One commenter wrote that the proposed rule should explicitly mandate consideration of the best interest of the child in order to comply with these provisions of international law. This commenter also stated that indefinite detention violates Article V of the American Declaration of the Rights and Duties of Man.
Many commenters expressed concern that prolonged or indefinite detention would negatively impact detained children's health, growth, and development. These commenters stated that, while there is no safe amount of detention, harms to children from detention increase as the length of detention increases. They argued that the conditions in existing detention facilities are inappropriate for, and dangerous to, children and do not provide sufficient medical and developmental services to children.
Specific concerns were raised with respect to the mental health of children including the prospect that detention
One commenter expressed concern that prolonged family detention would force children and their families to give up their culture. This commenter described a state's experience with Native American assimilation and Japanese-American internment and the negative effects these events had on those communities and noted that it does not want the United States to return to this past practice of childhood detention.
Finally, one commenter expressed concern that indefinite detention of immigrant children could lead to indefinite confinement of U.S. citizen children abroad because the proposed rule would damage the reputation and credibility of the United States abroad.
Aliens subject to final orders of removal may remain in custody until removal can be effectuated. For those aliens detained pursuant to INA 241, this includes a presumptively reasonable period of 180 days after a final order of removal has been issued, and thereafter, the alien must generally be released absent a significant likelihood of removal in the reasonably foreseeable future (in compliance with current law and regulation).
Detention remains an important tool to ensure that proceedings are completed. EOIR found that for completed cases from January 1, 2014, through March 31, 2019 that started at an FRC, 43 percent of family unit members were issued final orders of removal
DHS reiterates that while this rule would allow DHS to hold non-UAC minors with their parents or legal guardians at FRCs for more than 20 days, this intent does not clash with the intent of the FSA. The FSA provides that minors subject to its provisions will all be transferred to a licensed program until they can be released. FSA paragraphs 12A, 14, 19. The provisions of this rule will allow properly managed FRCs to qualify as licensed, non-secure facilities once its terms go into effect, and the FSA itself provides no specific time limit for a minor to be in a licensed program. That ICE generally does not hold family units in FRCs beyond approximately 20 days is a result of a district court opinion holding that ICE's FRCs, as they currently exist under law, are not appropriately licensed and are not “non-secure.” Once this rule permits properly managed FRCs to qualify as licensed, non-secure facilities, their operation will be consistent with the operation of licensed programs under the FSA. Importantly, as explained previously, FRCs are designed to be a safe location where families can be together in an environment that will foster their children's development during the pendency of immigration proceedings. They are not secure facilities—which means that, while it is discouraged, individuals in those facilities can exit them. Doing so, however, may give rise to arrest given that those in the facilities are subject to apprehension under the immigration laws and, in many instances, mandatory immigration detention.
Bond determinations will be made pursuant to the ordinary statutory and regulatory standards, under which an alien is released if he can establish he is not a flight risk or danger.
DHS has added new language at § 236.3(j)(4) to state clearly that paroling minors in DHS custody pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS adds that it may also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining whether detention of a minor is required to secure the minor's timely appearance before DHS or the immigration court or to ensure the minor's safety and well-being or the safety of others. Furthermore, current limitations on bed space in FRCs are significant and will likely mean that, as a practical matter, unless the amount of bed space is significantly expanded or the number of families drops dramatically, families that have established a credible fear and who are not a flight risk or danger will often be released from detention. For a discussion release of minors from DHS custody, please see Section B.10., Release of Minors from DHS Custody.
DHS is amending § 236.3(j)(4) to state that paroling minors in DHS custody pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason.
Commenters compared ATD programs such as the Intensive Supervision Appearance Program (ISAP) at $4 per day per person and the Family Case Management Pilot Program (FCMP) at approximately $36 per family per day to the cost of detention, which they cited as approximately $319 per individual per day in FY 2019. One commenter estimated that the costs of detention for a family of two in an FRC for 40 days, the average time to process an individual on the detained docket costs would be $25,520 ($319 × 2 people × 40 days). The commenter estimated the costs of ISAP for the head of household at $3,008 for 752 days, the average time to process an individual on the non-detained docket ($4 × 752 = $3,008).
The commenters noted that participants in the FCMP had a 100 percent attendance record at court hearings and a 99 percent rate of check-ins and appointments with ICE.
Relatedly, several commenters stated that DHS should utilize a community-based, case-management program as an alternative to detention. The commenters stated that such a program should provide case management services, facilitate access to legal counsel, and facilitate access to safe and affordable housing. They cited studies showing that a sense of belonging in schools and neighborhoods is a strong factor for positive health outcomes for immigrant and refugee families. The commenters also stated that such a program has been shown to substantially increase program compliance, without the extensive use of electronic monitoring, and cited pilot programs conducted by the Lutheran Immigration and Refugee Service and the Vera Institute of Justice as support. Still other commenters presented alternatives to detention. Some commenters stated DHS should more heavily rely on NGOs, non-profits, and religious organizations to provide necessary services, including housing, to immigrants and ensure that they attend their immigration hearings. One commenter focused on foster family placement, stating that it would provide better outcomes for youth than detention or large shelter placement.
Several commenters stated that DHS should release more aliens on bond, or if the aliens lack any indicia of being a flight risk, on their own recognizance. Several commenters supported electronic monitoring as an alternative to detention. Other commenters, however, expressed concern that electronic monitoring can be stigmatizing for aliens and interfere in daily life activities, and stated that such monitoring, while preferable to detention, should only be used as a last resort, such as when the alien is a flight risk, presents a safety concern, or otherwise would be a candidate for secure detention.
One commenter expressed support for a program that includes a combination of electronic ankle monitors, voice-recognition software, and unannounced home visits, and stated that similar programs have been found to be affordable and highly effective. One commenter, citing a GAO report,
Several commenters stated that providing needed services to alien families and minors would help ensure their attendance at court hearings. Several commenters stated that DHS should provide legal orientation programs to aliens to help ensure their appearance at hearings, as well as inform families of their legal rights and obligations. These commenters expressed a belief that the high rate of
Finally, commenters cited to a report on a non-profit organization's case management program, the Family Placement Alternatives (FPA), piloted in 2015. The commenters present the FPA as a human-centric alternative to detention through a holistic social service approach. The report highlights the benefits of community-based services and cites several examples of immigrants who were able to navigate the asylum system better with the help of an assigned case manager. The report also annexes several findings directly related to compliance with removal proceedings, discusses the cost-effectiveness of running the program and recommends its adoption on a larger scale.
ICE is, however, currently utilizing ATD for certain qualified family units. The current ATD—Intensive Supervision Appearance Program (ISAP) is a flight-mitigation program that uses technology and case management tools to facilitate compliance with release conditions, court appearance, and final orders of removal while allowing aliens to remain in their community—contributing to their families and community organizations and, if necessary, wrapping-up their affairs in the United
ATD-ISAP may be appropriate for aliens who are in some stage of removal proceedings and released from DHS custody pursuant to an order of release on recognizance, an order of supervision, or a grant of parole or bond,
Data maintained by ICE show that historically family units on ATD tend to abscond at a higher rate than non-family unit participants. ICE considers an absconder from the ATD program to be an individual who has failed to report, who has been unresponsive to attempts by the Government to contact him or her, and whom the Government has been unable to locate. In FY 2018, the absconder rate for family units was 30 percent, significantly higher than the 19 percent absconder rate for non-family unit participants. Because ICE lacks sufficient resources to locate, arrest, and remove the tens of thousands of family units who have been ordered removed but are not in ICE custody, most of these aliens remain in the country, contributing to the more than 564,000 fugitive aliens as of September 8, 2018. Such at-large apprehensions present a danger to ICE officers, who are the victims of assaults in the line of duty, and significantly increases the operational burden of effectuating removal. Therefore, although ATD-ISAP is useful and indeed used by ICE for many families, it is not a complete answer for the enforcement of immigration law with respect to family units.
The Juvenile Detention Alternatives Initiatives (JDAI), was developed as a pilot project in the early 1990s by a private philanthropy based in Baltimore, and has since expanded to over 300 jurisdictions. The purpose of JDAI is to reduce reliance on local confinement of youth involved in the penal system, based on the premise that placing juveniles in locked detention pending court hearings increases the odds that the child would be found delinquent and committed to corrections facilities, in turn damaging prospects for future success. The JDAI's core strategies include collaboration with juvenile court officers, prosecutors and defense counsel, and objective risk assessment of the youth to determine whether home confinement and self-reporting instead of detention will assure compliance with court appearances. JDAI is essentially a flight mitigation tool for the penal system with some similarities to ATD-ISAP in administrative removal proceedings. Accordingly, the JDAI is not suitable for managing family units and/or juveniles who are not otherwise involved in the penal system.
Commenters referenced the FCMP as a much cheaper alternative than detention. While the ATD-ISAP program has some elements of a case management program, the FCMP itself is a program no longer used by DHS. The FCMP was launched by DHS in early 2016, as an alternative to detention for family units who illegally entered the United States with a credible fear that might qualify them for protection from removal. The FCMP, which was implemented in only a few cities, aimed to promote compliance with immigration obligations for Heads of Household who are a low public-safety risk and who were residing or intending to reside in those few cities, and who were not considered appropriate for traditional ATD programs or who were not eligible for placement in FRCs,
ICE terminated the FCMP in June 2017, after completing a top-down review of the pilot year (January 2016—June 2017), based on the finding that the FCMP cost around $38.47 per family, per day (or roughly $16.73 per individual), while traditional ATD—Intensive Supervision Appearance Program (ISAP III) cost ICE approximately $4.40 per individual, per day. FCMP subcontracted out many of its case management services to NGOs, non-profits and religious organization which drove up the average cost per participant. ICE concluded that money it would save by discontinuing the FCMP could be better used by instead supporting other ATD services for more families.
While it is true that
Additionally, in the long run, the most important factor that determines if an alien is removed when a final order is issued is whether the person is in detention when this occurs. If an alien is not detained at the time, in many cases ICE will have to expend significant resources to locate, detain, and subsequently remove the alien in accordance with the final order.
Regarding commenters' reference to the non-profit organizations' Family Placement Alternatives program, such a program, as with the FCMP, is not suitable for the purpose of effectuating removal.
DHS declines to amend the proposed regulatory provisions in the final rule in response to these public comments.
Multiple commenters stated that ICE-run facilities have a history of poor conditions and compliance issues and stated that ICE could not be trusted to detain families in adequate and safe conditions. Some commenters contended that governmental facilities had failed to provide adequate access to care and safety for children in DHS and HHS custody, even though those facilities were presumably operating in accordance with current FSA stipulations. These commenters stated
According to these commenters, a report by Human Rights First
Multiple commenters referenced a letter from two DHS physicians to the Senate Whistleblowing Caucus, in which the experts stated that after conducting ten investigations over four years at ICE family detention facilities, they had concluded that children housed in ICE family detention centers are at high risk of harm, due to serious compliance issues such as lack of timely access to medical care, lack of sufficient medical staffing, inadequate trauma care and counseling, and inadequate access to language services.
Several commenters stated that DHS has been unable to staff facilities in a timely manner with qualified pediatricians, psychiatrists, child and adolescent psychiatrists, mental health clinicians, and pediatric nurses, particularly in remote areas. These commenters stated that without adequate staffing, the facilities could not provide adequate health services. Commenters cited to several incidents that they believe exhibited this lack of adequate care.
Commenters relied on several reports for these arguments. They pointed to a DHS Inspector General report on an ICE-run adult detention facility that they stated revealed astonishingly substandard and harmful conditions,
Commenters also pointed out that in January 2016, the Pennsylvania Department of Human Services revoked the child care license of the Berks County Residential Center because DHS was found to be using its license inappropriately. Yet, the facility continued to operate for a year with a suspended license. According to one of the commenters, the Berks County facility amassed an atrocious record of health concerns, inadequate medical attention, alleged sexual misconduct, and other harmful conditions because there was no proper oversight.
To further emphasize its commitment to its standards, DHS is adding regulatory text to confirm that it will publicly post the results of the third-party inspections of ICE FRCs on DHS's website to ensure as much transparency as possible within the inspection and alternative licensing process. See discussion of inspection comments and responses. Moreover, DHS is modifying the regulatory text to provide that audits of licensed facilities will take place at the opening of a facility and take place on an ongoing basis, and DHS is modifying the language regarding the juvenile coordinators, to be clear that their role includes ongoing monitoring of compliance with the standards in the regulations.
DHS further notes that under this rule, FRCs will not be exempt from state licensing standards, so long as the State in which they are located maintains a licensing process for facilities that hold minors together with their parents. Accordingly, the Berks FRC will continue to receive regular scheduled and unscheduled inspections by the Commonwealth of Pennsylvania even after this rule goes into effect. CRCL conducted an onsite investigation at Berks in 2017 and sent the Expert Reports with Recommendations to ICE on July 21, 2017. The Medical Expert did not find alarming incidents of medical care failures. DHS notes that the only facilities required to be licensed under this rule (and under the FSA) are the FRCs. Thus, these licensing requirements—and the public reporting of inspections—do not apply to DHS' short-term holding facilities (such as CBP facilities). DHS notes, however, as described above, that CBP facilities are subject to inspection and monitoring by outside entities.
DHS also disagrees with some of the commenters' specific assertions. Many of the commenters made broad, generalized allegations that ICE has abused children in detention, failed to uphold its own Family Residential Standards, and generally failed to provide care and safety to the minors in its custody, among other issues. Even though those commenters cited to studies such as the one provided by Human Rights First
However, DHS does have a complaint and grievance process in place. Aliens in DHS custody who have a specific complaint about a staff member can file a grievance either directly with OIG by emailing
Aliens in DHS custody, community faith-based organizations, non-governmental organizations (NGOs), community leaders, immigration lawyers, and members of the public
Another method of receiving complaints is through DHS's CRCL Community Engagement Team. Team Members go out into community, develop a rapport with NGOs, faith-based organization leaders, lawyers, and community members. Team Members hold community roundtable events at which they discuss DHS policies, procedures implemented across the Department, and what it means for the community. The community in turn has the ability to identify how it has affected them and if necessary file complaints through these Team Members.
When CRCL opens a formal investigation, the OIG is contacted and given the right of first refusal to investigate. If OIG turns down the opportunity to investigate, then CRCL performs the investigation. Depending on the type of complaint, the investigation could be conducted offsite or onsite. If offsite, CRCL will work with the respective DHS component to gather documentation specific to the allegations. If onsite, CRCL will conduct the investigation at the facility, which, for ICE, includes interviewing ICE detainees.
On-site investigations are of the facility policy and operations, and do not address personnel misconduct issues. The CRCL Compliance Branch goes to the ICE or CBP facilities to conduct on-site investigations. The team is comprised of a combination of the following, depending on the allegations presented: Policy advisors with investigative authority, a medical consultant, a corrections consultant, an environmental health and safety consultant, a suicide prevention consultant, and a mental health consultant. The team will always look into medical care/treatment, and the overall conditions of detention (food preparation, cleanliness, safety issues, grievance process, and the use of segregation). The team reviews the facilities policy and procedures to ensure the center is properly documenting its actions and incidences at the center and is in compliance with applicable standards. If problems are found at the facility, the team compiles a report of expert recommendations. The expert recommendations are issued to the relevant DHS component, who then has opportunity to concur, partially concur, or non-concur with recommendations and perform remediation. If recommendations are not implemented, CRCL has the ability to re-inspect facilities, and if necessary can issue a recommendation that DHS close a facility, or remove ICE detainees from a detention facility.
The public can find highlights of these Expert Recommendations in CRCL's Annual Report to Congress. CRCL also has a Transparency Initiative in which they are moving documents to the internet. As of this publication, two reports have been uploaded, but more are expected in the future.
CRCL conducts 10-12 site visits a year at ICE facilities with 1-2 of them at FRCs. These visits have brought about major improvements in recent years, and CRCL continues to monitor implementation of their Expert Recommendations.
For purposes of clarity, DHS is adding language to the final rule at 8 CFR 236.3(i)(4)(xx) explaining that licensed facilities will maintain a grievance filing process and requiring aliens in these facilities to avail themselves of this process if they wish to report a formal grievance. DHS also is adding language in 8 CFR 236.3(o) to make it more clear that the juvenile coordinator will monitor compliance with the regulation.
One commenter asserted that the failure to discuss the preliminary injunction in the
Regarding comments that detention will impact access to legal services, the rule specifically provides for attorney-client visits (in accordance with applicable facility rules and regulations) for those minors in ICE FRCs, as well as a comprehensive orientation session upon admission, including information on the availability of legal assistance.
DHS also disagrees that detention in FRCs will make it harder for children accompanied by their parents or legal guardians to meaningfully participate in their immigration proceedings; rather, keeping families together in custody as a unit will remove the possibility of the family missing a hearing, while also ensuring that the family can decide as a unit how to handle their ongoing removal proceedings.
When it comes to redetermining UAC status upon each encounter, DHS notes that the statutory definition of UAC indicates that the status could change if an individual turns 18, gains legal status, or is placed with a parent or legal guardian.
The proposed regulations on bond hearings also comport with due process. The proposed regulations (§ 236.3(m)) provide for a bond hearing by an immigration judge (to the extent permitted by 8 CFR 1003.19) for minors who are in removal proceedings under the INA 240 and who are in DHS custody. Those who are not in section 240 proceedings are ineligible to seek review by an immigration judge of their DHS custody determination, but may be considered for release on parole. And DHS is modifying the regulatory text to provide that parole of minors detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) who are not a flight risk or a danger will generally serve an urgent humanitarian reason. Separately, § 410.810 provides for an independent hearing officer process, guided by the immigration judge bond hearing process currently in place for UACs in ORR custody under the FSA.
The Department disagrees that the lack of a specific time frame in the rule governing re-apprehension of a previously released minor violates the minor's due process rights. Section 236.3(n) sets out the scenarios in which a previously released minor becomes an escape-risk, a danger to the community, subject to a final removal order, or lacking a parent or legal guardian available to care for the minor and must be taken back into custody. A custody redetermination hearing may be requested in accordance with § 236.3(m) (to the extent permitted by 8 CFR 1003.19). And although the regulations are silent as to how long after re-apprehension a redetermination hearing will occur, it will be within a reasonable time frame and any issues regarding the justification for the re-apprehension will be appropriately dealt with in the hearing (if necessary).
DHS cannot reply to vague assertions regarding violations of certain amendments without further explanations from the commenters, which were not provided. Regarding proportionate sentencing, this rulemaking does not address sentencing at all. DHS does not impose any kind of criminal punishment. Immigration detention is civil in nature and effectuates enforcement of the immigration laws. For a discussion on commenters' concerns regarding indefinite detention, see the section on this issue entitled “Indefinite Detention due to Alternative Licensing.”
DHS declines to amend the proposed regulatory provisions to the final rule in response to these public comments, but notes that DHS is modifying the regulatory text in places to clarify oversight and monitoring requirements.
Many commenters suggested that the rule did not adequately implement the FSA sufficient to trigger its termination. Some of these commenters stated that the rule removed mandatory terms, such as “shall” or “must,” when describing the obligations of the government, and that removing such terms would transform specific FSA provisions from express obligations into non-binding statements of agency activity.
One commenter stated that the government's proposed standards violate paragraph 12 of the FSA by creating exceptions for when the government will place minors with their family members based on the “well-being” of the minor or operational feasibility and expanding the emergency exception that would allow a minor to be detained with an unrelated adult for more than 24 hours. Another commenter stated that the provisions regarding when UACs can be placed in secure facilities violates the FSA because it allows HHS to place individuals in secure custody based on “danger to self or others”—a requirement the commenter stated is not found in the FSA. The commenter also expressed concern that the proposed rule fails to provide that HHS will review all secure placements monthly and to specify how placements in staff secure or residential treatment centers will be reviewed.
Several commenters stated that the final rule should have a mechanism such as paragraph 24B of the FSA that allows minors to challenge their placement in a facility and whether the facility complies with FSA-required standards. One of these commenters criticized the explanation in the NPRM that a child could utilize the legal procedures under the APA to challenge her placement as woefully lacking the protections afforded by the FSA. This commenter also states that any arguments by DHS or HHS that they are not subject to all of the provisions in the FSA is inaccurate because the FSA explicitly extends to any successors, therefore, these provisions must be included in the regulations of both agencies.
One commenter stated that the proposed regulations add additional requirements to the custodian affidavit that are not required by the FSA, and which could lead to a decrease in the number of willing custodians. Specifically, the requirements that the custodian ensure the UAC report for removal, if so ordered, and that the custodian report to ORR and DHS no later than 24 hours after learning that the UAC has disappeared are not required by the FSA, and could have negative impacts on the custodian/UAC relationship, which is not in the best interests of the minor. The commenter suggested that any required reporting after the disappearance of a UAC be made to the local police, who are better suited to find a missing person.
Some commenters opined that the government cannot change the FSA without court approval and that this rulemaking process is, therefore, not valid. But the regulations here are not themselves changing the FSA; they are implementing it with appropriate modifications to reflect changes in circumstance and accumulated agency experience. The FSA also plainly contemplates that a notice-and-comment process would occur, which presupposes some flexibility in how to implement the agreement in regulations.
Commenters claimed that DHS (and presumably HHS) did not use mandatory implementation language such as “will” and “shall.” But in those provisions that require the government to provide services or benefits to minors or UACs, the regulatory text does indeed use the words “will,” “shall,” and “must.” For example, in § 236.3(i)(4) that replicates the requirements of Exhibit 1 of the FSA, it clearly states that the “standards shall include . . .” and then lists everything that must be provided when in ICE facilities. On the other hand, when it could benefit the minor or UAC that the government not act in a strict manner, the regulatory text uses “may.” For example, in discussing re-assumption of custody by DHS of a previously released minor section, § 236.3(n), states “DHS may take a minor back into custody if there is a material change in circumstances . . .” DHS is also modifying the language of § 236.3(j) to provide that for minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(C), parole “will” generally be warranted when the minor is not a flight risk or danger. Therefore, DHS does not agree with the commenter's assessment. As for HHS' portion of the rule, the regulations are binding on the shelters that ORR regulates, whether or not the rule uses the words “will,” “shall,” and “must.”
One commenter also stated that DHS is not complying with paragraph 12 of the FSA because it is carving out exceptions that do not appear in the FSA such as taking into consideration the well-being of a child or expanding the meaning of emergency in the FSA. DHS disagrees with this commenter. The provisions of paragraph 12 state that a child who could not be released according to paragraph 14 or transferred to a licensed program pursuant to paragraph 19 cannot be held with unrelated adults for more than 24 hours. The solution in such cases, according to paragraph 12, is that the INS could transfer the unaccompanied minor to a county juvenile detention center or any other INS detention facility. The proposed provision gives DHS some leeway to avoid such transfers in cases of emergencies, while maintaining the requirement that UACs are provided adequate supervision and that their safety and well-being is taken into consideration. The definition of emergency in paragraph 12B speaks to exactly the same principles as the proposed definition,
Commenters expressed concern over the HHS criteria that allows for UACs to be placed in a secure facility, asserting that the criteria—“danger to self or others”—is not found in the FSA. In Paragraph 21, the FSA defines conditions on which a minor may be placed in a State or juvenile detention facility (
Commenters also asserted that minors should have a mechanism for challenging their placement in a facility. Immediately upon placement in an HHS secure facility, staff secure facility, or residential treatment center (RTC), UACs have the right to file an APA claim in Federal District Court, if they believe they have been treated improperly and/or inappropriately placed in a restrictive setting. A judge will then decide whether or not to review the UAC's case to determine whether they should remain in a restrictive setting. After 30 days of placement of an HHS secure or RTC setting, UACs may request the ORR Director, or his or her designee, reconsider their placement, as described in ORR's Policy Guide at section 1.4.2. This policy also describes the requirements for 30 day placement reviews for UACs in restrictive settings.
Commenters also believed that DHS needs to add specific language similar to paragraph 24B of the FSA into the rule. But the provisions in § 236.3(g)(1)(ii) speak to this by stating that a minor will be given the same Notice of Right to Judicial Review under the regulation as is given under the FSA regarding judicial review in the United States District Court if the facility where he or she is housed does not meet the standards in § 236.3(i). And the preamble specifically stated that the Notice of Right to Judicial Review will be the same as in Exhibit 6 of the FSA (
DHS declines to amend the proposed regulatory provisions in the final rule in response to these public comments.
Commenters provided empirical research or anecdotal evidence indicating that asylum-seekers released from detention have a high appearance rate for their immigration hearings. For example, one commenter cited results from a 2016 study which used immigration court data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, which estimated an overall appearance rate of 76.6 percent at immigration court in 2015 and found that releasing individuals on bond did not make a significant impact on who absconds. Another commenter cited a recent study published in the California Law Review, which found that 86 percent of families, and 96 percent of families applying for asylum, who were released from detention attended all their court hearings.
Commenters further pointed to the high compliance rates of those enrolled in an ATD program. In particular, commenters quoted from DHS's May 2017 Congressional Budget Justification, in which ICE stated that, historically, DHS has experienced strong cooperation from aliens in ATD through their immigration proceedings. The commenter added that any lack of data on rates of compliance or removal for those on ATD is a failure of the department for not collecting the information.
DHS does not dispute that many families who are released thereafter appear at all their hearings throughout their immigration proceedings, but many fail to appear, which is a serious concern. The studies and data cited by commenters regarding percentage of final orders issued
While DHS does not dispute the data presented on past ATD programs, there continued to be a significant portion of participants who did not comply fully with final removal orders. The ATD program is not sufficiently resourced to ensure that all family units can be enrolled in ATD through the duration of their proceedings, or to ensure that ICE can quickly respond to alerts or provide adequate oversight of program participants. ATD is less effective than detention at ensuring compliance with removal orders issued by immigration judges, although the ATD program is effective at more closely monitoring a small segment of the non-detained population and allows for much greater oversight than traditional release with very little supervision at all.
Even if the commenters' studies and data accurately reflected the rates at which alien family unit members fail to show up to their immigration hearings, however, the number of aliens who fail to abide by immigration law and disappear into the interior of the United States would still be a significant problem.
DHS declines to amend the proposed regulatory provisions in the final rule in response to these public comments.
Some commenters stated that any person seeking asylum is not an illegal immigrant, but one who should be protected under international law and given temporary asylum with an opportunity to contribute to our society. One commenter stated that seeking asylum is a humanitarian right, not a crime, and it is inhumane to jail children to punish their families for seeking safety. The commenter further stated, citing
DHS disagrees with the suggestion that detention infringes upon the asylum application process. Congress expressly provided for detention of certain aliens during section 240 removal proceedings,
DHS declines to amend its proposed regulatory text in response to these public comments.
DHS declines to amend the proposed regulatory provisions of the final rule in response to these public comments.
DHS notes that the requirements of PREA and its implementing regulations apply to FRC operations and include provisions on LGBTQ screening and safety. ICE ERO also promulgated a Transgender Care Memorandum that it provides to several facilities as a set of best practices. DHS notes that it has responded to concerns about medical care delays in the section on “DHS Track Record With Detention.”
ICE does not segregate LGBTQ aliens in FRCs from the rest of the population. Minors are with their accompanying parents and would not be segregated. While segregation may occur in a secure juvenile facility, ICE only employs such measures for the alien's own safety.
DHS disagrees with the commenter's suggestion that LGBTQ individuals are disproportionately disadvantaged in establishing their claim to asylum while housed at an FRC. LGBTQ individuals have the same access to legal service providers and law libraries as any other alien housed at an FRC; there is no segregation.
DHS declines to amend the proposed regulatory provisions of the final rule in response to these public comments.
With respect to E.O. 12866, commenters stated that the rule should have been deemed economically significant. An economically significant rule is one where the Office of Information and Regulatory Affairs determines that the rule may have an impact of $100 million or more in any given year. Rules designated as such are reviewed by the Office of Information and Regulatory Affairs. Commenters complained that the rule did not provide a cost estimate, consider alternatives to detention, or account for construction costs of facilities or health related costs. They also said that HHS had not reasonably estimated the cost of the rule and that DHS failed to maximize net benefits as required by E.O. 12866. With respect to E.O. 13563, commenters similarly stated that the agencies had failed to provide a reasonable cost estimate, bypassing or violating the requirements of both E.O. 12866 and E.O. 13563. With respect to E.O. 13771, which directs the executive branch to prudently manage the cost of planned regulations, the commenter said the proposed rule creates an increased burden to the Federal Government to create and operationalize the new licensing process and reduces states' flexibility in determining how facilities in their states should meet legal mandates.
DHS disagrees that it failed to adequately assess the costs and benefits of this rule. DHS provided the costs of the current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA in the NPRM at 83 FR 45513, discussed reasonable alternatives to the proposed rule at 83 FR 45520, and considered qualitative benefits such as protecting the safety of minors and the public at 83 FR 45520. In addition, as described in the proposed rule, a primary source of new costs due to this rule will be as a result of the alternative FRC licensing process and changes to ICE's current practice for parole determinations. These changes may result in additional or longer detention for certain minors and their accompanying adult, thereby increasing the per-person, per-day variable FRC costs paid by ICE. DHS provided an estimated number of minors in FY 2017 that would have been affected had the rule been in place, and per-person, per-day unit costs for each of the current FRCs. For those costs and benefits that DHS was not able to quantify and monetize, the NPRM included a qualitative description and a reasoned discussion about why they could not be quantified. DHS provided enough information on the unit costs of the rule so that commenters could provide meaningful comments. In fact, some commenters used the data DHS provided, along with their own assumptions, to make their own estimates of the cost of the rule.
DHS agrees with commenters, however, that this rule
DHS responds to comments about ATD earlier in the rule.
Finally, DHS notes that E.O. 13771 determinations are made at the final rule stage of the rulemaking process. The Office of Information and Regulatory Affairs has determined that this is a regulatory action under E.O. 13771.
In this final rule, the Departments now consider this rule to be economically significant.
That report estimated that, under the proposed rule, DHS would incur new annual costs of between $201 million and $1.3 billion. The paper considered two scenarios to establish this range of estimated costs. The first scenario included four assumptions: That the amount of people booked into FRCs
Under scenario two, the paper assumed that every alien apprehended in a family unit would be detained in an FRC; that the number of individuals apprehended as a part of a family unit in FY 2018 (which the paper indicated to be 107,063), would remain the same, and that the average length of detention would be 47.4 days. Applying an average daily cost, the paper estimated additional detention costs of approximately $1.24 billion annually.
Additionally, the paper assumed that ICE would need to acquire new facilities or beds in either scenario one or two, and it estimated that cost to be between $72 million and $520 million. It did so by modeling its anticipated daily detention populations from the scenarios above, factoring out the current detention capacity, and then estimating the number of new beds needed to house the number of detainees it projected under each of the two scenarios. Using the cost of converting the Karnes facility and the opening of the Dilley facility as baselines, the paper estimated ICE would need to spend between $72 million and $104 million in one-time startup costs to increase detention capacity for scenario one. For scenario two, the paper estimated that range to be between $468 million and $520 million. The paper concluded that as a result of the proposed rule, DHS would spend between $2 billion and $12.9 billion over a decade.
This commenter's analysis makes assumptions about the average length of stay, the population to be detained, and the need for and size of additional facilities, that ICE cannot reliably predict due to other factors outside the scope of this rulemaking, as discussed in the NPRM at 83 FR 45518 and 83 FR 45519. The large spike in the number of family units apprehended or found inadmissible at the Southwest Border since the publication of the proposed rule underscores the difficulties in reliably making quantitative estimates in this space. For all the reasons discussed above, DHS declines to incorporate in this final rule the commenter's proposed assumptions about the average length of stay, the increased number of family units held at FRCs, and the increased number of beds needed as a result of this rule.
As discussed previously, the Departments now consider this rule to be economically significant.
This regulation does not represent a decision on whether and in which circumstances to detain families for longer periods of time, though it does allow for such a decision to be made. Such decisions depend on operational and other considerations outside the scope of this regulation. For instance, DHS notes that it recently made the decision to use Karnes FRC for the detention of single adult women temporarily to deal with the ongoing migration influx.
While DHS cannot conclusively determine the impact on detention costs due to factors outside of the scope of this regulation, beginning with the fluctuating number of families apprehended at the Southwest border, it does acknowledge the three existing FRCs could potentially reach capacity as a result of additional or longer detention for certain individuals. There are many factors that would be considered in opening a new FRC or expanding a current FRC, some of which are outside the scope of this regulation, such as whether such a facility would be appropriate based on the population of aliens crossing the border, anticipated capacity, projected average daily population, competing detention needs for non-family populations, and projected costs. Moreover, such a decision depends on receiving additional resources from Congress, and ICE has to balance the detention of families with the detention and removal of single adults. If bed space were increased following this rule, the cost would depend on the type of facility, facility size, location, and a number of
While Executive Order 12866 has a standard of whether the rule
Based in part on the developments discussed above, OIRA has determined that this rule is economically significant.
Comments and responses pertaining to the Departments' costs analysis, costs to taxpayers, data, and proposed alternatives follow.
Many commenters objected that the Departments did not provide an estimated total cost for the proposed rule. Other commenters added that various issues should have been addressed in the rule's cost benefit analysis, such as the impact to detention costs, the need to quantify benefits, and other generalized statements about the added cost that would result from the proposed rule. Some commenters mistakenly suggested that the NPRM concluded that there would be no additional costs due to the proposed rule.
Commenters implored HHS to provide a justification that the proposed rule does not create any significant new costs.
Commenters stated that DHS conceded that the proposed regulations could lead to “additional or longer detention for certain minors” and that the Departments could not evade their responsibility to assess the economic and other impacts of the proposal by referring to uncertainties largely of its own making. Various commenters stated the Departments should have considered the additional costs of providing education, food, medical care, and other services families in prolonged detention.
Three commenters requested that ORR specifically look into the cost of housing children at its secure facilities like Yolo County Juvenile Detention Facility, which can be significantly more expensive than shelter placements.
Others said that the Departments should quantify the social costs of care for the children who may experience trauma as a result of indefinite detention, including the potential lifetime economic burden for children who experienced maltreatment, which one commenter estimated to cost $124 billion.
Another commenter estimated that the cost to detain migrant children would be similar to the cost to incarcerate an juvenile, which the commenter asserted, without supporting detail, to be $148,767 per year, though the commenter also added that infants and toddlers would require additional costs.
Commenters stated the Departments should also have developed a cost analysis of the zero-tolerance policy for each state it impacted and the cost of the proposed new alternative licensing and auditing process for DHS facilities.
DHS disagrees that this rule need account for the social economic impacts of indefinite detention and maltreatment, because this rule will not result in either indefinite detention or maltreatment of minors in DHS custody. While this rule may result in some minors being detained for a longer period of time, that detention (like the detention that currently occurs) will occur with those minors' parents or legal guardians and will be consistent with both the statutory frameworks governing detention and the DHS policies for parole of aliens, including family units who have demonstrated a credible fear. Such detention is also consistent with the FSA's recognition that the government may need to detain minors to secure their timely appearance in immigration proceedings or to ensure their safety, as has been underscored by the significant numbers of final orders of removal that have recently been entered
Families and minors often arrive at the border having faced trauma in their journey, and these are costs not attributed to this rule. Although numerous commenters have proffered arguments and evidence about potential trauma that may result from immigration detention itself, Congress has already made a judgment that detention of alien minors in some circumstances is appropriate. This rule merely facilitates DHS's efforts to comply with that judgment while maintaining the discretion that DHS has long exercised to parole families. DHS recognizes that detention and custody may have negative impacts for some individuals, but as experience has
Because this rule codifies current HHS operations, including those regarding secure HHS facilities and UAC health-related costs, HHS anticipates no significant cost effect from this rule. (HHS notes that the costs for implementing the 810 hearings is described later in this rule and could average $250,000.) Rather, the primary cost driver for HHS is the migration patterns that influence the number of children referred to HHS and the rate at which HHS discharges children to sponsors. Neither of those factors are influenced by this rule.
Additionally, DHS currently audits its FRCs in how they meet the standards of its Family Residential Standards and will continue to use this existing process, so that cost is included in the baseline of the rule and would not change as a result of the new licensing process. The new licensing process will not change the standards used in the audits and will not result in new costs.
After considering the relevant factors, DHS believes the benefits of this rule justify the costs. ICE's objective and mission is to enforce immigration laws and effectuate removals. As discussed previously, the
One commenter said that even minors in expedited removal proceedings could experience extended periods of detention based on the availability of asylum officers to conduct the credible-fear interview, the time to obtain a review from an immigration judge for a negative decision, and delays in filing a Notice to Appear. Another commenter said that detaining families during the entirety of their immigration proceedings, would likely cause the expensive costs of family detention to skyrocket by $2 billion at the low end, and as much as $12.9 billion at the high end.
Commenters lamented that HHS had failed to adjust its UAC residency growth rate or adjust any of the costs associated with increased UAC in the ORR system. The commenters claimed that HHS would need to shift essential resources away from their appropriated purpose to make up for the lack of funding.
HHS reiterates that, aside from 410.810 hearings for which HHS will incur some initial start-up costs, estimated at an average of $250,000, the rule codifies current HHS operations, including regarding secure HHS facilities as well as UAC health-related costs. There is no significant cost effect from the rule for HHS. Rather, the primary cost drivers for HHS are migration patterns that influence the number of UACs referred to HHS and the rate at which HHS discharges children to sponsors, and—neither of these factors is influenced by this rule.
Lastly, in response to the request for comments, on calculating costs to the government and individuals and on costs for 810 hearings, commenters added that the variables DHS sought comment on are under DHS's control.
DHS notes that some commenters have used unsupported assumptions about the important cost drivers of this rule and then applied such assumptions to the per-person, per-day costs in order to calculate a total cost. These commenters have not calculated a total cost of the rule. As previously explained, DHS is unable to forecast the future total number of such minors that may experience additional or longer detention as a result of this rule or for how much longer individuals may be detained because there are many other variables that may affect such estimates. In addition, DHS does not know how this rule might impact the number of FRCs as factors outside of the scope of the rulemaking cannot be predicted (such as future congressional appropriations). Consequently, providing a reliable total cost estimate of this rule is not possible given the many factors outside of the government's control.
This rule codifies current HHS operations—with the exception of § 410.810—so there is no significant cost effect from the rule for HHS. Rather, the primary cost drivers for HHS are migration patterns that influence the number of children referred to HHS and the rate at which HHS discharges children to sponsors, and neither of these factors is influenced by this rule.
With respect to the 99 percent of the 14,993 minors who were found to have credible fear and released on parole or on their own recognizance, DHS disagrees with the commenter's assertion that they were released solely due to the practice of applying a 20-day limit for unlicensed facilities; other factors were relevant to those determinations, including limitations on bed space and decisions regarding release on bond or parole. This rule generally would not change how DHS exercises its authority to release minors with credible fear. The analysis in this final rule has been updated with FY 2018 data. See the E.O. 12866 section of this final rule. DHS's estimates of the impact of the rule on detention of families are discussed above.
The Departments decline to amend the final rule analysis as proposed by commenters.
Several commenters stated the government should re-direct those resources toward addressing root causes of child and family migration from Central America. This commenter recommended re-establishing the Central American Minors program instead of expanding detention capacity.
Several commenters raised specific fiscal concerns with utilizing soft-sided structures for influx purposes and transferring funds for that purpose from the National Institutes of Health, Head Start, Centers for Disease Control, or the National Cancer Institute.
The alternative uses of funds suggested by commenters do not meet the objectives of the proposed rule. As circumstances change at the southern border the agency can redirect resources in order to react in a timely manner.
HHS disagrees that using soft-sided structures during an influx necessitates exercising the Secretary's transfer authority as described in the comments.
The Departments decline to amend the final rule analysis as proposed by commenters.
As indicated in the NPRM, the Departments considered not promulgating this rule but ultimately concluded that continuing to operate absent regulatory action would likely require the Government to operate through non-regulatory means in an uncertain environment subject to unknown future court interpretations of the FSA that may be difficult or operationally impracticable to implement or could otherwise hamper operations. Failing to promulgate this rule also would leave unaddressed the statutory amendments in the HSA and TVPRA that have affected certain portions of the FSA. HHS, having not been an original party to the FSA but as a successor agency with respect to some of its requirements, will benefit from rules that clearly delineate ORR's responsibilities from that of other Federal partners.
Finally, DHS notes that legacy INS's successors are obligated under the FSA to initiate action to publish the relevant and substantive terms of the FSA as regulations, pursuant to the 2001 Stipulation.
DHS declines to amend the final rule analysis as proposed by commenters.
Accordingly, DHS declines to change the final rule analysis as proposed by commenters.
The commenter contended that the expanded definitions of “emergency” and “influx,” along with recently promulgated sponsorship review procedures, will require sponsors to spend more time and money to secure the release of children in HHS custody. This commenter expressed concern that the NPRM does not account for the public burden caused by sponsors dropping out of the onerous sponsorship process or being rejected from sponsorship.
The Departments decline to amend the final rule analysis as proposed by commenters.
One commenter added that the government historically has prioritized the profits of private companies ahead of the care for immigrant families. As an example of this profit motive, another commenter said that the GEO Group and its lobbyist attempted to have the Texas legislature pass a bill that would have waived the standards for childcare facilities, enabling the facility in Karnes County to hold families for longer periods.
Some commenters explicitly stated they did not want for profit facilities to be used, because it would lead to traumatized children, and families.
DHS does not exclusively contract with for-profit entities.
HHS currently contracts with one private contractor to operate and maintain an influx facility for UACs. Because this rule serves to implement and codify both the FSA and other existing practices under the HSA and TVPRA, HHS does not anticipate that publication of the rule would cause an increase in costs, as compared to anticipated costs in the absence of a rule.
DHS and HHS decline to amend the final rule as proposed by commenters.
Some commenters proposed hiring additional immigration judges to address the backlog of cases and urged the use of social workers and the provision of legal services to assist asylum seekers.
Several commenters stated the government should focus on addressing the root causes of migration from Central America by providing additional assistance in the region to strengthen the protection systems. They highlighted the Central American Minors Program as a means of avoiding children from having to migrate and make the dangerous journey without any guarantee of admission. Some of these commenters also suggested supporting infrastructure projects and job creation in the countries migrants are leaving or exploring solutions like the Marshall Plan, the American aid package provided in 1948 to rebuild Western Europe post World War II.
Another commenter stated the funds used for family detention would be better spent on domestic programs to benefit the American people such as infrastructure jobs, provide slots in a Head Start program, or fund healthcare for low income adults.
The Departments declines to amend the final rule in response to these comments.
The Departments are not making changes in the final rule in response to these comments.
The Departments are not making changes in the final rule in response to this comment.
Many commenters stated that evidence-based research has shown that even a short period of family separation is extremely harmful to infants and young children and a more prolonged separation can result in depression, high levels of anxiety and other symptoms including incessant crying, lack of appetite, failure to achieve cognitive and social learning, and loss of previously acquired skills. Commenters referenced letters from mothers separated from their young children at the border of the United States where they sought asylum about the traumatic effects of such separation.
Some commenters believed that the trauma children experience from family separation and prolonged detention can turn into intergenerational trauma in families and cultural communities.
DHS is not making changes in the final rule in response to these comments.
Many of these commenters referenced a policy statement by the American Academy of Pediatrics which stated “there is no evidence indicating that any time in detention is safe for children,” and opined that “[q]ualitative reports about detained unaccompanied immigrant children in the United States found high rates of post-traumatic stress disorder, anxiety, depression, suicidal ideation, and other behavioral problems.”
Another commenter referenced a statement by the United Nations High Commissioner for Human Rights that states UNHCR is opposed to detention of children for immigration reasons because of the negative health impacts.
Additional commenters wrote that detention constitutes a type of adverse childhood experience (ACE) that can cause irreparable harm including negative health outcomes in adulthood, higher rates of mental health problems, substance abuse, poorer educational outcomes, and poorer vocational outcomes. Commenters also asserted that detention can have a negative effect on the academic, cognitive, and social development of children, leading to impaired or delayed cognitive development that continues after a child is released from detention. Commenters cited several studies reaching similar conclusions. Several commenters also wrote that the trauma experienced by children in detention can be passed through generations.
Commenters also wrote that detention negatively impacts family relationships because it undermines parental authority and parental capacity to respond appropriately to children's needs.
Consistent with the recommendations of scientists, ICE provides medical care and educational services in ICE facilities. CBP also provides medical screening to all minors and UACs who enter CBP custody along the southwest border. CBP's medical screenings are designed to ensure that any minors or UACs with emergent health needs are immediately referred for appropriate emergency care. It is difficult to gauge how much experiences in the juvenile's home country and the harsh trip to the United States, which is ripe with exploitation and abuse, affected a particular juvenile before he or she ever arrives at the border. But DHS has taken several important steps to address these issues.
The research on child detention states that children who are detained are at a significantly higher rate of psychological distress. Multiple accommodations for a Family Centered and Trauma Informed Approach are being implemented within the ICE residential facilities in order to decrease the effects of trauma on minors in detention.
Research of the Australian Psychological Society (APS) recommends that children and families should be accommodated separately from other detainees. Appropriate resources with indoor and outdoor spaces should be provided for children. The APS suggests that mental health services be offered to detainees, including children, which includes access to appropriately trained clinical providers. Educational opportunities should be available, along with medical care.
ICE currently has three facilities that house alien family units. From the outset, minors in FRCs are detained along with their parent or legal guardian, who can provide care and support. DHS believes that affording parents full control over their children at FRCs and respecting their rights as parents plays an important role in minimizing and addressing trauma.
Furthermore, all ICE-detained individuals have access to care on a 24/7 basis. Mental health services include crisis-intervention, various therapeutic treatment modalities to include, talk therapy, educational group behavior modification, medication treatment and case management services. Also included are groups on trauma, domestic violence, grief and loss, parenting skills and information regarding minors in a residential setting. For minors there is a focus on Bullying Prevention and Social Skills Training. Each facility works with a local school providing education for each grade level along with IEP's if needed. Minors attend class and have access to both indoor and outdoor recreation. There is space for minors to play and explore in order to properly socialize among their peers. In a case where there may be abuse allegations, an investigation is documented under PREA Protocol and a minor will have both a medical and mental health evaluation. If necessary, Child Protective Services (CPS) will be contacted to do a full investigation. The parent and the minor will both be offered treatment as required or not by CPS. Children's Advocacy Centers will also be contacted to aid the minor and parent through the legal process and the forensic interview.
In addition, all minors along with their accompanying parent or legal guardian caregiver are seen weekly by a licensed mental health care provider through “Weekly Mental Health Checks.” Mental health providers include psychiatrists, clinical social workers and psychologists and pediatricians.
Everyone entering an FRC is screened for both physical and mental health issues and trauma. ICE also maintains mental health professionals on staff to conduct both individual and group sessions to help residents with their trauma issues. Additionally, FRCs provide safe settings for minors to access educational services year round.
DHS believes affording parents full control over their children at FRCs and respecting their rights as parents can also play a role in addressing this problem.
DHS argues that this rule is about ensuring the care of minors in government custody while enforcing the immigration laws as laid out by Congress, in light of the FSA and operational realities. And those immigration laws set out detention as a key component of immigration enforcement. Enforcement of the immigration laws is a core DHS mission that cannot be ignored and must be balanced with the needs to ensure the care of minors in DHS custody and relevant legal obligations.
Separately, as the nation's leading immigrant child welfare agency, ORR is deeply committed to the physical and emotional safety and wellbeing of all UACs in its temporary care. ORR-funded care providers must be aware of the physical and psychological impacts of forced displacement, migration, and childhood trauma and conduct holistic, child-centered assessments of the medical and behavioral health needs of UACs. Care providers must also understand the developmental stages of children and adolescents and how the stressors of temporary government custody affect children at each stage. UAC clinical services should be evidence-based therapeutic interventions and be structured so that clinicians have continuous supervision and access to the support they need as they work with vulnerable and traumatized children and youth.
DHS acknowledges that it must try to balance its mission of promoting homeland security and public safety against the vulnerabilities of many aliens in its custody, including juveniles in particular. HHS is committed to continuously reassessing its policies, procedures, and operations to align with state-of-the-science research and best practices in child welfare service provision.
The Departments are not making changes in the final rule in response to these comments.
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. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
This rule has been designated a “significant regulatory action” that is economically significant under section 3(f)(1) of Executive Order 12866.
In response to commenters, DHS has made the following changes to the proposed rule in this final rule. Most of these changes are points of clarification and do not add costs or change the impact of the rule. Section 212.5(b) now considers that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.
Section 236.3(b)(2), which defines
Section 236.3(b)(9), which defines
In § 236.3(b)(11), which defines a
In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that a UAC from a contiguous country who is not permitted to withdraw his or her application for admission or for whom no determination can be made within 48 hours of apprehension, will be immediately transferred to HHS. This clarification does not add new costs to the rule.
In § 236.3(f)(4)(i), DHS clarifies that UACs will generally not be transported with unrelated detained adults, subject to certain exceptions spelled out in the rule. This is a clarification and thus does not add any new costs to the rule.
In § 236.3(g)(1)(i) regarding DHS procedures in the apprehension and processing of minors or UACs, Notice of Rights and Request for Disposition, DHS is removing a qualification on the requirement that the notice be read and explained to a minor or UAC in a language and manner the minor or UAC understands if the minor is believed to be under 14 or is unable to comprehend the information on the form. DHS had proposed to do so only for minors or UACs believed to be less than 14 years of age, or unable to comprehend the information contained in the Form I-770. DHS is changing this language to make it clear that the form will be provided, read, or explained to
In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, the proposed rule that UACs “may be housed with an unrelated adult for no more than 24 hours except in the case of an emergency or exigent circumstances.” Commenters objected to the use of the term “exigent circumstances” as it was not defined. DHS believes “exigent circumstances” because it is redundant to “emergency” and thus agrees to delete the term. This is a clarification and does not add new costs to the rule.
In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1. In response to these comments, DHS added language of FSA Ex. 1 paragraph B and C. These standards have always been in place and thus will not result in new costs to the rule.
Section 236.3(j) and (n) now provide that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.
DHS has added new paragraphs at § 236.3(j)(2)-(4) to identify the specific statutory and regulatory provisions that govern the custody and/or release of non-UAC minors in DHS custody based on the type and status of immigration proceedings.
DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors in its custody pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS adds that it may also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining whether detention of a minor is required to secure the minor's timely appearance before DHS or the immigration court. This change is a point of clarification on the process for discretionary release and does not add new costs or change the impact of the rule.
DHS clarifies in § 236.3(o) that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations. This is a clarification point and does not add new costs or change the impact of the rule.
In response to comments on the status of the Dilley and Karnes FRCs to be non-secure, ICE has agreed to add several new points of egress along their perimeters by September 30, 2019. The estimated construction cost at Dilley is between $5,000 and $6,000. There is no additional cost to DHS for this construction at Karnes, and the private contractor, the GEO Group, did not provide an estimate of the cost they would incur for adding the new points of egress and thus DHS is unable to quantify this cost.
DHS agrees with commenters that this rule
In response to commenters, HHS has made the following changes to the proposed rule in this final rule. Most of these changes are points of clarification and do not add costs or change the impact of the rule.
Section 410.101, which defines
In § 410.203, HHS is making a change to make more explicit the fact that ORR reviews placements of minors in secure facilities on at least a monthly basis. HHS is also making a change to make more explicit the fact that, notwithstanding its ability under the rule to place UACs who are “otherwise a danger to self or others” in secure placements, this provision does not abrogate any requirements to place UACs in the least restrictive setting appropriate to their age and special needs. This clarification does not add new costs to the rule.
In 45 CFR 410.600(a), HHS stated that it would take all necessary precautions for the protection of UAC during transportation with adults. This language runs in contradiction to 45 CFR 410.500(a), which states that ORR does not transport UAC with adult detainees. Therefore, the sentence from 45 CFR 410.600(a) that reads, “ORR takes all necessary precautions for the protection of UACs during transportation with adults,” will be struck from the final rule. This revision does not add new costs to the rule.
ORR notes that there will be instances when UACs are transferred with adult staff members. These situations are covered under 45 CFR 411.13(a) of the Interim Final Rule (IFR) on the Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Children. The IFR states, “Care provider facilities must develop, document, and make their best effort to comply with a staffing plan that provides for adequate levels of staffing, and, where applicable under State and local licensing standards, video monitoring, to protect UCs from sexual abuse and sexual harassment.” This provision applies to transfers as well.
In § 410.700 relating to age determination decisions, HHS will add “totality of the evidence and circumstances” language so that the age determinations decisions by HHS and DHS are based on the same standard, as required by law (see 8 U.S.C. 1232(b)(4)). This addition does not add costs to the rule.
The NPRM proposed to include that bond hearings for UACs be transferred from the immigration courts to a hearing officer housed within HHS, where the burden would be on the UAC to show that s/he will not be a danger to the community (or risk of flight) if released, using a preponderance of the evidence standard. HHS declines to shift the ultimate burden of proof to itself. However, it clarifies that HHS bears the burden of initial production, under which it must present evidence supporting its determination of the UAC's dangerousness or flight risk. The UAC would bear the burden of persuasion, rebutting HHS' evidence to the hearing officer's satisfaction under a preponderance of the evidence standard. The changes to the 810 hearing process do not add new costs to the rule in beyond those that will be incurred by the Department to perform the hearings as envisioned in the NPRM.
The FSA has been in place for more than two decades and sets limits on the length of time and conditions under which children can be held in immigration detention. In 1985, two organizations filed a class action lawsuit on behalf of alien children detained by the former INS challenging procedures regarding the detention, treatment, and release of children. After many years of litigation (including an appeal to the United States Supreme Court) and advocacy (civil society organizations, including human rights groups, faith-based institutions, political leaders, and concerned citizens) the parties reached a settlement in 1997. HHS assumed responsibility of UACs and created, within ORR, the UAC Program in 2003. The FSA has served as the foundation for ORR's UAC Program since its inception.
The FSA itself anticipated that its terms would be implemented through Federal regulations issued in accordance with the APA: “Within 120 days of the final district court approval of this Agreement, the INS shall initiate action to publish the relevant and substantive terms of this Agreement as a Service regulation. The final regulations shall not be inconsistent with the terms of this Agreement.” This rule aims to codify the terms of the FSA as envisioned by the parties to the settlement more than 20 years ago, taking into account current circumstances and changes in the law since that time. The original FSA had a termination clause that terminated the agreement the earlier of five years from court approval of the agreement, or three years after the court determines the INS is in substantial compliance with the agreement. In 2001, the parties modified the agreement and agreed that it would terminate 45 days after the promulgation of regulations implementing the agreement. By codifying current requirements of the FSA and court orders enforcing terms of the FSA, as well as relevant provisions of the HSA and TVPRA, the Departments are implementing the intent of the FSA and make permanent the requirements to protect children and provide them with safe and sanitary accommodations. The Federal Government's care of minors and UACs has complied with the FSA and related court orders for more than 20 years, and complies with the HSA and TVPRA.
The rule applies to minors and UACs encountered by DHS, and in some cases, their families. CBP and ICE encounter minors and UACs in different manners. CBP generally encounters minors and UACs at the border. Generally, ICE encounters minors either upon transfer from CBP to an FRC, or during interior enforcement actions.
CBP's facilities at Border Patrol stations and ports of entry (POEs) are processing centers, designed for the temporary holding of individuals. CBP's facilities are not designed to accommodate large numbers of minors and UACs waiting for transfer to ICE or ORR, even for the limited period for which CBP generally expected to have custody of minors and UACs, 72 hours or less. Although minors and UACs in CBP facilities are not provided the same amenities that will be available to them in longer-term facilities, all minors and UACs in CBP facilities are provided access to safe and sanitary facilities;
CBP has apprehended or encountered 65,593 minors accompanied by their parent(s) or legal guardian(s), and 56,835 UACs on average annually for the last three complete fiscal years. In FY 2018, CBP apprehended or encountered approximately 107,498 alien minors or UACs. Apprehensions or encounters in FY 2019 to date have surpassed FY 2018 annual totals.
CBP makes a case by case determination as to whether an alien is a UAC based upon the information and evidence available at the time of encounter. When making this determination, CBP follows section 462(g)(2) of the HSA, which defines a UAC as a child who—(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.
Once CBP determines that an alien is a UAC, CBP must process the UAC consistent with the provisions of the TVPRA, which requires the transfer of a UAC who is not statutorily eligible to withdraw his or her application for admission into the custody of ORR within 72 hours of determining that the juvenile meets the definition of a UAC, except in exceptional circumstances.
If, upon apprehension or encounter, CBP determines that an alien is a minor who is part of a family unit, the family unit is processed accordingly and transferred out of CBP custody. If appropriate, the family unit may be transferred to an ICE FRC. If the FSA were not in place, CBP would still make a determination of whether an alien was a UAC or part of a family unit upon encountering an alien, in order to determine appropriate removal proceedings pursuant to the TVPRA.
When ICE encounters a juvenile during an interior enforcement action, ICE performs an interview to determine the juvenile's nationality, immigration status, and age. Pursuant to the TVPRA, an alien who has been encountered and has no lawful immigration status in the United States, has not attained 18 years of age, and has no parent or legal guardian in the United States available to provide care and physical custody will be classified as a UAC. The number of juvenile arrests made by ICE is significantly smaller than CBP across all fiscal years as shown in below. A non-UAC minor would have to be arrested to be booked into an FRC.
Once ICE determines that an alien is a UAC, ICE must process the UAC consistent with the provisions of the TVPRA, which requires the transfer of a UAC into the custody of ORR within 72 hours of determining that the juvenile meets the definition of a UAC, except in exceptional circumstances.
At the time that the FSA was agreed to in 1997, INS enforcement efforts mainly encountered single adults, and only adult detention facilities were in operation. Prior to 2001, when a decision was made to detain an adult family member, the other family members were generally separated from that adult. However, beginning in 2001, in an effort to maintain family unity, INS began opening FRCs to accommodate families who were seeking asylum but whose cases had been drawn out. INS initially opened what today is the Berks FRC (Berks) in Berks, Pennsylvania, in 2001. ICE also operated the T. Don Hutto medium-
The South Texas FRC in Dilley, Texas (Dilley) has 2,400 beds, Berks has 96 beds, and the Karnes County Residential Center in Karnes County, Texas (Karnes) has 830 beds. The capacity of the three FRCs provide for a total of 3,326 beds. Currently, the Karnes FRC houses male heads of household, the Berks FRC houses dual parent families, and the Dilley FRC houses female heads of household (though ICE has transitioned Karnes to housing single adult females as of the time of this rule to reflect operational considerations). As a practical matter, given varying family sizes and compositions, and housing standards, not every available bed will be filled at any given time, and the facilities may still be considered to be at capacity even if every available bed is not filled. ICE did not maintain a consistent system of records of FRC intakes until July 2014. Since 2015, there has been an annual average of 35,032 intakes of adults and minors at the FRCs. The count of FRC intakes from July 2014 through FY 2019 Year-to-Date (YTD) is shown in Table 9 below.
Due to court decisions in 2015 and 2017, DHS ordinarily uses its FRCs for the detention of non-UAC minors and their accompanying parent(s) or legal guardian(s) for periods of up to approximately 20 days. This is generally the period of time required for USCIS to conduct credible fear proceedings. Since 2016, the average number of days from the book-in date to the release date at all FRCs for both minors and adults has been less than 15 days. Table 10 shows the average number of days from book-in date to release date at FRCs for FY 2014 through FY 2019 YTD (April 4, 2019), based on releases by fiscal year. Data on releases are available for all four quarters of FY 2014.
Table 11 shows the reasons for the release of adults and minors from FRCs in FY 2017 and FY 2018. As it indicates, the large majority of such individuals were released on an order of their own recognizance or paroled.
Table 12 shows the number of adults and minors removed from the United States from FRCs since FY 2014. Removals include returns. Returns include Voluntary Departures (including Voluntary Returns)
The FSA does not impose requirements on secure facilities used for the detention of juveniles. Juveniles may be placed in secure facilities if they meet the criteria listed in paragraph 21 of the FSA.
The rule also applies to UACs who have been transferred to HHS care and custody. Upon referral, HHS promptly places UACs in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self or others and risk of flight. HHS considers the unique nature of each child's situation and incorporates child welfare principles when making placement and release decisions that are in the best interest of the child.
HHS places UACs in a network of more than 100 shelters in 17 states. For the first nine years of the UAC Program at HHS, less than 8,000 UACs were served annually. Since FY 2012, this number has increased dramatically, with a total of 13,625 children referred to HHS by the end of FY 2012. Between FY 2012 and FY 2018, HHS received a total of 316,454 UACs.
For FY 2018 the average length of care (the time a child has been in custody, since the time of admission) for UACs was approximately 60 days. The majority (more than 85 percent) of UACs are released to suitable sponsors who are family members within the United States. UACs who are not released to a sponsor typically age out or receive an order of removal and are transferred to DHS; are granted voluntary departure and likewise transferred to DHS for removal; or, obtain immigration legal relief and are no longer eligible for placement in ORR's UAC program.
In order to properly evaluate the benefits and costs of regulations, agencies must evaluate the costs and benefits against a baseline. OMB Circular A-4 defines the “no action” baseline as “the best assessment of the way the world would look absent the proposed action.” It also specifies that the baseline “should incorporate the agency's best forecast of how the world will change in the future,” absent the regulation. The Departments consider their current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the primary baseline for this analysis, from which they estimate the costs and benefits of the rule. The Departments also consider how current operations and procedures could change, in the absence of this rule, depending on a number of factors.
The baseline encompasses the FSA that was approved by the court on January 28, 1997. It also encompasses the 2002 HSA legislation transferring the responsibility for the care and custody of UACs, including some of the material terms of the FSA, to ORR, as well as the substantive terms of the 2008 TVPRA. Finally, it includes the July 6, 2016 decision of the Ninth Circuit affirming the district court's finding that the FSA applies to both accompanied and unaccompanied minors, and that such minors shall not be detained in unlicensed and secure facilities that do not meet the requirements of the FSA.
CBP incurs costs to comply with the FSA, including those related to facility configurations, custodial requirements, and compliance monitoring. To comply with the terms of the FSA, for example, CBP reallocates space in its facilities to allow for separate holding areas for families and/or UACs. Pursuant to the FSA, CBP provides minors and UACs access to food; drinking water; functioning toilets and sinks; adequate temperature and ventilation; emergency medical care, if needed; and safe and sanitary facilities. Thus, CBP incurs costs for, among other things, the purchase of food; bottled water; first aid kits; hygiene items; blankets, mats, or cots; and age-appropriate transport and bedding. To ensure compliance with the FSA, CBP has also added fields in its electronic systems of records, so that CBP officers and Border Patrol agents can continuously record the conditions of the hold rooms and all custodial activities related to each minor or UAC, such as medical care provided, welfare checks conducted, and any separation from accompanying family members.
CBP experiences other baseline costs from its national and field office Juvenile Coordinators. Under current practice, as described above, the national CBP Juvenile Coordinator oversees agency compliance with the FSA requirements and with policy related to the treatment of minors and UACs in CBP custody. The national CBP Juvenile Coordinator monitors CBP facilities and processes through site visits and review of juvenile custodial records. Along with the national CBP Juvenile Coordinator role, CBP has field office and sector Juvenile Coordinators who are responsible for managing all policies on the processing of juveniles within CBP facilities, coordinating within CBP and across DHS components to ensure the expeditious placement and transport of juveniles placed into removal proceedings by CBP, and informing CBP operational offices of any policy updates related to the processing of juveniles (
CBP's baseline costs also include the use of translation services, including contracts for telephonic interpretation services.
ICE also incurs facility costs to comply with the FSA. The costs of operation and maintenance of the ICE FRCs for FY 2015-2019 are listed in Table 15, provided by the ICE Office of Acquisition Management. The costs account for the implementation of the FSA requirements, including the cost for the facility operators to abide by all relevant state standards. Two of the FRCs are operated by private contractors, while one is operated by a local government, under contract with ICE. These are the amounts that have been paid to private contractors or to the
The FRC costs are fixed-price agreements with variable costs added on a monthly basis. Overall, the fixed-price agreements are not dependent on the number of detainees present or length of stay, with some exceptions. At Berks, the contract includes a per-person, per-day fee charged in addition to the monthly fixed rate. At two of the FRCs, Berks and Karnes, education is provided per the standards of a licensed program set forth in the FSA, at a per-student, per-day cost. Since FRCs are currently at limited available capacity and the configuration of limited available capacity varies from day to day across all FRCs, the number of children and adults vary at Berks day to day and the number of children at Karnes vary day to day. Thus, these costs charged to ICE vary from month to month.
In addition to the above example of baseline costs to operate the FRCs DHS (particularly CBP and ICE) incurs costs to process, transfer, and provide transportation of minors and UACs from the point of apprehension to DHS facilities; from the point of apprehension or from a DHS facility to HHS facilities; between facilities; for the purposes of release; and for all other circumstances, in compliance with the FSA, HSA, and TVPRA.
The baseline costs also include bond hearings for minors and family units who are eligible for such hearings. When a minor or family unit seeks a bond, ICE officers must review the request and evaluate the individuals' eligibility as well as, where appropriate, set the initial bond amount. Further, should the minor or family unit seek a bond redetermination hearing before an immigration judge, ICE must transport or otherwise arrange for the individuals to appear before the immigration court. ICE's baseline costs also include the use of translation services, including contracts for telephonic interpretation services.
ICE also incurs baseline costs related to its Juvenile and Family Residential Management Unit (JFRMU), which was created in 2007. JFRMU manages ICE's policies affecting alien juveniles and families. The role of ICE's Juvenile Coordinator is within JFRMU. In addition to the national ICE Juvenile Coordinator role, ICE has field office and sector Juvenile Coordinators whose responsibilities mirror those of CBP's. In addition, compliance with the Flores court's mandate is monitored by weekly reports identifying any minors in custody over 20 days at FRCs and reviewing the reasons provided by the field office. Additionally, weekly audits of 5 percent of the FRC population is done by reviewing files and ensuring that minors are served with the required forms—Notice of Rights, Designated Sponsor Form, and the Parole Review Worksheet. JFRMU consists of specialized Federal staff, as well as contract subject matter experts in the fields of child psychology, child development, education, medicine, and conditions of confinement. JFRMU establishes policies on the management of family custody, UACs pending transfer to the ORR, and UACs applying for Special Immigrant Juvenile status. JFRMU continues to pursue uniform operations throughout its program through implementation of family residential standards. These standards are continually reviewed and revised as needed to ensure the safety and welfare of families awaiting an immigration decision while housed in a family residential facility. DHS conducts an inspection of each FRC at least annually to confirm that the facility is in compliance with ICE Family Residential Standards.
The baseline costs include the monitoring of FSA compliance and reporting to the court. Since 2007, JFRMU has submitted
In addition, DHS considered how DHS's current procedures and operations might change in the future in the absence of this rule. For example, DHS has seen a large spike in the number of family units apprehended or found inadmissible at the Southwest Border.
HHS' baseline costs were $1.4 billion in FY 2017. HHS funds private non-profit and for-profit agencies to provide shelter, counseling, medical care, legal services, and other support services to UACs in custody. Funding levels for non-profit organizations totaled $912,963,474 in FY 2017. Funding levels for for-profit agencies totaled $141,509,819 in FY 2017. Program funded facilities receive grants or contracts to provide shelter, including therapeutic care, foster care, shelter with increased staff supervision, and secure detention care. The majority of program costs (approximately 80 percent) are for bed capacity care. Other services for UACs, such as medical care, background checks, and family reunification services, make up approximately 15 percent of the budget. In addition, some funding is provided for limited post-release services to certain UACs. Administrative expenses to carry out the program total approximately five percent of the budget.
Influx costs to the program vary year to year, and are dependent on migration patterns and the resulting numbers of UACs cared for by HHS. In FY 2016, for instance, HHS total approved funding for the UAC program was $743,538,991, with $224,665,994 going to influx programming. In FY 2017, the total funding was $912,963,474, with $141,509,819 for influx.
These are examples of the types of costs the Departments incur under current operations, and are not a result of this rule.
This rulemaking would implement the relevant and substantive terms of the FSA, with limited changes necessary to implement closely related provisions of
The primary changes to the current operational environment resulting from this rule are implementing an alternative licensing process, making changes to ICE parole determination practices to align them with applicable statutory and regulatory authority, and shifting hearings from DOJ to HHS. The alternative license for FRCs and changes to parole determination practices may result in additional or longer detention for certain individuals, but DHS is unable to estimate the costs of this to the Government or to the individuals being detained because DHS is not sure how many individuals will be detained at FRCs after this rule is effective or for how much longer individuals may be detained because there are so many other variables that may affect such estimates. It is possible that some families will experience longer detention periods, but—given finite resources and bed space at FRCs—this also means that many other families will experience less detention than under the current status in which DHS generally detains for only 20 days. DHS is also unable to provide an estimate of the cost of any increased detention on the individuals being detained. ICE notes that while longer detention for certain family units could result in the need for additional space, the decision to increase bed space would be based on a number of factors, and at this time ICE is unable to determine if this rule would result in additional bed space. This rule does not require the addition of new bed space, but by allowing alternative licensing for FRCs it does remove a barrier to DHS's use of its Congressionally-authorized detention authority, allowing families to stay together through the duration of their immigration proceedings. If bed space were increased, the cost would depend on the type of facility, facility size, location, available funding, and a number of other variables. However, ICE notes as an example that an additional 960 beds at Dilley would cost approximately $80 million.
Table 16 shows the changes to the DHS current operational status compared to the FSA. It contains a preliminary, high-level overview of how the rule would change DHS's current operations, for purposes of the economic analysis. The table does not provide a comprehensive description of all provisions and their basis and purpose.
A primary change to DHS's current operational environment resulting from this rule is implementing an alternative licensing process. To codify the requirements of the FSA, facilities that hold minors obtain state, county, or municipal licensing where appropriate licenses are available. If no such
ICE currently meets the licensing requirements established by this rule by requiring FRCs to adhere to the Family Residential Standards and monitoring the FRCs' compliance through an existing contract. Thus, DHS will not incur additional costs in fulfilling the requirements of the alternative licensing process, given the third party licensing will continue to perform auditing reports that currently take place. However, most states do not offer licensing for facilities like the FRCs.
ICE is unable to estimate how long detention would be extended for some categories of minors and their accompanying adults in FRCs due to this rule. The average length of stay in the past is not a reliable source for future projections, and the average length of stay prior to the court decisions in 2015 and 2017 reflect other policy decisions that will not be directly affected by this rule. The number of days some minors and their accompanying adults may be detained depends on several factors, including a number of factors that are beyond the scope of this rule. These may include the number of minors and their accompanying adults who arrive in a facility on a given day; the timing and outcome of immigration court proceedings before an immigration judge; whether an individual is eligible for and granted parole or bond; issuance of travel documents by foreign governments; transportation schedule and availability; the availability of bed space in an FRC; and other laws, regulations, guidance, and policies regarding removal not subject to this rule.
Although DHS cannot reliably predict the increased average length of stay for affected minors and their accompanying parents or legal guardians in FRCs, DHS recognizes that generally only certain groups of aliens are likely to have their length of stay in an FRC increased as a result of this rule, among other factors. For instance, aliens who have received a positive credible fear determination, and who are a flight risk or danger, may be more likely to be held throughout their asylum proceedings. Likewise, aliens who have received a negative credible fear determination, have requested review of the determination by an immigration judge, had the negative determination upheld, and are awaiting removal, are likely to be held until removal can be effectuated. In FY 2017, 16,807 minors in FRCs went through the credible fear screening process and were released. In FY 2018, 22,352 minors in FRCs went through the credible fear screening process and were released. Table 18 shows for FY 2017 and FY 2018 the number of minors who went through the credible fear screening process who were released from FRCs. It does not include those minors who were removed while detained at an FRC. Those minors who were removed from an FRC would not have their lengths of stay increased pursuant to the changes in this rule.
Of the 14,993 minors in FY 2017 and the 20,219 in FY 2018 who had positive credible fear determinations, about 99 percent were paroled or released on their own recognizance. The remaining one percent of minors are those in categories that might have their length of stay in an FRC increased due to this rule.
Separate from the population of minors referenced in Table 18, members of a family unit with administratively final orders of removal are likely to be held until removed after this rule is finalized. 842 such minors who were detained and released at FRCs during FY 2017 and 1,434 such minors who were detained and released at FRCs during FY 2018 either had final orders of removal at the time of their release or subsequently received final orders of removal following their release within the same FY. Minors like these 842 in FY 2017 and 1,434 in FY 2018 may be held in detention longer as a result of this rule. While DHS generally expects an increase in the average length of stay to affect only these groups, there may be others who may be affected such as family units who are not eligible for parole.
In FY 2017, the total number of minors who might have been detained longer at an FRC is estimated to be the number of minors in an FRC who were not paroled or released on order of their own recognizance (131), plus the number of such minors who had negative credible fear determinations (349), plus administratively closed cases (1,465), plus those who were released and either had final orders of removals at the time of their release or subsequently received final orders following their release (842), or 2,787. In FY 2018, the total number of minors who might have been detained longer at an FRC is estimated to be the number of minors in an FRC who were not paroled or released on their own recognizance (96), plus the number of such minors who had negative credible fear determinations (358), plus administratively closed cases (1,775), plus those who were released and either had final orders of removal at the time of their release or subsequently received
The remaining factor in estimating the costs attributed to a potentially increased length of stay for these groups of minors and their accompanying parent or legal guardian are the per-person per-day cost to provide detention services. As discussed previously, current FRCs are largely funded through fixed-price agreements based on the full capacity of our current facilities and thus are not primarily dependent on the number of beds filled. Accordingly, facilities are generally ready to accommodate the number of families stipulated in their contracts. Therefore, DHS believes the best proxy for the marginal cost of services for filling any available bed space at current FRCs are the variable contract costs paid by ICE to the private contractor and government entity who operate and maintain the FRCs. The fixed and variable contract costs were obtained from ICE Office of Acquisition Management. For Berks, there is a $16 per-person, per-day fee in addition to the monthly fixed contract rate. Assuming that the contract terms are the same in the future, an increased number of days that all individuals would be at an FRC may also increase this total variable fee amount. Due to the uncertainty surrounding estimating an increased length of stay and the number of aliens this may affect, the total incremental cost of this per-day per-person fee is not estimated.
Educational services are provided at the Berks and Karnes FRCs at a variable cost per-student, per-day. The cost at Karnes is $75 per-student, per-day. The FY 2018 costs for education at Berks was $75,976 per month. The FY 2017 costs at Berks for education was $79 per-student, per-day. There is a fixed monthly cost for educational services at Dilley of $342,083; it is not dependent on the number of students per day. Assuming again that future contract terms are the same, the total education cost may increase if certain aliens, like the groups described above, are detained longer. However, the incremental variable education cost is not estimated because of the uncertainty surrounding the factors that make up the estimate of the average length of stay and the number of minors that may have an increased length of stay.
These variable costs represent the marginal cost for filling any available bed space at current facilities. They are not, however, representative of the total additional cost for bed space beyond existing contracts. If ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs. ICE estimates under existing contracts it would spend $319.37 per person per day ($319.37 includes both fixed and variable) to provide contracted services at an FRC and assumes a similar per-person per-day cost were ICE to expand the number of beds beyond current FRC capacity as a result of this rule.
DHS notes that while additional or longer detention could result in the need for additional bed space—another potential policy outcome as a result of this rule—at this time, ICE is unable to determine how the number of FRCs may change due to this rule and thus if this rule would result in costs for building additional bed space. There are many factors that would be considered in opening a new FRC, some of which are outside the scope of this regulation, such as whether such a facility would be appropriate, based on the population of aliens crossing the border, anticipated capacity, projected average daily population, and projected costs. Moreover, such a decision depends on receiving additional resources from Congress, and ICE has to balance the detention of families with the detention and removal of single adults.
While DHS cannot conclusively determine the impact on detention costs due to factors outside of the scope of this regulation, beginning with the fluctuating number of families apprehended at the Southwest border, it does acknowledge the three existing FRCs could potentially reach capacity as a result of additional or longer detention for certain individuals. This estimate is based on current contract terms staying the same in the future and reflects an increase in the average length of stay for the affected groups of minors, potentially up to 2,878 using FY 2017 data and 3,663 using FY 2018 data, plus their accompanying parent or legal guardian. If bed space were increased as a result of this rule, the cost would depend on the type of facility, facility size, location, and a number of other variables. ICE notes as an example that an additional 960 beds at Dilley would cost approximately $80 million.
This rule also changes current ICE practices for parole determinations to align them with applicable statutory and regulatory authority. ICE is currently complying with the June 27, 2017, court order while it is on appeal. In complying, every detained minor in expedited removal proceedings and awaiting a credible fear determination or determined not to have a credible fear receives an individualized parole determination under the considerations laid out in 8 CFR 212.5(b). However, under the rule, ICE would revert to its practice prior to the 2017 court order for those minors in expedited removal proceedings, using its parole authorities under 8 CFR 235.3 for this category of aliens in accordance with the standards implemented by Congress.
The TVPRA reinterpretation may also change the current DHS operations of releasing minors only to parents or legal guardians by adding language to permit release of a minor to someone other than a parent or legal guardian, specifically an adult relative (brother, sister, aunt, uncle, or grandparent) not in detention. DHS is unable to estimate the potential costs and burden of training CBP and ICE officers to operationalize this change in regards to vetting these adult relatives and coordinating the releases. DHS expects that this change may increase the releases of accompanied minor children from DHS custody in
With respect to CBP, the rule is not anticipated to have an impact on current operations because CBP is currently implementing the relevant and substantive terms of the FSA, the HSA, and the TVPRA.
HHS has complied with the FSA since the HSA's transfer of responsibility to ORR for the care and custody of UAC in 2002. The rule would implement the provisions of the FSA, and related statutes. Accordingly, HHS does not expect this rule to impose any additional costs, beyond those costs incurred by the Federal Government to establish the 810 hearings process within HHS.
This rule will shift responsibility for custody redetermination hearings for UACs, now to be referred to as 810 hearings, from DOJ to HHS. We estimate that some resources will be required to implement this shift. We believe that this burden will fall on DOJ and HHS staff, and we estimate that it will require approximately 2,000-4,000 hours to implement. This estimate reflects six to 12 staff, at the Federal General Schedule (GS)13-15 pay level, working full-time for two months to create the new system. The costs to implement the 810 hearings could average $250,000 or more, paid for by ORR out of the Refugee and Entrant Assistance Appropriation Account. Ongoing annual costs would include one administrative judge or hearing officer, one full-time administrative assistant or law clerk, an estimated 50 hours of interpretation services based on an average of 70 cases per year (half of which the government anticipates that it will not dispute), and 1.5 FTE for ORR staff at the GS 13 level. HHS estimates annual costs to be an average of $445,000. After this shift in responsibility has been implemented, we estimate that the rule will lead to no change in net resources required for 810 hearings, and therefore estimate no incremental costs or savings.
The primary purpose of the rule is to adopt uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure that they are treated with dignity and respect, in light of intervening changes in law, circumstance, and agency experience. The rule would thus implement the FSA and thereby terminate it. There are added benefits of having set rules (in the CFR), such as the ability for the Departments to move from judicial governance via a consent decree and shift to executive government via regulation. Under the FSA, the government operates in an uncertain environment subject to future court interpretations of the FSA that may be difficult or operationally impractical to implement or could otherwise hamper operations. With the regulations, DHS and HHS, along with members of the public, would have certainty as to the agencies' legal obligations and operations.
Without codifying the FSA as in this rule, family detention is a less effective tool to meet the enforcement mission of ICE. In many cases, families do not appear for immigration court hearings after being released from an FRC, and even when they do, many more fail to comply with the lawfully issued removal orders from the immigration courts and some families engage in dilatory legal tactics when ICE works to enforce those orders. In addition, if an alien is not detained at the time a final order of removal is issued, in many cases ICE will have to expend significant resources to locate, detain, and subsequently remove the alien in accordance with the final order.
Further, according to EOIR, since January 1, 2014, there have been 3,969 final removal orders issued for 5,326 cases that began in FRCs and were completed as of March 31, 2019. Of these final removal orders, 2,281 were issued
By departing from the FSA in limited cases to reflect the intervening statutory and operational changes and agency experience, DHS is reflecting its existing discretion to detain families together, as appropriate, given enforcement needs, which will ensure that family detention remains an effective enforcement tool.
This rule does not require the addition of new bed space, but by allowing alternative licensing for FRCs it does remove a barrier to DHS's use of its Congressionally-authorized detention authority, allowing families to stay together through the duration of their immigration proceedings.
By codifying the FSA, HHS has opened the underlying basis for its policies and procedures for notice and comment. The discussion our final rule in the preamble explains that HHS is and large adopting the specific text from the FSA with little variance. The main exception would be the transfer bond redetermination hearings from courts to a hearing officer within HHS. HHS believes this will result in more expedient review of cases, with new added protections for UAC (by placing the burden of initial production on the government) to deny release of a UAC based on danger or risk of flight.
The regulations are also designed to eliminate judicial management, through the FSA, of functions Congress delegated to the executive branch.
This rule implements the provisions of the FSA, the HSA, and the TVPRA, in light of current circumstances and considering public input received on the NPRM. The Departments consider current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the baseline for this analysis. Because these costs are already being incurred, they are not costs of this rule. The primary source of new costs for the rule would be a result of the alternative licensing process, changes to current ICE parole determination practices to align them with applicable statutory and regulatory authority, and the costs of shifting hearings from DOJ to HHS. ICE expects the alternative licensing process and changes to current parole determination practices to extend detention of certain minors in FRCs. This may result in additional or longer detentions for certain minors, increasing annual variable costs paid by ICE to the operators of current FRCs and costs to the individuals being detained. In addition, if ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs. But due to the uncertainty surrounding estimating an increased length of stay and the number of aliens this may affect, this incremental cost is not quantified.
The Departments considered not promulgating this rule. The Departments had been engaged in this alternative prior to proposing this rule, which has required the Government to adhere to the terms of the FSA, as interpreted by the courts, which also rejected the Government's efforts to amend the FSA to help it better conform to existing legal and operational realities. Continuing with this alternative would likely require the Government to operate through non-regulatory means in an uncertain environment subject to currently unknown future court interpretations of the FSA that may be difficult or operationally impracticable to implement and that could otherwise hamper operations. The Departments also reject this alternative because it does not address the current conflict between certain portions of the FSA, the HSA, and the TVPRA or the current operational environment, as the FSA is over twenty years old.
The Departments considered proposing within this regulatory action additional regulations addressing further areas of authority under the TVPRA, to include those related to asylum proceedings for UACs. The Departments rejected this alternative in order to focus this regulatory action on implementing the terms of the FSA, and provisions of the HSA and TVPRA where they intersect with the FSA's provisions. Promulgating this more targeted regulation does not preclude the Departments from subsequently issuing regulations to address broader issues.
Legacy INS's successors are obligated under the FSA to initiate action to publish the relevant and substantive terms of the FSA as regulations. In the 2001 Stipulation, the parties agreed to a termination of the FSA “45 days following the defendants' publication of final regulations implementing this Agreement.” Under this alternative, the Departments are proposing to implement the FSA and thereby to terminate it. In particular, the Departments are publishing regulations that generally mirror the relevant and substantive terms of the FSA as regulations, while maintaining the operational flexibility necessary to continue operations and ensuring that minors and UACs continue to be treated in accordance with the HSA, and the TVPRA, and accounting for changes in law, agency expertise, current operational circumstances, and public comment pursuant to the rulemaking provisions of the APA.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Individuals are not considered by the RFA to be a small entity.
A final regulatory flexibility analysis follows.
1. A statement of the need for, and objectives of, the rule.
The purpose of this action is to promulgate regulations that implement the relevant and substantive terms of the FSA. This rule implements the relevant and substantive terms of the FSA and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions. Publication of final regulations will result in termination of the FSA, as provided for in FSA paragraph 40.
2. A statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments.
DHS did not receive any public comments raising issues in response to the initial regulatory flexibility analysis and did not make any revisions to the final rule for small entities.
Section 462 of the HSA also transferred to the ORR Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). The ORR Director may, for purposes of performing a function transferred by this section, “exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function” immediately before the transfer of the program. 6 U.S.C. 279(f)(1).
Consistent with provisions in the HSA, and 8 U.S.C. 1232(a), the TVPRA places the responsibility for the care and custody of UACs with the Secretary of Health and Human Services. Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this Act.” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant savings and transfer provisions of the HSA, see 6 U.S.C. 279, 552, 557; see also 8 U.S.C. 1232(b)(1); the ORR Director now possesses the authority to promulgate regulations concerning ORR's administration of its responsibilities under the HSA and TVPRA.
The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments.
DHS did not receive comments from the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule.
4. A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available.
This rule would directly regulate DHS and HHS. DHS contracts with private contractors and a local government to operate and maintain FRCs, and with private contractors to provide transportation of minors and UACs. This rule would indirectly affect these entities to the extent that DHS contracts with them under the terms necessary to fulfill the FSA. To the degree this rule increases contract costs to DHS private contractors, it would be incurred by the Federal Government in the cost paid by the contract.
ICE currently contracts with three operators of FRCs, two of which are businesses and the other a local governmental jurisdiction. ICE and CBP also each have one contractor that provides transportation. To determine if the private contractors that operate and maintain FRCs and the private contractors that provide transportation are small entities, DHS references the Small Business Administration (SBA) size standards represented by business average annual receipts. SBA's Table of Small Business Size Standards is matched to the North American Industry Classification System (NAICS)
DHS finds that the revenue of the private contractors that operate and maintain two of the three FRCs to be greater than the SBA size standard of the industry represented by NAICS 531110: Lessors of Residential Buildings and Dwellings. The size standard classified by the SBA is $38.5 million for lessors of buildings space to the Federal Government by Owners.
DHS finds that the revenue of the two private contractors that provide transportation to minors, in some cases their family members, and to UACs for DHS to be greater than the SBA size standard of these industries.
The changes to DHS regulations would not directly impact any small entities.
Currently, HHS funds 53 grantees to provide services to UACs. HHS finds that most of the 53 current grantees, the majority of which are non-profits (49 out of 53), do not appear to be dominant in their field. Consequently, HHS believes all 53 grantees are likely to be small entities for the purposes of the RFA.
5. A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
The rule would implement the relevant and substantive terms of the FSA in regulations. ICE believes the FRCs, which are operated and maintained by private contractors or a local government, comply with these provisions, and will continue to comply through future contract renewals. To the extent this rule increases variable contract costs, such as a per student per day education cost, to any detention facilities, the cost increases would be passed along to the Federal Government in the cost paid for the contract. However, DHS cannot say with certainty how much, if any, increase in variable education costs would result from this rule.
A primary source of new costs for the rule is as a result of the alternative licensing process. ICE currently fulfills the requirements being finalized as an alternative to licensing through its existing FRC contracts. To codify the requirements of the FSA, this rule requires that facilities that hold minors obtain state, county, or municipal licensing where appropriate licenses are available. If no such licensing regime is available, however, DHS will employ an outside entity with relevant audit experience to ensure that the facility complies with family residential standards established by ICE and that meet the requirements for licensing under the FSA. That would fulfill the goals of obtaining a license from a state or local agency. Most States do not offer licensing for facilities like the FRCs.
An increase in the average length of detention may increase the variable costs paid by ICE to the private contractors who operate and maintain current FRCs, as compared to the current operational environment. In addition, if ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs. Due to many uncertainties surrounding the forecast, DHS is unable to estimate the incremental variable costs due to this rule. Refer to Section VI.A. Executive Orders 12866 and 13563: Regulatory Review for the description of the uncertainties. In addition, DHS notes that additional or longer detention could result in the need for additional bed space; however, there are many factors that would be considered in opening a new FRC and at this time ICE is unable to determine if this rule would result in additional bed space.
As discussed above, DHS would incur these potential costs through the cost paid for the contract with these facilities, and could incur costs to build new facilities or add additional beds. There are no cost impacts on the contracts for providing transportation because this rule codifies current operations.
6. A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
The Departments are not aware any alternatives to the rule which accomplish the stated objectives that would minimize economic impact of the rule on small entities.
As indicated in the Executive Orders 12866, 13563: Regulatory Review, Section VII, the rule may have an effect on the government and its contractors who provide operation and maintenance of its family residential facilities. DHS and HHS prepared both initial and final RFA analyses.
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (codified at 2 U.S.C. 1501
This rule may not exceed the $100 million expenditure threshold in any 1 year when adjusted for inflation. Though this rule would not result in such an expenditure, the Departments discuss the effects of this rule elsewhere
While Executive Order 12866 has a standard of whether the rule
The Departments note, however, that the rule will still be published with a 60-day delayed effective date.
All Departments are required to submit to OMB for review and approval, any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501
However, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), ACF submitted a copy of this section to OMB for its review. This rule complies with settlement agreements, court orders, and statutory requirements, most of whose terms have been in place for over 20 years. This rule would not require additional information collection requirements beyond those requirements. The reporting requirements associated with those practices have been approved under the requirements of the Paperwork Reduction Act and in accordance with 5 CFR part 1320. ACF received approval from OMB for use of its forms on June 26, 2019, with an expiration date of June 30, 2022 (OMB Control Number 0970-0278). Separately, ACF received approval from OMB for its placement and service forms on July 6, 2017, with an expiration date of July 31, 2020 (OMB Control Number 0970-0498); a form associated with the specific consent process is currently pending approval with OMB (OMB Control Number 0970-0385).
This final rule does not have substantial direct effects 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. This final rule implements the FSA by codifying the Departments' practices that comply with the terms of the FSA and relevant law for the processing, transfer, and care and custody of alien juveniles. In codifying these practices, the Departments were mindful of their obligations to meet the requirements of the FSA while also minimizing conflicts between State law and Federal interests.
Insofar as the rule sets forth standards that might apply to immigration detention facilities and holding facilities operated by contract with State and local governments and private entities, this rule has the potential to affect the States, although it would not affect the relationship between the National Government and the States or the distribution of power and responsibilities among the various levels of government and private entities. With respect to the State and local agencies, as well as the private entities, that contract with DHS and operate these facilities across the country, the FSA provides DHS with no direct authority to mandate binding standards on their facilities. But these requirements will impact the State, local, and private entities only to the extent that they make voluntary decisions to contract with DHS for the processing, transportation, care, or custody of alien juveniles. This approach is fully consistent with DHS's historical relationship to State and local agencies in this context.
Typically, HHS enters into cooperative agreements or contracts with non-profit organizations to provide shelter, care, and physical custody for UACs in a facility licensed by the appropriate State or local licensing authority. Where HHS enters into cooperative agreements or contracts with a state licensed facility, ORR requires that the non-profit organization administering the facility abide by all applicable State or local licensing regulations and laws. ORR designed agency policies and these regulations as well as the terms of HHS cooperative agreements and contracts with the agency's grantees/contractors to complement appropriate State and licensing rules, not supplant or replace the requirements.
Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988,
Executive Order 13211 requires agencies to consider the impact of rules that significantly impact the supply, distribution, and use of energy. DHS has reviewed this rule and determined that it is not a “significant energy action” under the order because, while it is a “significant regulatory action” under Executive Order 12866, it does not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, this rule does not require a Statement of Energy Effects under Executive Order 13211.
The Departments certified that the proposed rule did not require an Environmental Assessment or Environmental Impact Statement under the National Environmental Policy Act (NEPA) because it is an action that does
• None of the cited CATEXs apply to the proposed rule;
• the rulemaking will likely have significant effects resulting from the expansion of the detention system that would constitute “extraordinary circumstances” invalidating the use of any categorical exclusions;
• the rulemaking is part of a larger action, invalidating the reliance on a categorical exclusion;
• NEPA applies to broad Federal actions, such as the adoption of new agency programs;
• that the proposed rule significantly changes DHS's operation with regard to unaccompanied alien children and family units entering the United States;
• the proposed rule will cause the construction of dozens of new facilities;
• that the proposed rule, if implemented, would require indefinite detention of family units.
The commenters contend that if the final rule adopts everything in the proposed rule, new facilities will be required to be built, and the construction and operation of these facilities will produce environmental effects such as pollution, increased flooding risk, and destruction of wildlife habitats, wetlands, and scenic areas. The commenters also suggested that surrounding communities, migrant children, and construction workers might be exposed to toxic contaminants and increased traffic and garbage from the operations of these facilities.
One of the commenters stated that DHS was incorrect in its application of a CATEX to the proposed rule because DHS was evaluating the proposed rule only (the implementation of the FSA), instead of considering the rulemaking as part of a larger action that includes the Zero Tolerance Policy
One commenter stated that neither DHS CATEX identified in the proposed rule, CATEX A3(b) or A3(d), is applicable and that the proposed rule is a new policy and regulation that would require indefinite detention, which affects the quality of the human environment. Another commenter stated that neither the HHS CATEX nor the two DHS CATEXs identified in the proposed rule apply. The commenter said that HHS relied on a CATEX for grants for social services because its state licensed facilities are operated under social service grants, but that the CATEX includes an exception for projects that involve construction, renovation, or any changes in land use. The commenter suggested that HHS' contention that the exception does not apply because HHS lacks construction authority is simply an attempt to evade further NEPA review. Additionally, this commenter contended that HHS' authority and actions with respect to UACs reach beyond giving grants to state-licensed facilities because they make age determinations, transfer children between HHS facilities, determine if a child is an escape risk, and release the children from HHS custody. The same commenter claimed that the Departments' CATEXs fail because NEPA makes it unlawful to apply CATEXs if there is the potential for significant impacts.
While the new construction, renovation, or repurposing of facilities for FRCs is one potential future consequence of the final rule, the final rule itself does not prescribe increases in FRC capacity or propose any locations where new facilities might be built. The final rule also does not require longer detention of family units. Although longer detention is made possible by the final rule, the environmental impacts from the operation of existing FRCs would not foreseeably change with longer periods of detention for members of alien family units. Potentially longer detention times do not translate to changes in capacity of FRCs; it could just mean that certain members of alien family units are detained for longer periods of time whilst others are released. Thus, existing FRC capacity levels would not necessarily change.
Substantive proposals regarding FRC space that could be meaningfully analyzed in accordance with the NEPA have not been proposed. The extent to which new FRCs are constructed, or existing FRCs are utilized, is dependent on numerous factors outside the scope of the final rule, which does not mandate operational requirements pertaining to new FRCs. For example, DHS/ICE decisions to increase FRC capacity would consider the costs associated with housing families and the availability of Congressional appropriations. The final rule neither prescribes expansion of detention space nor describes any substantive, reliable information regarding change in detention capacity that could be reasonably evaluated under NEPA. Thus, the commenters' suggestions that the proposed rule will result in “tremendous growth” in detention capacity with “cumulatively significant impacts on the human environment” or that it will result in the “construction of dozens of new encampments and detention facilities” are highly speculative and not supported by the rulemaking.
The commenters also suggested that extraordinary circumstances exist due to the degree to which the proposed rule will affect sensitive environments, public health and safety, and cumulative impacts. But again, the final rule has no immediate significant effect on the environment, and any future effect related to hypothetical circumstances is too speculative to evaluate. The final rule does not compel the new development or repurposing of FRCs or changes in FRC capacity. Thus, there is no substantive nexus of the final rule with environmental health and safety at FRCs that would pose an extraordinary circumstance.
One commenter suggested that an EIS should be prepared because the effects of the regulatory changes are highly controversial, but highly controversial for NEPA purposes means there is a substantial dispute as to the size, nature, or effect of an action. The existence of public opposition to a use does not of itself make a proposal highly controversial. DHS has determined that the effects of the final rule are not highly controversial in terms of scientific validity, are not likely to be highly uncertain, and are not likely to involve unique or unknown environmental risks. If, in the future, DHS were to propose the construction or renovation of facilities for FRCs, those projects would be subjected to
The final rule is not part of a larger action as some have suggested. The final rule is not a part of a larger action because it does not trigger other actions and does not depend on concurrent, previous, or future actions for its rationale. The final rule does not compel a program of detaining children and families. As noted in the NPRM, DHS currently has three primary options for purposes of immigration custody: (1) Release all family members into the United States, (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or suitable adult relative, or transfer the child to HHS to be treated as UAC, or (3) detain the family unit together by placing them at an appropriate FRC during their immigration proceedings.
If, in the future, DHS proposes to commit funds to acquire, build, or renovate facilities to house family units, DHS might be considering actions beyond administrative and regulatory activities falling under CATEX A3(d), and would need to evaluate the proper level of environmental review required under NEPA at that time. However, as noted previously, this final rule does not compel or prescribe that DHS commit funds for family residential detention space, and no substantive proposals for additional FRC space that could be meaningfully analyzed under NEPA have been proposed.
The final rule promulgates regulations that will reflect changes in the authorities governing the detention of unaccompanied alien children and alien family units. The final rule neither proposes any actions that would significantly impact the human environment nor compels irreversible and irretrievable commitments of resources. The final rule fits completely within CATEX A3(d), and there are no extraordinary circumstances that would preclude the application of this CATEX. Therefore, it is appropriate for DHS to exclude the final rule from further environmental review using CATEX A3(d).
HHS disagrees with commenters who contend NEPA applies to the HHS portion of the rule or requires an environmental assessment or impact statement for such portion. NEPA does not apply to the HHS portion of the rule, because that portion does not change HHS' UAC Program's procedures. The UAC Program is already run in compliance with the FSA and applicable statutes, including as set forth in this final rule. NEPA applies when there are “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 4332. However, in this rule HHS is not taking any Federal action that makes major changes the status quo or changes government policy such that it would “affect” the quality of the human environment. Rather, HHS merely memorializes some of the existing UAC program procedures in a regulation, rather than where they reside now, in a settlement agreement, statutes, and the ORR UAC policy guide. Because the rule does not change the UAC Program, it does not significantly affect the quality of the human environment to implicate NEPA. Some commenters have pointed out that the section “810” hearings as a change from the Flores settlement agreement. With respect to 810 hearings, those hearings also already occur, but at one component of the government—DOJ—instead of at HHS, as set forth in this rule.
The rule neither increases nor fundamentally changes the nature of those hearings, and transferring the hearings process has no environmental effect. Moreover, hearings, in themselves, do not affect human environment. Therefore, NEPA also does not apply to that part of the rule.
In addition, to the extent the HHS portion of the rule could be considered subject to NEPA, HHS has determined that it falls into several exclusions. First, it falls into a programmatic exclusion, by which HHS has determined that the rule will not significantly affect the human environment or affect an asset. Under HHS policy programmatic exclusions are available in instances where the program has reviewed the actions being taken and concluded that the program or activity will not normally “significantly affect” the human environment; or will not normally affect an asset. In this case, again, HHS is merely codifying provisions already found in a settlement agreement and thus has concluded that the final rule does not affect the human environment, because it does not change the human environment as compared to functions currently in operation. In addition, HHS is subject to the categorical exclusion listed in section 30-20-40 of the General Administration Manual (available at:
If, in the future, HHS will commit funds for projects involving construction, renovation, or changes in land use, HHS would go beyond the CATEX at 30-20-40, and thus would need to evaluate the proper level of environmental review required under NEPA at that time.
HHS disagrees with commenters who contend the HHS portion of the rule will involve a change in the capacity of the UAC program or will change activities such as the construction of facilities. Changes to the UAC program's capacity and need for facilities occur, or do not occur, under the norms that govern the UAC program preexisting this rule—the FSA, applicable statutes, and ORR's UAC policy guide. This rule does not change those norms, but merely places some in regulations. Changes to capacity of the program or to construction or use of facilities occur for other reasons, such as because of increases in UAC crossing the border, and are not attributable to the codification of these rules.
This final rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630,
Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. The Departments have reviewed this final rule and determined that this rule is an economically significant rule but does not create an environmental risk to health or risk to safety that may disproportionately affect children. Therefore, the Departments have not prepared a statement under this executive order.
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
The Departments have reviewed this rule in accordance with the requirements of section 654 of the Treasury General Appropriations Act, 1999, Public Law 105-277. The impacts of the rule on families and family well-being are myriad and complex, and discussed in greater detail elsewhere in the preamble. In general, with respect to family well-being, this final rule substantially codifies current requirements of settlement agreements, court orders, and statutes, most of whose terms have been in place for over 20 years, as well as HHS' related authorities. The changes implemented by this rule are a result of intervening statutes or operational realities. With respect to the criteria specified in section 654(c)(1), for DHS, the rule places a priority on the stability of the family and the authority and rights of parents in the education, nurture, and supervision of their children, within the immigration detention context, as parents maintain parental rights and supervision of their children within FRCs. This rule provides an option for families to stay together where detention is required and appropriate, but also provides for release in some circumstances. The rule also codifies in regulation certain statutory policies with respect to the treatment of UACs. For HHS, the primary specific change in the rule beyond current practice is the movement of hearings from DOJ to HHS pursuant to § 410.810. That specific change does not have a particular impact on family well being.
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Immigration.
Administrative practice and procedure, Child welfare, Immigration, Reporting and recordkeeping requirements, Unaccompanied alien children.
For the reasons set forth in the preamble, parts 212 and 236 of chapter I of title 8 are amended as follows:
6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1185 note (section 7209 of Pub. L. 108-458), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 CFR part 2.
(b) The parole of aliens within the following groups who have been or are detained in accordance with § 235.3(c) of this chapter would generally be justified only on a case-by-case basis for “urgent humanitarian reasons or “significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding:
(3) Aliens who are defined as minors in § 236.3(b) of this chapter and are in DHS custody. The Executive Assistant Director, Enforcement and Removal Operations; directors of field operations; field office directors, deputy field office directors; or chief patrol agents shall follow the guidelines set forth in § 236.3(j) of this chapter and paragraphs (b)(3)(i) through (ii) of this section in determining under what conditions a minor should be paroled from detention:
(i) Minors may be released to a parent, legal guardian, or adult relative (brother, sister, aunt, uncle, or grandparent) not in detention.
(ii) Minors may be released with an accompanying parent or legal guardian who is in detention.
5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1232, 1357, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.
(a)
(2) The provisions of this section apply to all minors in the legal custody of DHS, including minors who are subject to the mandatory detention provisions of the INA and applicable regulations, to the extent authorized by law.
(b)
(1)
(i) Emancipated in an appropriate state judicial proceeding; or
(ii) Incarcerated due to a conviction for a criminal offense in which he or she was tried as an adult.
(2)
(3)
(4)
(5)
(6)
(i) The minor is currently subject to a final order of removal;
(ii) The minor's immigration history includes: A prior breach of bond, a failure to appear before DHS or the immigration courts, evidence that the minor is indebted to organized smugglers for his transport, or a voluntary departure or previous removal from the United States pursuant to a final order of removal; or
(iii) The minor has previously absconded or attempted to abscond from state or Federal custody.
(7)
(8)
(9)
(10)
(11)
(12)
(c)
(2) If a reasonable person would conclude that an individual is an adult, despite his or her claim to be under the age of 18, DHS may treat such person as an adult for all purposes, including confinement and release on bond, recognizance, or other conditions of release. In making this determination, an immigration officer may require such an individual to submit to a medical or dental examination conducted by a medical professional or other appropriate procedures to verify his or her age.
(3) If an individual previously considered to have been an adult is subsequently determined to be under the age of 18, DHS will then treat such individual as a minor or UAC as prescribed by this section.
(d)
(2)
(3)
(e)
(2) In the case of an emergency or influx, DHS will abide by written guidance detailing all reasonable efforts that it will take to transfer all minors who are not UACs as expeditiously as possible.
(f)
(2) DHS will notify ORR within 48 hours upon the apprehension or discovery of a UAC or any claim or suspicion that an unaccompanied alien detained in DHS custody is under 18 years of age.
(3) Unless exceptional circumstances are present, DHS will transfer custody of a UAC as soon as practicable after receiving notification of an ORR placement, but no later than 72 hours after determining that the minor is a UAC per paragraph (d) of this section. In the case of exceptional circumstances, DHS will abide by
(4) The following relate to the conditions of transfer of UACs with unrelated detained adults:
(i) UACs will not generally be transported with unrelated detained adults. A UAC will not be transported with an unrelated detained adult(s) unless the UAC is being transported from the place of apprehension to a DHS facility or if separate transportation is otherwise impractical or unavailable.
(ii) When separate transportation is impractical or unavailable, necessary precautions will be taken to ensure the UAC's safety, security, and well-being. If a UAC is transported with any unrelated detained adult(s), DHS will separate the UAC from the unrelated adult(s) to the extent operationally feasible and take necessary precautions for protection of the UAC's safety, security, and well-being.
(g)
(ii)
(iii)
(2)
(ii) Consistent with the statutory requirements, DHS will transfer UACs to HHS in accordance with the procedures described in paragraph (f) of this section.
(h)
(i)
(1) A minor who is not a UAC referenced under this paragraph (i)(1) may be held in or transferred to a suitable state or county juvenile detention facility, or a secure DHS detention facility, or DHS contracted facility having separate accommodations for minors, whenever the Field Office Director and the ICE supervisory or management personnel have probable cause to believe that the minor:
(i) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that fit within a pattern or practice of criminal activity;
(ii) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that involve violence against a person or the use or carrying of a weapon;
(iii) Has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself or others) while in Federal or state government custody or while in the presence of an immigration officer;
(iv) Has engaged, while in the licensed facility, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed facility in which the minor has been placed and transfer to another facility is necessary to ensure the welfare of the minor or others, as determined by the staff of the licensed facility;
(v) Is determined to be an escape-risk pursuant to paragraph (b)(6) of this section; or
(vi) Must be held in a secure facility for his or her own safety.
(2) DHS will not place a minor who is not a UAC in a secure facility pursuant to paragraph (i)(1) if there are less restrictive alternatives that are available and appropriate in the circumstances, such as transfer to a facility which would provide intensive staff supervision and counseling services or another licensed facility. All determinations to place a minor in a
(3) Unless a secure facility is otherwise authorized pursuant to this section, ICE facilities used for the detention of minors who are not UACs shall be non-secure facilities.
(4) Non-secure, licensed ICE facilities to which minors who are not UACs are transferred pursuant to the procedures in paragraph (e) of this section shall abide by applicable family residential standards established by ICE. At a minimum, such standards shall include provisions or arrangements for the following services for each minor who is not a UAC in its care:
(i) Proper physical care and maintenance, including suitable living, accommodations, food and snacks, appropriate clothing, and personal grooming items;
(ii) Appropriate routine medical, mental health and dental care, family planning services, and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the minor was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Centers for Disease Control and Prevention; administration of prescribed medication and special diets; appropriate mental health interventions when necessary;
(iii) An individualized needs assessment which includes:
(A) Various initial intake forms;
(B) Essential data relating to the identification and history of the minor and family;
(C) Identification of the minor's special needs including any specific problem(s) which appear to require immediate intervention;
(D) An educational assessment and plan;
(E) An assessment of family relationships and interaction with adults, peers and authority figures;
(F) A statement of religious preference and practice;
(G) An assessment of the minor's personal goals, strengths and weaknesses; and
(H) Identifying information regarding immediate family members, other relatives, godparents, or friends who may be residing in the United States and may be able to assist in family reunification;
(iv) Educational services appropriate to the minor's level of development and communication skills in a structured classroom setting, Monday through Friday, which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training (ELT). The educational program should include subjects similar to those found in U.S. programs and include science, social studies, math, reading, writing, and physical education. The program design should be appropriate for the minor's estimated length of stay and can include the necessary skills appropriate for transition into a U.S. school district. The program should also include acculturation and adaptation services which include information regarding the development of social and inter-personal skills that contribute to those abilities as age appropriate;
(v) Appropriate reading materials in languages other than English for use during the minor's leisure time;
(vi) Activities according to a recreation and leisure time plan which shall include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities (this should not include time spent watching television). Activities should be increased to a total of three hours on days when school is not in session;
(vii) At least one individual counseling session or mental health wellness interaction (if the minor does not want to participate in a counseling session) per week conducted by trained social work staff with the specific objectives of reviewing the minor's progress, establishing new short-term objectives, and addressing both the developmental and crisis-related needs of each minor;
(viii) Group counseling sessions at least twice a week. This is usually an informal process and takes place with all the minors present and can be held in conjunction with other structured activities. It is a time when new minors present in the facility are given the opportunity to get acquainted with the staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational activities, etc. It is a time for staff and minors to discuss whatever is on their minds and to resolve problems;
(ix) Upon admission, a comprehensive orientation regarding program intent, services, rules (written and verbal), expectations and the availability of legal assistance;
(x) Whenever possible, access to religious services of the minor's choice;
(xi) Visitation and contact with family members (regardless of their immigration status) which is structured to encourage such visitation. The staff shall respect the minor's privacy while reasonably preventing the unauthorized release of the minor and preventing the transfer of contraband;
(xii) A reasonable right to privacy, which shall include the right to:
(A) Wear his or her own clothes, when available;
(B) Retain a private space in the residential facility for the storage of personal belongings;
(C) Talk privately on the phone, as permitted by applicable facility rules and regulations;
(D) Visit privately with guests, as permitted by applicable facility rules and regulations; and
(E) Receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband;
(xiii) When necessary, communication with adult relatives living in the United States and in foreign countries regarding legal issues related to the release and/or removal of the minor;
(xiv) Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the Government, the right to apply for asylum or to request voluntary departure;
(xv) Attorney-client visits in accordance with applicable facility rules and regulations;
(xvi) Service delivery is to be accomplished in a manner which is sensitive to the age, culture, native language, and the complex needs of each minor;
(xvii) Parents/legal guardians will be responsible for supervising their children and providing parental support in managing their children's behavior. Licensed facility rules and discipline standards shall be formulated with consideration for the range of ages and maturity in the program and shall be culturally sensitive to the needs of alien minors. DHS shall not subject minors to corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping. Any sanctions employed shall not adversely affect a minor's health, or physical or psychological well-being; or deny minors regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal assistance;
(xviii) Licensed facilities will maintain and safeguard individual case records. Agencies and organizations will maintain a system of accountability which preserves the confidentiality of client information and protects the records from unauthorized use or disclosure;
(xix) Licensed facilities will maintain adequate records and make regular reports as required by DHS that permit DHS to monitor and enforce the regulations in this part and other requirements and standards as DHS may determine are in the best interests of the minors; and
(xx) Licensed facilities will maintain a grievance and complaint filing process for aliens housed therein and post information about the process in a common area of the facility. Aliens will be required to follow the proscribed process for filing formal and informal grievances against facility staff that comports with the ICE Family Residential Standards Grievance Procedures. Complaints regarding conditions of detention shall be filed under the procedures required by the DHS Office of the Inspector General or the DHS Office of Civil Rights and Civil Liberties. Staff is prohibited from retaliating against anyone who files, or on whose behalf is filed, a grievance or complaint. In the event of an emergency, a licensed, non-secure facility described in this paragraph (i) may transfer temporary physical custody of a minor prior to securing permission from DHS, but shall notify DHS of the transfer as soon as is practicable thereafter, but in all cases within 8 hours.
(j)
(2) If a minor who is not a UAC is in expedited removal proceedings (including if he or she is awaiting a credible fear determination), or is subject to a final expedited removal order, custody is governed by § 235.3(b)(2)(iii) or (b)(4)(ii) of this chapter, as applicable.
(3) If a minor who is not a UAC is subject to pending removal proceedings under section 240 of the Act, DHS will consider whether to release the minor pursuant to section 212(d)(5) or section 236(a), and the implementing regulations in 8 CFR 212.5 and § 235.3, as applicable.
(4) The parole of minors who are not UACs who are detained pursuant to section 235(b)(1)(B)(ii) of the Act or § 235.3(c) of this chapter will generally serve an urgent humanitarian reason warranting release on parole if DHS determines that detention is not required to secure the minor's timely appearance before DHS or the immigration court, or to ensure the minor's safety and well-being or the safety of others. In making this determination, DHS may consider aggregate and historical data, officer experience, statistical information, or any other probative information. The determination whether to parole a minor who is not a UAC is in the unreviewable discretion of DHS.
(5) If DHS determines to release a minor who is not a UAC during removal proceedings under section 240 of the Act, the following procedures shall apply:
(i) If a parent or legal guardian is available to provide care and physical custody, DHS will make prompt and continuous efforts to release the minor to that parent or legal guardian. Nothing in this paragraph (j)(5)(i) precludes the release of a minor who is not a UAC to an adult relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and is available to provide care and physical custody. Release of a minor who is not a UAC to an adult relative other than a parent or legal guardian is within the unreviewable discretion of DHS.
(ii) Prior to releasing a minor who is not a UAC to an adult relative pursuant to paragraph (j)(5)(i) of this section, DHS will use all available reliable evidence to determine whether the relationship is bona fide. If no reliable evidence is available that confirms the relationship, DHS may continue to keep the minor who is not a UAC in custody or treat the minor as a UAC and transfer the UAC to HHS custody, as outlined in paragraph (f) of this section.
(iii) DHS shall assist without undue delay in making transportation arrangements to the DHS office nearest the location of the relative to whom a minor is to be released. DHS may, in its discretion, provide transportation to minors.
(iv) Nothing herein shall require DHS to release a minor to any person or agency whom DHS has reason to believe may harm or neglect the minor or fail to present him or her before DHS or the immigration courts when requested to do so.
(k)
(2)
(l)
(i) A minor or UAC in DHS custody refuses to be released to his or her parent; or
(ii) A minor or a UAC seeks release from DHS custody or seeks voluntary departure or a withdrawal of an application for admission, parole, or any form of relief from removal before DHS, and that the grant of such request or relief may effectively terminate some interest inherent in the parent-child relationship and/or the minor or UAC's rights and interests are adverse with those of the parent.
(2) Upon notification, the parent will be afforded an opportunity to present his or her views and assert his or her interest to DHS before a determination is made as to the merits of the request for relief.
(m)
(n)
(2) DHS may take a minor back into custody if there is no longer a parent, legal guardian, or other adult relative (brother, sister, aunt, uncle, or grandparent) available to care for the minor. If the minor is a UAC, DHS will transfer custody to HHS as outlined in paragraph (e) of this section.
(3) Minors who are not UACs and who are taken back into DHS custody may request a custody redetermination hearing in accordance with paragraph (m) of this section and to the extent permitted by 8 CFR 1003.19.
(o)
(2) In addition to the monitoring required by paragraph (o)(1) of this section, the Juvenile Coordinators shall collect and periodically examine relevant statistical information about UACs and minors who remain in CBP or ICE custody for longer than 72 hours. Such statistical information may include but not necessarily be limited to:
(i) Biographical information;
(ii) Dates of custody; and
(iii) Placements, transfers, removals, or releases from custody, including the reasons for a particular placement.
6 U.S.C. 279, 8 U.S.C. 1103(a)(3), 8 U.S.C. 1232.
This part governs those aspects of the care, custody, and placement of unaccompanied alien children (UACs) agreed to in the settlement agreement reached in
(1) An individual who: Has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom:
(i) There is no parent or legal guardian in the United States; or
(ii) No parent or legal guardian in the United States is available to provide care and physical custody.
(2) When an alien previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such an alien, or when such alien has obtained lawful immigration status, the alien is no longer a UAC. An alien who is no longer a UAC is not eligible to receive legal protections limited to UACs.
(a) ORR coordinates and implements the care and placement of UAC who are in ORR custody by reason of their immigration status.
(b) For all UACs in ORR custody, DHS and DOJ (Department of Justice) handle other matters, including immigration benefits and enforcement matters, as set forth in their respective statutes, regulations and other authorities.
(c) ORR shall hold UACs in facilities that are safe and sanitary and that are consistent with ORR's concern for the particular vulnerability of minors.
(d) Within all placements, UACs shall be treated with dignity, respect, and special concern for their particular vulnerability.
This subpart sets forth what ORR considers when placing a UAC in a particular ORR facility, in accordance with the Flores settlement agreement.
(a) ORR places each UAC in the least restrictive setting that is in the best interest of the child and appropriate to the UAC's age and special needs, provided that such setting is consistent with its interests to ensure the UAC's timely appearance before DHS and the immigration courts and to protect the UAC's well-being and that of others.
(b) ORR separates UACs from delinquent offenders.
(c) ORR makes reasonable efforts to provide placements in those geographical areas where DHS apprehends the majority of UAC.
(d) Facilities where ORR places UACs will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if a UAC is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect UAC from others, and contact with family members who were arrested with the minor.
(e) If there is no appropriate licensed program immediately available for placement of a UAC pursuant to this subpart, and no one to whom ORR may release the UAC pursuant to subpart C of this part, the UAC may be placed in an ORR-contracted facility, having separate accommodations for minors, or a State or county juvenile detention facility. In addition to the requirement that UACs shall be separated from delinquent offenders, every effort must be taken to ensure that the safety and well-being of the UAC detained in these facilities are satisfactorily provided for by the staff. ORR makes all reasonable efforts to place each UAC in a licensed program as expeditiously as possible.
(f) ORR makes and records the prompt and continuous efforts on its part toward family reunification. ORR continues such efforts at family reunification for as long as the minor is in ORR custody.
ORR places UACs into a licensed program promptly after a UAC is transferred to ORR legal custody, except in the following circumstances:
(a) A UAC meeting the criteria for placement in a secure facility set forth in § 410.203;
(b) As otherwise required by any court decree or court-approved settlement; or,
(c) In the event of an emergency or influx of UACs into the United States, in which case ORR places the UAC as expeditiously as possible in accordance with § 410.209; or
(d) If a reasonable person would conclude that the UAC is an adult despite his or her claims to be a minor.
(a) Notwithstanding § 410.202, ORR may place a UAC in a secure facility if the UAC:
(1) Has been charged with, is chargeable, or has been convicted of a crime, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act, and where ORR deems those circumstances demonstrate that the UAC poses a danger to self or others. “Chargeable” means that ORR has probable cause to believe that the UAC has committed a specified offense. The provision in this paragraph (a)(1) does not apply to a UAC whose offense is:
(i) An isolated offense that was not within a pattern or practice of criminal activity and did not involve violence against a person or the use or carrying of a weapon; or
(ii) A petty offense, which is not considered grounds for stricter means of detention in any case;
(2) While in DHS or ORR's custody or while in the presence of an immigration officer, has committed, or has made credible threats to commit, a violent or
(3) Has engaged, while in a licensed program or staff secure facility, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program or staff secure facility in which he or she has been placed and removal is necessary to ensure the welfare of the UAC or others, as determined by the staff of the licensed program or staff secure facility (
(4) For purposes of placement in a secure residential treatment centers (RTC), if a licensed psychologist or psychiatrist determines that the UAC poses a risk of harm to self or others; or
(5) Is otherwise a danger to self or others.
(b) ORR Federal Field Specialists review and approve all placements of UAC in secure facilities consistent with legal requirements.
(c) ORR reviews, at least monthly, the placement of a UAC into a secure, staff secure, or RTC facility to determine whether a new level of care is more appropriate.
(d) Notwithstanding ORR's ability under the rules in this subpart to place UACs who are “otherwise a danger to self or others” in secure placements, the provision in this section does not abrogate any requirements to place UACs in the least restrictive setting appropriate to their age and special needs.
When determining whether a UAC is an escape risk, ORR considers, among other factors, whether:
(a) The UAC is currently under a final order of removal;
(b) The UAC's immigration history includes:
(1) A prior breach of a bond;
(2) A failure to appear before DHS or the immigration court;
(3) Evidence that the UAC is indebted to organized smugglers for his or her transport; or
(4) A voluntary departure or a previous removal from the United States pursuant to a final order of removal; and
(c) The UAC has previously absconded or attempted to abscond from state or Federal custody.
ORR does not place a UAC in a secure facility pursuant to § 410.203 if less restrictive alternatives are available and appropriate under the circumstances. ORR may place a UAC in a staff secure facility or another licensed program as an alternative to a secure facility.
Within a reasonable period of time, ORR provides each UAC placed or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands.
A UAC who is placed in a licensed program pursuant to this subpart remains in the custody of ORR, and may only be transferred or released under its authority. However, in the event of an emergency, a licensed program may transfer temporarily the physical placement of a UAC prior to securing permission from ORR, but must notify ORR of the transfer as soon as possible, but in all cases within eight hours of the transfer. Upon release to an approved sponsor, a UAC is no longer in the custody of ORR.
ORR assesses each UAC to determine if he or she has special needs, and if so, places the UAC, whenever possible, in a licensed program in which ORR places unaccompanied alien children without special needs, but which provides services and treatment for such special needs.
In the event of an emergency or influx that prevents the prompt placement of UAC in licensed programs, ORR makes all reasonable efforts to place each UAC in a licensed program as expeditiously as possible using the following procedures:
(a) ORR maintains an emergency placement list of at least 80 beds at programs licensed by an appropriate state agency that are potentially available to accept emergency placements.
(b) ORR implements its contingency plan on emergencies and influxes.
(c) Within one business day of the emergency or influx, ORR, if necessary, contacts the programs on the emergency placement list to determine available placements. To the extent practicable, ORR will attempt to locate emergency placements in geographic areas where culturally and linguistically appropriate community services are available.
(d) In the event that the number of UAC needing placement exceeds the available appropriate placements on the emergency placement list, ORR works with governmental and nongovernmental organizations to locate additional placements through licensed programs, county social services departments, and foster family agencies.
(e) ORR maintains a list of UACs affected by the emergency or influx including each UAC's:
(1) Name;
(2) Date and country of birth;
(3) Date of placement in ORR's custody; and
(4) Place and date of current placement.
(f) Each year ORR reevaluates the number of regular placements needed for UAC to determine whether the number of regular placements should be adjusted to accommodate an increased or decreased number of UAC eligible for placement in licensed programs.
This subpart covers the policies and procedures used to release, without unnecessary delay, a UAC from ORR custody to an approved sponsor.
(a) ORR releases a UAC to an approved sponsor without unnecessary delay, but may continue to retain custody of a UAC if ORR determines that continued custody is necessary to ensure the UAC's safety or the safety of others, or that continued custody is required to secure the UAC's timely appearance before DHS or the immigration courts.
(b) When ORR releases a UAC without unnecessary delay to an approved sponsor, it releases in the following order of preference:
(1) A parent;
(2) A legal guardian;
(3) An adult relative (brother, sister, aunt, uncle, or grandparent);
(4) An adult individual or entity designated by the parent or legal guardian as capable and willing to care for the UAC's well-being in:
(i) A declaration signed under penalty of perjury before an immigration or consular officer; or
(ii) Such other document that establishes to the satisfaction of ORR, in
(5) A licensed program willing to accept legal custody; or
(6) An adult individual or entity seeking custody, in the discretion of ORR, when it appears that there is no other likely alternative to long term custody, and family reunification does not appear to be a reasonable possibility.
(a) The licensed program providing care for the UAC shall make and record the prompt and continuous efforts on its part towards family reunification and the release of the UAC pursuant to the provisions of this section.
(b) ORR requires a background check, including verification of identity and which may include verification of employment of the individuals offering support, prior to release.
(c) ORR also may require further suitability assessment, which may include interviews of members of the household, investigation of the living conditions in which the UAC would be placed and the standard of care he or she would receive, a home visit, a fingerprint-based background and criminal records check on the prospective sponsor and on adult residents of the prospective sponsor's household, and follow-up visits after release. Any such assessment also takes into consideration the wishes and concerns of the UAC.
(d) If the conditions identified in TVPRA at 8 U.S.C. 1232(c)(3)(B) are met, and require a home study, no release to a sponsor may occur in the absence of such a home study.
(e) The proposed sponsor must sign an affidavit of support and a custodial release agreement of the conditions of release. The custodial release agreement requires that the sponsor:
(1) Provide for the UAC's physical, mental, and financial well-being;
(2) Ensure the UAC's presence at all future proceedings before DHS and the immigration courts;
(3) Ensure the UAC reports for removal from the United States if so ordered;
(4) Notify ORR, DHS, and the Executive Office for Immigration Review of any change of address within five days following a move;
(5) Notify ORR and DHS at least five days prior to the sponsor's departure from the United States, whether the departure is voluntary or pursuant to a grant of voluntary departure or an order of removal;
(6) Notify ORR and DHS if dependency proceedings involving the UAC are initiated and also notify the dependency court of any immigration proceedings pending against the UAC;
(7) Receive written permission from ORR if the sponsor decides to transfer legal custody of the UAC to someone else. Also, in the event of an emergency (
(8) Notify ORR and DHS as soon as possible and no later than 24 hours of learning that the UAC has disappeared, has been threatened, or has been contacted in any way by an individual or individuals believed to represent an immigrant smuggling syndicate or organized crime.
(f) ORR is not required to release a UAC to any person or agency it has reason to believe may harm or neglect the UAC or fail to present him or her before DHS or the immigration courts when requested to do so.
This subpart covers the standards that licensed programs must meet in keeping with the principles of treating UACs in custody with dignity, respect and special concern for their particular vulnerability.
This subpart applies to all licensed programs, regardless of whether they are providing care in shelters, staff secure facilities, residential treatment centers, or foster care and group home settings.
Licensed programs must:
(a) Be licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children;
(b) Comply with all applicable state child welfare laws and regulations and all state and local building, fire, health and safety codes;
(c) Provide or arrange for the following services for each UAC in care, including:
(1) Proper physical care and maintenance, including suitable living accommodations, food, appropriate clothing, and personal grooming items;
(2) Appropriate routine medical and dental care, family planning services, and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the UAC was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Center for Disease Control; administration of prescribed medication and special diets; appropriate mental health interventions when necessary;
(3) An individualized needs assessment that must include:
(i) Various initial intake forms;
(ii) Essential data relating to the identification and history of the UAC and family;
(iii) Identification of the UAC's special needs including any specific problems that appear to require immediate intervention;
(iv) An educational assessment and plan;
(v) An assessment of family relationships and interaction with adults, peers and authority figures;
(vi) A statement of religious preference and practice;
(vii) An assessment of the UAC's personal goals, strengths and weaknesses; and
(viii) Identifying information regarding immediate family members, other relatives, godparents or friends who may be residing in the United States and may be able to assist in family reunification;
(4) Educational services appropriate to the UAC's level of development and communication skills in a structured classroom setting, Monday through Friday, which concentrate primarily on the development of basic academic competencies and secondarily on English Language Training (ELT), including:
(i) Instruction and educational and other reading materials in such languages as needed;
(ii) Instruction in basic academic areas that include science, social studies, math, reading, writing, and physical education; and
(iii) The provision to a UAC of appropriate reading materials in languages other than English for use during the UAC's leisure time;
(5) Activities according to a recreation and leisure time plan that include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities, which do not include time spent watching television. Activities must be increased to at least three hours on days when school is not in session;
(6) At least one individual counseling session per week conducted by trained social work staff with the specific objectives of reviewing the UAC's progress, establishing new short-term objectives, and addressing both the developmental and crisis-related needs of each UAC;
(7) Group counseling sessions at least twice a week. This is usually an informal process and takes place with all the UACs present. This is a time when new UACs are given the opportunity to get acquainted with the staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational and other program activities, etc. This is a time for staff and UACs to discuss whatever is on their minds and to resolve problems;
(8) Acculturation and adaptation services that include information regarding the development of social and inter-personal skills that contribute to those abilities necessary to live independently and responsibly;
(9) Upon admission, a comprehensive orientation regarding program intent, services, rules (provided in writing and verbally), expectations and the availability of legal assistance;
(10) Whenever possible, access to religious services of the UAC's choice;
(11) Visitation and contact with family members (regardless of their immigration status) which is structured to encourage such visitation. The staff must respect the UAC's privacy while reasonably preventing the unauthorized release of the UAC;
(12) A reasonable right to privacy, which must include the right to:
(i) Wear his or her own clothes, when available;
(ii) Retain a private space in the residential facility, group or foster home for the storage of personal belongings;
(iii) Talk privately on the phone, as permitted by the house rules and regulations;
(iv) Visit privately with guests, as permitted by the house rules and regulations; and
(v) Receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband;
(13) Family reunification services designed to identify relatives in the United States as well as in foreign countries and assistance in obtaining legal guardianship when necessary for release of the UAC; and
(14) Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the government, the right to a removal hearing before an immigration judge, the right to apply for asylum or to request voluntary departure in lieu of removal;
(d) Deliver services in a manner that is sensitive to the age, culture, native language and the complex needs of each UAC;
(e) Formulate program rules and discipline standards with consideration for the range of ages and maturity in the program and that are culturally sensitive to the needs of each UAC to ensure the following:
(1) UAC must not be subjected to corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping: And
(2) Any sanctions employed must not:
(i) Adversely affect either a UAC's health, or physical or psychological well-being; or
(ii) Deny UAC regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal assistance;
(f) Develop a comprehensive and realistic individual plan for the care of each UAC in accordance with the UAC's needs as determined by the individualized needs assessment. Individual plans must be implemented and closely coordinated through an operative case management system;
(g) Develop, maintain and safeguard individual client case records. Licensed programs must develop a system of accountability that preserves the confidentiality of client information and protects the records from unauthorized use or disclosure; and
(h) Maintain adequate records and make regular reports as required by ORR that permit ORR to monitor and enforce the regulations in this part and other requirements and standards as ORR may determine are in the interests of the UAC.
ORR monitors compliance with the terms of the regulations in this part.
(a) ORR does not transport UACs with adult detainees.
(b) When ORR plans to release a UAC from its custody under the family reunification provisions at §§ 410.201 and 410.302, ORR assists without undue delay in making transportation arrangements. ORR may, in its discretion, provide transportation to UAC.
(a) ORR transfers a UAC from one placement to another with all of his or her possessions and legal papers.
(b) If the UAC's possessions exceed the amount permitted normally by the carrier in use, the possessions are shipped to the UAC in a timely manner.
(c) ORR does not transfer a UAC who is represented by counsel without advance notice to his or her legal counsel. However, ORR may provide notice to counsel within 24 hours of the transfer in unusual and compelling circumstances such as:
(1) Where the safety of the UAC or others has been threatened;
(2) The UAC has been determined to be an escape risk consistent with § 410.204; or
(3) Where counsel has waived such notice.
Procedures for determining the age of an individual must take into account the totality of the circumstances and evidence, including the non-exclusive use of radiographs, to determine the age of the individual. ORR may require an individual in ORR's custody to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age. If ORR subsequently determines that such an individual is a UAC, he or she will be treated in accordance with ORR's UAC regulations in this part for all purposes.
If, the procedures in § 410.700 would result in a reasonable person concluding that an individual is an adult, despite his or her claim to be under the age of 18, ORR must treat such person as an adult for all purposes.
This subpart concerns UACs' objections to ORR placement.
(a) For UACs not placed in licensed programs, ORR shall—within a
(b) ORR shall promptly provide each UAC not released with:
(1) A list of free legal services providers compiled by ORR and that is provided to UAC as part of a Legal Resource Guide for UAC (unless previously given to the UAC); and
(2) The following explanation of the right of potential review:
“ORR usually houses persons under the age of 18 in an open setting, such as a foster or group home, and not in detention facilities. If you believe that you have not been properly placed or that you have been treated improperly, you may call a lawyer to seek assistance. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.”
(a) A UAC may request that an independent hearing officer employed by HHS determine, through a written decision, whether the UAC would present a risk of danger to the community or risk of flight if released.
(1) Requests under this section may be made by the UAC, his or her legal representative, or his or her parent or legal guardian.
(2) UACs placed in secure or staff secure facilities will receive a notice of the procedures under this section and may use a form provided to them to make a written request for a hearing under this section.
(b) In hearings conducted under this section, HHS bears the initial burden of production to support its determination that a UAC would pose a danger or flight risk if discharged from HHS' care and custody. The burden of persuasion is then on the UAC to show that he or she will not be a danger to the community or flight risk if released, using a preponderance of the evidence standard.
(c) In hearings under this section, the UAC may be represented by a person of his or her choosing, at no cost to the government. The UAC may present oral and written evidence to the hearing officer and may appear by video or teleconference. ORR may also choose to present evidence either in writing, or by appearing in person, or by video or teleconference.
(d) A hearing officer's decision that a UAC would not be a danger to the community (or risk of flight) if released is binding upon ORR, unless the provisions of paragraph (e) of this section apply.
(e) A hearing officer's decision under this section may be appealed to the Assistant Secretary of the Administration for Children and Families. Any such appeal request shall be in writing, and must be received within 30 days of the hearing officer decision. The Assistant Secretary will reverse a hearing officer decision only if there is a clear error of fact, or if the decision includes an error of law. Appeal to the Assistant Secretary shall not affect a stay of the hearing officer's decision to release the UAC, unless within five business days of such hearing officer decision, the Assistant Secretary issues a decision in writing that release of the UAC would result in a significant danger to the community. Such a stay decision must include a description of behaviors of the UAC while in care and/or documented criminal or juvenile behavior records from the UAC demonstrating that the UAC would present a danger to community if released.
(f) Decisions under this section are final and binding on the Department, and a UAC may only seek another hearing under this section if the UAC can demonstrate a material change in circumstances. Similarly, ORR may request the hearing officer to make a new determination under this section if at least one month has passed since the original decision, and ORR can show that a material change in circumstances means the UAC should no longer be released.
(g) This section cannot be used to determine whether a UAC has a suitable sponsor, and neither the hearing officer nor the Assistant Secretary may order the UAC released.
(h) This section may not be invoked to determine the UAC's placement while in HHS custody. Nor may this section be invoked to determine level of custody for the UAC.