Executive Orders 12866, 13563 and 13771

Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rulemaking has been determined to be not significant for purposes of Executive Order 12866 or Executive Order 13563. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect. The Act prohibits States or political subdivisions of a State from imposing any requirement that is in addition to, or inconsistent with, any requirement of the Act. There are no civil justice implications associated with this proposed rule.

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this proposed regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

AMS has considered the potential civil rights implications of this proposed rule on minorities, women and persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This proposed rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this proposed rule will not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.

This proposed rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a federal statute to preempt State law only when the statute contains an express preemption provision. There are no federalism implications associated with this proposed rule.

The Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), hereinafter referred to as the “Act,” directs and authorizes the Secretary of Agriculture to facilitate the efficient and competitive marketing of agricultural products. AMS programs support a strategic marketing perspective that adapts product and marketing decisions to consumer demands, changing domestic and international marketing practices, and new technology. Under this directive, AMS provides impartial verification services that ensure agricultural products meet specified requirements, both tangible (such as meeting USDA grade standards) and intangible (such as a feeding regime or production system). Services also include audit verification programs, laboratory approval and accreditation programs, and audit activities based on government-to-government agreements with international trading partners regarding specific foreign market requirements. These services are voluntary, with users paying for the cost of the requested service.

Currently, AMS voluntary, user-fee audit verification and accreditation programs and services are collectively regulated by: 7 CFR part 51—FRESH FRUITS, VEGETABLES AND OTHER PRODUCTS(INSPECTION, CERTIFICATION, AND STANDARDS); 7 CFR part 52—PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS; 7 CFR part 56—VOLUNTARY GRADING OF SHELL EGGS; 7 CFR part 58—GRADING AND INSPECTION, GENERAL SPECIFICATIONS FOR APPROVED PLANTS AND STANDARDS FOR GRADES OF DAIRY PRODUCTS; 7 CFR part 62—LIVESTOCK, MEAT, AND OTHER AGRICULTURAL COMMODITIES (QUALITY SYSTEMS VERIFICATION PROGRAMS); 7 CFR part 70—VOLUNTARY GRADING OF POULTRY PRODUCTS AND RABBIT PRODUCTS; 7 CFR part 75—PROVISIONS FOR INSPECTION AND CERTIFICATION OF QUALITY OF AGRICULTURAL AND VEGETABLE SEEDS; and 7 CFR Chapter I, Subchapter E—COMMODITY LABORATORY TESTING PROGRAMS, parts 90 and 91. Each part of the CFR is applicable to a different group of agricultural commodities and their products. AMS proposes to incorporate the commodities and program services for audit verification and accreditation programs currently regulated by the aforementioned parts of the CFR into a single regulatory reference: 7 CFR part 62.

The amendments proposed by AMS would expand the current definition of “product” in 7 CFR part 62, which currently references livestock, meat, seed and feedstuffs, to include all commodities covered under the Act. Additionally, proposed amendments would clarify the scope of existing and future voluntary, fee-for-service audit verification and accreditation programs offered by AMS and would house all such programs under one part.

With these proposed amendments, AMS seeks to maintain uniformity, transparency, and efficiency of service delivery of the QSVP and other AMS voluntary, user-fee audit verification and accreditation programs. Without the proposed amendments, AMS will be required to maintain similar or duplicate programs in each commodity area that carries out comparable functions.

Other proposed changes are administrative in nature. For example, AMS is proposing to amend the title of part 62 from “LIVESTOCK, MEAT, AND OTHER AGRICULTURAL COMMODITIES (QUALITY SYSTEMS VERIFICATION PROGRAMS)” to “AGRICULTURAL MARKETING SERVICE AUDIT VERIFICATION AND ACCREDITATION PROGRAMS (AVAAP).” Additional changes would be made to the part's terminology in order to reflect the broader scope of commodities and program services, and to better coordinate administrative service provisions within AMS. Lastly, AMS proposes to make conforming changes to parts 54, 56, 70, 90 and 91 to remove duplicative or conflicting language and to update terminology.

The purpose of the Regulatory Flexibility Act (RFA)(5 U.S.C. 601-612) is to fit regulatory actions to the scale of businesses subject to such actions so small businesses will not be unduly or disproportionately burdened. The U.S. Small Business Administration's Table of Small Business Size Standards matched to the North American Industry Classification System Codes identifies small business size by average annual receipts or by the average number of employees at a firm. This information can be found at 13 CFR parts 121.104, 121.106, and 121.201.

AMS has determined that this proposed rule will not have a significant impact on a substantial number of small entities, as defined by the RFA, because the services are voluntary, are provided on a fee-for-service basis, and are not subject to scalability based on the business size. Nonetheless, this analysis is provided.

All applicants for audit services provide information about their companies for processing payment invoices. Information collected from an applicant includes company name, business name if different from company name, Federal Tax Identification Number, billing address, contact information of the accounts payable department, and the name of the person filing the application. The Federal Tax Identification number is required by the Federal Debt Collection Procedure Act of 1990 (28 U.S.C. 3101 et seq. ). All entities doing business with the Federal Government are required to provide the Federal Tax Identification number before an account can be set up.

AMS does not collect information about the size of a business that applies for a service. However, based on working knowledge of the USDA personnel assigned to oversee these operations, AMS estimates the following based on the number of employees:

Approximately 950 livestock and poultry industry applicants subscribe to AMS's voluntary, fee-for-service program that would be subject to the requirements of this regulation. Roughly 25 percent of those applicants may be classified as small entities.

Approximately 550 dairy industry applicants subscribe to AMS's voluntary, fee-for-service program that would be subject to the requirements of this regulation. Roughly 10 percent of those applicants may be classified as small entities.

Approximately 4,300 fruit, vegetable, and specialty crop industry applicants subscribe to AMS's voluntary, fee-for-service audit verification and accreditation programs that would be subject to the requirements of this regulation. Roughly 33 percent of those applicants may be classified as small entities.

Approximately 84 agricultural laboratory applicants subscribe to AMS's voluntary, fee-for-service testing that would be subject to the requirements of this regulation. Roughly 80 percent of those applicants may be classified as small entities.

Approximately 24 agricultural seed applicants subscribe to AMS's voluntary, fee-for-service program that would be subject to the requirements of this regulation. Roughly 80 percent of those applicants may be classified as small entities.

It is not anticipated that this action would impose additional costs to applicants, regardless of size. Current applicants will not be required to provide any additional information to receive service. The effects of this proposed rule are not expected to be disproportionately greater or less for small applicants than for larger applicants. As described above, these programs are voluntary, fee-for-service activities.

AMS is committed to complying with the E-Government Act of 2002 (44 U.S.C. 101) to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to government information and services, and for other purposes.

USDA has not identified any relevant federal rules that duplicate, overlap, or conflict with this rulemaking.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this proposed rule will not change the current information collection and recordkeeping requirements previously approved but will increase the number of respondents upon completion of the rulemaking process.

The information collection and recordkeeping requirements pertaining to the commodities and services proposed to be covered under part 62 that have been approved by OMB under 44 U.S.C. Chapter 35 include: “Regulations for Voluntary Grading, Certification and Standards” under OMB Control Number 0581-0128; “Regulations Governing the Inspection and Grading Services of Manufactured or Processed Dairy Products, and the Certification of Sanitary Design and Fabrication of Equipment Used in the Slaughter, Processing, and Packaging of Livestock and Poultry Products” under OMB Control Number 0581-0283; “Regulations Governing Inspection and Certification Standards and Audit Services for Fresh and Processed Fruit, Vegetable and Other Products” under OMB Control Number 0581-0125; and “Laboratory Approval Programs” under OMB Control Number 0581-0251.

Approximately 50 inquiries for existing QSVP services using forms under OMB Control Number 0581-0128 have been received by AMS in the past year. Approximately three-fourths of these inquiries (roughly 37) represented new commodities which could potentially increase the overall reporting and recordkeeping burden. Accordingly, if this proposed rule is adopted, and if two-thirds of those 37 inquirers seek service, the number of respondents using these forms would increase by 25, thereby increasing the overall reporting and recordkeeping burden by 606.25 hours, from 10,784.63 hours to 11,390.88 hours annually.

Similarly, AMS's Dairy Program, which uses forms under OMB Control Number 0581-0283, estimates the number of respondents would increase by 10 if this rule is adopted, thereby increasing the overall reporting and recordkeeping burden by 1,740.36 hours, from 17,403.6 hours to 19,107.96 hours annually.

The AMS Fruit, Vegetable and Specialty Crop Audit Services Branch, which uses forms under OMB Control Number 0581-0125, estimates the number of respondents will increase by 25 if this proposed rule is adopted, thereby increasing the overall reporting and recordkeeping burden specific to the auditing services by approximately 214 hours, from 11,976.22 hours to 12,190.22 hours annually.

The AMS Laboratory Approval and Testing Division, Science and Technology Programs, which uses forms under OMB Control Number 0581-0251, estimates the number of respondents would increase by 5 if this proposed rule is adopted. The overall reporting and recordkeeping burden specific to these services would increase by approximately 382.9 hours, from 4,157.3 hours to 4,540.2 hours annually.

USDA has considered the reporting and recordkeeping burden on applicants for these AMS services that would be impacted if this proposed rule were adopted. Currently, applicants are required to complete an application for service and submit additional documentation. Recordkeeping requirements on each applicant would remain the same, though the overall burden is expected to increase due to an increase in applications received.

Since this action proposes to expand the scope of covered commodities, which is expected to increase the number of respondents, the already approved OMB Control Numbers 0581-0128, 0581-0283, 0581-0125 and 0581-0251 must be revised to reflect the anticipated increase in the reporting and recordkeeping burden. Therefore, AMS is in the process of submitting a Justification for Change to OMB to reflect burden of the potential increase in the number of respondents affected by the proposed amendments to Part 62.

A 60-day comment period is provided to allow interested persons an opportunity to respond to this proposal. AMS will summarize all responses to this notice and address them in the request for OMB approval. All written comments received will be considered before a final determination is made on this matter. All comments will become a matter of public record.

For the reasons set forth in the preamble, AMS proposes to amend 7 CFR parts 54, 56, 62, 70, 90 and 91 as follows:

The revisions read as follows:

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) amended the Commodity Exchange Act (“CEA” or “Act”) by adding section 5h, which establishes registration requirements and core principles for swap execution facilities (“SEFs”). 2 The Commission implemented section 5h by adopting regulations that establish various trading requirements for swaps traded on SEFs  3 and articulating, where appropriate, guidance and acceptable practices. In particular, the Commission promulgated part 37 of its regulations to implement section 5h of the CEA and set forth the registration and operational requirements for SEFs. 4 Among those are requirements in part 37 specifying minimum trading functionality that a SEF must offer to participants for all listed swaps, i.e., an “order book,” as defined in § 37.3 (“Order Book”);  5 specifying the types of systems or platforms that a SEF must offer for swaps trading, including swaps subject to the trade execution requirement under CEA section 2(h)(8);  6 and setting forth other relevant regulations applicable to the fifteen core principles with which a SEF must comply to obtain and maintain registration with the Commission.

Commission regulation 37.9 prescribes the methods of execution that a SEF must offer to market participants to execute swap transactions on the SEF. In particular, § 37.9 defines “Required Transactions” as swaps subject to the trade execution requirement. Section 37.9 also requires a SEF to offer, as required methods of execution, either (i) an Order Book or (ii) a request-for-quote system that sends a request-for-quote to no less than three unaffiliated market participants and operates in conjunction with an Order Book (“RFQ System”) for the execution of these transactions. 7 Swaps that are not subject to the trade execution requirement are defined as “Permitted Transactions,” for which a SEF may offer any execution method and for which market participants may voluntarily trade on a SEF. 8 The Commission's regulations specify additional requirements that correspond to the use of an Order Book or RFQ System to execute Required Transactions. 9

Pursuant to section 727 of the Dodd-Frank Act, the Commission also established a regulatory framework for the real-time public reporting of swap transaction and pricing data, including swap block trades within CEA section 2(a)(13). 10 Part 43 of the Commission's regulations implements section 727 of the Dodd-Frank Act by, among other things, defining the requisite criteria for when a publicly reportable swap transaction will be classified as a block trade, including the requirement that the swap transaction “occur[] away” from a SEF's trading system or platform, but pursuant to the SEF's rules and procedures. 11 Part 43 also sets forth the procedures for calculating appropriate minimum block sizes for each swap asset class  12 and specifying the public reporting delays available for such trades. 13

During the implementation of parts 37 and 43, market participants and SEFs identified certain operational and compliance burdens related to various requirements. To mitigate these burdens, Commission staff issued to SEFs and market participants time-limited no-action relief from certain provisions of the CEA and the Commission's regulations. 14 Based on this implementation experience, the Commission believes it may be appropriate to amend the current SEF regulatory framework to address the following issues, which have been identified in staff no-action letters:  15

• The Commission proposes to amend part 37 to allow the swap components of certain categories of “package transactions”  16 to be executed on-SEF through flexible means of execution pursuant to § 37.9(c)(2), rather than through the required methods of execution under § 37.9 for “Required Transactions.” In addition, the Commission is proposing to amend part 36 to include an exemption from the trade execution requirement for swap transactions that are executed as a component of a package transaction that also includes a component that is a new issuance bond (“New Issuance Bond package transactions”). CFTC No-Action Letter No. 17-55 (“NAL No. 17-55”)  17 currently provides no-action relief for the swap components of certain categories of package transactions from the required methods of execution, and in some instances, from the trade execution requirement.

• The Commission proposes to amend part 37 to establish a principles-based approach for SEF error trade policies that incorporates relief from the required methods of execution under § 37.9 for Required Transactions for trades intended to resolve error trades. 18 The amendment would enable SEFs to permit market participants to execute swaps transactions to correct operational or clerical errors using execution methods other than those required under § 37.9 for Required Transactions. This proposal does not seek to codify the specific conditions contained in CFTC No-Action Letter No. 17-27 (“NAL No. 17-27”). 19 Rather, this proposal is intended to capture the intent of NAL No. 17-27 to permit market participants to correct error trades in Required Transactions through non-required methods of execution while ensuring flexibility for SEFs to determine the most suitable error trade rules for their markets and participants. 20

Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (hereafter referred to as “the Secretaries”) jointly implement the Federal Subsistence Management Program (hereafter referred to as “the Program”). The Program provides a preference for take of fish and wildlife resources for subsistence uses on Federal public lands and waters in Alaska. Only Alaska residents of areas identified as rural are eligible to participate in the Program. The Secretaries published temporary regulations to carry out the Program in the Federal Register on June 29, 1990 (55 FR 27114), and final regulations on May 29, 1992 (57 FR 22940). Program officials have subsequently amended these regulations a number of times.

Because the Program is a joint effort between the Departments of the Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): The Agriculture regulations are at title 36, “Parks, Forests, and Public Property,” and the Interior regulations are at title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. Consequently, to indicate that identical changes are proposed for regulations in both titles 36 and 50, in this document we will present references to specific sections of the CFR as shown in the following example: § __.24.

The Program regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife. Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Program. The Board comprises:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, National Park Service;

• The Alaska State Director, Bureau of Land Management;

• The Alaska Regional Director, Bureau of Indian Affairs;

• The Alaska Regional Forester, U.S. Forest Service; and

• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

In administering the Program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Advisory Council members represent varied geographical, cultural, and user interests within each region.

The Federal Subsistence Regional Advisory Councils will have a substantial role in reviewing this proposed rule and making recommendations for the final rule. The Federal Subsistence Board, through the Federal Subsistence Regional Advisory Councils, will hold public meetings on this proposed rule at the following locations in Alaska, on the following dates:

During April 2020, the written proposals to change the regulations at subpart D, take of fish and shellfish, and subpart C, customary and traditional use determinations, will be compiled and distributed for public review. Written public comments will be accepted on the distributed proposals during a second 30-day public comment period. The Board, through the Regional Advisory Councils, will hold a second series of public meetings in August through November 2020, to receive comments on specific proposals and to develop recommendations to the Board at the following locations in Alaska, on the following dates:

A notice will be published of specific dates, times, and meeting locations in local and statewide newspapers prior to both series of meetings. Locations and dates may change based on weather or local circumstances. The amount of work on each Regional Advisory Council's agenda determines the length of each Regional Advisory Council meeting, but typically the meetings are scheduled to last 2 days. Occasionally a Council will lack information necessary during a scheduled meeting to make a recommendation to the Board or to provide comments on other matters affecting subsistence in the region. If this situation occurs, the Council may announce on the record a later teleconference to address the specific issue when the requested information or data is available; it is noted that any follow-up teleconference would be an exception and must be approved, in advance, by the Assistant Regional Director for the Office of Subsistence Management. These teleconferences are open to the public, along with opportunities for public comment; the date and time will be announced during the scheduled meeting and that same information will be announced through news releases and local radio, television, and social media ads.

The Board will discuss and evaluate proposed changes to the subsistence management regulations during a public meeting scheduled to be held in Anchorage, Alaska, in January 2021. The Federal Subsistence Regional Advisory Council Chairs, or their designated representatives, will present their respective Councils' recommendations at the Board meeting. Additional oral testimony may be provided on specific proposals before the Board at that time. At that public meeting, the Board will deliberate and take final action on proposals received that request changes to this proposed rule.

Proposals to the Board to modify the general fish and wildlife regulations, fish and shellfish harvest regulations, and customary and traditional use determinations must include the following information:

a. Name, address, and telephone number of the requestor;

b. Each section and/or paragraph designation in this proposed rule for which changes are suggested, if applicable;

c. A description of the regulatory change(s) desired;

d. A statement explaining why each change is necessary;

e. Proposed wording changes; and

f. Any additional information that you believe will help the Board in evaluating the proposed change.

The Board immediately rejects proposals that fail to include the above information, or proposals that are beyond the scope of authorities in § __.24, subpart C (the regulations governing customary and traditional use determinations), and §§ __.25, __.27, and __.28 of subpart D (the general and specific regulations governing the subsistence take of fish and shellfish). If a proposal needs clarification, prior to being distributed for public review, the proponent may be contacted, and the proposal could be revised based on their input. Once a proposal is distributed for public review, no additional changes may be made as part of the original submission. During the January 2021 meeting, the Board may defer review and action on some proposals to allow time for cooperative planning efforts, or to acquire additional needed information. The Board may elect to defer taking action on any given proposal if the workload of staff, Regional Advisory Councils, or the Board becomes excessive. These deferrals may be based on recommendations by the affected Regional Advisory Council(s) or staff members, or on the basis of the Board's intention to do least harm to the subsistence user and the resource involved. A proponent of a proposal may withdraw the proposal provided it has not been considered, and a recommendation has not been made, by a Regional Advisory Council. The Board may consider and act on alternatives that address the intent of a proposal while differing in approach.

You may submit written comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R7-SM-2019-0092, or by appointment, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays, at: USFWS, Office of Subsistence Management, 1011 East Tudor Road, Anchorage, AK 99503.

The Federal Subsistence Board is committed to providing access to these meetings for all participants. Please direct all requests for sign language interpreting services, closed captioning, or other accommodation needs to Caron McKee, 907-786-3880, subsistence@fws.gov, or 800-877-8339 (TTY), seven business days prior to the meeting you would like to attend.

As expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretaries are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and Federally Recognized Indian Tribes (Tribes) as listed in 82 FR 4915 (January 17, 2017). Consultation with Alaska Native corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Alaska National Interest Lands Conservation Act does not provide specific rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, because tribal members are affected by subsistence fishing, hunting, and trapping regulations, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule.

The Board will engage in outreach efforts for this proposed rule, including a notification letter, to ensure that Tribes and Alaska Native corporations are advised of the mechanisms by which they can participate. The Board provides a variety of opportunities for consultation: Proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process. The Board will commit to efficiently and adequately providing an opportunity to Tribes and Alaska Native corporations for consultation in regard to subsistence rulemaking.

The Board will consider Tribes' and Alaska Native corporations' information, input, and recommendations, and address their concerns as much as practicable.

In titles 36 and 50 of the CFR, the subparts C and D regulations are subject to periodic review and revision. The Board currently completes the process of revising subsistence take of fish and shellfish regulations in odd-numbered years and wildlife regulations in even-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable cycle.

The current subsistence program regulations form the starting point for consideration during each new rulemaking cycle. Consequently, in this rulemaking action pertaining to fish and shellfish, the Board will consider proposals to revise the regulations in any of the following sections of titles 36 and 50 of the CFR:

• § __.24: customary and traditional use determinations;

• § __.25: general provisions governing the subsistence take of wildlife, fish, and shellfish;

• § __.27: specific provisions governing the subsistence take of fish; and

• § __.28: specific provisions governing the subsistence take of shellfish.

The text of the proposed amendments to 36 CFR 242.24 and 242.27 and 50 CFR 100.24 and 100.27 is the final rule for the 2019-2021 regulatory period for fish (84 FR 39744; August 12, 2019).

The text of the proposed amendments to 36 CFR 242.25 and 50 CFR 100.25 is the final rule for the 2018-20 regulatory period for wildlife (83 FR 50758; October 9, 2018).

The text of the proposed amendments to 36 CFR 242.28 and 50 CFR 100.28 is the final rule for the 2011-13 regulatory period for fish and shellfish (76 FR 12564; March 8, 2011).

These regulations will remain in effect until subsequent Board action changes elements as a result of the public review process outlined above in this document and a final rule is published.

A Draft Environmental Impact Statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.

A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior, with concurrence of the Secretary of Agriculture, determined that expansion of Federal jurisdiction does not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of the subsistence program regulations was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the regulations will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).

This proposed rule does not contain any new collections of information that require Office of Management and Budget (OMB) approval under the PRA (44 U.S.C. 3501 et seq. ). OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100, and assigned OMB Control Number 1018-0075 (expires January 31, 2020, and, in accordance with 5 CFR 1320.10, the Service may continue to sponsor the collection while the renewal is pending at OMB). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this proposed rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

This rule is not an Executive Order (E.O.) 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this proposed rule is not a major rule. It will not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these proposed regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule. Consultations with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Secretaries, through the Board, will provide a variety of opportunities for consultation: Commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this proposed rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted this proposed rule under the guidance of Thomas C.J. Doolittle of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:

• Bruce Seppi, Alaska State Office, Bureau of Land Management;

• Joshua Ream, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Carol Damberg, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Thomas Whitford, Alaska Regional Office, USDA—Forest Service.

This proposed rule would amend 38 CFR parts 1 and 14 to clarify one of the methods that an individual providing representation on a claim may use to access a claimant's records now that VA has transitioned to primarily using electronic records relevant to a claim for VA benefits. Specifically, this proposed rule clarifies how attorneys, agents, or representatives of a VA-recognized service organization who are accredited pursuant to 38 CFR 14.629, as well as designated to provide representation in a claim pursuant to 38 CFR 14.631, may access records relevant to their client's claim through VBA's IT systems. The purpose of this rulemaking is to ensure that claimants for VA benefits receive responsible, qualified services from VA-accredited attorneys, agents, or representatives of a VA-recognized service organization when seeking VA benefits, including ensuring that those individuals providing representation have appropriate access to VA records relating to their client's claim; that VA claimants understand who may access their claim records when they designate an attorney, agent or service organization to provide representation; that attorneys, agents, or representatives of a VA-recognized service organization before VA take care to adequately protect their client's privacy; and that VA meets its IT security obligations while providing access to its information systems to individuals who are not VA employees or contractors (non-VA users). The statutory authority for proposed §§ 1.600 through 1.603 is 38 U.S.C. 5721 through 5728. Because the “security of Department information and information systems is vital to the success of the mission of the Department,” it is statutorily mandated that VA “establish and maintain a comprehensive Department-wide information security program to provide for the development and maintenance of cost-effective security controls needed to protect Department information, in any media or format, and Department information systems.” 38 U.S.C. 5722(a). In establishing its Department-wide information security program, Congress has entrusted to the VA information owners that oversee the system or systems to “determin[e] who has access to the system or systems containing sensitive personal information, including types of privileges and access rights.” 38 U.S.C. 5723(d)(2).

Veteran and claimant information may be closely associated, such as when the Veteran is also the claimant, but not all claimants before VA are Veterans, such as a Veteran's surviving spouse or child who may be entitled to VA benefits in some circumstances. These non-Veteran dependent claimants may file benefit claims under the claim number VA assigned to the Veteran whose military service renders them potentially eligible for benefits. Accordingly, this proposed rule addresses the requirements for IT systems access regardless of whether the representation is in a claim for VA benefits submitted by a Veteran, survivor, or family member, provided that the claim record is maintained electronically in a system that is configured for external access.

Under 38 U.S.C. 5701(a) and (b), “files, records, reports, and other papers and documents pertaining to any claim” before VA are generally “confidential and privileged,” but VA “shall make disclosure” of the same “[t]o a claimant or duly authorized agent or representative of a claimant” in most circumstances. See also 5 U.S.C. 552a (Privacy Act). Under 38 U.S.C. 501(a), VA has authority “to prescribe all rules and regulations that are necessary or appropriate to carry out the laws” it administers.

The information security requirements to which VA must adhere are complex and rigorous, and drawn from such sources as 38 U.S.C. Chapter 57, Subchapter III, Information Security; the Federal Information Security Modernization Act of 2014 (FISMA), 44 U.S.C. Chapter 35, Subchapters II and III; the E-Government Act of 2002, 44 U.S.C. Chapters 1 and 36; VA Handbook 6500, Risk Management Framework for VA Information Systems—Tier 3: VA Information Security Program; VA Directive 6500, VA Cybersecurity Program; OMB Circular A-130, Managing Information as a Strategic Resource; and the National Institute of Standards and Technology, Special Publication 800-53.

VA's effort to modernize the claims processing system has required a change to storing records relevant to benefit claims before the agency and processing such claims in electronic form, currently utilizing the Veterans Benefits Management System (VBMS) information system, from storing claimant's records in paper files. Other systems, such as Caseflow, are not document repositories, but may provide information regarding the current status of the claim or appeal, such as whether it is pending the development of evidence, pending a decision, etc. In an effort to provide increased access to claimant's records, VA must change its policies and procedures to ensure compliance with Federal IT system security and privacy safeguards applicable to VA. This rule-making addresses non-VA users, and how and when attorneys, agents, or representatives of a VA-recognized service organization may directly access VBA information systems rather than an offline copy of those records on behalf of their clients, as provided under 38 CFR part 1 implementation of 38 U.S.C. 5701, 38 U.S.C. 7332, and 5 U.S.C. 552 and 552a. The experiences of VA claimants, the individuals providing representation before VA, and the agency during the years since the transition to VBMS warrants a reexamination and clarification of the terms and processes related to how attorneys, agents, or representatives of a VA-recognized service organization may have direct system access to VBA's claim records. Indeed, a VA-accredited attorney petitioned VA to initiate a rulemaking for purposes of clarifying whether attorney support staff could gain access to VBMS in the same manner as the attorney of record in the claim. Noting an inconsistency between current 38 CFR 1.600 through 1.603, which prescribe VA's longstanding policy on access to certain IT systems for purposes of representing a claimant before the VBA, and a note to current 38 CFR 14.629 stating that certain support staff may qualify for access, VA agreed to initiate this rulemaking.

VA has a duty to protect the privacy of VA claimants, ensure the security, confidentiality, integrity, and availability of its information systems and ensure that VA claimants receive competent and qualified representation on their benefits claims. It additionally endeavors to provide attorneys, agents, or representatives of a VA-recognized service organization more convenient access to the records they need to adequately represent claimants. Therefore, VA proposes to amend certain regulations in 38 CFR parts 1 and 14 to strike an appropriate balance between these duties and goals and seeks public comment on those amendments.

The proposed amendments to 38 CFR 1.600, 1.601, 1.602, and 1.603 would clarify how an individual who has been accredited by VA as an attorney, agent, or representative of a VA-recognized service organization may directly use VBA IT systems to access the VA records for claimants who have designated that service organization, attorney, or agent to provide representation on their claim. These proposed changes are important because, as VA has enhanced its IT capabilities, claims folders are becoming increasingly digital rather than paper based. VA currently allows attorneys, agents, and representatives of a VA-recognized service organization to use internal VBA IT systems to access VA records relevant to their client's claims in some cases. In an effort to ensure that non-public Veteran information is protected in new electronic media, VA proposes to update its regulations governing direct use of VBA's IT systems that contain claimants' records. Accordingly, the proposed amendments outline the limitations on and qualifications for direct access to VBA's IT systems, proper use of such access, and revocation of direct access if an individual misuses it.

Current 38 CFR 1.600 prescribes the purpose of §§ 1.601 to 1.603, which is to provide when and under what circumstances VA will allow accredited attorneys, agents, or representatives of a VA-recognized service organization access to certain VBA IT claim systems. VA proposes to clarify existing regulatory text and to update these regulations to ensure that they reflect current VA policy and are correctly phrased to govern access to VBA's current and future IT systems via which VA may provide records access to attorneys, agents, or representatives of a VA-recognized service organization. Further, VA proposes to confirm the general policy in current § 1.600 through 1.603, which limits external access to VBA's IT systems to the attorneys, agents, or representatives of a VA-recognized service organization designated to provide representation on the claim. This limitation continues to be necessary because the individuals are provided direct access to VBA IT systems in at least some circumstances, and via those systems to the claimant's electronically stored records. While VA has concluded that this level of access is appropriate for those who assist claimants in their complex VA benefit claims, it also must comply with legal obligations to protect claimant privacy and maintain secure and reliable information systems. As such, VA proposes to continue limiting read-only electronic access to claim records to the attorney or agent that is designated by the claimant as the attorney or agent of record, or, if a claimant designates a service organization to provide representation on the claim, to the representatives of that service organization. VA proposes to not grant access to any individual who is not accredited by VA and is not designated to provide representation pursuant to 38 CFR 14.631. While it is undeniable that continuing a policy of allowing direct electronic access to VA systems for any individual poses privacy and security risk, which VA must carefully manage, VA views limiting access to only those individuals who are accredited by VA and designated to provide representation pursuant to § 14.631 as striking an appropriate balance between ensuring that claimants have the claims assistance they need and maintaining private information in secure, reliable information systems.

VA holds accredited representatives, attorneys and agents to a high standard of conduct when they hold power of attorney for a claimant. When a claimant designates an accredited individual they give VA permission to disclose private information to that person or organization. Under § 14.632 VA requires that accredited attorneys, agents and representatives maintain a claimants privacy by not disclosing, without the claimant's authorization, any information provided by VA for purposes of representation. This, in addition to the requirements for continuing education and/or training on a regular basis, character and fitness assessments, and other certifications found in § 14.629, gives VA the assurance that these individuals will maintain the claimants' privacy while also minimizing the risk to the security of VA's IT systems.

Limiting access to this group of individuals also gives VA a means to remediate any mishandling of claimant information or misuse of the systems access through termination of accreditation, which may include notifying all agencies, courts, and bars to which an agent or attorney is admitted to practice pursuant to § 14.633.

VA also proposes to update § 1.600 through 1.603 by deleting the unnecessary reference to “remote” access to records in electronic systems in the undesignated center heading preceding these regulatory sections in the Code of Federal Regulations, as such external access is by nature remote. The requirements of § 1.600 et seq. will apply to any direct online system access to VBA information systems by an attorney, agent, or representative of a VA-recognized service organization, whether via the internet or while utilizing a point of access located in a VA facility. VA also proposes to replace the reference to “disqualification” in § 1.600(a)(3) with “denial” and “revocation,” which more closely reflects the rules proposed in § 1.603. Denial would refer to VA's decision to not grant an applicant privileges to directly access VBA IT systems or not to permit access to a specific claimant's claims file. Revocation would refer to the removal of access privileges to VBA's IT systems or the removal of the ability to access a specific claimant's claims file.

Paragraph (b)(4) would be revised to clarify that an attorney, agent, or representative of a VA-recognized service organization may be able to upload information and evidence regarding a claimant to VA's electronic records system for that claimant, with proper authorization to do so. However, the IT systems into which an attorney, agent, or representative of a VA-recognized service organization may upload records do not allow a record to be modified once submitted and, even if that ability were mistakenly provided, attorneys, agents, or representatives of a VA-recognized service organization are not allowed to modify existing records pursuant to the proposed rule. Hence, VA may continue to correctly speak of “read only” access to the VA claims.

The proposed rule would also revise most of § 1.600(c) to remove references to antiquated IT systems and commands. To ensure VA's regulations stay current regardless of future IT developments, and to allow VA flexibility to provide access to only those IT systems which are necessary to providing representation while minimizing risk to IT system integrity and privacy should VA develop new systems in the future, VA proposes to describe affected IT systems more generally in paragraph (c).

As noted above, VA proposes to continue the policy prescribed in current § 1.601, which limits electronic access to VA's claims records directly through VBA's IT systems to individuals who are both accredited and designated to provide representation on the claim. In this regard, VA proposes no change to the general qualifications for VBA IT systems access in current § 1.601 except adding that the applicant must comply with all security requirements deemed necessary by VA to ensure the integrity and confidentiality of the data and VBA's information technology systems, which may include personal identity verification and passing a background suitability investigation. When an individual directly accesses a VBA IT system to access VA information as provided under these regulations, they are a user of VA information and information systems. Title 38 U.S.C. 5723(f)(1) requires that all users of VA information or information systems comply with all Department information security program policies, procedures, and practices. VA is required to implement NIST Federal Information Processing Standard 201, Personal Identity Verification (PIV) of Federal Employees and Contractors, which establishes the minimum requirements for a Federal personal identity verification system that meets the control and security objectives of Homeland Security Presidential Directive-12 [HSPD-12], including identity proofing, registration, and issuance. NIST Special Publication 800-63-3, Digital Identity Guidelines, applies the requirements of HSPD-12 to all transactions for which digital identity or authentication are required, regardless of the constituency ( e.g. citizens, business partners, government entities).

VA proposes to remove current § 1.601(a)(2) regarding systems access during representation before a Federal appellate court because these court proceedings occur outside of VA's administrative process and the record in an appeal is compiled according to the rules of the court. See, e.g., Court of Appeals for Veterans Claims, Rules of Practice and Procedure 10. VA's longstanding practice is that the attorney representing VA on the appeal before the Court of Appeals for Veterans Claims will disclose the record directly to the claimant's attorney pursuant to the claimant's authorization and work with the claimant's attorney regarding any dispute that may arise as to the preparation of that record pursuant to rules of that court. As such, attorneys representing before the Court of Appeals for Veterans Claims do not need access to VBA IT systems. Granting such access would unnecessarily expand VA's IT security risk because VA cannot readily limit the access within the IT systems to only those claims records relevant to the appeal. An unaccredited attorney representing solely before a Federal court lies outside of the processes through which VA accredits individuals and associates them with their respective claimants. In rare instances that unaccredited attorneys might dispute the record before the court and ask to review the complete claims folder, VA's Office of General Counsel would coordinate within VA to ensure compliance with any court order.

VA also proposes to amend paragraph (b) by striking references to “hardware, modem, and software,” and replacing these terms with a more general advance VA approval requirement that is less subject to technical obsolescence.

Finally, VA proposes to amend paragraph (c) by requiring an attorney, agent, or representative of a VA-recognized service organization with access privileges to VBA IT systems to acknowledge, among other things prescribed in the current paragraph, VA's Rules of Behavior and the consequences of breach of the requirements. As noted above, VA also proposes to replace the term “disqualification” in paragraph (c) with “revocation,” to better reflect the text of § 1.603 regarding revocation of access.

Current § 1.602 prescribes the rules applicable to attorneys, agents, or representatives of a VA-recognized service organization who are authorized by VA to access VA systems for purposes of claims assistance, to include specific usage, training, and inspection requirements. VA proposes to generally maintain these rules with updates to reflect current systems and practice. Proposed amendments include clarifying that access to the “automated claims records” referenced in current § 1.602 is more accurately described as “read-only electronic access to the VA records.” VA also proposes to replace “password” with “account” or “logon credentials” throughout the regulation.

In paragraph (b), VA proposes to clarify that VA must approve the annual training required to gain access to, or continue to access, VBA's IT systems. Also, consistent with the limitation on access to only the attorney or agent of record, or to the representatives of the service organization of record, VA proposes to clarify that references in current regulations to “individual or organization” mean those individuals who are accredited by VA to provide claims assistance as an attorney, agent, or representative of a VA-recognized service organization.

Current § 1.603 prescribes the circumstances under which VA may “revoke” access to VBA IT systems for an attorney, agent, or representative of a VA-recognized service organization and specifically delegates this authority to a VA Regional Office Director. Current provisions recognize that claimants who cancel or supplant the delegation of a service organization, service organization representative, attorney, or agent remove the entitlement of access to their records as a matter of law under the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701 and 7332. However, VA must notify the attorney, agent, or representative of a VA-recognized service organization, as well as the representative's service organization if VA revokes access, unless VA must first temporarily suspend such access prior to a final determination because VA believes it necessary to protect its systems or the data therein. The current regulation also requires VA personnel to report a revocation to a state licensing authority, such as an attorney's state bar or other licensing authority, if warranted by the conduct of the attorney, agent, or representative of a VA-recognized service organization. VA proposes to amend § 1.603 to generally update the regulation consistent with current practice and systems and clarify the circumstances under which VA may deny or revoke privileges of an attorney, agent, or representative of a VA-recognized service organization to access VBA's IT systems or deny or revoke access to a specific claimant's claims records.

As noted above, VA proposes to revise the section's title, currently “Disqualification,” to read “Revocation and reconsideration,” which more closely reflects its topic and text in proposed § 1.603. Given the national oversight of access to VA systems and the national practice of many attorneys, agents, or representatives of a VA-recognized service organization, VA also proposes to modify references in § 1.603 to “Regional Office” and “Regional Office Director,” and instead prescribe the actions that may be taken by VA in circumstances that warrant potential revocation in a manner that acknowledge others within the agency may be required to respond. VA would also remove paragraph (b)(3) because, as proposed, § 1.600 through 1.603 would no longer name the types of records or data that an attorney, agent, or representative of a VA-recognized service organization may access. VA proposes to revise paragraph (b)(4) to clarify that records might belong to claimants who seek to receive benefits, and not, as currently stated, beneficiaries who, by definition, are already receiving VA benefits.

VA proposes to amend paragraph (c) to cover both denials and revocations. Specifically, VA proposes to add subparagraphs (1) through (5), which discuss the framework for requesting reconsideration of denials or revocations of access. Electronic access to claimant records is not a right and any request for such access is not a benefit claim that is subject to appeal. Proposed § 1.600(d)(3) would generally restate and continue current § 1.600(d)(2), which provides, “Sections 1.600 through 1.603 are not intended to, and do not . . . [c]reate, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law against the United States or the Department of Veterans Affairs.” However, VA will reconsider initial denials or revocations of electronic access upon written requests by affected attorneys, agents, or representatives of VA-recognized service organizations. Such individuals would have 30 days from VA's notice of denial or revocation to submit such requests with any information they believe relevant to VA's decision to deny or revoke access. The Director of the VA regional office or center with jurisdiction would review the denial or revocation, any new information submitted by the individual seeking access, describe the relevant facts, make a new decision, and provide written notification to the affected individual, as well as the Office of General Counsel.

In addition, we are proposing a technical correction to §§ 1.600 through 1.603. Consistent with direction from the Office of Federal Register , VA has proposed to place the statutory authorities for §§ 1.600 through 1.603 in the introductory portion of 38 CFR part 1 as opposed to a parenthetical immediately following each individual section. Finally, regarding the reporting requirements in current paragraph (d), VA proposes to amend these provisions to require reporting to VA's Office of General Counsel when the facts and circumstances regarding a denial or revocation of access indicate potential misconduct of the attorney, agent, or representative of a VA-recognized service organization that may call into question his or her competence or qualifications for VA accreditation.

Current § 14.629 implements VA's authority under 38 U.S.C. 5902 and 5904 to accredit attorneys, agents, or representatives of VA-recognized service organizations for the purpose of assisting claimants in the preparation, presentation, and prosecution of veterans benefits claims. VA does not propose any substantive changes to the accreditation provisions in this section. However, current § 14.629(c) addresses who is permitted, and under what circumstances, to assist an attorney of record in providing representation on a claim. Subparagraph (c)(3) specifically indicates that legal interns, law students, and paralegals may assist the attorney of record in the representation of a claimant before VA pursuant to the claimant's consent. The attorney of record may also disclose information obtained from VA for the purpose of representation to the legal interns, law students, and paralegals pursuant to the claimant's consent, see 38 CFR 14.632(c)(10), but a note that follows current § 14.629 goes further than that and states that legal interns, law students, and paralegals, as well as veterans service organization support staff, may “qualify for read-only access to pertinent Veterans Benefits Administration automated claims records” under § 1.600 through 1.603 of this chapter. VA added this note in a 2003 final rule stating only that it was intended to “promote consistency with regulations and practice” at the time, specifically with respect to individuals working under the supervision of the claimant's designated representative.” 68 FR 8541, 8543. It is notable that VA IT systems did not include electronic copies of evidence at the time of the 2003 Federal Register notice.

This note has never meant that VA would always provide support staff at a service organization or legal interns, law students, or paralegals with access to VBA IT systems. Nevertheless, the note may have caused confusion and contributed to inconsistent application of current § 1.600 through 1.603 as VA has transitioned to primarily keeping claimant records in electronic form rather than paper. Accordingly, VA proposes to remove this note, consistent with the clarification of its policy under this proposed rule. Indeed, VA's proposed regulations and current practice of limiting systems access to claimants' accredited attorneys, agents, or representatives of a VA-recognized service organization, would be inconsistent with allowing support staff at service organizations or legal interns, law students, or paralegals to electronically access VA records. Under this proposed rule, VA would ensure that only accredited attorneys, agents, or representatives of a VA-recognized service organization have privileges to access VBA's IT systems. Furthermore, a VA-accredited attorney or agent would have access to records only if the claimant appointed that individual as the attorney of record or agent of record for his or her claim. In the case of a service organization, VA would provide access only to the representatives of that service organization. VA would only grant access to the attorney of record, the agent of record, or the representatives of the service organization of record regardless of whether any other individuals are assisting the attorney of record in the representation of the claimant's case, or are serving on the support staff of the attorney, agent, or veterans service organization.

Although general access to inspect or receive a copy of a claimant's record is governed by privacy laws and regulations applicable to VA and to the Federal government more generally, there is no statute or regulation creating a right to electronically access VA's internal IT systems or mandating that individuals who may view a record must be allowed to do so via any particular IT system. This is consistent with current § 1.600(d), which VA proposes to modify in this rulemaking. VA's policy of limiting access to VA's IT systems to VA-accredited attorneys, agents, or representatives of a VA-recognized service organization, and limiting access within those systems only to the claims files in which the attorney or agent has been designated to provide representation under 38 CFR 14.631, or to the representative of a service organization that has been designated to provide representation pursuant to the claimant's power of attorney under 38 CFR 14.631, is reasonable given VA's overarching responsibility to protect Veterans' privacy, maintain IT security according to Federal requirements, and control administrative burden and costs.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

The Secretary hereby certifies that the adoption of this rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule might have an insignificant economic impact on an insubstantial number of small entities, generally law firms that have individual attorneys who are accredited by VA for purposes of representing VA benefit claimants. VA believes the impact to be minimal because, as stated in the preamble, its overarching policy and practice has been to grant access to designated representatives, as opposed to supporting staff, and access to VA systems is optional and not a prerequisite to representing any claimant before the Department. VA's proposed rule simply clarifies this longstanding practice. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking would be exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Pamela Powers, Chief of Staff, Department of Veterans Affairs, approved this document on November 5, 2019, for publication.

For the reasons set forth in the preamble, VA proposes to amend 38 CFR parts 1 and 14 as follows:

The revisions and addition read as follows:

The revisions read as follows:

Table of Contents A. WTC Health Program Statutory Authority B. Procedures for Evaluating a Petition C. Petition 025 D. Review of Scientific and Medical Information and Administrator Determination E. Administrator's Final Decision on Whether To Propose the Addition of Parkinson's Disease and Parkinsonism, Including Heavy Metal-Induced Parkinsonism, to the List F. Approval To Submit Document to the Office of the Federal Register A. WTC Health Program Statutory Authority

Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347, as amended by Pub. L. 114-113 and Pub. L. 116-59), added Title XXXIII to the Public Health Service (PHS) Act, 1 establishing the WTC Health Program within the Department of Health and Human Services (HHS). The WTC Health Program provides medical monitoring and treatment benefits for health conditions on the List  2 to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania (responders). The Program also provides benefits to eligible persons who were present in the dust or dust cloud on September 11, 2001, or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area  3 (survivors).

All references to the Administrator of the WTC Health Program (Administrator) in this document mean the Director of the National Institute for Occupational Safety and Health (NIOSH) or his designee.

Pursuant to section 3312(a)(6)(B) of the PHS Act, interested parties may petition the Administrator to add a health condition to the List in 42 CFR 88.15. Within 90 days after receipt of a valid petition to add a condition to the List, the Administrator must take one of the following four actions described in section 3312(a)(6)(B) of the PHS Act and § 88.16(a)(2) of the Program regulations: (1) Request a recommendation of the STAC; (2) publish a proposed rule in the Federal Register to add such health condition; (3) publish in the Federal Register the Administrator's determination not to publish such a proposed rule and the basis for such determination; or (4) publish in the Federal Register a determination that insufficient evidence exists to take action under (1) through (3) above.

More information about the WTC Health Program, including the List and the petition process, is available at www.cdc.gov/wtc/.

In addition to the regulatory provisions, the WTC Health Program has developed policies to guide the review of submissions and petitions, 4 as well as the analysis of evidence supporting the potential addition of a non-cancer health condition to the List. 5

A valid petition must include sufficient medical basis for the association between the September 11, 2001, terrorist attacks and the health condition to be added. In accordance with WTC Health Program policy, reference to a peer-reviewed, published, epidemiologic study about the health condition among 9/11-exposed populations or to clinical case reports of health conditions in WTC responders or survivors may demonstrate the required medical basis. 6 Studies linking 9/11 agents or hazards  7 to the petitioned health condition may also provide sufficient medical basis for a valid petition.

After the Program has determined that a petition is valid, the Administrator must direct the Program to conduct a review of the scientific literature to determine if the available scientific information has the potential to provide a basis for a decision on whether to add the health condition to the List. 8 The literature review is a keyword search of relevant scientific databases intended to identify peer-reviewed, published, epidemiologic studies about the health condition among 9/11-exposed populations. The Program evaluates the scientific quality of each peer-reviewed, published, epidemiologic study of the health condition identified in the literature search; the Program then compiles the scientific results of each study to assess whether a causal relationship between 9/11 exposures and the health condition is supported and evaluates whether the results of the studies are representative of the 9/11-exposed population of responders and survivors. A health condition may be added to the List if peer-reviewed, published, epidemiologic studies provide support that the health condition is substantially likely  9 to be causally associated with 9/11 exposures. If the evaluation of evidence provided in peer-reviewed, published, epidemiologic studies of the health condition in 9/11 populations demonstrates a high, but not substantial, likelihood of a causal association between the 9/11 exposures and the health condition, then the Administrator may consider additional highly relevant scientific evidence regarding exposures to 9/11 agents from sources using non-9/11-exposed populations. If that additional assessment establishes that the health condition is substantially likely to be causally associated with 9/11 exposures among 9/11-exposed populations, the health condition may be added to the List.

More information about the WTC Health Program, including the List and the petition process, is available at www.cdc.gov/wtc/.

On October 15, 2019, the Administrator received a petition (Petition 025) requesting the addition of “Parkinson's disease” to the List. 10 The Program has determined that the scope of the Petition 025 review should include not only “Parkinson's disease” but also “parkinsonism, including heavy metal-induced parkinsonism,”  11 because the references provided in the petition address the association between copper, iron, and manganese and the health condition, as described below.

The petition's validity was established by references to four web articles  12 which, in turn, referenced six peer-reviewed, published epidemiologic studies and literature reviews identifying a positive association between 9/11 agents and Parkinson's disease and/or parkinsonism (although none of the studies were conducted in the 9/11-exposed population). A quote provided in the petition is attributed to a seventh peer-reviewed, published epidemiologic study. Because the web articles reference scientific sources identifying a positive association between 9/11 agents and the petitioned condition, the petition provides the necessary medical basis to require the Administrator to conduct an evaluation of the petition. The referenced studies and literature reviews each individually establishing a medical basis are as follows:

Heavy Metals and the Etiology of Parkinson's Disease and Other Movement Disorders, by Montgomery [1994], 13 is a peer-reviewed, published literature review discussing the role of heavy metals (iron and manganese) in Parkinson's disease and speculating on possible mechanisms of pathogenesis.

* Metals, Oxidative Stress and Neurodegenerative Disorders, by Jomova et al. [2010], 14 is a peer-reviewed, published review article discussing the role of iron, copper, and zinc in the oxidative stress-related etiology of Parkinson's disease (the theory that heavy metals cause oxidative stress, which in turn leads to the neurodegeneration that characterizes Parkinson's disease).

* Metal Emissions and Urban Incident Parkinson Disease: A Community Health Study of Medicare Beneficiaries by Using Geographic Information Systems, by Willis et al. [2010], 15 is a peer-reviewed, published epidemiologic study demonstrating increased Parkinson's disease incidence in urban counties with high levels of environmental copper or manganese.

* Association of Parkinson's Disease with Altered Serum Levels of Lead and Transition Metals among South Indian Subjects, by Kumudini et al. [2014], 16 is a peer-reviewed, published epidemiologic (case-control) study demonstrating the positive association of Parkinson's disease with plasma levels of iron and copper in urban and rural populations in India. The authors speculate that increased iron levels induce oxidative stress which leads to Parkinson's disease.

* A Revised Picture of the Cu (II)− α-Synuclein Complex: The Role of N-Terminal Acetylation, by Moriarty et al. [2014], 17 is a peer-reviewed, published in vitr o study suggesting new avenues of investigation into copper-mediated neurodegeneration in Parkinson's disease pathology.

* Inflammasomes: An Emerging Mechanism Translating Environmental Toxicant Exposure into Neuroinflammation in Parkinson's Disease, by Anderson et al. [2018], 18 is a peer-reviewed, published literature review positing that exposure to heavy metals, which are known to cause cellular stress, may do so by triggering intracellular inflammasomes (cytosolic assemblies of proteins) which in turn lead to neurodegeneration and Parkinson's disease.

* Manganese Promotes the Aggregation and Prion-Like Cell-to-Cell Exosomal Transmission of α-Synuclein, by Harischandra et al. [2019], 19 is a peer-reviewed, published experimental study demonstrating in cell cultures and animal models that manganese exposure promotes the pathological propagation of α-synuclein (a neuronal protein found in the brain) leading to Parkinson's disease through neuroinflammation and neurodegeneration.

These seven studies suggest a potential association between exposure to 9/11 agents (specifically copper, iron, and manganese) and Parkinson's disease and parkinsonism, including heavy metal-induced parkinsonism, and thus provided a sufficient medical basis to consider the submission a valid petition. Because the medical basis provided by the petitioner included studies concerning parkinsonism induced by copper, iron, and manganese, the Administrator determined that the petitioner requested the addition of both Parkinson's disease and parkinsonism, including heavy metal-induced parkinsonism.

In response to Petition 025, and pursuant to the Program policy on the addition of non-cancer health conditions to the List, the Program conducted a review of the scientific literature on Parkinson's disease and parkinsonism, including heavy metal-induced parkinsonism, to identify peer-reviewed, published, epidemiologic studies of the health condition in the 9/11-exposed population. 20

Neither the references provided in the petitions, including those described above, nor the literature search conducted by the Program identified any peer-reviewed, published, epidemiologic studies of either Parkinson's disease or parkinsonism, including heavy metal-induced parkinsonism, in 9/11-exposed populations. Pursuant to the WTC Health Program's policy on the evaluation of petitions, 21 since no peer-reviewed, published, epidemiologic studies of Parkinson's disease or parkinsonism, including heavy metal-induced parkinsonism, in 9/11 populations were identified, the Program was unable to conduct an evaluation of scientific evidence to determine the likelihood of a causal association between 9/11 exposures and the petitioned health conditions.

Pursuant to PHS Act, sec. 3312(a)(6)(B)(iv) and 42 CFR 88.16(a)(2)(iv), the Administrator has determined that insufficient evidence is available to take further action at this time, including proposing the addition of Parkinson's disease and parkinsonism, including heavy metal-induced parkinsonism, to the List (pursuant to PHS Act, sec. 3312(a)(6)(B)(ii) and 42 CFR 88.16(a)(2)(ii)) or publishing a determination not to publish a proposed rule in the Federal Register (pursuant to PHS Act, sec. 3312(a)(6)(B)(iii) and 42 CFR 88.16(a)(2)(iii)). The Administrator has also determined that requesting a recommendation from the STAC (pursuant to PHS Act, sec. 3312(a)(6)(B)(i) and 42 CFR 88.16(a)(2)(i)) is unwarranted.

For the reasons discussed above, the Petition 025 request to add Parkinson's disease and parkinsonism, including heavy metal-induced parkinsonism, to the List of WTC-Related Health Conditions is denied.

The Secretary, HHS, or his designee, the Director, Centers for Disease Control and Prevention (CDC) and Administrator, Agency for Toxic Substances and Disease Registry (ATSDR), authorized the undersigned, the Administrator of the WTC Health Program, to sign and submit the document to the Office of the Federal Register for publication as an official document of the WTC Health Program. Robert Redfield M.D., Director, CDC, and Administrator, ATSDR, approved this document for publication on February 3, 2020.

This is a summary of the Public Notice that the Federal Communications Commission's Wireline Competition Bureau released on February 4, 2020. A full-text version of the Public Notice is available at the following internet address: https://docs.fcc.gov/public/attachments/DA-20-127A1.pdf .

In this document, the Wireline Competition Bureau (Bureau) seeks to refresh the record on ancillary service charges imposed in connection with inmate calling services (ICS). In the 2015 ICS Order, the Commission adopted rules limiting the ancillary services for which ICS providers could assess fees and capping the permissible charges for these ancillary services.

In Global Tel*Link v. FCC, the United States Court of Appeals for the District of Columbia Circuit affirmed the Commission's plenary authority to cap ancillary service charges for interstate ICS, but held that, based on the record before the Court, the Commission lacked authority to regulate ancillary service charges for intrastate ICS. Because the Court could not “discern from the record whether ancillary fees can be segregated between interstate and intrastate calls,” the Court remanded the issue to the Commission for further consideration. The Bureau seeks to refresh the record on ancillary service charges in response to the D.C. Circuit's remand.

The 2015 ICS Order did not address whether any particular ancillary service charge could be segregated between interstate and intrastate calls given the Commission's imposition of identical rate caps for interstate and intrastate calls alike. The Bureau now seeks specific comment on whether each permitted ICS ancillary service charge may be segregated between interstate and intrastate calls and, if so, how. The Bureau asks commenters to explain in detail the basis for any claim that an ancillary service charge may be segregated, including addressing the range of different functions that might be associated with each charge where relevant. For example, a “Live Agent Fee” can be assessed when an ICS consumer uses an optional live operator to complete different types of ICS-related transactions. To the extent these individual transactions jurisdictionally differ ( e.g., if a live operator is used by an ICS consumer to complete either an interstate or intrastate ICS call as well as to assist that same consumer with paper billing), how should the Commission factor that transaction into applying the Live Agent Fee cap?

The Bureau also seeks comment on how the Commission should proceed in the event any permitted ancillary service is “jurisdictionally mixed” and cannot be segregated between interstate and intrastate calls. Jurisdictionally mixed services are “[s]ervices that are capable of communications both between intrastate end points and between interstate end points.” Jurisdictionally mixed services “are generally subject to dual federal/state jurisdiction, except where it is impossible or impractical to separate the service's intrastate from interstate components and the state regulation of the intrastate component interferes with valid federal rules or policies.”

To the extent any permitted ancillary service charge or associated function is jurisdictionally mixed, the Bureau seeks comment on how best to apply the prescribed cap to that ancillary service or function pursuant to section 201(b) of the Communications Act of 1934, as amended. Should the Bureau simply apply the cap to jurisdictionally mixed services? Is it possible or practical to allow higher rates on only a portion of such ancillary services? How would such a rule apply here? Is it possible to separate the interstate and intrastate aspects of each such ancillary service charge or function? If so, how? If not, can the Commission proceed to regulate the entire ancillary service charge to the extent it is not jurisdictionally severable? One court has interpreted GTL v. FCC to hold that the Commission may not cap interstate ancillary fees “except to the extent those for interstate calls `can be segregated' from intrastate calls.” Given the holdings of the Supreme Court and federal appellate courts on the issue, is that interpretation correct?

Finally, the Bureau asks commenters to (1) suggest specific rule language responsive to the D.C. Circuit's remand, and (2) propose any additional steps the Commission should take to ensure, consistent with the D.C. Circuit's opinion, that its actions on remand “properly reflect[]” the reforms adopted in 2015 and that providers of interstate ICS do not circumvent or frustrate the Commission's ancillary service charge rules. For example, should the Commission prohibit an ICS provider that generates separate paper bills for interstate and intrastate ICS (merely to impose two separate paper bill charges on ICS consumers) from imposing a $2.00 charge for the interstate paper bill and an additional charge for the intrastate bill? Alternatively, should the Commission lower the cap for any separate paper bills for interstate ICS to $0.00 if an ICS provider charges $2.00 or more for paper bills for intrastate services?

Pursuant to sections 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates set forth in the Federal Register notice of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://www.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

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 before entering the building.

• 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.

People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Ex Parte Rules. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation.

If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b) of the Commission's rules. In proceedings governed by section 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Additional Information. For further information, contact Minsoo Kim of the Wireline Competition Bureau at (202) 418-1739 or Minsoo.Kim@fcc.gov .

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 20-10, adopted and released on January 31, 2020. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at https://docs.fcc.gov/public/attachments/FCC-20-10A1.docx. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this Notice of Proposed Rulemaking (NPRM), we propose revisions to section 76.65 of our rules, which governs good faith negotiation of retransmission consent, to implement provisions in section 1003 of the Television Viewer Protection Act of 2019 (TVPA). 1 Section 1003 principally directs the Commission to adopt rules that provide for negotiation of retransmission consent between “qualified multichannel video programming distributor [MVPD] buying group[s]” and “large [broadcast] station group[s]” as those terms are defined in the TVPA. As discussed below, we propose to adopt rules defining: (i) The term “large station group” as used in section 1003 of the TVPA to mean, in relevant part, an entity whose individual television station members collectively have a national audience reach of more than 20 percent; and (ii) the term “qualified MVPD buying group” as used in section 1003 to mean, in relevant part, an entity that negotiates on behalf of MVPDs that collectively serve no more than 25 percent of all households receiving service from any MVPD in a given local market. In addition, we propose to codify in section 76.65 the provisions governing negotiation of retransmission consent between qualified MVPD buying groups and large station groups, as well as the definitions of “local market” and “multichannel video programming distributor” set forth in section 1003(b)(3). Finally, we propose to make minor conforming changes to section 76.65. We seek comment on these proposals. 2

2. The TVPA, enacted on December 20, 2019, is the latest in a series of statutes that have amended the Communications Act to establish parameters for the carriage of television broadcast stations by MVPDs. As relevant to this NPRM, section 1003 of the TVPA revised section 325(b) of the Act principally by allowing smaller MVPDs to negotiate collectively as a buying group for retransmission consent with large broadcast station groups. In particular, section 1003(a)(3) of the TVPA amends section 325(b)(3)(C) of the Act by adding new subsection 325(b)(3)(C)(vi), which, read as part of section 325(b)(3)(C) as a whole, requires the Commission to commence a rulemaking proceeding to revise its retransmission consent rules to specify that:

3. Moreover, section 1003(b) of the TVPA amended section 325(b)(7) of the Act principally by adding new subsections 325(b)(7)(C) and (D), which define the terms “qualified MVPD buying group” and “large station group,” respectively, for the purpose of applying the new good faith negotiation provisions of section 325(b)(3)(C)(vi). In particular, section 325(b)(7)(C) of the Act, as added by the TVPA, defines “qualified MVPD buying group,” in relevant part, as an entity that:

4. In addition, section 325(b)(7)(D) of the Act, as added by the TVPA, defines “large station group” as a group of television broadcast stations that:

5. There are ambiguities in the statutory definitions of “large station group” and “qualified MVPD buying group.” With respect to “large station group,” this term could mean a group of television broadcast stations whose members collectively have over 20 percent national audience reach, or it could mean that each station in the group individually has such coverage. Similarly, the term “qualified MVPD buying group” could mean an entity that negotiates on behalf of MVPDs that collectively serve no more than 25 percent of all households receiving service from any MVPD in any single local market in which the large station group operates. Or it could be referring to an entity that negotiates on behalf of MVPDs that collectively serve no more than 25 percent of all households receiving service from a single MVPD in any single local market in which the large station group operates. We initiate this proceeding to clarify these terms in order to permit applicable parties to utilize the new TVPA protections promptly, as reflected in the expedited deadline specified in the new statute.

6. We propose to implement section 1003 of the TVPA by revising section 76.65 of our rules: (i) To define the term “large station group” as, among other things, an entity whose individual television station members collectively have a national audience reach of more than 20 percent; and (ii) to define the term “qualified MVPD buying group” as, among other things, an entity that negotiates on behalf of MVPDs that do not collectively serve more than 25 percent of all households served by MVPDs in any single local market in which the applicable large station group or television broadcast station operates.

7. We tentatively conclude that this interpretation of the term “large station group” finds support in the text and structure of the TVPA, and would best effectuate Congressional intent. 3 First, we note that the text of the first two clauses in the definition of “large station group” require, respectively, that stations comprising a “large station group” be under “common de jure control” and negotiate agreements as a “single entity.” We tentatively find that these two requirements properly characterize only stations that collectively comprise a group, rather than individual stations, and that the third clause of the definition thus should be interpreted as imposing a requirement that must be true of the stations collectively. Second, we note that the TVPA contemplates that “qualified MVPD buying groups” and “large station groups” would be counterparties in a retransmission consent negotiation. Because the former term imposes a market share cap of 25 percent on the MVPDs “collectively,” we tentatively conclude that the 20 percent market share threshold for “large station groups” similarly should be construed to apply to the stations collectively. 4 Third, given that a key purpose of the new good faith negotiation provisions is to level the playing field by “allow[ing] smaller MVPDs to collectively negotiate as a buying group [with large station groups] for retransmission consent,” we tentatively find that Congress could not have intended to create a collective negotiation mechanism to address the growing bargaining power of large station groups but then defined those groups in a way that would render the mechanism unavailable as a practical matter. Significantly, a contrary interpretation, whereby each station in the group individually must have at least a 20 percent national audience reach, would be illogical given that there are currently no stations that meet this threshold. 5

8. We also propose to construe the phrase “all households served by a [MVPD]” in the statutory definition of “qualified MVPD buying group” to mean all households that receive service from any MVPD, rather than all households served by a specific MVPD in a given local market. Because the percentage of households that subscribe to a particular MVPD (or class of MVPDs) relative to the total number of households that subscribe to any MVPD in a given market is a competition metric that the Commission historically has utilized, we tentatively conclude that this is the most reasonable reading of the relevant phrase. We also believe that adopting the alternative interpretation would create practical problems given that the statute provides no guidance as to which MVPD in a given market should serve as the benchmark for the relevant threshold. We seek comment on these proposals and tentative conclusions.

9. We also propose to implement section 1003 by: (i) Codifying in section 76.65 of our rules the provisions governing negotiation of retransmission consent between qualified MVPD buying groups and large station groups required by section 1003(a)(3) of the TVPA  6 and the definitions of “local market” and “multichannel video programming distributor” set forth in section 1003(b)(3); and (ii) deleting the phrase “as defined in 17 U.S.C. 122(j)” in section 76.65(viii) and (ix). We seek comment on these proposed rule revisions and on whether other revisions are needed to implement section 1003 of the TVPA.

10. This document does not contain proposed new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

11. Permit-But-Disclose. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

12. Pursuant to sections 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

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.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

13. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

14. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

15. For additional information on this proceeding, contact Raelynn Remy of the Media Bureau, Policy Division, at Raelynn.Remy@fcc.gov or (202) 418-2936.

16. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities by the rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

17. In this NPRM, pursuant to section 325(b)(3)(C) of the Act, as amended by section 1003 of the Television Viewer Protection Act of 2019, we commence a rulemaking proceeding to revise our retransmission consent rules to specify, among other things, that certain small multichannel video programming distributors (MVPDs) may satisfy their obligation to negotiate retransmission consent in good faith by negotiating with a large broadcast station group through a qualified MVPD buying group. In particular, we propose to revise section 76.65 of our rules to define: (i) The term “large station group” as used in section 1003 of the TVPA to mean, in relevant part, an entity whose individual television station members collectively have a national audience reach of more than 20 percent; and (ii) the term “qualified MVPD buying group” as used in section 1003 to mean, in relevant part, an entity that negotiates on behalf of MVPDs that collectively serve no more than 25 percent of all households receiving service from any MVPD in a given local market. In addition, we propose to codify in section 76.65 the provisions governing negotiation of retransmission consent between qualified MVPD buying groups and large station groups, as well as the definitions of “local market” and “multichannel video programming distributor” set forth in section 1003(b)(3). We also propose to make minor conforming changes to section 76.65. 7 The NPRM seeks comment on these proposals and on whether other rule revisions are needed to implement section 1003 of the TVPA.

18. The proposed action is authorized pursuant to sections 4(i), 4(j), 303(r), and 325 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 325, and section 1003 of the Television Viewer Protection Act of 2019.

19. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 8 Below is a list of such small entities.

20. The NPRM does not propose to adopt any reporting or recordkeeping requirements. The NPRM proposes to revise the Commission's rules to permit certain small MVPDs to meet their statutory obligation to negotiate retransmission consent in good faith by designating a qualified MVPD buying group to negotiate on their behalf with a large broadcast station group. In particular, the NPRM proposes to revise such rules by, among other things, clarifying the meaning of the statutory terms “large station group” and “qualified MVPD buying group” so as to facilitate smaller MVPDs' use of the new collective bargaining provisions consistent with Congressional intent. The proposed rule revisions would impose no new regulatory compliance burdens on small television broadcast stations.

21. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

22. Through this NPRM, the Commission seeks to implement section 1003 of the TVPA in a way that reduces burdens on smaller MVPDs that negotiate retransmission consent against large broadcast station groups with greater bargaining leverage by allowing them to negotiate collectively as a buying group for retransmission consent with such groups. As noted, the proposals in the NPRM, if adopted, likely would not have an adverse economic impact on any small entities, and would have a positive economic impact on smaller MVPDs that choose to avail themselves of the TVPA's new collective bargaining provisions to negotiate against large broadcast station groups that have significant market power. We invite comment on the economic impact of our proposals on small entities, and on how the Commission could minimize any potential burdens on such entities.

23. None.

24. We adopt this NPRM pursuant to the authority found in sections 4(i), 4(j), 303(r), and 325 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 325, and section 1003 of the Television Viewer Protection Act of 2019.