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Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-8, 737-9, and 737-8200 airplanes. This AD was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.7-3.98 GHz frequency band (5G C-Band), and a recent determination that, during takeoffs and landings, as a result of this interference, certain airplane systems may not properly function, resulting in longer than normal landing or rejected takeoff distances due to the effect on thrust reverser deployment, spoilers, speedbrake deployment, and increased idle thrust, regardless of the approach type or weather. This AD requires revising the limitations and operating procedures sections of the existing airplane flight manual (AFM) to incorporate limitations prohibiting the use of certain minimum equipment list (MEL) items, and to incorporate operating procedures for calculating takeoff and landing distances, when in the presence of 5G C-Band interference as identified by Notices to Air Missions (NOTAMs). The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective January 31, 2022.
The FAA must receive comments on this AD by March 17, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket at
Dean Thompson, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3165; email:
In March 2020, the United States Federal Communications Commission (FCC) adopted final rules authorizing flexible use of the 3.7-3.98 GHz band for next generation services, including 5G and other advanced spectrum-based services.
The radio altimeter is an important aircraft instrument, and its intended function is to provide direct height-above-terrain/water information to a variety of aircraft systems. Commercial aviation radio altimeters operate in the 4.2-4.4 GHz band, which is separated by 0.22 GHz from the C-Band telecommunication systems in the 3.7-3.98 GHz band. The radio altimeter is more precise than a barometric altimeter and for that reason is used where aircraft height over the ground needs to be precisely measured, such as autoland, manual landings, or other low altitude operations. The receiver on the radio altimeter is typically highly accurate, however it may deliver erroneous results in the presence of out-of-band radio frequency emissions from other frequency bands. The radio altimeter must detect faint signals reflected off the ground to measure altitude, in a manner similar to radar. Out-of-band signals could significantly degrade radio altimeter functions during critical phases of flight, if the altimeter is unable to sufficiently reject those signals.
The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12) to address the effect of 5G C-Band interference on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAM. The FAA issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground (
Since the FAA issued AD 2021-23-12, Boeing has continued to evaluate potential 5G C-Band interference on
Based on Boeing's data, the FAA identified an additional hazard presented by 5G C-Band interference on The Boeing Company 737-8, 737-9, and 737-8200 airplanes. The FAA determined anomalies due to 5G C-Band interference may affect multiple other airplane systems using radio altimeter data, regardless of the approach type or weather. These anomalies may not be evident until very low altitudes. Impacted systems include, but are not limited to: Autopilot flight director system; autothrottle system; engines; thrust reversers; flight controls; flight instruments; traffic alert and collision avoidance system (TCAS); ground proximity warning system (GPWS); and configuration warnings.
As a result of erroneous radio altimeter data provided to these systems in the event of 5G C-Band interference, takeoff and landing performance can be adversely impacted. This may have multiple effects, including:
• Autothrottle may remain in speed (SPD) mode and may increase thrust to maintain speed during flare instead of reducing the thrust to IDLE at 27 feet radio altitude (RA) or may reduce thrust to IDLE prematurely.
• Thrust reversers may not deploy during rejected takeoff or landing roll.
• Engines may be at higher idle during rejected takeoff or remain at approach idle after touchdown.
• Automatic speedbrake may not deploy after touchdown during the landing roll.
• SPEEDBRAKE EXTENDED light may not be available or may illuminate erroneously during the landing roll.
• SPEEDBRAKE time critical visual and aural warnings may not be available during the landing roll.
• Spoilers may be limited to their maximum in-flight position during manual deployment after rejected takeoff or touchdown during the landing roll.
• Landing Attitude Modifier may be erroneous.
• Other simultaneous flight deck effects associated with the 5G C-Band interference could increase pilot workload.
As a result of these effects, lack of thrust reverser and speedbrake deployment, limited spoiler extension, and increased idle thrust may occur; and brakes may be the only means to slow the airplane. Therefore, the presence of 5G C-Band interference can result in degraded deceleration performance, subsequently resulting in longer than normal landing or rejected takeoff distances, which could lead to a runway excursion. This is an unsafe condition.
The severity of the hazard created by a lack of thrust reverser and speedbrake deployment, limited spoiler extension, and by increased idle thrust, increases when the runway is contaminated with frozen or liquid precipitation. The FAA categorizes runway surface conditions with codes from 6 through 0, with 6 being a dry runway and therefore no detrimental effect on braking, and a code of 0 denoting surface conditions, such as wet ice, in which braking may not be effective.
This AD mandates procedures for operators to account for this longer than normal landing or rejected takeoff distances, for all runway conditions, in the presence of 5G C-Band interference as identified by NOTAM. It prohibits operators from dispatching or releasing airplanes to or from affected airports when certain braking and anti-skid functions on the airplane are inoperable. It also prohibits operators from dispatch or release to, or takeoff or landing on, runways with condition codes 1 and 0.
The FAA is issuing this AD to address the unsafe condition on these products.
The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the limitations and operating procedures sections of the existing AFM to incorporate limitations prohibiting the use of certain MEL items, and to incorporate operating procedures for calculating takeoff and landing distances, when in the presence of 5G C-Band interference as identified by NOTAMs.
Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the AFM. FAA regulations also require operators to furnish pilots with any changes to the AFM (14 CFR 121.137) and pilots in command to be familiar with the AFM (14 CFR 91.505).
The FAA considers this AD to be an interim action. If final action is later identified, the FAA might consider further rulemaking.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because during takeoffs and landings, as a result of 5G C-Band interference, certain airplane systems may not properly function, resulting in longer than normal landing or rejected takeoff distances due to the effect on thrust reverser deployment, spoilers, speedbrake deployment, and increased idle thrust, regardless of the approach type or weather. This could result in a runway excursion. The urgency is based on C-Band wireless broadband deployment, which was expected to occur in phases with operations beginning on January 19, 2022. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dean Thompson, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3165; email:
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 177 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective January 31, 2022.
None.
This AD applies to The Boeing Company Model 737-8, 737-9, and 737-8200 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 34, Navigation.
This AD was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.7-3.98 GHz frequency band (5G C-Band), and a determination that, during takeoffs and landings, as a result of this interference, certain airplane systems may not properly function, resulting in longer than normal landing or rejected takeoff distances due to the effect on thrust reverser deployment, spoilers, speedbrake deployment, and increased idle thrust, regardless of the approach type or weather. The FAA is issuing this AD to address degraded deceleration performance, which could lead to a runway excursion.
Comply with this AD within the compliance times specified, unless already done.
Runway condition codes are defined in figure 1 to paragraph (g) of this AD.
(1) Within 2 days after the effective date of this AD: Revise the Limitations Section of the existing AFM to include the information specified in figure 2 to paragraph (h)(1) of this AD. This may be done by inserting a copy of figure 2 to paragraph (h)(1) of this AD into the existing AFM.
(2) Within 2 days after the effective date of this AD: Revise the Operating Procedures Section of the existing AFM to include the information specified in figure 3 to paragraph (h)(2) of this AD. This may be done by inserting a copy of figure 3 to paragraph (h)(2) of this AD into the existing AFM.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) AMOCs approved for AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) providing relief for specific radio altimeter installations are approved as AMOCs for the provisions of this AD.
(1) For more information about this AD, contact Dean Thompson, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3165; email:
(2) For service information identified in this AD that is not incorporated by reference, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Umlaut Engineering GmbH (previously P3 Engineering GmbH) HAFEX (Halon-free) hand-held P3HAFEX fire extinguishers (fire extinguishers). This AD was prompted by reports of a quality control issue on certain fire extinguishers, where the spindle geometries of the fire extinguishers were found to be out of tolerance. This AD requires removing affected fire extinguishers from service. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective March 7, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 7, 2022.
For Umlaut service information identified in this final rule, contact Umlaut Engineering, Blohmstrasse 12, Hamburg, Germany 21079, Phone: 49 0 40 75 25 779 0, email:
You may examine the AD docket at
Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Umlaut Engineering GmbH (previously P3 Engineering GmbH) fire extinguisher part numbers (P/Ns) P3APP003010A and P3APP003010C with a manufacturing date of March 2019 through July 2019 inclusive and with a serial number (S/N) listed in Appendix 1 of Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue C, dated December 13, 2019 (VSB P3VSB000001, Issue C), that may be installed on various model helicopters. The NPRM published in the
The NPRM was prompted by EASA AD 2020-0013, dated January 29, 2020 (EASA AD 2020-0013), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model AS 332 C, C1, L, L1, and L2, AS 365 N2 and N3, EC 155 B and B1, EC 175 B, EC 225 LP, SA 330 J, and SA 365 C1, C2, C3, N, and N1 helicopters; Airbus Helicopters Deutschland GmbH Model EC135 P1, P2, P2+, P3, T1, T2, T2+, and T3, EC635 P2+, P3, T1, T2+, and T3, and MBB-BK117 A-1, A-3, A-4, B-1, B-2, C-1, C-2, and D-2 helicopters; Leonardo S.p.A. Model AB139, AB 204B, AB 205 A-1, AB 212, AB 412, AB 412EP, AS-61N, AS-61N1, AW139, AW169, and AW189 helicopters; and WSK PZL-SWIDNIK S.A. Model PZL W-3A and PZL W-3AS helicopters. EASA advises of occurrences that have been reported of a quality issue on certain fire extinguishers, manufactured by Umlaut Engineering GmbH (formerly P3 Engineering GmbH), where the spindle geometries of the extinguishers were found to be out of tolerance. The manufacturing defect was identified in certain serial-numbered fire extinguisher P/Ns P3APP003010A and P3APP003010C with a manufacturing date of March 2019 through July 2019 inclusive, where prolonged exposure (12 hours or more) to high temperature conditions of more than 68 °C (154.4 °F) could cause a non-detectable seizure of the spindle that could cause the fire extinguisher to be inoperative. This condition, if not addressed, could prevent proper extinguishing of a fire in the cabin, possibly resulting in damage to the helicopter and injury to the occupants.
Accordingly, EASA AD 2020-0013 requires replacing affected fire extinguishers and prohibits installing an affected fire extinguisher on any helicopter.
The FAA received comments from one commenter; Net Jets. Net Jets commented that there is a more recent revision of the service information. The following presents the comments received on the NPRM and the FAA's response to each comment.
Net Jets stated that VSB P3VSB000001, Issue C, which is cited in the applicability paragraph of the NPRM, has been revised to Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue D, dated September 9, 2020 (VSB P3VSB000001, Issue D), and that it adds S/Ns.
Although Net Jets did not request any changes to the NPRM, the FAA infers that Net Jets would like the FAA to update the required service information (VSB P3VSB000001, Issue C), which is required to use to identify an affected fire extinguisher as proposed in the applicability paragraph of the NPRM, to VSB P3VSB000001, Issue D. The FAA reviewed VSB P3VSB000001, Issue D, and while it updates certain information, there are no changes to the S/Ns identified in its Appendix 1. In light of this, the FAA has determined to allow the use of VSB P3VSB000001, Issue C, or VSB P3VSB000001, Issue D, in the applicability paragraph of this final rule.
These products have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed VSB P3VSB000001, Issue C, which specifies procedures for identifying P3HAFEX fire extinguisher P/Ns P3APP003010A and P3APP003010C, with a date of manufacture between March 2019 through July 2019, and an S/N listed in its Appendix 1, to determine if the fire extinguisher should be replaced. VSB P3VSB000001, Issue C, also specifies procedures for removing, installing, and tracking affected P3HAFEX fire extinguishers.
The FAA also reviewed VSB P3VSB000001, Issue D, which specifies the same procedures as VSB P3VSB000001, Issue C, except VSB
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
EASA AD 2020-0013 is issued against various model helicopters and defines an affected part, whereas this AD is an appliance AD action against affected fire extinguishers because the unsafe condition exists in the appliance itself and not in the installation of the appliance on certain aircraft. EASA AD 2020-0013 identifies some helicopter models that are affected by this unsafe condition that are not identified as possibly affected in this AD because those model helicopters are not FAA type-certificated.
The FAA estimates that this AD affects 762 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.
Replacing a fire extinguisher takes about 0.25 work-hour and parts cost about $1,200 for an estimated cost of $1,221 per fire extinguisher.
According to Umlaut Engineering GmbH service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage by Umlaut Engineering GmbH; accordingly, all costs are included in this cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective March 7, 2022.
None.
This AD applies to Umlaut Engineering GmbH (previously P3 Engineering GmbH) HAFEX (Halon-free) hand-held P3HAFEX fire extinguisher (fire extinguisher) part numbers P3APP003010A and P3APP003010C with a manufacturing date of March 2019 through July 2019 inclusive and with a serial number listed in Appendix 1 of Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue C, dated December 13, 2019, or Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue D, dated September 9, 2020. These fire extinguishers may be installed on but not limited to the following aircraft certificated in any category:
(1) Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, AS332L2, AS-365N2, AS 365 N3, EC 155B, EC155B1, EC225LP, SA330J, SA-365C1, SA-365C2, SA-365N, and SA-365N1 helicopters;
(2) Airbus Helicopters Deutschland GmbH (AHD) Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, MBB-BK117 A-1, MBB-BK117 A-3, MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, MBB-BK117 C-1, MBB-BK117 C-2, and MBB-BK117 D-2 helicopters;
(3) Leonardo S.p.a. Model AB139, AB412, AB412 EP, AW139, AW169, and AW189 helicopters; and
(4) PZL-Swidnik S.A Model PZL W-3A helicopters.
Joint Aircraft Service Component (JASC) Code: 2622, Fire Bottle, Portable.
This AD defines the unsafe condition as a non-conforming fire extinguisher, which could prevent proper extinguishing of a fire in the cabin, and result in subsequent damage to the helicopter and injury to the occupants.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 12 months after the effective date of this AD, remove each fire extinguisher identified in the introductory text of paragraph (c) from service.
(2) As of the effective date of this AD, do not install a fire extinguisher identified in the introductory text of paragraph (c) of this AD on any aircraft.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer,
(2) The subject of this AD is addressed in European Union Aviation Safety Agency (EASA) AD 2020-0013, dated January 29, 2020. You may view the EASA AD at
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue C, dated December 13, 2019.
(ii) Umlaut Vendor Service Bulletin Doc. No. P3VSB000001, Issue D, dated September 9, 2020.
(3) For Umlaut service information identified in this AD, contact Umlaut Engineering, Blohmstrasse 12, Hamburg, Germany 21079, Phone: 49 0 40 75 25 779 0, email:
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350D, EC130B4, and EC130T2 helicopters; AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters; and Model SA-365C1, SA-365C2, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. This AD was prompted a report of increased vibration during flight. This AD requires the application of alignment markings on, and repetitive inspections of, the main rotor (MR) pitch rod upper links and, depending on findings, the accomplishment of applicable corrective actions, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective March 7, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 7, 2022.
For EASA material incorporated by reference (IBR) in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket at
Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0048, dated February 16, 2021 (EASA AD 2021-0048), to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter, Eurocopter France, Aérospatiale) Model AS 350 B, AS 350 BA, AS 350 BB, AS 350 B1, AS 350 B2, AS 350 B3, AS 350 D, EC 130 B4, and EC 130 T2 helicopters; Model AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, AS 355 N, and AS 355 NP helicopters; and Model SA 365 C1, SA 365 C2, SA 365 C3, SA 365 N, SA 365 N1, AS 365 N2, and AS 365 N3 helicopters; all serial numbers. Model AS 350 BB and SA 365 C3 helicopters are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those helicopters in the applicability.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350D, EC130B4, and EC130T2 helicopters; Model AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters; and Model SA-365C1, SA-365C2, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. The NPRM published in the
The FAA is issuing this AD to address loss of tightening torque of the screws connecting the MR pitch rods to the horns of the upper links. This condition, if not addressed, could result in loss of one or more MR pitch rod upper links, possibly resulting in loss of control of the helicopter. See EASA AD 2021-0048 for additional background information.
The FAA received no comments on the NPRM or on the determination of the costs.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.
EASA AD 2021-0048 requires the application of alignment markings on the screw, washer, nut, and horn on both sides of each MR pitch rod upper link, and repetitive visual inspections of the two alignment markings to determine if the markings are aligned on both sides. If, during any inspection the markings on one or both sides of an MR pitch rod upper link are found misaligned, the additional actions and corrective actions include the following.
• Measuring the tightening torque value of the nut of the pitch rod upper link and adjusting the nut if it does not meet the specified criteria.
• Inspecting the pitch rod upper link to determine the condition of the bush (bushing) and spherical bearing and to determine if the cups are tight (paint mark in place), and measuring the play. If there is seizing, carbide chips, or the cups are loose (paint mark not in place), the corrective actions include replacing the spherical bearing. If the play measurement is greater than the specified measurement the corrective action is replacing the rod end fitting. Additional actions include checking the bonding and condition of the retaining ring and inspecting the pitch rod bodies for evidence of any impact, scratch, strike, or corrosion.
• Inspecting the pitch rods for chipped finish paint, scratches, impacts, and cracking, and measuring the play. If paint is chipped the corrective action is repair (sanding the affected area and applying touch-up primer and paint). If there is any scratch, an impact with a depth equal to or greater than the specified measurement, or any crack, the corrective action is replacing the pitch rod. If the play measurement is greater than 0.25 mm or there is cracking, the corrective action is replacing the spherical bearing. An additional action, if a helicopter was involved in an incident, is inspecting the straightness of the rod body “R” and replacing the pitch rod if the straightness of the rod body is greater than 0.5 mm.
• Inspecting the pitch horn for any evidence of impact, scratch, corrosion, chipped paint, cracking, and any elongated attachment hole; and inspecting the bonding of the retaining ring and measuring dimension “X” of the retaining ring. If there is any evidence of impact, scratch, or corrosion, and the depth meets the specified criteria, the corrective actions include touching up the affected area with an abrasive cloth and applying a protective coating and a coat of primer. If there is any cracking, elongated attachment hole, or the impact, scratch, or corrosion depth exceeds the specified criteria, the corrective action is replacing the pitch horn. If paint is chipped the corrective actions include sanding the affected area and applying touch-up primer and paint. If the retaining ring has debonded the corrective action is to rebond the retaining ring. If dimension “X” of the retaining ring exceeds the specified criteria, the corrective action is replacing the retaining ring.
• Measuring the geometry of “G” of the pitch horn and replacing the pitch horn if the dimension is not within the specified range.
• Installing new split pins, nuts, washers, and a screw on the pitch rod upper link.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 1,266 helicopters of U.S. Registry. The FAA estimates the following costs to comply with this AD.
The FAA estimates the following costs to do any necessary actions that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these actions:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective March 7, 2022.
None.
This AD applies to the Airbus Helicopters helicopters, certificated in any category, identified in paragraphs (c)(1) through (3) of this AD, all serial numbers.
(1) Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350D, EC130B4, and EC130T2 helicopters.
(2) Model AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters.
(3) Model SA-365C1, SA-365C2, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters.
Joint Aircraft Service Component (JASC) Code: 6200, Main Rotor System.
This AD was prompted by a report of increased vibration during flight on an Airbus Helicopters Model AS 365 helicopter. Subsequent investigation found a total loss of tightening torque of one screw connecting the main rotor (MR) pitch rod to the horn of its upper link, which led to abnormal wear of the screw and consequently increased the vibrations coming from the MR control chain to the pilot's flight controls. The FAA is issuing this AD to address loss of tightening torque of the screws connecting the MR pitch rods to the horns of the upper links. The unsafe condition, if not addressed, could result in loss of one or more MR pitch rod upper links, possibly resulting in loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0048, dated February 16, 2021 (EASA AD 2021-0048).
(1) Where EASA AD 2021-0048 requires compliance in terms of flight hours, this AD requires using hours time-in-service.
(2) Where EASA AD 2021-0048 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where the service information referenced in EASA AD 2021-0048 specifies discarding parts, this AD requires removing those parts from service.
(4) This AD does not mandate compliance with the “Remarks” section of EASA AD 2021-0048.
(5) Where a work card in the service information referenced in EASA AD 2021-0048 specifies returning a part to the manufacturer, this AD does not include that requirement.
(6) For Model AS350 helicopters: For the visual inspection of the pitch rod upper link, where a work card in the service information referenced in EASA AD 2021-0048 specifies to do an inspection of a pitch rod body for any dent, impact, scratch, or corrosion, and any dent, impact, scratch, or corrosion is found, this AD requires replacing the pitch rod before further flight.
(7) For Model AS355 helicopters: For the visual inspection of the pitch rod upper link, where a work card in the service information referenced in EASA AD 2021-0048 specifies to do an inspection of a pitch rod body for any impact, scratch, strike, or corrosion, and any impact, scratch, strike, or corrosion is found, this AD requires replacing the pitch rod before further flight.
(8) For Model SA365 helicopters: For the visual inspection of the pitch rod upper link, where a work card in the service information referenced in EASA AD 2021-0048 specifies to “check bonding and state retaining ring on the pitch rods,” and any discrepancy (
(9) For Model SA365 helicopters: For the visual inspection of the pitch horn, if any discrepancy (corrosion, scratch, impact, crack, or debonded retaining ring) is found during the inspection of the pitch horn and there is no corrective action specified in the work card in the service information referenced in EASA AD 2021-0048, before further flight, contact the Manager, General Aviation & Rotorcraft Section, International Validation Branch, FAA; or EASA; or Airbus Helicopters' EASA DOA; for approved corrective actions, and accomplish those actions before further flight. If approved by the DOA, the approval must include the DOA-authorized signature.
(10) For Model AS365 helicopters: For the visual inspection of the pitch horn, where a work card in the service information referenced in EASA AD 2021-0048 specifies to do a dye penetrant inspection “if in doubt,” this AD requires doing a dye penetrant inspection.
(11) For Model AS350 and EC130 helicopters: Where a work card in the service information referenced in EASA AD 2021-0048 refers to “the pitch change lever,” for this AD, that term is equivalent to “pitch horn.”
Although the service information referenced in EASA AD 2021-0048 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
Special flight permits, as described in 14 CFR 21.197 and 21.199, are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0048, dated February 16, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0048, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. This material may be found in the AD docket at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet above the surface of the earth at Joseph State Airport, Joseph, OR. The establishment of airspace supports the airport's transition from visual flight rules to instrument flight rule (IFR) operations and ensures the safety and management of IFR operations within the National Airspace System.
Effective 0901 UTC, May 19, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Nathan Chaffman, Federal Aviation Administration, Western Service Center, Operations Support Group, 2200 S. 216th Street, Des Moines, WA 98198; telephone (206) 231-3460.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace extending upward from 700 feet above ground level to support IFR operations at Joseph State Airport, Joseph, OR.
The FAA published a notice of proposed rulemaking in the
Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
The FAA is amending 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface of the earth at Joseph State Airport, Joseph, OR.
The Class E airspace is established extending upward from 700 feet above ground level within a 6.5-mile radius of the airport, beginning at the 316° bearing from the airport clockwise to the 170° bearing from the airport, then to the point of beginning 6.5 miles northwest of the airport. This airspace is designed to contain the new Area Navigation (RNAV) approaches into the airport and instrument departures from the airport. The airspace supports the airport's transition from visual flight rules to IFR operations.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the airport beginning at the 316° bearing from the airport clockwise to the 170° bearing from the airport, then to the point of beginning 6.5 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet above the surface of the earth at Monticello Airport, Monticello, UT. The establishment of airspace supports the airport's transition from visual flight rules to instrument flight rule (IFR) operations and ensures the safety and management of IFR operations within the National Airspace System.
Effective 0901 UTC, May 19, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Nathan Chaffman, Federal Aviation Administration, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198; telephone (206) 231-3460.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace extending upward from 700 feet above ground level to support IFR operations at Monticello Airport, Monticello, UT.
The FAA published a notice of proposed rulemaking in the
Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly
The FAA is amending 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface of the earth at Monticello Airport, Monticello, UT.
The Class E airspace is established extending upward from 700 feet above ground level within a 6.5-mile radius of the airport. This airspace is designed to contain the new Area Navigation (RNAV) approaches into the airport and instrument departures from the airport. The airspace supports the airport's transition from visual flight rules to IFR operations.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the airport.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is determining that the Hayden lead (Pb) nonattainment area (NAA) failed to attain the 2008 Pb primary and secondary national ambient air quality standards (NAAQS or “standards”) by the applicable attainment date of October 3, 2019. The EPA is also determining that the Hayden and Miami sulfur dioxide (SO
This rule is effective March 2, 2022.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0078. All documents in the docket are listed on the
Ben Leers, Air Planning Office (AIR-2), EPA Region IX, (415) 947-4279,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
On May 10, 2021, the EPA proposed to determine that the Hayden Pb NAA failed to attain the 2008 Pb primary and secondary NAAQS
The proposed rule provided background information on the effects of exposure related to elevated levels of Pb and SO
In the May 10, 2021 proposed rule, we also described the EPA's obligation under CAA section 179(c)(1) to determine whether an area's air quality meets the 2008 Pb and 2010 SO
Under EPA regulations in 40 CFR 50.16 and in accordance with 40 CFR part 50, appendix R, the 2008 Pb NAAQS is met in an area when the design value is less than or equal to 0.15 micrograms per cubic meter (μg/m
In the proposed rule, to evaluate whether the Hayden NAA attained the 2008 Pb NAAQS by the October 3, 2019 attainment date, we determined the 2016-2018 design value at each Pb monitoring site in the Hayden NAA using monitored data from November 2015 to December 2018.
To evaluate whether the Hayden and Miami NAAs attained the 2010 SO
For the Hayden Pb NAA to attain the 2008 Pb NAAQS by October 3, 2019, the 2018 Pb design value at each eligible monitoring site in the Hayden NAA must be equal to or less than 0.15 μg/m
Lastly, we also described in the proposed rule that the dominant source of Pb and SO
The May 10, 2021 proposed rule provided a 30-day public comment period that closed on June 9, 2021. During this period, seven comment letters were submitted to the EPA in response to the proposed rule. One comment letter was submitted by an anonymous commenter. This comment letter consisted of a pre-publication version of the May 10, 2021 proposed rulemaking and contained no commentary on the proposed action. The six remaining comment letters were submitted by the Arizona Center for Law in the Public Interest (ACLPI), ADEQ, Asarco, FMMI, an additional representative of Asarco, and a private citizen. This section summarizes five of the six substantive comment letters submitted in response to the May 10, 2021 proposal and includes EPA's response to each of these comment letters. The additional comment letter submitted by Asarco's representative consists of more detailed technical comments concerning data quality and validity. We respond to these comments in a separate document available in the docket for this rulemaking.
Additionally, we note that the EPA has proposed a residual risk and technology review (RTR) for the national emission standards for hazardous air pollutants for primary copper smelting major sources, codified at 40 CFR part 63, subpart QQQ.
While we are not taking final action to prescribe additional measures for the Hayden Pb and SO
Under CAA section 179(d)(3), the new maximum attainment date for each nonattainment area is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years after the EPA publishes a document in the
Moreover, as discussed in our response to ADEQ's comment in this document (response 2), the EPA is required to determine whether a nonattainment area attained the NAAQS based on the area's air quality as of the attainment date. The CAA does not provide the EPA with discretion to consider air quality monitoring data collected after the attainment date in making determinations of attainment or failure to attain under section 179(c)(1). Therefore, even if we were to delay our determinations of whether the Hayden Pb and SO
We believe Asarco has mischaracterized the implications of the proposed findings. Contrary to Asarco's suggestion, the development of new attainment plans will not necessarily result in requirements for new emissions controls. If the new plans demonstrate that all applicable Pb and SO
We disagree that our request for comment on additional measures that could be feasibly implemented at the Asarco Hayden Smelter under CAA section 179(d)(2) was premature in advance of a finding of failure to attain under CAA section 179(c)(2). Because such a finding automatically triggers a one-year deadline for submittal of a revised SIP meeting the requirements of 179(d)(2), it would be reasonable for the EPA to prescribe specific measures under 179(d)(2) in conjunction with a final action under 179(c)(2) so that the State has adequate notice of the need to include these measures while developing its SIP. However, in this
The EPA believes that, where a control strategy has recently taken effect and the state can determine based on recent monitoring data or other relevant information that the control strategy will result in attainment once 3 years of data that reflect those controls are available, the required plan revisions can be accomplished in a very streamlined manner. The EPA expects that the submittal to the EPA could simply provide a determination that: (1) All monitors in the affected area have at least 1 calendar year of clean air quality data, (2) the approved SIP has been fully implemented for the area, and (3) emission sources have complied with their SIP requirements.
FMMI notes that, despite implementation of the required capture and control upgrades by January 2018, “there were still several instances of recorded daily maximum 1-hour SO
While FMMI states that the EPA's proposed finding of failure to attain does not address air quality dispersion modeling or a demonstration that the control strategy in the SIP has been fully implemented, FMMI also acknowledges that monitoring data from January 1, 2015 to December 31, 2017 do not demonstrate attainment of the SO
As noted by FMMI, the SO
Finally, we do not agree with the commenter's assertion that certain SIP requirements, including contingency measures, can be suspended based on one calendar year of monitoring data indicating no hourly exceedances of the NAAQS level. The commenter appears to be referring to the EPA's clean data policy, which is discussed in the SO
We do not agree with the commenter's suggestion that we should take action under CAA sections 110(h), (j) or (k) in relation to the Hayden Pb, Hayden SO
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that Federal agencies, to the greatest extent practicable and permitted by law, identify and address disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations. Additionally, Executive Order 13985 (86 FR 7009, January 25, 2021) directs Federal Government agencies to assess whether, and to what extent, their programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups, and Executive Order 14008 (86 FR 7619, February 1, 2021) directs Federal agencies to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities. To identify environmental burdens and susceptible populations in underserved communities in the Hayden Pb, Hayden SO
As discussed in the EPA's EJ technical guidance, people of color and low-income populations often experience greater exposure and disease burdens than the general population, which can increase their susceptibility to adverse health effects from environmental stressors.
This final action triggers the implementation of contingency measures and requires the State of Arizona to develop updated SIP revisions providing for attainment of the 2008 Pb NAAQS in Hayden and attainment of the 2010 SO
Under CAA section 179(c)(1), the EPA is taking final action to determine that the Hayden Pb NAA failed to attain the 2008 Pb primary and secondary NAAQS by the applicable attainment date of October 3, 2019. The EPA is also taking final action to determine that the Hayden and Miami SO
Additional information about these statutes and Executive orders can be found at
This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget for review.
This action does not impose an information collection burden under the provisions of the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This final action requires the State to adopt and submit SIP revisions to satisfy CAA requirements and does not itself directly regulate any small entities.
This action does not contain any unfunded mandate of $100 million or more, as described in UMRA (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. This action itself imposes no enforceable duty on any state, local, or tribal governments, or the private sector. This action determines that the Hayden Pb NAA and the Hayden and Miami SO
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. The finding of failure to attain the Pb and SO
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because the effect of this action is to trigger additional planning requirements under the CAA. This action does not establish an environmental standard intended to mitigate health or safety risks.
This rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898. The documentation for this decision is contained in section III of this document. The docket for this rulemaking action includes a summary of environmental justice indicators for communities in the Hayden and Miami areas obtained using the EPA's EJSCREEN tool.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 1, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Pollution, Sulfur dioxide.
42 U.S.C. 7401
For the reasons stated in the preamble, the EPA amends chapter I, title 40 of the Code of Federal Regulations as follows:
42 U.S.C. 7401
(h) Effective March 2, 2022, the EPA has determined that the Hayden and Miami nonattainment areas failed to attain the 2010 1-hour primary sulfur dioxide (SO
(a) Effective March 2, 2022, the EPA has determined that the Hayden nonattainment area failed to attain the 2008 primary and secondary lead (Pb) national ambient air quality standards (NAAQS) by the applicable attainment date of October 3, 2019. This determination triggers the requirements of CAA section 179(d) for the State of Arizona to submit a revision to the Arizona SIP for the Hayden nonattainment area to the EPA by January 31, 2023. The SIP revision must, among other elements, provide for attainment of the 2008 Pb NAAQS in the Hayden Pb NAA as expeditiously as practicable but no later than January 31, 2027.
(b) [Reserved]
Environmental Protection Agency (EPA).
Final rule.
On February 18, 2021, the State of Missouri submitted a request for the Environmental Protection Agency (EPA) to redesignate the Jackson County, Missouri, 2010 1-hour sulfur dioxide (SO
This final rule is effective on March 2, 2022.
The EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2021-0667. All documents in the docket are listed on the
Wendy Vit, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7697 or by email at
Throughout this document “we,” “us,” and “our” refer to the EPA.
On February 18, 2021, the State submitted a request for redesignation of the Jackson County SO
The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on the February 2021 SIP submittal from November 2, 2020, to December 10, 2020 and held a public hearing on December 3, 2020. The State received and addressed three comments from one source (the EPA). The State revised the maintenance plan based on public comment prior to submitting it to the EPA. Missouri held a public hearing for the September 2021 maintenance plan supplement on July 29, 2021, and made the supplement available for public review and comment from June 28, 2021, through August 5, 2021. Missouri did not receive any public comments on the maintenance plan supplement.
In addition, as explained in the EPA's proposed rule (and in more detail in the technical support document which is included in the docket for this action), the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
The EPA is taking final action to approve the maintenance plan for the Jackson County 2010 SO
Additionally, the EPA is taking final action to determine that the Jackson County 2010 SO
When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable. Area designations address environmental justice concerns by ensuring that the public is properly informed about the air quality in an area. If an area is designated nonattainment of the NAAQS, the CAA provides for the EPA to redesignate the area to attainment upon a demonstration by the state authority that air quality is attaining the NAAQS and will continue to maintain the NAAQS in order to ensure that all those residing, working, attending school, or otherwise present in those areas are protected, regardless of minority and economic status.
The EPA utilized the EJSCREEN tool to evaluate environmental and demographic indicators within the area. The tool outputs are contained in the docket for this action. The demographic indicators from EPA's EJSCREEN tool demonstrate that there are vulnerable populations in the area, including people of color, low-income populations, linguistically isolated populations, and populations with less than high school-level education.
This action addresses a redesignation determination for the Jackson County, Missouri, area. Under CAA section 107(d)(3), the redesignation of an area to attainment/unclassifiable is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. As discussed in this document and the
In this document, the EPA is amending regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri State Implementation Plan described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, if they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and
• This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The basis for this determination is contained in Section IV of this action, “Environmental Justice Concerns.”
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 1, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Maintenance plan, Redesignation, Sulfur oxides.
Environmental protection, Air pollution control, Designations, Intergovernmental relations, Redesignation, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 81 as set forth below:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
(d)
42 U.S.C. 7401,
Office of the Secretary, Interior.
Final rule.
This rule revises U.S. Department of the Interior regulations implementing the Native American Graves Protection and Repatriation Act to provide for annual adjustments of civil penalties to account for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget guidance. The purpose of
This rule is effective on January 31, 2022.
Melanie O'Brien, Manager, National NAGPRA Program, (202) 354-2204, National Park Service, 1849 C Street NW, Washington, DC 20240.
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties annually for inflation no later than January 15 of each year.
The Office of Management and Budget (OMB) recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act which agencies must complete by January 15, 2022.
The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. This final rule adjusts the following civil monetary penalties contained in the Department regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA) for 2022 by multiplying 1.06222 by each penalty amount as updated by the adjustment made in 2021:
Consistent with the Act, the adjusted penalty levels for 2022 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2022 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015. The Act does not, however, change previously assessed penalties that the Department is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this 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 rule in a manner consistent with these requirements.
The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The RFA does not apply to this final rule because the Office of the Secretary is not required to publish a proposed rule for the reasons explained below in Section III.L.
This rule is not a major rule under 5 U.S.C. 804(2), the CRA. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does 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.
This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
This rule complies with the requirements of E. O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. The Department has evaluated this rule under its consultation policy and under the criteria in Executive Order 13175 and has determined that the rule has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of Office of Information and Regulatory Affairs as a significant energy action. A Statement of Energy Effects is not required.
The Act requires agencies to publish annual inflation adjustments by no later than January 15 of each year, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual procedure for rulemaking under the APA—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the 2021 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the
Administrative practice and procedure, Hawaiian Natives, Historic preservation, Indians-claims, Indians-lands, Museums, Penalties, Public lands, Reporting and recordkeeping requirements.
For the reasons given in the preamble, the Office of the Secretary amends 43 CFR part 10 as follows:
16 U.S.C. 470dd; 25 U.S.C. 9, 3001
Legal Services Corporation.
Final rule.
The Legal Services Corporation (LSC) is required by law to establish maximum income levels for individuals eligible for legal assistance. This document updates the specified income levels to reflect the annual amendments to the Federal Poverty Guidelines issued by the U. S. Department of Health and Human Services (HHS).
Effective January 31, 2022.
Karly Satkowiak, Staff Attorney, Legal Services Corporation, 3333 K St. NW, Washington, DC 20007; (202) 295-1633,
Section 1007(a)(2) of the Legal Services Corporation Act (Act), 42 U.S.C. 2996f(a)(2), requires LSC to establish maximum income levels for individuals eligible for legal assistance. Section 1611.3(c) of LSC's regulations establishes a maximum income level equivalent to 125% of the Federal Poverty Guidelines (Guidelines), which HHS is responsible for updating and issuing. 45 CFR 1611.3(c).
Each year, LSC updates appendix A to 45 CFR part 1611 to provide client income eligibility standards based on the most recent Guidelines. The figures for 2022, set out below, are equivalent to 125% of the Guidelines published by HHS on January 12, 2022.
In addition, LSC is publishing a chart listing income levels that are 200% of the Guidelines. This chart is for reference purposes only as an aid to recipients in assessing the financial eligibility of an applicant whose income is greater than 125% of the applicable Guidelines amount, but less than 200% of the applicable Guidelines amount (and who may be found to be financially
Except where there are minor variances due to rounding, the amount by which the guideline increases for each additional member of the household is a consistent amount.
Grant programs—law, Legal services.
For reasons set forth in the preamble, the Legal Services Corporation amends 45 CFR part 1611 as follows:
42 U.S.C. 2996g(e).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2022 Pacific cod total allowable catch (TAC) allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI.
This inseason action became applicable at 1200 hours, Alaska local time (A.l.t.), January 26, 2022, and remains in effect through 1200 hours, A.l.t., December 31, 2022.
Krista Milani, 907-581-2062.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea
The 2022 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 3,746 metric tons as established by the final 2021 and 2022 harvest specifications for groundfish in the BSAI (86 FR 11449, February 25, 2021), inseason adjustment (86 FR 74389, December 30, 2021), and reallocation (87 FR 2358, January 14, 2022).
In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2022 Pacific cod TAC allocated as a directed fishing allowance to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI. NMFS was unable to publish a document providing time for public comment because the most recent, relevant data only became available as of January 24, 2022.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus Helicopters Model AS332L2 and EC225LP helicopters. This proposed AD was prompted by a discrepancy in the rotorcraft flight manual (RFM) where the rotorcraft stay-up flying capabilities for Category B operation were provided through performance data only, not as airworthiness limitations that are dependent upon on the number of passengers on board. This proposed AD would require revising the existing RFM for your helicopter, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 17, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For EASA material that is proposed for IBR in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket at
Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0174, dated July 21, 2021 (EASA AD 2021-0174), to correct an unsafe condition for Airbus Helicopters, formerly Eurocopter, Eurocopter France, and Aerospatiale, Model AS 332 L2 and EC 225 LP helicopters.
This proposed AD was prompted by a discrepancy in the RFM where the rotorcraft stay-up flying capabilities for Category B operation were provided through performance data only, not as airworthiness limitations that are dependent upon on the number of passengers on board. The FAA is proposing this AD to address this
EASA AD 2021-0174 requires amending (revising) the Limitation Section of the applicable RFM by incorporating new weight limitations that are dependent upon the number of passengers on board.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.
This proposed AD would require accomplishing the actions specified in EASA AD 2021-0174, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0174 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0174 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0174 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0174. Service information referenced in EASA AD 2021-0174 for compliance will be available at
EASA AD 2021-0174 requires operators to “inform all flight crew” of revisions to the RFM and, thereafter, to “operate the helicopter accordingly.” However, this proposed AD would not specifically require those actions.
14 CFR 91.9 requires that no person may operate a civil aircraft without complying with the operating limitations specified in the RFM. Therefore, including a requirement in this AD to operate the helicopter according to the revised RFM would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the helicopter in such a manner would be unenforceable.
This proposed AD would allow the owner/operator (pilot) holding at least a private pilot certificate to revise the existing RFM for your helicopter and do the logbook entry, whereas EASA AD 2021-0174 does not specify this. This proposed AD would require these actions to be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v), and the record to be maintained as required by 14 CFR 91.417 or 135.439.
The FAA estimates that this AD, if adopted as proposed, would affect 38 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Revising the existing RFM for your helicopter takes about 0.50 work-hour for an estimated cost of $42.50 per helicopter and $1,615 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by March 17, 2022.
None.
This AD applies to all Airbus Helicopters Model AS332L2 and EC225LP helicopters, certificated in any category.
Joint Aircraft Service Component (JASC) Code: 7600, Engine Controls.
This AD was prompted by a discrepancy in the rotorcraft flight manual (RFM) where the rotorcraft stay-up flying capabilities for Category B operation were provided through performance data only, not as airworthiness limitations that are dependent upon the number of passengers on board. The FAA is issuing this AD to address this discrepancy in the RFM, which, if not addressed, could lead to incorrect determination of the stay-up flying capabilities of the helicopter, resulting in reduced control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0174, dated July 21, 2021 (EASA AD 2021-0174).
(1) Where EASA AD 2021-0174 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where paragraph (1) of EASA AD 2021-0174 specifies to “inform all flight crew and, thereafter, operate the helicopter accordingly,” this AD does not require those actions.
(3) This AD does not mandate compliance with the “Remarks” section of EASA AD 2021-0174.
(4) Where paragraph (2) of EASA AD 2021-0174 specifies an acceptable compliance method, replace the text “which includes information of equal effect to that presented” with “which includes information identical to that presented.”
(5) The action required by paragraphs (1) and (2) of EASA AD 2021-0174 may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417 or 135.439.
Special flight permits may be permitted provided that there are no passengers on board.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k)(2) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For EASA AD 2021-0174, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2021-02-20, which applies to certain Hélicoptères Guimbal Model Cabri G2 helicopters. AD 2021-02-20 requires initial and repetitive inspections of certain rotating and non-rotating scissor fittings, and depending on the results, replacing the affected assembly. AD 2021-02-20 also prohibits installing certain main rotor hubs (MRHs) and swashplate guides unless the initial inspection has been accomplished. Since the FAA issued AD 2021-02-20, the MRH and swashplate guide have been redesigned to include a certain part-numbered scissor fitting. This proposed AD would retain certain requirements of AD 2021-02-20, require installation of newly designed parts, provide a terminating action for the initial and repetitive inspections, and revise the applicability. This proposed AD would also extend the repetitive inspection interval and prohibit installing certain MRHs and swashplate guides. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 17, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Hélicoptères Guimbal, 1070, rue du Lieutenant
You may examine the AD docket at
Darren Gassetto, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Darren Gassetto, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
The FAA issued AD 2021-02-20, Amendment 39-21403 (86 FR 8299, February 5, 2021), (AD 2021-02-20), for Hélicoptères Guimbal Model Cabri G2 helicopters, with rotating or non-rotating scissor fitting part number (P/N) G12-00-200, installed on the MRH or swashplate guide, respectively. AD 2021-02-20 requires within 30 hours time-in-service (TIS) or 30 calendar days, whichever occurs first, inspecting each rotating and non-rotating scissor fitting with the bolts connecting the scissor fittings removed. For this initial inspection, AD 2021-02-20 requires removing the cotter pins and bolts that connect the two scissor fittings, cleaning the outside surface of each scissor fitting, and using a flashlight to visually inspect each scissor fitting for a crack.
AD 2021-02-20 also requires, at intervals not to exceed 50 hours TIS or 6 months, whichever occurs first, repetitive inspections of each scissor fitting without removing the bolts and separating the two scissor fittings. For these repetitive inspections, AD 2021-02-20 requires cleaning each scissor fitting, and while using a flashlight, visually inspecting each scissor fitting for a crack. If, during any inspection, there is a crack, AD 2021-02-20 requires replacing the MRH or swashplate guide, as applicable, before further flight. AD 2021-02-20 also prohibits installing an MRH or swashplate guide with an affected scissor fitting installed, even if new, unless the initial inspection has been accomplished.
AD 2021-02-20 was prompted by EASA AD 2020-0199, dated September 21, 2020, and corrected September 24, 2020 (EASA AD 2020-0199), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Hélicoptères Guimbal (HG) Model Cabri G2 helicopters, all serial numbers. EASA advised of a report of a crack in a rotating scissor fitting discovered during maintenance. According to EASA, the suspected root cause of the crack was corrosion under residual stress. This condition, if not addressed, could result in failure of the rotating or non-rotating scissor fitting on either the MRH or the swashplate guide, and subsequent loss of control of the helicopter.
Accordingly, EASA AD 2020-0199 required an initial and repetitive inspections of the rotating and non-rotating scissor fittings P/N G12-00-200 installed on the MRH or swashplate guide, respectively. If a crack was detected, EASA AD 2020-0199 required replacing the affected MRH or swashplate guide with a serviceable part. EASA AD 2020-0199 prohibited installing certain MRHs and swashplate guides unless the initial inspection was accomplished.
Since the FAA issued AD 2021-02-20, EASA issued AD 2021-0155, dated July 2, 2021 (EASA AD 2021-0155), which supersedes EASA AD 2020-0199. EASA advises a design change was developed for the MRH and swashplate guide including installation instructions for the modification. EASA AD 2021-0155 advises the design change requires installing new scissor fitting P/N G12-00-202, which is not affected by stress corrosion cracking. EASA AD 2021-0155 further advises once a helicopter installs a certain part-numbered MRH and a certain part-numbered swashplate guide containing the newly designed scissor fitting, HG modification (mod) 20-040 is accomplished.
Accordingly, EASA AD 2021-0155 retains the requirements of EASA AD 2020-0199, and requires replacement of the MRH and swashplate guide assemblies with assemblies equipped with the newly designed scissor fitting. EASA AD 2021-0155 also increases the interval for the repetitive inspection and prohibits any affected part to be installed on any helicopter that has HG mod 20-040 installed. EASA AD 2021-0155 allows a terminating action for the initial and repetitive inspections if the
After AD 2021-02-20 was issued, the FAA determined the applicability should be revised to apply to all HG Model Cabri G2 helicopters rather than be limited to only the helicopters with the affected scissor fitting installed. Therefore, the FAA revised the Applicability paragraph of this proposed AD.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other products of these same type designs.
The FAA reviewed Guimbal Service Bulletin SB 20-012, Revision C; SB 20-011, Revision D; and SB 21-007 Revision C, each dated July 22, 2021 (SB 20-012 Rev C, SB 20-011 Rev D, and SB 21-007 Rev C). SB 20-012 Rev C specifies removing the bolts connecting the two scissor fittings P/N G12-00-200 and accomplishing a one-time detailed inspection for a crack in certain areas. SB 20-012 Rev C also specifies reassembling the two scissor fittings using correct bolt torque limits, installing new cotter pins, and reporting any findings to HG customer support.
SB 20-011 Rev D specifies procedures for a recurring inspection after accomplishment of SB 20-012 Rev C of the same areas of the scissor fittings for a crack as SB 20-012 Rev C, except without removing the bolts which connect the two scissor fittings. SB 20-011 Rev D also specifies reporting any findings to HG customer support. SB 21-007 Rev C specifies instructions for installing the newly designed scissor fitting. This proposed AD would also require Guimbal Service Bulletin SB 20-012, Revision B, dated October 5, 2020 (SB 20-012 Rev B), which the Director of the Federal Register approved for incorporation by reference as of February 22, 2021 (86 FR 8299, February 5, 2021).
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA also reviewed Guimbal Service Bulletin SB 20-011, Revision C, dated October 5, 2020 (SB 20-011 Rev C). SB 20-011 Rev C specifies the same procedures as SB-20-011 Rev D, except SB 20-011 Rev D updates the applicability and references SB 21-007 Rev C.
The FAA reviewed Guimbal Service Bulletin SB 20-011, Revision B, and SB 20-012, Revision A, each dated September 1, 2020 (SB 20-011 Rev B and SB 20-012 Rev A). SB 20-012 Rev A specifies the same procedures as SB 20-012 Rev B, except SB 20-012 Rev B revises the compliance time, adds the EASA AD identification information, and updates the Situation section description. SB 20-011 Rev B specifies the same procedures as SB 20-011 Rev C, except SB 20-011 Rev C adds the EASA AD identification information and updates the Situation section description.
The FAA also reviewed Guimbal Service Bulletin SB 21-007, Revision B, dated April 4, 2021 which states the same procedures as SB 21-007 Rev C, except SB 21-007 Rev C revises the compliance time to coincide with the effective date of EASA AD 2021-0155.
This proposed AD would retain certain inspection and corrective action requirements of AD 2021-02-20. This proposed AD would also require within 60 hours TIS or 6 months, whichever occurs first after the effective date of this proposed AD, and thereafter at intervals not to exceed 60 hours TIS or 6 months, whichever occurs first, leaving each scissor fitting assembled and visually inspecting each scissor fitting for a crack. If there is a crack during the initial inspection or the recurring inspection, this proposed AD would require before further flight, replacing certain parts or as an alternative, installing HG mod 20-040.
This proposed AD would also require, within 60 months or during the next main gearbox overhaul, whichever occurs first after the effective date of this proposed AD, removing from service MRH P/N G12-00-100, or G12-00-101, or G12-00-102 and swashplate guide P/N G21-01-101 or G21-01-102 and installing HG mod 20-040. This proposed AD would also consider installing HG mod 20-040 to be a terminating action for the initial and recurring visual inspections required by this proposed AD.
For any pre-HG mod 20-040 helicopter, as of February 22, 2021 (the effective date of AD 2021-02-20), this proposed AD would prohibit installing an MRH or swashplate guide, with a certain part-numbered rotating or non-rotating scissor fitting installed, unless certain actions have been accomplished. For any post-HG mod 20-040 helicopter, as of the effective date of this AD, this proposed AD would prohibit installing an MRH or swashplate guide, with a certain part-numbered rotating or non-rotating scissor fitting installed, on any helicopter.
EASA AD 2021-0155 requires detailed inspections, whereas this proposed AD would require cleaning each scissor fitting and visually inspecting each scissor fitting using a flashlight. EASA AD 2021-0155 also requires reporting certain information, whereas this proposed AD would not. EASA AD 2021-0155 requires replacing certain parts if a crack is detected with serviceable parts, whereas this proposed AD would require replacing certain parts with airworthy parts.
The FAA estimates that this AD, if adopted as proposed, would affect 32 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Removing and installing the bolt and cotter pins in the initial inspection would take a minimal amount of time with a minimal parts cost.
Inspecting each scissor fitting would take about 0.5 work-hours for an estimated cost of $43 per fitting, per inspection cycle. There are 2 scissor fittings installed on a helicopter, for an estimated cost of $85 per helicopter and $2,720 for the U.S. fleet, per inspection cycle.
Removing an MRH and swashplate guide and installing the improved MRH and swashplate guide would take about 6 work-hours and parts would cost about $1,608 through the parts exchange program for an estimated cost of $2,118 per helicopter and $67,776 for the U.S. fleet. The FAA expects the majority of operators would use the parts exchange program. If not accomplished through the parts exchange program, an improved MRH and swashplate guide would cost about $8,695 for an estimated cost of $9,205 per helicopter and $294,560 for the U.S. fleet.
The FAA estimates the following costs to do any necessary on-condition replacements that would be required based on the results of the inspection.
Replacement of an MRH due to a crack in the scissor fitting with an airworthy MRH would take about 5 work-hours and parts would cost about $7,360 for an estimated cost of $7,785 per helicopter; and replacement of a swashplate guide due to a crack in the scissor fitting with an airworthy swashplate guide would take about 6 work-hours and parts would cost about $1,312 for an estimated cost of $1,822 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) action by March 17, 2022.
This AD replaces AD 2021-02-20, Amendment 39-21403 (86 FR 8299, February 5, 2021) (AD 2021-02-20).
This AD applies to Hélicoptères Guimbal (HG) Model Cabri G2 helicopters, all serial numbers, certificated in any category.
Joint Aircraft Service Component (JASC) Code: 6700, Rotorcraft Flight Control; 6710, Main Rotor Control.
This AD was prompted by a report of a crack in a rotating scissor fitting. The FAA is issuing this AD to detect a crack and prevent failure of a scissor fitting. The unsafe condition, if not addressed, could result in failure of a rotating or non-rotating scissor fitting and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
For helicopters with rotating or non-rotating scissor fitting part number (P/N) G12-00-200, installed on the main rotor hub (MRH) or swashplate guide, respectively: (1) Within 30 hours time-in-service (TIS) or 30 calendar days, whichever occurs first after February 22, 2021 (the effective date of AD 2021-02-20):
(i) Remove the cotter pins and bolts connecting the rotating and non-rotating scissor fitting by following the Required Actions, IPC 4.1-2 a), of Guimbal Service Bulletin SB 20-012, Revision B, dated October 5, 2020 (SB 20-012 Rev B). Remove the cotter pins from service. Clean each scissor fitting. Using a flashlight, visually inspect each scissor fitting by following the Required Actions, IPC 4.1-2 b), of SB 20-012 Rev B. As an alternative to using SB 20-012 Rev B, you may remove the cotter pins and bolts in accordance with the Required Actions, IPC 4.1-2 a), of Guimbal Service Bulletin SB 20-012, Revision C, dated July 22, 2021 (SB 20-012 Rev C), and visually inspect each scissor fitting in accordance with the Required Actions, IPC 4.1-2 b), of SB 20-012 Rev C.
(ii) If there is a crack, before further flight, replace the MRH or swashplate guide with an airworthy part as applicable; or, as an alternative, you may accomplish the modification specified in paragraph (g)(3) of this AD.
(iii) If there is not a crack, reassemble the scissor fittings by following the Required Actions, IPC 4.1-2 c), of SB 20-012 Rev B. As an alternative to using SB 20-012 Rev B, you may reassemble the scissor fittings in accordance with the Required Actions, IPC 4.1-2 c), of SB 20-012 Rev C.
(2) Thereafter, within 60 hours TIS or 6 months, whichever occurs first after the effective date of this AD, and thereafter at intervals not to exceed 60 hours TIS or 6 months, whichever occurs first:
(i) Leaving each rotating and non-rotating scissor fitting assembled, clean each scissor fitting. Using a flashlight, visually inspect each scissor fitting by following the Required Actions, IPC 4.1-2 a), of Guimbal Service Bulletin SB 20-011, Revision D, dated July 22, 2021.
(ii) If there is a crack, before further flight, replace the MRH or swashplate guide, with an airworthy part as applicable; or, as an alternative, you may accomplish the modification specified in paragraph (g)(3) of this AD.
(3) Within 60 months, or during the next main gearbox overhaul, whichever occurs first after the effective date of this AD, remove MRH P/N G12-00-100, or G12-00-101, or G12-00-102 and swashplate guide P/N G21-01-101 or G21-01-102 from service and modify your helicopter by installing MRH P/N G12-00-103 and swashplate guide P/N G21-01-103 containing scissor fitting P/N G12-00-202 (HG modification (mod) 20-040) by following the Required Actions, IPC 2.1-0 a) through k) and m) through aa) of Guimbal Service Bulletin SB 21-007, Revision C, dated July 22, 2021.
(4) Completing the actions required by paragraph (g)(3) of this AD constitutes a terminating action for the requirements in paragraphs (g)(1) and (2) of this AD.
(1) For any pre-HG mod 20-040 helicopter: As of February 22, 2021 (the effective date of AD 2021-02-20), do not install an MRH or swashplate guide, with rotating or non-rotating scissor fitting P/N G12-00-200 installed, respectively, on any helicopter,
(2) For any post-HG mod 20-040 helicopter: As of the effective date of this AD, do not install an MRH or swashplate guide, with rotating or non-rotating scissor fitting P/N G12-00-200 installed, respectively, on any helicopter.
(1) This paragraph provides credit for the actions required by paragraph (g)(1) of this AD if you accomplished Guimbal Service Bulletin SB 20-012, Revision A, dated September 1, 2020, before February 22, 2021 (the effective date of AD 2021-02-20).
(2) This paragraph provides credit for the first instance of the actions required by paragraph (g)(2) of this AD if you accomplished Guimbal Service Bulletin SB 20-011, Revision B, dated September 1, 2020, before February 22, 2021 (the effective date of AD 2021-02-20).
(3) This paragraph provides credit for the actions required by paragraph (g)(2) of this AD if you accomplished Guimbal Service Bulletin SB 20-011, Revision C, dated October 5, 2020, before the effective date of this AD.
(4) This paragraph provides credit for the actions required by paragraph (g)(3) of this AD if you accomplished Guimbal Service Bulletin SB 21-007, Revision B, dated April 4, 2021, before the effective date of this AD.
A special flight permit may be permitted provided that there are no passengers onboard, and the flight is operating under day Visual Flight Rules, for the purpose of ferrying the helicopter to an authorized maintenance facility.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (l)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Darren Gassetto, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
(2) For service information identified in this AD, contact Hélicoptères Guimbal, 1070, rue du Lieutenant Parayre, Aérodrome d'Aix-en-Provence, 13290 Les Milles, France; telephone 33-04-42-39-10-88; email
(3) The subject of this AD is addressed in European Union Aviation Safety Agency (EASA) AD 2021-0155, dated July 2, 2021. You may view the EASA AD on the internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all The Boeing Company Model 747-8F series airplanes. This proposed AD was prompted by reports of fuselage crown stringer cracking between station (STA) 740 and STA 1000, stringer (S)-7 to S-12. This proposed AD would require repetitive detailed inspections for cracking of fuselage crown stringers and applicable on-condition actions. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 17, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket at
Stefanie Roesli, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3964; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Stefanie Roesli, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3964; email:
The FAA has received reports of fuselage crown stringer cracking located on the left and right sides at S-7, S-8, S-9, S-10, S-11, and S-12, between STA 740 and STA 1000. Some of these reports were made during airplane production, and others were found on airplanes currently in operation. The existing maintenance inspections cannot reliably detect cracking at multiple stringers and bay frames. Any crack in these locations must be found and repaired before reaching a critical length. Without an inspection, any crack may grow in length and go undetected. This condition, if not addressed, could result in the inability of a structural element to sustain limit load, and could adversely affect the structural integrity of the airplane.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021. This service information specifies procedures for repetitive detailed inspections for cracking of fuselage crown stringers, repair of cracks, and a high frequency eddy current (HFEC) inspection for cracking of repaired areas. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would require accomplishing the actions specified in the service information already described, except as discussed under “Difference Between this Proposed AD and the Service Information” and except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at
Table 1 of Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021, specifies repetitive detailed inspections to detect cracking of the side crown stringers on all airplanes. Table 1 of the service information does not specifically state that airplanes with no crack found (“Condition 1”) may have additional work. However, for airplanes with Condition 1 that have any repairs in the inspection area, the HFEC inspection specified in Table 2 of the service information would also be required.
The applicability in this proposed AD does not refer to paragraph 1., “Effectivity,” of Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021, because this service information does not contain a comprehensive list of the airplanes affected by the identified unsafe condition. Therefore, the applicability of this proposed AD is all Model 747-8F series airplanes.
The FAA estimates that this AD, if adopted as proposed, would affect 33 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these repairs:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by March 17, 2022.
None.
This AD applies to all The Boeing Company Model 747-8F series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of fuselage crown stringer cracking between STA 740 and STA 1000, S-7 to S-12. The FAA is issuing this AD to address cracking in fuselage crown stringers. This condition, if not addressed, could result in the inability of a structural element to sustain limit load, and could adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021.
Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 747-53A2906 RB, dated July 16, 2021, use the phrase “the original issue date of Requirements Bulletin 747-53A2906 RB,” this AD requires using “the effective date of this AD.”
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Stefanie Roesli, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3964; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 767-200, -300, -300F, and -400ER airplanes. This proposed AD was prompted by reports of burned Boeing Material Specification (BMS) 8-39 urethane foam, which is a material with fire-retardant properties that deteriorate with age. This proposed AD would
The FAA must receive comments on this proposed AD by March 17, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket at
Julie Linn, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3584; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Julie Linn, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3584; email:
The FAA has received reports of burned BMS 8-39 urethane foam, a material with fire-retardant properties. The fire-retardant properties of BMS 8-39 urethane foam deteriorate with age. The degraded material can be an unacceptable fire fuel source for a fire if exposed to an ignition source. The degraded material in the seals will compromise Halon and smoke retention and fire blocking, which could result in the inability to keep sufficient Halon concentrations within the cargo compartment or contain fire or smoke. These conditions, if not addressed, could result in penetration of smoke or fire into the flight compartment, leading to possible loss of control of the airplane.
The FAA issued AD 2013-11-04, Amendment 39-17464 (78 FR 33193, June 4, 2013) (AD 2013-11-04), for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes; Model 767-200, -300, -300F, and -400ER series airplanes; and Model 777-200, -200LR, -300, and -300ER series airplanes. For Model 767-200, -300, -300F, and -400ER series airplanes, AD 2013-11-04 requires replacing certain seals made of BMS 8-39 urethane foam in accordance with Boeing Special Attention Service Bulletin 767-25-0381, Revision 1, dated September 17, 2012, which the Director of the Federal Register approved for incorporation by reference as of July 9, 2013 (78 FR 33193, June 4, 2013). AD 2013-11-04 resulted from operator or in-service reports of burned BMS 8-39 urethane foam, and a report from the airplane manufacturer indicating that airplanes were assembled, throughout various areas of the airplane (including flight deck and cargo compartments), with seals made of BMS 8-39 urethane foam. The FAA issued AD 2013-11-04 to address the failure of urethane seals to maintain sufficient halon concentrations in the cargo compartments to extinguish or contain fire or smoke, and to prevent penetration of fire or smoke in areas of the airplane that are difficult to access for fire and smoke detection or suppression.
This NPRM proposes to require additional actions for certain Model 767-200, -300, -300F, and -400ER series airplanes, in accordance with Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021. This NPRM does not propose to supersede AD 2013-11-04. Rather, the FAA has determined that a stand-alone AD would be more appropriate because the additional work applies only to Model 767-200, -300,
Since AD 2013-11-04 was issued, the FAA has determined that replacement or removal of certain BMS 8-39 urethane foam pads and an inspection of certain corner seals is necessary for certain Model 767-200, -300, -300F, and -400ER airplanes that are in AD 2013-11-04. This proposed AD would only require the actions for Model 767-200, -300, -300F, and -400ER series airplanes, identified as Group 1, Configuration 4; Group 2, 3, 12, and 13, Configuration 3; Group 14, Configuration 1 and 3; Group 15, Configuration 2; and Group 17, Configuration 3 and 4, in Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021. This proposed AD addresses the unsafe condition only for these airplanes as identified in paragraph (c) of this proposed AD. Therefore, this proposed AD would not supersede AD 2013-11-04.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021. This service information specifies, among other actions, procedures for replacing certain BMS 8-39 foam pads with Nomex felt in the forward and aft crown area, removing certain BMS 8-39 foam pads in the crown area (which includes a general visual inspection to find BMS 8-39 foam pads) for certain airplanes, inspecting the corner seals to determine if the corner seals were replaced, and replacing affected corner seals. The required actions depend on requirements for use and location of the BMS 8-39 urethane foam in the airplane. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would require accomplishing the actions specified in the service information already. This proposed AD would also prohibit the installation of affected parts. For information on the procedures, see this service information at
The FAA estimates that this AD, if adopted as proposed, would affect 396 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by March 17, 2022.
None.
This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category, identified as Group 1, Configuration 4; Group 2, 3, 12, and 13, Configuration 3; Group 14, Configuration 1 and 3; Group 15, Configuration 2; and Group 17, Configuration 3 and 4; in Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by reports of burned Boeing Material Specification (BMS) 8-39 urethane foam, and a report from the airplane manufacturer that airplanes were assembled with seals throughout various areas of the airplane (including flight deck and cargo compartments) made of BMS 8-39 urethane foam, a material with fire-retardant properties that deteriorate with age. The FAA is issuing this AD to address degraded BMS 8-39 urethane foam used in seals, which may fail to maintain sufficient halon concentrations in the cargo compartments to extinguish or contain fire or smoke, and may result in penetration of smoke or fire into the flight compartment, leading to possible loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 72 months after the effective date of this AD, do the applicable actions specified in paragraph (g)(1), (2), (3), or (4) of this AD in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021.
(1) For Group 1, Configuration 4, airplanes; and Group 2, 3, 12, and 13, Configuration 3, airplanes: Replace BMS 8-39 foam pads in the forward and aft crown area with Nomex felt.
(2) For Group 14, Configuration 1 and 3, airplanes; and Group 15, Configuration 2, airplanes: Remove BMS 8-39 foam pads in the crown area.
(3) For Group 17, Configuration 3, airplanes: Replace BMS 8-39 foam pads in the forward and aft crown area with Nomex felt, inspect the corner seals to determine if the corner seals were replaced and if any corner seals were not replaced, within 72 months after the effective date of this AD, replace affected corner seals.
(4) For Group 17, Configuration 4, airplanes: Inspect the corner seals to determine if the corner seals were replaced and if any corner seals were not replaced, within 72 months after the effective date of this AD, replace affected corner seals.
As of the effective date of this AD, no person may install a BMS 8-39 urethane foam seal on any airplane in any location identified in Boeing Special Attention Service Bulletin 767-25-0381, Revision 4, dated April 26, 2021.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Julie Linn, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3584; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that we have prepared a pest risk analysis relative to the importation of three
We will consider all comments that we receive on or before April 1, 2022.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Narasimha Chary Samboju, Senior Regulatory Policy Specialist, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 851-2038.
Under the regulations in “Subpart H—Plants for Planting” (7 CFR 319.37-1 through 319.37-23, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of plants for planting (including living plants, plant parts, seeds, and plant cuttings) to prevent the introduction of quarantine pests into the United States.
Paragraph (e) of § 319.37-4 describes the process for removing taxa from the NAPPRA lists. After receiving a request to remove taxa from the NAPPRA lists, APHIS will conduct a pest risk analysis (PRA) in response to such a request and make the PRA available for public review and comment. Following the close of the comment period, we will review all comments received and announce our decision regarding the request in a subsequent notice. Currently,
The national plant protection organization of the Republic of Korea (South Korea) has requested that we allow the importation of
Based on the PRA, we are proposing to allow the importation of
Therefore, in accordance with § 319.37-4(e), we are announcing the availability of our PRA and RMD for public review and comment. These documents may be viewed on the
After reviewing any comments we receive, we will announce our decision regarding whether to allow the
Commission on Civil Rights.
Notice; correction of meeting date.
The Commission on Civil Rights is holding a briefing of the Connecticut Advisory Committee on Tuesday, February 15, 2022, at 4:00 p.m. ET. This notice corrects the previous date of Monday, February 14, 2022, to Tuesday, February 15, 2022, at 4:00 p.m. ET. The notice is in the
Evelyn Bohor, (202) 381-8915,
CORRECTION: Date of Monday, February 14, 2022, at 4:00 p.m. ET to be replaced with meeting date of Tuesday, February 15, 2022, at 4:00 p.m. ET.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the California Advisory Committee (Committee) will hold a meeting via web video conference on Thursday, February 24, 2022, for the purpose of planning the Committee's upcoming panels on the impacts of AB5.
The meeting will be held on:
Brooke Peery, Designated Federal Officer (DFO), at
Members of the public may listen to the discussion. This meeting is available to the public through the public WebEx registration link listed above. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be emailed to Brooke Peery at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available at:
Please click on the “Meeting Details” and “Documents” links. Persons interested in the work of this Committee are also directed to the Commission's website,
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons (BE-45). The data collected on the BE-45 survey are needed to measure U.S. trade in insurance services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-45 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each calendar quarter, except for the final quarter of the calendar year when reports must be filed within 45 days. This Notice is being issued in
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0066. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 9 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of U.S. Direct Investment Abroad—Transactions of U.S. Reporter with Foreign Affiliate (BE-577). The data collected on the BE-577 survey are needed to measure the size and economic significance of U.S. direct investment abroad and its impact on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Ricardo Limes, Chief, Direct Transactions and Positions Branch (BE-49), via phone at (301) 278-9659 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-577 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each calendar or fiscal quarter, or within 45 days if the report is for the final quarter of the financial reporting year. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0004. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 1 hour per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons (BE-185). The data collected on the BE-185 survey are needed to measure U.S. trade in financial services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act and by Section 5408 of the Omnibus Trade and Competitiveness Act of 1988.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-185 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each fiscal quarter, except for the final quarter of the entity's fiscal year when reports must be filed within 45 days. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0065. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 10 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Foreign Direct Investment in the United States—Transactions of U.S. Affiliate with Foreign Parent (BE-605). The data collected on the BE-605 survey are needed to measure the size and economic significance of foreign direct investment in the United States and its impact on the U.S. economy. This survey is authorized by the International Investment and Trade in Services Survey Act.
Ricardo Limes, Chief, Direct Transactions and Positions Branch (BE-49), via phone (301) 278-9659 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-605 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each calendar or fiscal quarter, or within 45 days if the report is for the final quarter of the financial reporting year. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0009. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 1 hour per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons (BE-125). The data collected on the BE-125 survey are needed to measure U.S. trade in services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-125 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each fiscal quarter, except for the final quarter of the entity's fiscal year
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0067. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 21 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of U.S. Airline Operators' Foreign Revenues and Expenses (BE-37). The data collected on the BE-37 survey are needed to measure U.S. trade in transport services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-37 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each quarter. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0011. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 5 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Annual Survey of Foreign Direct Investment in the United States (BE-15). The data collected on the BE-15 survey are needed to measure the size and economic significance of foreign direct investment in the United States and its impact on the U.S. economy. This survey is authorized by the International Investment and Trade in Services Survey Act.
Kirsten Brew, Chief, Multinational Operations Branch (BE-49), via phone at (301) 278-9152 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-15 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. A completed report covering the entity's fiscal year ending during the previous calendar year is due by May 31 (or by June 30 for reporting companies that use BEA's eFile system). This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0034. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 23.8 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Annual Survey of Foreign Ocean Carriers' Expenses in the United States (BE-29). The data collected on the BE-29 survey are needed to measure U.S. trade in transport services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-29 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 45 days after the end of each calendar year. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0012. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 3 hours per response. Additional information regarding this burden estimate may be viewed at
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Ocean Freight Revenues and Foreign Expenses of U.S. Carriers (BE-30). The data collected on the BE-30 survey are needed to measure U.S. trade in transport services and to analyze the impact of U.S. trade on the U.S. and foreign economies. This survey is authorized by the International Investment and Trade in Services Survey Act.
Christopher Stein, Chief, Services Surveys Branch, Balance of Payments Division, via phone at (301) 278-9189 or via email at
Through this Notice, BEA publishes the reporting requirements for the BE-30 survey form. As noted below, all entities required to respond to this mandatory survey will be contacted by BEA. Entities must submit the completed survey forms within 30 days after the end of each quarter. This Notice is being issued in conformance with the rule BEA issued on April 24, 2012 (77 FR 24373), establishing guidelines for collecting data on international trade in services and direct investment through notices, rather than through rulemaking. Additional information about BEA's collection of data on international trade in services and direct investment can be found in the 2012 rule, the International Investment and Trade in Services Survey Act (22 U.S.C. 3101
Notice of specific reporting requirements, including who is to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be mailed to those required to complete this survey.
(b) Entities required to report will be contacted individually by BEA. Entities not contacted by BEA have no reporting responsibilities.
This data collection has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act and assigned control number 0608-0011. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Public reporting burden for this collection of information is estimated to average 4 hours per response. Additional information regarding this burden estimate may be viewed at
International Trade Administration, Department of Commerce.
Notice of an open meeting.
This notice sets forth the schedule and proposed topics for a meeting of the Civil Nuclear Trade Advisory Committee (CINTAC).
The meeting is scheduled for Monday, February 7, 2022 from 10:00 a.m. to 11:00 a.m. Eastern Standard Time (EST). The deadline for members of the public to register to participate, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EST on Thursday, February 3, 2022.
The meeting will be held virtually via Microsoft Teams. Requests to register to participate (including to speak or for auxiliary aids) and any written comments should be submitted via email to Mr. Jonathan Chesebro, Office of Energy & Environmental Industries, International Trade Administration, at
Mr. Jonathan Chesebro, Office of Energy & Environmental Industries, International Trade Administration (Phone: 202-482-1297; email:
The Department of Commerce renewed the CINTAC charter on August 5, 2020. This meeting is being convened under the seventh charter of the CINTAC.
On February 7, 2022 the CINTAC will hold the sixth meeting of its current charter term. The Committee, with officials from the U.S. Department of Commerce and other agencies, will discuss major issues affecting the competitiveness of the U.S. civil nuclear energy industry and discuss proposed recommendations on a regulatory gap analysis and actions that would assist with the deployment of advanced nuclear energy technologies. An agenda will be made available by February 3, 2022 upon request to Mr. Jonathan Chesebro.
Members of the public wishing to attend the public session of the meeting must notify Mr. Chesebro at the contact information above by 5:00 p.m. EST on Thursday, February 3, 2022 in order to pre-register to participate. Please specify any requests for reasonable accommodation at least five business days in advance of the meeting. Last minute requests will be accepted but may not be possible to fill. A limited amount of time will be available for brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 30 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Chesebro and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5:00 p.m. EST on Thursday, February 3, 2022. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers.
Any member of the public may submit written comments concerning the CINTAC's affairs at any time before or after the meeting. Comments may be submitted to Mr. Jonathan Chesebro at
Copies of CINTAC meeting minutes will be available within 90 days of the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these expedited sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) orders on chlorinated isocyanurates (chlorinated isos) from Spain and the People's Republic of China (China) would likely lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable January 31, 2022.
Daniel Alexander, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4313.
On October 1, 2021, Commerce published the
On November 1, 2021, Commerce received complete substantive responses from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
The products covered by the
All issues raised in these reviews are addressed in the Issues and Decision Memorandum, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
Commerce is issuing and publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.221(c)(5)(ii).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that diffusion-annealed, nickel-plated flat-rolled steel products from Japan were made at less than normal value during the period of review (POR), May 1, 2019, through April 30, 2020.
Applicable January 31, 2022.
Amaris Wade, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3874.
This review covers one producer/exporter of the subject merchandise, Toyo Kohan Co., Ltd. (Toyo Kohan). On July 30, 2021, Commerce published the
The merchandise subject to the order is diffusion-annealed, nickel-plated flat-rolled steel products from Japan. The product is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7212.50.0000 and 7210.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description remains dispositive.
All issues raised in the case and rebuttal briefs are listed in the appendix to this notice and addressed in the Issues and Decision Memorandum.
Based on the comments received from interested parties, we made certain changes to our calculations in the
As a result of this review, we determine the following weighted-average dumping margin for the period May 1, 2019, through April 30, 2020:
We intend to disclose the calculations performed for Toyo Kohan in connection with these final results within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), Toyo Kohan reported the entered value of its U.S. sales such that we calculated importer-specific
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced by Toyo Kohan for which the reviewed company did not know that the merchandise it sold to the intermediary (
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Toyo Kohan will be equal to the weighted-average dumping margin established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice; request for comments.
On behalf of the Tourism Policy Council (TPC), the International Trade Administration (ITA) is seeking public input on the development of a new national strategy, entitled “the National Travel and Tourism Strategy” (Strategy), to be produced by the TPC through ITA's National Travel and Tourism Office, which serves as the TPC Secretariat. The TPC will consider the comments received in the development of the Strategy.
Comments must be received on or before Friday, February 11, 2022.
Electronic comments are preferred and may be sent to
Jennifer Aguinaga, National Travel and Tourism Office, 1401 Constitution Avenue NW, Suite 10007, International Trade Administration, Washington, DC 20230,
The goal of the new Strategy is to improve the competitive position of the United States in attracting international visitors and to increase travel and tourism to promote economic growth and job creation across the United States over the next five years.
The first National Travel and Tourism Strategy was developed in 2012 and updated in 2019. Those documents can be found here:
ITA seeks input into the development of the Strategy, including on key stakeholder priorities. The TPC will consider the comments submitted in response to this request, as well as other inputs, in its development of the Strategy. Comments should be limited to no more than five (5) pages total and should address one or more of the following topics:
1. What can the Federal Government do to improve the competitive position of the United States and promote growth in international travel and tourism?
2. How can the Federal Government partner with non-federal entities, including the private sector and state, local, and tribal governments, to improve the competitive position of the United States and promote growth in international travel and tourism? What entities would be the most appropriate to partner with?
3. What metric(s) should be used to measure progress in meeting these goals?
Comments should include a reference to this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorizations; request for comments on proposed authorizations and possible renewals.
NMFS has received a request from BNSF Railway (BNSF) for authorization to take marine mammals incidental to a Railway Bridge Heavy Maintenance Project in King County, Washington. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two consecutive incidental harassment authorization (IHAs) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on possible one-time, one-year renewals for each IHA that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notification. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than March 2, 2022.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Written comments should be submitted via email to
Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHAs qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notification prior to concluding our NEPA process or making a final decision on the IHA request.
On August 17, 2021, NMFS received a request from BNSF Railway (BNSF) for two consecutive IHAs allowing the take of marine mammals incidental to the Railway Bridge 0050-0006.3 (Bridge 6.3) Heavy Maintenance Project in King County, Washington. The application was deemed adequate and complete on November 22, 2021. BNSF's request is for take of a small number of seven species of marine mammal by Level B harassment and Level A harassment. Neither BNSF nor NMFS expects serious injury or mortality to result from this activity and, therefore, IHAs are appropriate.
BNSF is proposing to engage in maintenance activities at Bridge 6.3, a bridge with a movable deck to allow vessels to pass. The purpose of this project is to extend the service life of the existing structure by replacing several components of the existing movable span including replacing the existing counterweight, counterweight trunnion bearings, and rocker frame system of the existing movable span. This work would
In-water activities that could result in take of marine mammals include impact pile driving of 36-inch temporary steel piles (which will be removed via cutting with Broco Rod which is not likely to cause take), vibratory installation and extraction of 14-inch H-piles, vibratory installation and extraction of 12-inch timber piles, hydraulic clipper cutting and extraction of 12-inch timber piles, drilling of 48-inch diameter shafts using oscillator rotator equipment, and removing the pile created by filling the drilled shaft and steel casing with concrete and removing the casing with a diamond wire saw.
Bubble curtains will be used during impact pile driving to reduce in-water sound levels. The work would occur over two years during July 16 through February 15 of each year due to the U.S. Army Corp of Engineers (USACE) in-water work window restrictions for salmonids.
BSNF anticipates that the project will requires approximately 122 days of in-water work over 24 months. The proposed IHAs would be effective from July 16, 2022 to July 15, 2023 for Year 1, which would include 113 days of in-water activities and July 16, 2023 to July 15, 2024 for Year 2, which would include 9 days of in-water activities.
The project activities will occur at BNSF Bridge 6.3, in Ballard, WA, which is located in King County at Latitude 47.666784° North by Longitude -122.402108° West. The Bridge spans the Lake Washington Ship Canal which runs through the city of Seattle and connects the fresh water body of Lake Washington with Puget Sound's Shilshole Bay. The Bridge is located just west of the Hiram M. Chittenden Locks and is the last bridge to span the Lake Washington Ship Canal before it flows into Puget Sound 2,500 ft (772 m) to the west. The Bridge is approximately 1,144 ft (349 m) long and was built in 1917 (See Figure 1). The substrate below the ordinary high water mark (OHWM) is composed of sandy silt intermixed with gravels and riprap. Approximately 75 percent of the Canal shoreline is developed with armored bulkheads, ship holding areas, and other artificial structures.
The nearest pinniped haulouts are located 0.82 mi (Shilshole Bay Jetty) and 1.42 mi (West Point Buoy) away but not in direct line of sight with the construction activity as shown in Figure 6 in the Application.
Bridge 6.3 consists of 18 spans supported by 19 piers. Pier 1 is the southern abutment, and Pier 19 is the northern abutment. Piers 6 through 11 are either at the edge of or below the OHWM of the Canal. Pier 6 is at the southern shoreline, adjacent to Commodore Park, and extends partially below the OHWM. Pier 11 is at the base of a steep slope at the northern shoreline and extends partially below the OHWM. Piers 7 through 10 are fully within the Canal. Pier 7 is near the middle of the Canal, and Piers 8, 9, and 10 are to the north of the north guide wall. Span 7 is a movable span (Strauss Heel-Trunnion Bascule) that rotates clockwise up when opening for marine vessels that cannot pass under the bridge when it is in the closed (down) position. (See Appendix A in Application for additional detail).
Work trestles are required to provide access to the superstructure above Piers 8, 9, and 10. Cranes and associated construction equipment will be used atop the work trestles to install the temporary drilled shafts and then replace the existing counterweight, counterweight trunnion bearings, and rocker frame system.
The overall construction process can be segmented into following primary phases:
1. Site Mobilization;
2. Demolish Residential Structures;
3. Install Work Trestles;
4. Install Drilled Shafts;
5. Replace Bascule Span Components;
6. Remove Work Trestles; and
7. Site Demobilization
Only phase 2, 3, 4 and 6 involve in-water work which could result in the harassment of marine mammals. Therefore, the other phases will not be discussed further, although additional information may be found in the application.
Previous owners of an adjacent parcel had expanded their dock/deck, float, and shed onto the BNSF right-of-way to the extent that a portion of their structure is attached to bridge Pier 11. This dock and shed are within the footprint of where the western work trestle will be installed and in the general vicinity of where construction barges may need to be deployed. These structures are supported by in-water 80 12-inch timber piles that must be removed prior to installation of the work trestles.
Two temporary work trestles are required to provide construction access to the moveable span, as well as a work platform for support cranes and associated construction equipment and supplies. Each work trestle is composed of a series of large wood planks that rest on steel crossbeams that are welded onto the top of steel support pipe piles. The number and size of the steel pipe piles required for the project is dictated by the anticipated weight of the cranes, counterweight, steel beams, trunnion bearings, support equipment, and industry standard safety factor. All piles will be proofed to a predetermined loading capacity. Each work trestle will be approximately 240 ft (73 m) long by 45 ft (13.7.m) wide. A total of 170 temporary piles (140 in-water and 30 above water) are required (Table 1). A 20 percent contingency is included in this estimate. Pile types include 136 36-inch steel pipe piles and 34 14-inch H-piles.
Trestle approach piles and trestle support piles will be installed with an impact hammer from start to finish due to concerns associated with movement of the existing bridge. A bubble curtain will be utilized during all impact pile driving when water depth is greater than 2 ft (0.6 m). In-water 14-inch H-piles for turbidity fencing will be installed with a vibratory hammer.
Concurrent impact driving of 36-inch steel pipes may be utilized, but BNSF may select to only utilize one pile-driving crew depending on schedule, rate of progress, and number of days remaining in the allowable in-water work window.
A total of 22 temporary, 4-foot-diameter drilled shafts may be installed, including 11 immediately west and 11 east of Piers 9 and 10. Drilled shafts are anticipated to be installed by using oscillator rotator equipment with the advanced full-case method. Oscillator rotator equipment is used to excavate a circular hole into the ground. Since the project area likely includes unstable soils, a casing will be used to keep the hole open. The rotator/oscillator method uses hydraulic jacks that use pressure/torque to rotate the casing 20 degrees one direction and then 20 degrees the other direction as it pushes the casing into the substrate. The tip of the first or initial casing has teeth that cut into the earth as it advances. Once one section of casing is installed, another section of casing is connected to the previously installed casing by bolting them together with an impact wrench. This process continues until the design load depth has been reached. Once the casing is fully installed, all the material within it is then removed (with a clamshell bucket or other method) prior to filling the shafts with concrete. The top of the concrete filled shafts or piles are then connected to a platform that will also be formed of concrete. The platform and concrete-filled shafts will be removed after maintenance has been completed.
Note BNSF may use 116 36-inch-diameter pipe piles instead of the drilled shafts. This contingency for 36-inch diameter pipe piles has been included in the estimated total number of 36-inch pipe piles that may be used during this project and analyzed below.
All the temporary work trestle piles will be removed to a depth of 2 ft (0.6 m) below mudline. The piles will be cut by a diver using the Broco Rod cutting method. A diver will make two cuts and then reach/penetrate inside and cut the pipe pile from the inside diameter 2 ft (0.6 m) below mudline. The crane will then be used to snap and lift the pile out of the Canal and off the platform. This operation will continue to the north shoreline until the crane is on land and has removed all the work trestle piles. Drilled shafts will be removed to a depth of 2 ft (0.6 m) below the mudline. The concrete-filled shafts may be cut with a diamond wire saw. In-water 14-inch H-piles or wood/steel posts will be pulled out of the substrate by a crane or vibratory hammer removal as necessary.
During Year 1 12-inch wood piles (12 days) would be extracted while 36-inch steel pipes (10 days), 14-inch H-piles (3 days), and 48-inch drilled shaft casings (88 days) would be installed. During Year 214-inch H-piles (3 days) and 48-inch (6 days) drilled shaft casings would be removed.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the application summarize available information
Table 2 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. SARs (
Minke whales are the most abundant of the rorquals and the population is considered mostly stable globally. In the Pacific, minke whales are usually seen over continental shelves (Brueggeman
Minke whales are reported in Washington inland waters year-round, although few are reported in the winter (Calambokidis and Baird 1994). Minke whales are relatively common in the San Juan Islands and Strait of Juan de Fuca (especially around several of the banks in both the central and eastern Strait), but are relatively rare in Puget Sound.
Bottlenose dolphins are distributed worldwide in tropical and warm-temperate waters. In many regions, including California, separate coastal and offshore populations are known (Walker 1981; Ross and Cockcroft 1990; Lowther 2006). They have also been documented in offshore waters as far north as about 41 °N and they may range into Oregon and Washington waters during warm-water periods. Sighting records off California and Baja California (Lee 1993; Mangels and Gerrodette 1994) suggest that offshore bottlenose dolphins have a continuous distribution in these two regions. There is no apparent seasonality in distribution (Forney and Barlow 1998).
Bottlenose dolphins employ a variety of strategies to feed, including both individual and cooperative hunting and techniques such as herding and charging schools of fish, passive listening, and echolocation. The California/Oregon/Washington offshore stock is the one most likely to occur in Washington waters.
The common dolphin has been observed in the project area. There is debate as to whether short-beaked and long-beaked common dolphins are the same species; we separate the two based on COT (2021). Only long-beaked common dolphins have been spotted in central and south Puget Sound (Orca Network 2020) and this report addresses only the California long-beaked common dolphin stock.
Long-beaked common dolphins typically inhabit warmer temperate and tropical waters and are not usually present north of California; however, sightings of live dolphins and dead stranded individuals have been increasing in the Salish Sea since the early 2000s. Common dolphins were sighted in 2003, 2011-12, and 2016-17, with strandings occurring in inland waters in 2012 and 2017. These sighting and stranding events are proximal to El Niño periods. Since June 2016, several common dolphins have remained in Puget Sound and group sizes of 5-20 individuals are often reported (Shuster
Harbor porpoise occur along the U.S. west coast from southern California to the Bering Sea (Carretta
In most areas, harbor porpoise occur in small groups of just a few individuals. Harbor porpoise must forage nearly continuously to meet their high metabolic needs (Wisniewska
California sea lions occur from Vancouver Island, British Columbia, to the southern tip of Baja California. They breed on the offshore islands of southern and central California from May through July (Heath and Perrin, 2008). During the non-breeding season, adult and subadult males and juveniles migrate northward along the coast to central and northern California, Oregon, Washington, and Vancouver Island (Jefferson
Pupping occurs primarily on the California Channel Islands from late May until the end of June (Peterson and Bartholomew 1967). Weaning and mating occur in late spring and summer during the peak upwelling period (Bograd
California sea lions regularly occur on rocks, buoys and other structures. Occurrence in the project area is expected to be common. The California sea lion is the most frequently sighted otariid found in Washington waters. Some 3,000 to 5,000 animals are estimated to move into Pacific Northwest waters of Washington and British Columbia during the fall (September) and remain until the late spring (May) when most return to breeding rookeries in California and Mexico (Jeffries
Steller sea lions range along the North Pacific Rim from northern Japan to California, with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands. Large numbers of individuals widely disperse when not breeding (late May to early July) to access seasonally important prey resources (Muto
The eastern DPS and MMPA stock is the only population of Steller's sea lions thought to occur in the project area. In Washington waters, numbers decline during the summer months, which correspond to the breeding season at Oregon and British Columbia rookeries (approximately late May to early June) and peak during the fall and winter months. Steller sea lion abundances vary seasonally with a minimum estimate of 1,000 to 2,000 individuals present or passing through the Strait of
Harbor seals are found from Baja California to the eastern Aleutian Islands of Alaska (Harvey and Goley, 2011). The animals in the project area are part of the Southern Puget Sound stock. Harbor seals are the most common marine mammal species observed in the project area and are the only one that breeds and remains in the inland marine waters of Washington year-round (Calambokidis and Baird, 1994).
Harbor seals are central-place foragers (Orians and Pearson, 1979) and tend to exhibit strong site fidelity within season and across years, generally forage close to haulout sites, and repeatedly visit specific foraging areas (Grigg
Harbor seals molt from May through June. Peak numbers of harbor seals haul out during late May to early June, which coincides with the peak molt. During both pupping and molting seasons, the number of seals and the length of time hauled out per day increase, from an average of 7 hours per day to 10-12 hours (Harvey and Goley, 2011; Huber
Harbor seals tend to forage at night and haul out during the day with a peak in the afternoon between 1 p.m. and 4 p.m. (Grigg
As indicated above, all 7 species (with 7 managed stocks) in Table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Seven marine mammal species (four cetacean and three pinniped (two otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 3. Minke whales are low frequency cetaceans, long-beaked common dolphins and common bottlenose dolphins are mid-frequency cetaceans, harbor porpoises are classified as high-frequency cetaceans, Harbor seals are in the phocid group, and Steller sea lions and California sea lions are otariids.
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Acoustic effects on marine mammals during the specified activity can occur from vibratory and impact pile driving and drilling, cutting, and clipping. The effects of underwater noise from BNSF's proposed activities have the potential to result in Level A and Level B harassment of marine mammals in the action area.
The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far. The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
In-water construction activities associated with the project would include impact pile driving, vibratory pile driving, vibratory pile removal, drilling by oscillator rotators, cutting with a wire saw, and clipping of wood timbers. The sounds produced by these activities fall into one of two general sound types: Impulsive and non-impulsive. Impulsive sounds (
Two types of pile hammers would be used on this project: Impact and vibratory. Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak sound pressure levels (SPLs) may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman
The likely or possible impacts of BNSF's proposed activity on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel; however, any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors include effects of heavy equipment operation during pile installation and removal.
The introduction of anthropogenic noise into the aquatic environment from pile driving and removal, drilling, cutting and clipping is the primary means by which marine mammals may be harassed from BNSF's specified activity. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall
NMFS defines a noise-induced threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). The amount of threshold shift is customarily expressed in dB. A TS can be permanent or temporary. As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Airborne noise would primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels exceeding the acoustic thresholds. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' because of exposure to underwater sound above the behavioral harassment thresholds, which are, in all cases, larger than those associated with airborne sound. As described above there are no regular haulouts in direct line of sight of the project area. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Therefore, authorization of incidental take resulting from airborne sound for pinnipeds is not warranted, and airborne sound is not discussed further here.
BNSF's construction activities could have localized, temporary impacts on marine mammal habitat by increasing in-water sound pressure levels and slightly decreasing water quality. Construction activities are of short duration and would likely have temporary impacts on marine mammal habitat through increases in underwater sound. Increased noise levels may affect acoustic habitat (see masking discussion above) and adversely affect marine mammal prey in the vicinity of the project area (see discussion below). During drilling, cutting, clipping, impact and vibratory pile driving, elevated levels of underwater noise would ensonify a portion of the Ship Canal and potentially radiate some distance into Shilshole Bay depending on the sound source where both fish and mammals may occur and could affect foraging success. Additionally, marine mammals may avoid the area during construction, however, displacement due to noise is expected to be temporary and is not expected to result in long-term effects to the individuals or populations.
A temporary and localized increase in turbidity near the seafloor would occur in the immediate area surrounding the area where piles or shafts are installed (and removed in the case of the temporary piles). The sediments on the sea floor will be disturbed during pile
The proposed activities would not result in permanent impacts to habitats used directly by marine mammals except for the actual footprint of the project. The total seafloor area affected by pile installation and removal is a very small area compared to the vast foraging area available to marine mammals in Puget Sound.
Avoidance by potential prey (
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to noise depends on the physiological state of the fish, past exposures, motivation (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality. However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen
The most likely impact to fish from drilling, cutting, clipping, and pile driving activities at the project areas would be temporary behavioral avoidance of the area. The duration of fish avoidance of an area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated.
The area impacted by the project is relatively small compared to the available habitat in Shilshole Bay and larger Puget Sound. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity. Additionally, as noted previously, BNSF will adhere to the USACE's in-water work window restrictions on pile extraction and installation (July 16 to January 15) to reduce potential effects to salmonids, including juvenile ESA-listed salmonids. As described in the preceding, the potential for BNSF's construction to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of the acoustic sources for pile installation and extraction has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for harbor seals, because predicted auditory injury zones are large. Auditory injury is unlikely to occur for low-frequency cetaceans, mid-frequency cetaceans, high-frequency cetaceans, and otariids. The proposed mitigation and monitoring measures are expected to minimize the severity of the taking to the extent practicable.
As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
BNSF's proposed activity includes the use of continuous (vibratory pile driving and removal, oscillator rotator equipment, wire saw cutting, clipping) and impulsive (impact pile driving) equipment, and therefore both the 120- and 160-dB re 1 μPa (rms) thresholds are applicable.
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The following pile sizes and installation/extraction methods were analyzed:
• 36-inch steel pipe pile, impact installation, with 5 dB bubble curtain source level reduction under two installation scenarios (1 pile driver or 2 concurrent pile drivers);
• 48-inch steel pipe pile, oscillator installation (drilled shaft);
• 48-inch steel pipe pile, diamond wire saw cutting;
• 14-inch steel H-pile, vibratory installation/extraction;
• 12-inch timber pile, vibratory installation/extraction; and
• 12-inch timber pile, pile clipper extraction.
Impact pile driver installation of 36-inch steel pipe piles analyzed a worst-case scenario consisting of two crews driving 36-inch steel pipe piles simultaneously (Scenario 2) in order to provide maximum flexibility should multiple crews become necessary during construction. It is likely, however, that only one crew will operate at one time (Scenario 1). Based on NMFS guidance, decibel addition is not considered in the 36-inch steel pipe pile impact analysis since during impact hammering or other impulsive sources, it is unlikely that the two hammers would strike at the same exact instant
Vibratory pile driving of 14-inch H-piles, and vibratory and pile clipper extraction of 12-inch timber piles (residential structures demolition) were analyzed in the event these methods become necessary (if, for instance, crane weight alone cannot seat the 14-inch H-piles for the turbidity screen installation or crane torque alone cannot extract timber piles by direct pulling/twisting).
This analysis uses in-water source sound levels for vibratory and impact pile driving from Washington State Department of Transportation Biological Assessment Manual (WDSOT 2020), and California Department of Transportation Division (Caltrans 2015). Analysis of drilled shaft installation used sound source data came from (
In cases where multiple sources were provided from the above references, the following methodology was used to select in-water source sound levels to generate a proxy:
1. Select first by corresponding pile size and type;
2. Eliminate those that do not have substrates similar to the project site substrate (
3. Of the remaining, select highest source sound level to be conservative.
All piles driven and/or proofed with an impact hammer would use a bubble curtain. It is estimated that use of a bubble curtain would result in a minimum of a 5-dB reduction in underwater sound levels during 36-inch pipe pile driving, and this reduction has been included in the estimate to account for a reasonably achievable reduction in sound during underwater construction activity. Source sound levels are summarized in Table 5.
Transmission loss (TL), expressed as decibels, is the reduction in a specified level between two specified points R1, R2 that are within an underwater acoustic field. By convention, R1 is chosen to be closer to the source of sound than R2, such that transmission loss is usually a positive quantity. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
Absent site-specific acoustical monitoring with differing measured transmission loss, a practical spreading value of 15 is used as the transmission loss coefficient in the above formula. Site-specific transmission loss data for BNSF bridge site is not available, therefore the default coefficient of 15 is used to determine the distances to the Level A and Level B harassment thresholds.
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources, NMFS User Spreadsheet predicts the distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would incur PTS. Inputs used in the User Spreadsheet are shown in Table 6 and the resulting isopleths are reported below in Table 7.
In this section we provide the information about the presence, density, or group dynamics of marine mammals and how it is brought together to produce a quantitative take estimate.
Take estimates were calculated using a combination of best available data. Best available density data was for the most part from the U.S. Department of the Navy's Marine Species Density Database Phase III for the Northwest Training and Testing Study Area (Navy 2019) which includes seasonal density estimates: Winter (Dec-Feb), Spring (Mar-May), Summer (Jun-Aug), Fall (Sep-Nov). The project will not work in-water in the Spring as that season is outside the July 16-February 15 in-water work season. The most conservative (highest density) seasonal estimate from the remaining three seasons was used where seasonal overlap exists and densities differ across seasons. Estimated take was calculated using density estimates multiplied by the area of each Level B harassment zone for each pile type multiplied by the number of days of in-water activity for each pile type. In some instances and where noted, observation-based data from WSDOT's Seattle Multimodal Project at Colman Dock Season Three Marine Mammal Monitoring Report (WSDOT 2020a) or other observational data was used instead of U.S. Navy data when Navy density data was zero or extremely low.
BNSF proposes to work in-water for 113 days in Year 1 and 9 days in Year 2, or approximately 5.5 months assuming a 5-day work week for 23 weeks in Year 1 and a half a month assuming a 5-day work week for 2 weeks in Year 2.
The estimated take was calculated as described above using the Navy's density data which resulted in zero takes of minke whale for both Year 1 and Year 2 as shown in Table 8. Therefore, as described above, we looked at other observational data. The WSDOT Seattle Multimodal Project at Colman Dock Year 3 IHA Monitoring Report observed minke whale presence indicates sightings of a single minke whale over 7 months (WSDOT 2020a). Given this information, BNSF and NMFS conservatively assumed that up to one whale per month could be taken by harassment.
A shutdown zone at the full distance of the level A harassment isopleths (≤ 1533 m) will be applied to avoid take by Level A harassment.
The 113 days of work in Year 1 and 9 days in Year 2, equates to 5.5 months × 1 minke whale/month = 6 encounters with minke whales in Year 1 and 0.5 months × 1 Minke whale/month = 1 whale in Year 2. Therefore, BNSF has requested and NMFS proposes 6 takes by Level B harassment in Year 1 and 1 take by Level B harassment in year in Year 2.
Estimated take using the Navy's density estimates for common bottlenose dolphins as described above resulted in zero take in both Year 1 and Year 2 as shown in Table 9. Therefore, as described above, we looked at other observational data. Common bottlenose dolphins have been rare visitors to Puget Sound. However, the WSDOT Seattle Multimodal Project at Colman Dock Year 3 IHA monitoring report observed common bottlenose dolphin at a rate of 6 per month (WSDOT 2020a). In-water work will occur for 113 days in Year 1 and 9 days in Year 2, which would equate to 33 dolphin takes in Year 1 (5.5 months × 6 dolphins/month) and 3 dolphin takes in Year 2 (0.5 months × 3 dolphins/month). A shutdown zone at the full distance of the level A harassment isopleths (≤ 55m) can be effectively applied to avoid Level A take. Therefore, BNSF has requested and NMFS proposes to authorize 33 takes by Level B harassment in Year 1 and 3 takes by Level B harassment in year in Year 2.
Using the Navy's density data, which was zero, estimated take of common dolphins was calculated to be zero in Year 1 and Year 2. Therefore, as described above, we looked at other observational data. Sightings of live dolphins throughout inside waters and Southern Puget Sound have been recorded in 2003, 2011-12, and 2016 -17. Group size ranged from 2 (in 2003 and 2011-12) to 5-12 (in 2016-2017) (Shuster
Harbor porpoise density estimates based on the Navy's data were used to calculate requested and proposed take as shown in Table 10. Analysis of the size of the level A harassment zones multiplied by density associated with harbor porpoise predicted that two porpoises could be taken by Level A harassment during the 10 days that concurrent driving of 36-in steel piles occurs during year 1. However, take by Level A harassment is unlikely given that the threshold and associated PTS isopleth is based on the acoustic energy accrued over a specified time period and it is unlikely that a highly mobile animal such as the harbor porpoise would spend the that amount if time in the Level A harassment zone. However, given the larger size of the zone and the cryptic nature of harbor porpoises, we have precautionarily proposed to authorize 2 takes by Level A harassment for Year 1. The Level A harassment shut down zone for high frequency hearing group will be implemented to minimize severity of any Level A harassment takes that do occur. Since there will be no impact driving during Year 2, the size of the Level A harassment zone will not exceed 5 m and, therefore, no take by Level A harassment was requested and none has been proposed. BNSF has requested and NMFS proposes to authorize 12 takes of harbor porpoise by Level B harassment in Year 1 and 8 takes by Level B harassment in year in Year 2.
Harbor seal density estimates based on data from the Navy were initially used to calculate requested and proposed take (Table 11). These estimates, however, do not account for numerous seals feeding on migrating salmonids at Ballard Locks, especially during summer (June-September) months. A new acoustic deterrent device was tested over two years to keep seals away from the Locks (Bogaard, Pers. Comm, 2022). A study report is currently being developed for publication. Study observers were primarily focused on behavioral effects of the deterrent on seals and monitored seal behavioral reactions during 30 minute observation periods up to eight times per day. Actual seal abundance was not recorded. However, observers noted that groups of 5-6 harbor seals were very common from late June through September during the salmon run, although smaller numbers were present throughout the year. It is likely that many of the same animals were observed multiple times across daily observation periods. The in-water work window runs from July 16, 2022 through February 15, 2023. Given this information, NMFS assumed for Year 1 that during the 54 in-water work days between July 16, 2022 and September 30, 2022, 5 harbor seals would be taken per day (270 takes). For the remaining 59 in-water work days between October 1, 2022 and February 15, 2023, a single harbor seal would be taken per day (59) for a total of 329 takes. There are 10 in-water work days that include concurrent impact driving of 36-inch piles when the Level A harassment isopleth is relatively large (1,826 m) (and also exceeds the Level B harassment isopleth (464 m)) so it is possible that Level A harassment could occur in some animals. Also, note that the constrained design of the lock system means that seals would likely spend extended periods in the confined area while feeding. NMFS conservatively assumes that all of these 10 in-water work days would occur during salmon migration (February 15-Sept 30) and that up to one-third of seals taken per day (2) could be exposed to sound energy levels resulting in some degree of Level A harassment (20). The estimated takes by Level A harassment is subtracted from the Level B harassment take to avoid double-counting. Since a smaller number of seals expected to be present during non-migratory period and the seals would have little incentive to congregate near the locks in the absence of salmon, NMFS does not expect any Level A harassment of seals to occur. Therefore, NMFS is proposing during Year 1 to authorize 20 takes by Level A harassment and 309 takes by Level B harassment (329-20).
For Year 2, NMFS assumed that all 9 in-water work days would occur during salmon migration between July 16, 2023 and September 30, 2024 with up to 6 harbor seals taken per day (54). No Level A take harassment is proposed during Year 2 since the largest Level A isopleth for all planned activities is 2 m. However, the density-based estimate was 57 takes as shown in Table 11. Therefore, NMFS is proposing 57 takes of harbor seal by Level B harassment during Year 2.
BNSF initially considered California sea lion density estimates to calculate requested take, which resulted in relatively low estimates (4 takes in Year 1 and 3 takes in Year 2 by Level B harassment) as shown in Table 12. However, California sea lions are known to frequent the Ballard Locks to feed on migrating salmon (KUOW, 2020). While no formal research studies have recorded individual numbers of California sea lions at Ballard Locks, news articles reported accounts of California sea lion sightings which ranged from a few to many more (Hakai Magazine, 2018; King 5 News, 2021). Observers associated with the acoustic deterrent device study described above, reported that California sea lions were less numerous than harbor seals, having been seen at a rate of 2-3 per day during peak salmonid migration (Bogaard, Pers. Comm. 2022). They were less common during non-migratory seasons. Given this information, NMFS assumed for Year 1 that during the 54 in-water work days between July 16, 2022 and September 30, 2022, 2 California sea lions would be taken per day (108). For
For Year 2, NMFS assumed that all 9 in-water work days would occur during peak salmon migration between July 16, 2023 and September 30, 2024 with up to 2 California sea lions taken per day (18). NMFS is proposing to authorize 18 takes of California sea lion by Level B harassment. No Level A take harassment is proposed.
Stellar sea lion density estimates were initially used to calculate requested take as shown in Table 13. Based on the density data, BNSF has requested a single take for both Year 1 and Year 2. Given the large number of in-water work days in Year 1, NMFS has precautionarily increased the proposed Level B harassment to 5 takes while maintaining the 1 proposed take by Level B harassment as calculated by density estimates in Year 2. Monitors with the acoustic deterrent study did not observe any Steller sea lions during the two years that the study was underway (Bogaard, Pers. Comm, 2022).
The estimated take by Level A and Level B harassment for all authorized species and stocks by year, and percentage take by stock is shown in Table 14.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In addition to the measures described later in this section, BNSF will employ the following mitigation measures:
• BNSF must ensure that construction supervisors and crews, the monitoring team, and relevant BNSF staff are trained prior to the start of activities subject to these IHAs, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work;
• Monitoring must take place from 30 minutes prior to initiation of pile driving activity (
• If a marine mammal is observed entering or within the shutdown zones indicated in Table 14, pile driving activity must be delayed or halted;
• Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone (as shown in Table 14); and
• BNSF, construction supervisors and crews, PSOs, and relevant BNSF staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 meters of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.
The following mitigation measures apply to BNSF's in-water construction activities:
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○ The bubble curtain must distribute air bubbles around 100 percent of the piling circumference for the full depth of the water column;
○ The lowest bubble ring must be in contact with the substrate for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent substrate contact. No parts of the ring or other objects shall prevent full substrate contact; and
○ Air flow to the bubblers must be balanced around the circumference of the pile.
Based on our evaluation of BNSF's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Marine mammal monitoring must be conducted in accordance with the Marine Mammal Monitoring Plan found in Appendix E in the application. Marine mammal monitoring during drilling, clipping, cutting, pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
• Independent PSOs (
• At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
• Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
• PSOs must be approved by NMFS prior to beginning any activity subject to this IHA.
PSOs must have the following additional qualifications:
• Ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary;
A minimum of three PSOs located at positions designated in Figure 1 and Figure 2 of the Marine Mammal Monitoring Plan found in Appendix E of
Monitoring will be conducted 30 minutes before, during, and 30 minutes after drilling, clipping, cutting, pile driving/removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Drilling, clipping, cutting, Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the drilling, clipping, cutting, pile driving equipment is no more than 30 minutes.
Hydroacoustic monitoring will be conducted during in-water pile-driving and wire saw activities and recorded source levels will be compared to the reported sound levels employed as part of this application to determine harassment isopleths modeled in this application. Information about methods, data collection, and reporting are described in the Acoustic Monitoring Plan in Appendix F of the Application. The following representative subsets will be measured:
• A minimum of 15, 36-inch impact driven piles for the Project in the following subsets:
1. A minimum of 5 piles towards the beginning of pile driving activity;
2. A minimum of 5 piles towards the middle of pile driving activity;
3. A minimum of 5 piles towards the latter pile driving activity.
• A minimum of 4, 48-inch drilled shafts oscillated for the Project in the following subsets:
1. A minimum of 2 drilled shafts towards the beginning of the activity;
2. A minimum of 2 drilled shafts towards the end of the activity.
• A minimum of 2 48-inch drilled shafts will be monitored when cut with a wire saw.
BNSF must submit its draft reports on all monitoring conducted under the IHAs within 90 calendar days of the completion of monitoring or 60 calendar days prior to the requested issuance of any subsequent IHA for construction activity at the same location, whichever comes first. A final report must be prepared and submitted within 30 calendar days following receipt of any NMFS comments on the draft report. If no comments are received from NMFS within 30 calendar days of receipt of the draft report, the report shall be considered. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Dates and times (begin and end) of all marine mammal monitoring;
• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method: Drilling, cutting, clipping, impact driving, and vibratory driving and removal; duration of driving time for each pile (vibratory) and number of strikes per pile (impact driving);
• PSO locations during marine mammal monitoring;
• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
• Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
• Time of sighting;
• Identification of the animal(s) (
• Distance and location of each observed marine mammal relative to the pile being driven for each sighting;
• Estimated number of animals (min/max/best estimate);
• Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
• Animal's closest point of approach and estimated time spent within the harassment zone;
• Description of any marine mammal behavioral observations (
• Number of marine mammals detected within the harassment zones, by species; and
• Detailed information about implementation of any mitigation (
The acoustic monitoring report must contain the informational elements described in the Acoustic Monitoring Plan and, at minimum, must include:
• Hydrophone equipment and methods: Recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
• Type and size of pile being driven or cut, substrate type, method of driving or cutting during recordings (
• Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
• For impact pile driving (per pile): Number of strikes; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
• For wire saw cutting (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged); and
• One-third octave band spectrum and power spectral density plot.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the IHA-holder shall report the incident to the Office of Protected Resources (OPR) (301-427-8401), NMFS and to the West Coast Region Stranding Hotline (866-767-6114) as soon as feasible. If the death or injury was clearly caused by the specified activity, the IHA-holder must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the IHA. The IHA-holder must not resume their activities until notified by NMFS.
The report must include the following information:
i. Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
ii. Species identification (if known) or description of the animal(s) involved;
iii. Condition of the animal(s) (including carcass condition if the animal is dead);
iv. Observed behaviors of the animal(s), if alive;
v. If available, photographs or video footage of the animal(s); and
vi. General circumstances under which the animal was discovered.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all of the species listed in Table 14, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below, such as for the potential repeated and prolonged exposure of habituated harbor seals that feed on salmonids traversing through the lock system. The analysis below applies to both the Year 1 and Year 2 proposed IHAs, except where noted otherwise.
Drilling, clipping, cutting, Pile driving and removal activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A harassment and Level B harassment from underwater sounds generated by drilling, clipping, cutting, pile driving and removal. Potential takes could occur if marine mammals are present in zones ensonified above the thresholds for Level A or Level B harassment, identified above, while activities are underway.
The nature of the drilling, clipping, cutting, pile driving project precludes the likelihood of serious injury or mortality. The mitigation is expected to ensure that no Level A harassment occurs to any species except harbor seal. The nature of the estimated takes anticipated to occur are similar among all species and similar in Year 1 and Year 2, other than the potential Level A harassment take of harbor seal in Year 1, described further below and the likely comparatively higher number of repeated takes of some small number of harbor seals by Level B harassment during both Year 1 and Year 2
For all species other than harbor seal, take would be limited to Level B harassment (behavioral disturbance and TTS) only. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely include reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Marine mammals present in the vicinity of the action area and taken by Level B harassment are most likely to move away from and avoid the area of elevated noise levels during in-water construction activities. The project site itself is located along a highly developed waterfront with high amounts of vessel traffic and, therefore, we expect that most animals disturbed by project sound would simply avoid the area and use more-preferred habitats. These short-term behavioral effects are not expected to affect marine mammals' fitness, survival, and reproduction due to the limited geographic area that would be affected in comparison to the much larger habitat for marine mammals in the Puget Sound. Harbor seals that are habituated to in-water construction noise could be exposed for 5.4 hours per day for up to 10 consecutive days during impact driving activities in Year 1 only. These animals would likely remain in close proximity to the locks and may be exposed to enough accumulated energy to result in TTS or PTS (described below). Longer duration exposure could result in TTS in some cases if exposures occur within the Level B TTS zone. As discussed earlier in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours. Any behavioral effects of repeated or long duration exposures are not expected to negatively impact survival or reproductive success of any individuals. Similarly, given that the exposure to these individuals is not expected to exceed 10 consecutive days for 5.4 or fewer hours at a time for any individual, any limited energetic impacts from the interruption of foraging or other important behaviors are not expected to affect the reproductive success of any individual harbor seals.
In addition to the expected effects resulting from proposed Level B harassment, we anticipate that a limited number of habituated harbor seals (20) may sustain some Level A harassment in the form of auditory injury during 10 days of impact driving proposed for Year 1 only. However, any animals that experience PTS would likely only receive slight PTS,
The project is also not expected to have significant adverse effects on affected marine mammals' habitats. The project activities will not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
Portions of the southern resident killer whale range are within the proposed project area and the entire Puget Sound is designated as critical habitat for these whales under the ESA. However, BNSF would be required to shut down and suspend pile driving or pile removal activities when this stock is detected in the vicinity of the project area. We anticipate that take of southern resident killer whale would be avoided. There are no other known important areas for other marine mammals, such as feeding or pupping, areas.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized.
• For all species except harbor seal and only during Year 1, no Level A harassment is anticipated or proposed for authorization.
• The Level A harassment exposures to habituated harbor seals in Year 1 only are anticipated to result in slight PTS, within the lower frequencies associated with impact pile driving.
• Though a small number of habituated harbor seals will accrue Level B harassment in the form of TTS from repeated days of exposure, hearing thresholds are expected to completely recover within minutes to hours.
• Anticipated effects of Level B harassment in the form of behavioral modification would be temporary.
• Although a small portion of the southern resident killer whale critical habitat is within the project area, strict mitigation measures such as implementing shutdown measures and suspending pile driving are expected to avoid take of this stock. No other important habitat for marine mammals exist in the vicinity of the project area.
• We do not expect significant or long-term negative effects to marine mammal habitat.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is below one third of the estimated stock abundance for all species during both Year 1 and Year 2. The proposed take of individuals during Year 1 is less than 32.6 percent for harbor seals and less than 1 percent for all other authorized species. During year 2 the proposed take of individuals is less than 5.2 percent of the abundance of the affected species or stock as shown in Table 14. Note that harbor seal take during Year 1 likely includes multiple repeated takes of some small group of individuals. Similarly, for all other authorized species, the proposed take numbers probably represent conservative estimates because they assume all takes are of different individual animals, which is unlikely to be the case. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue two consecutive IHA's to BNSF for conducting maintenance of Bridge 6.3 in Kings County, WA from July 16, 2022 to July, 15, 2023 (Year 1) and July 16, 2023 to July 15, 2024 (Year 2), provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Drafts of the proposed IHAs can be found at
We request comment on our analyses, the proposed authorization, and any other aspect of this notification of proposed IHAs for the proposed action. We also request at this time comment on the potential Renewal of the proposed IHAs as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for these IHAs or a subsequent Renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, one-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical activities as described in the Description of Proposed Activities section of this notification is planned or (2) the activities as described in the Description of Proposed Activities section of this notification would not be completed by the time the IHA expires and a Renewal would allow for completion of the activities beyond that described in the
• A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA);
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
Upon review of the request for Renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of letter of authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS' MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to TotalEnergies E&P USA, Inc. (TotalEnergies) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico.
The LOA is effective from April 20, 2022, through April 19, 2023.
The LOA, LOA request, and supporting documentation are available online at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to govern the unintentional taking of marine mammals incidental to geophysical survey activities conducted by oil and gas industry operators, and those persons authorized to conduct activities on their behalf (collectively “industry operators”), in Federal waters of the U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322; January 19, 2021). The rule was based on our findings that the total taking from the specified activities over the 5-year period will have a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of those species or stocks for subsistence uses. The rule became effective on April 19, 2021.
Our regulations at 50 CFR 217.180
TotalEnergies plans to conduct a 3D ocean bottom node (OBN) survey within the North Platte field. The survey area is located in Garden Banks, Green Canyon, Keathley Canyon, and Walker Ridge lease areas with approximate water depths ranging from 725 to 2,180 meters (m). See Figure 1 of the LOA application for a map of the area.
TotalEnergies anticipates using two source vessels, each towing up to three airgun arrays operating in an alternating manner. Each source array will consist of up to 28 elements, with a total volume of 5,200 cubic inches (in
Consistent with the preamble to the final rule, the survey effort proposed by TotalEnergies in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398; January 19, 2021). In order to generate the appropriate take number for authorization, the following information was considered: (1) Survey type; (2) location (by modeling zone
No 3D OBN surveys were included in the modeled survey types, and use of existing proxies (
In addition, all available acoustic exposure modeling results assume use of a 72-element, 8,000 in
The survey will take place over 100 days, including 65 days of sound source operation. The survey will occur within Zone 5. TotalEnergies expects that the survey would occur entirely within the Summer season. However, it is possible that the survey could occur within Winter and, therefore, the take estimates for each species are based on the season that produces the greater value for the species (
Additionally, for some species, take estimates based solely on the modeling yielded results that are not realistically likely to occur when considered in light of other relevant information available during the rulemaking process regarding marine mammal occurrence in the GOM. Thus, although the modeling conducted for the rule is a natural starting point for estimating take, our rule acknowledged that other information could be considered (see,
Rice's whales (formerly known as GOM Bryde's whales)
Although it is possible that Rice's whales may occur outside of their core habitat, NMFS expects that any such occurrence would be limited to the narrow band of suitable habitat described above (
Killer whales are the most rarely encountered species in the GOM, typically in deep waters of the central GOM (Roberts
As discussed in the final rule, the density models produced by Roberts
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings of killer whales, with an additional three encounters during more recent survey effort from 2017-18 (Waring
The rarity of encounter during seismic surveys is not likely to be the product of high bias on the probability of detection. Unlike certain cryptic species with high detection bias, such as
In summary, killer whales are the most rarely encountered species in the GOM and typically occur only in particularly deep water. While this information is reflected through the density model informing the acoustic exposure modeling results, there is relatively high uncertainty associated with the model for this species, and the acoustic exposure modeling applies mean distribution data over areas where the species is in fact less likely to occur. NMFS' determination in reflection of the data discussed above, which informed the final rule, is that use of the generic acoustic exposure modeling results for killer whales would result in high estimated take numbers that are inconsistent with the assumptions made in the rule regarding expected killer whale take (86 FR 5322, 5403; January 19, 2021).
In past authorizations, NMFS has often addressed situations involving the low likelihood of encountering a rare species such as killer whales in the GOM through authorization of take of a single group of average size (
Based on the results of our analysis, NMFS has determined that the level of taking authorized through the LOA is consistent with the findings made for the total taking allowable under the regulations. See Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19, 2021).
Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed “small numbers.” In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS' discussion of the MMPA's small numbers requirement provided in the final rule (86 FR 5322, 5438; January 19, 2021).
The take numbers for authorization are determined as described above in the Summary of Request and Analysis section. Subsequently, the total incidents of harassment for each species are multiplied by scalar ratios to produce a derived product that better reflects the number of individuals likely to be taken within a survey (as compared to the total number of instances of take), accounting for the likelihood that some individual marine mammals may be taken on more than one day (see 86 FR 5322, 5404; January
This product is used by NMFS in making the necessary small numbers determination, through comparison with the best available abundance estimates (see discussion at 86 FR 5322, 5391; January 19, 2021). For this comparison, NMFS' approach is to use the maximum theoretical population, determined through review of current stock assessment reports (SAR;
Based on the analysis contained herein of TotalEnergies' proposed survey activity described in its LOA application and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the affected species or stock sizes and therefore is of no more than small numbers.
NMFS has determined that the level of taking for this LOA request is consistent with the findings made for the total taking allowable under the incidental take regulations and that the amount of take authorized under the LOA is of no more than small numbers. Accordingly, we have issued an LOA to TotalEnergies authorizing the take of marine mammals incidental to its geophysical survey activity, as described above.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of opportunities to submit public comments.
The Pacific Fishery Management Council (Council) has begun its annual preseason management process for the 2022 ocean salmon fisheries off the U.S. West Coast. This notice informs the public of opportunities to provide comments on the development of 2022 ocean salmon management measures.
Written comments on the salmon management alternatives adopted by the Council at its March 2022 meeting, as described in its Preseason Report II, received electronically or in hard copy by 5 p.m. Pacific Time, April 5, 2022, will be considered in the Council's final recommendation for the 2022 management measures.
Documents will be available from the Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384, and will be posted on the Council's website at
• Written comments should be sent electronically to Mr. Marc Gorelnik, Chair, Pacific Fishery Management
•
Ms. Robin Ehlke, Pacific Fishery Management Council, telephone: 503-820-2280. For information on submitting comments via the Federal e-Rulemaking portal, contact Shannon Penna, NMFS West Coast Region, telephone: 562-676-2148; email:
The Council has announced the schedule of reports, public meetings, and hearings for the 2022 ocean salmon fisheries on its website (
All public hearings begin at 7 p.m. Public hearings focusing on Washington and California salmon fisheries will occur simultaneously on March 22, 2022, and the public hearing for Oregon salmon fisheries will occur on March 23, 2022. A summary of oral comments heard at the hearings will be provided to the Council at its April meeting. These public hearings are tentatively scheduled to occur in person, in the cities of Westport, Washington; Coos Bay, Oregon; and Eureka, California. Actual hearing venues or instructions for joining online hearings will be posted on the Council's website (
Comments on the alternatives the Council adopts at its March 2022 meeting, and described in its Preseason Report II, may be submitted in writing or electronically as described under
In notice document 2022-01586, appearing on pages 4226-4227, in the issue of Thursday, January 27, 2022, make the following correction:
On page 4227, in the third column, the signature block, lines 3 through 9, should read:
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Information and Regulatory Affairs (“OIRA”), of the Office of Management and Budget (“OMB”), for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before March 2, 2022.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of this notice's publication to OIRA, at
In addition to the submission of comments to
Or by either of the following methods:
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments submitted to the Commission should include only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
Duane Andresen, Associate Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5492; email:
The final rule, 86 FR 9224 (Feb. 11, 2021), provides relief from certain Part 37 requirements that SEFs found in practice to be operationally unworkable or unnecessarily burdensome. The Commission revised information collection number 3038-0074 to reflect the adoption of amendments to Part 37 of its regulations, but does not believe the amended regulations, as adopted, would impose any other new collections of information that require approval of OMB under the PRA.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. On November 2, 2021, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
Federal Student Aid, Department of Education.
Notice.
The Secretary announces the 2022-23 award year deadline dates for the submission of requests and documents from postsecondary institutions for the Federal Perkins Loan (Perkins Loan) Program, Federal Work-Study (FWS), and Federal Supplemental Educational Opportunity Grant (FSEOG) programs (collectively, the “Campus-Based programs”), Assistance Listing Numbers 84.038, 84.033, and 84.007.
The deadline dates for each program are specified in the chart in the
Shannon Mahan, Division Chief, Grants & Campus-Based Partner Division, U.S. Department of Education, Federal Student Aid, 830 First Street NE, Union Center Plaza, room 64C4, Washington, DC 20202-5453. Telephone: (202) 377-3019. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
The authority to award new Federal Perkins Loans to students has expired. Institutions that continue to service their Perkins Loans (or contract with a third-party servicer for servicing) are required to report all Perkins Loan activity on the institution's Fiscal Operations Report and Application to Participate (FISAP).
The FWS program encourages the part-time employment of needy undergraduate and graduate students to help pay for their education and to involve the students in community service activities.
The FSEOG program encourages institutions to provide grants to exceptionally needy undergraduate students to help pay for their education.
The Perkins Loan, FWS, and FSEOG programs are authorized by parts E and C, and part A, subpart 3, respectively, of title IV of the Higher Education Act of 1965, as amended.
Throughout the year, in its “Electronic Announcements,” the Department will continue to provide additional information for the individual deadline dates listed in the table under the
If you submit paper documents when permitted by mail or by hand delivery (or from a commercial courier), we accept as proof one of the following:
(1) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(2) A legibly dated U.S. Postal Service postmark.
(3) A dated shipping label, invoice, or receipt from a commercial courier.
(4) Any other proof of mailing or delivery acceptable to the Secretary.
If you mail your paper documents through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
All institutions are encouraged to use certified or at least first-class mail.
The Department accepts hand deliveries from you or a commercial courier between 8:00:00 a.m. and 4:30:00 p.m., Eastern Time, Monday through Friday except Federal holidays.
A more detailed discussion of each request for funds or waiver is provided in specific “Electronic Announcements,” which are posted on the Department's Knowledge Center website (
(1) Student Assistance General Provisions, 34 CFR part 668.
(2) General Provisions for the Federal Perkins Loan Program, Federal Work-Study Program, and Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 673.
(3) Federal Perkins Loan Program, 34 CFR part 674.
(4) Federal Work-Study Program, 34 CFR part 675.
(5) Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 676.
(6) Institutional Eligibility Under the Higher Education Act of 1965, as amended, 34 CFR part 600.
(7) New restrictions on Lobbying, 34 CFR part 82.
(8) Governmentwide Requirements for Drug-Free Workplace (Financial Assistance), 34 CFR part 84.
(9) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations in 2 CFR part 3485.
(10) Drug and Alcohol Abuse Prevention, 34 CFR part 86.
You may also access documents of the Department published in the
Institute of Educational Science (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision to a currently approved information collection.
Interested persons are invited to submit comments on or before April 1, 2022.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Carrie Clarady, 202-245-6347.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2022 for Personnel Development to Improve Services and Results for Children with Disabilities—Preparation of Special Education, Early Intervention, and Related Services Leadership Personnel, Assistance Listing Number 84.325D. This notice relates to the approved information collection under OMB control number 1820-0028.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Celia Rosenquist, U.S. Department of Education, 400 Maryland Avenue SW, Room 5158, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-7373. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This priority is:
The purpose of this priority is to support existing doctoral degree programs that prepare special education, early intervention, and related services personnel who are well-qualified for, and can act effectively in, leadership positions as researchers and special education/early intervention/related services personnel preparers in institutions of higher education (IHEs), or as leaders in State educational agencies (SEAs), lead agencies (LAs), local educational agencies (LEAs), early intervention services programs (EIS programs), or schools.
There is a well-documented need for special education, early intervention, and related services leadership personnel who serve critical roles within different settings (Bellamy & Iwaszuk, 2017; Castillo et al., 2014; Montrosse & Young, 2012; NCSI, 2018a; NCSI, 2018b; Robb et al., 2012; Tucker et al., 2020). For example, leadership personnel in IHEs teach practices supported by evidence to future special education, early intervention, related services, and general education professionals. These leaders also conduct research that increases knowledge of effective interventions and services for children, including infants and toddlers, and youth with disabilities. Special education and early intervention administrators who supervise and evaluate the implementation of instructional programs to ensure that State or local agencies are meeting the needs of children with disabilities also perform a critical leadership personnel role. Administrators also ensure that schools and programs meet Federal, State, and local requirements for special education, early intervention, and related services.
All leadership personnel need to promote high expectations and have current knowledge of effective interventions and services that improve outcomes for children with disabilities, including high-need children with disabilities. This knowledge should be applicable to children served in a variety of educational settings (
Critical competencies for special education, early intervention, or related services leadership personnel vary depending on the type of leadership personnel and the requirements of the preparation program but can include, for example, skills needed for postsecondary instruction, administration and supervision, research, policy development or implementation, organizational and system change, communication, and the use of technologies to support in-person and remote teaching (Boscardin & Lashley, 2018; Bruns et al., 2017). Scholars' acquisition of competencies and success in doctoral programs include factors such as supportive supervision, experiential learning opportunities, access to resources, and developing and enhancing professional networks and collaborative learning opportunities (Douglas, 2020; Sverdlik, Hall, McAlpine, & Hubbard, 2018). Networks are viewed as integral to leadership development and critical to addressing complex problems (Cullen-Lester, Maupin, & Lester, 2017; Hoppe & Reinelt, 2010).
The purpose of this priority is to support existing doctoral degree programs that prepare special education, early intervention, and related services personnel at the doctoral degree level who are well qualified for, and can act effectively in, leadership positions as researchers and special education/early intervention/related services personnel preparers in IHEs, or as leaders in SEAs, LAs, LEAs, or EIS programs.
This priority will provide support to help address identified needs for personnel with the knowledge and skills to establish and meet high expectations for each child with a disability. Programs must culminate in a doctoral degree (Ph.D. or Ed.D.). Applicants must plan to recruit and enroll the proposed number of scholars in the application within the first 12 months of the project period or demonstrate that scholars enrolled after the first 12 months can complete the program by the end of the proposed project period.
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in the priority. All projects funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
To meet the requirements of this priority, an applicant must—
(a) Demonstrate, in the narrative section of the application under “Significance,” how—
(1) The project addresses the need for leadership personnel to promote high expectations and provide, or prepare others to provide, effective interventions and services that improve outcomes for children with disabilities, including high-need children with disabilities.
(i) Appropriate and applicable data (
(ii) Data demonstrating the success of the doctoral program to date in producing leadership personnel in special education, early intervention, or related services, such as: The professional accomplishments of program graduates (
(2) Scholar competencies to be acquired in the program relate to knowledge and skills needed by the leadership personnel the applicant proposes to prepare. To address this requirement, the applicant must—
(i) Identify the competencies needed by leadership personnel to provide, or prepare others to provide, effective interventions and services, including through distance education, that improve outcomes for children with disabilities, including high-need children with disabilities; and
(ii) Provide the conceptual framework of the leadership preparation program, including any empirical support, that will promote the acquisition of the identified competencies needed by leadership personnel.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how—
(1) The applicant will recruit and retain scholars participating in the project and ensure equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the narrative must describe—
(i) The selection criteria the applicant will use to identify high-quality applicants for admission in the program;
(ii) The recruitment strategies the applicant will use to attract high-quality applicants, including specific recruitment strategies targeting high-quality applicants from traditionally underrepresented groups, including underrepresented individuals of color and individuals with disabilities; and
(iii) The approach the applicant will use to help all scholars, including scholars from traditionally underrepresented groups, including underrepresented individuals of color and individuals with disabilities, complete the program within the proposed project period; and
(2) The project is designed to promote the acquisition of the competencies needed by leadership personnel to promote high expectations and provide, or prepare others to provide, effective interventions and services that improve outcomes for children with disabilities, including high-need children with disabilities. To address this requirement, the applicant must—
(i) Describe how the components of the project, such as coursework, research requirements, internship experiences, work-based experiences, program evaluation or other opportunities provided to scholars, will enable the scholars to acquire the competencies needed by leadership personnel the applicant proposes to prepare;
(ii) Describe how the components of the project are integrated in order to support the acquisition and enhancement of the identified competencies needed by leadership personnel the applicant proposes to prepare;
(iii) If the proposed project is a partnership, describe how the components of the project are designed to ensure that scholars have opportunities to work with faculty and scholars at each IHE participating in the partnership that will promote the competencies needed by leaders the project proposes to prepare;
(iv) Describe how the components of the project prepare scholars to promote high expectations and to provide, or prepare others to provide, effective evidence-based interventions and services that improve outcomes for children with disabilities, including high-need children with disabilities, in a variety of educational or early childhood and early intervention settings, including in-person and remote settings;
(v) Demonstrate, through a letter of support from a public or private partnering agency, school, or program, that it will provide scholars with a high-quality internship experience in a high-need LEA,
(vi) Describe how the project will partner with diverse stakeholders, including individuals with disabilities and their families and individuals from racially and ethnically diverse backgrounds and their families, to inform and support project components;
(vii) Describe how the project will use resources, as appropriate, available through technical assistance centers, which may include centers funded by the Department;
(viii) Describe the approach that will be used to mentor and support scholars, including scholars from traditionally underrepresented groups, with the goal of helping them acquire competencies needed by leadership personnel and advancing their careers in special education, early intervention, or related services;
(ix) Describe how the components of the project will promote the acquisition of scholars' critical leadership skills, including those related to communication, networking, and collaboration; and
(x) Describe how the components of the project will promote the acquisition of scholars' knowledge of strategies and approaches in attracting, preparing, and retaining future educators, including future educators with disabilities and racially and ethnically diverse future educators, who will work with and provide services to children with disabilities.
(c) Demonstrate, in the narrative section of the application under “Quality of the project evaluation,” how the applicant will—
(1) Evaluate how well the goals or objectives of the proposed leadership project have been met. The applicant must describe the outcomes to be measured for both the project and the scholars, particularly the acquisition of scholars' competencies; and the evaluation methodologies to be employed, including proposed instruments, data collection methods, and possible analyses;
(2) Collect, analyze, and use data on current scholars and scholars who graduate from the program to improve the proposed program on an ongoing basis; and
(3) Report the evaluation results to OSEP in the applicant's annual and final performance reports.
(d) Demonstrate, in the narrative under “Required Project Assurances” or appendices as directed, that the following program requirements are met. The applicant must—
(1) Include, in Appendix A of the application, the letter of support from the public or private partnering agency, school, or program that will provide scholars with a high-quality internship experience;
(2) Include in Appendix B of the application—
(i) Course syllabi for all coursework in the major and any required coursework for a minor;
(ii) Course syllabi for all research methods, evaluation methods, or data analysis courses required by the degree program and elective research methods, evaluation methods, or data analysis courses that have been completed by more than one scholar enrolled in the program in the last five years; and
(iii) For new coursework, proposed syllabi;
(3) Ensure that the proposed number of scholars will be recruited and enrolled into the program within the first 12 months of the project period or demonstrate that scholars enrolled after the first 12 months can graduate from the program by the end of the proposed project period. The described scholar recruitment strategies, the program components and their sequence, and proposed budget must be consistent with this requirement;
(4) Ensure that efforts to recruit a diverse range of scholars, including diversity of race, ethnicity, or national origin, are consistent with applicable law. For instance, grantees may engage in focused outreach and recruitment to increase the diversity of the applicant pool prior to the selection of scholars;
(5) Ensure that the project will meet the requirements in 34 CFR 304.23, particularly those related to (i) informing all scholarship recipients of their service obligation commitment; and (ii) disbursing scholarships. Failure by a grantee to properly meet these requirements is a violation of the grant award that may result in sanctions, including the grantee being liable for returning any misused funds to the Department;
(6) Ensure that prior approval from the OSEP project officer will be obtained before admitting additional scholars beyond the number of scholars proposed in the application and before transferring a scholar to another preparation program funded by OSEP;
(7) Ensure that the project will meet the statutory requirements in section 662(e) through (h) of IDEA;
(8) Ensure that at least 65 percent of the total award over the project period (
(9) Ensure that scholar support costs (
(10) Ensure that the project will be operated in a manner consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws;
(11) Ensure that a revised project budget will be submitted to OSEP should the project not be able to recruit and enroll the proposed number of scholars that can graduate from the program by the end of the project period;
(12) Ensure that the budget includes attendance by the project director at a three-day project directors' meeting in Washington, DC, or virtually, during each year of the project. The budget may also provide for the attendance of scholars at the same three-day project directors' meetings in Washington, DC, or virtually;
(13) Ensure, for partnership projects, that the project narrative addresses how policies, procedures, standards, and fiscal management of the partnership will be established;
(14) Ensure that the project director, key personnel, and scholars will actively participate in the cross-project collaboration, advanced trainings, and cross-site learning opportunities (
(15) Ensure that if the project maintains a website, it will be of high quality, with an easy-to-navigate design that meets government or industry-recognized standards for accessibility;
(16) Ensure that annual progress toward meeting project goals is posted on the project website;
(17) Ensure that scholar accomplishments (
(18) Ensure that annual data will be submitted on each scholar who receives grant support (OMB Control Number 1820-0686). The primary purposes of the data collection are to track the service obligation fulfillment of scholars who receive funds from OSEP grants and to collect data for program performance measure reporting under 34 CFR 75.110. Applicants are encouraged to visit the Personnel Development Program Data Collection System (DCS) website at
This priority is:
(a) Under this priority, an applicant must demonstrate that the applicant (
(b) For the purpose of this priority, a grant or contract is active until the end of the grant's or contract's project or funding period, including any extensions of those periods that extend the grantee's or contractor's authority to obligate funds.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2023 from the list of unfunded applications from this competition.
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2. a.
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a. Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
b. Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(a)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project will prepare personnel for fields in which shortages have been demonstrated;
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project; and
(iii) The extent to which there is a conceptual framework underlying the proposed research or demonstration activities and the quality of that framework.
(b)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services;
(ii) The extent to which the proposed activities constitute a coherent, sustained program of training in the field; and
(iii) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice.
(c)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project;
(ii) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable;
(iii) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible; and
(iv) The extent to which the methods of evaluation will provide timely guidance for quality assurance.
(d)
(1) The Secretary considers the quality of the management plan and the adequacy of resources for the proposed project.
(2) In determining the quality of the management plan and the adequacy of resources, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of key project personnel;
(ii) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks;
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project;
(iv) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization; and
(v) The extent to which the budget is adequate to support the proposed project.
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
6.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
In addition, the Department will gather information on the following outcome measures: (1) The percentage of scholars who completed the preparation program and are employed in the field of special education for at least two years; (2) the number and percentage of scholars proposed by the grantee in their application that were actually enrolled and making satisfactory academic progress in the current academic year; and (3) the number and percentage of enrolled scholars who are on track to complete the training program by the end of the project's original grant period.
Grantees may be asked to participate in assessing and providing information on these aspects of program quality.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
U.S. Department of Energy.
Notice of request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years an information collection request with the Office of Management and Budget (OMB).
Comments regarding this proposed information collection must be received on or before April 1, 2022. If you anticipate any difficulty in submitting comments within that period, contact the person listed in the
Written comments may be sent to Phillip Harmonick, Office of Hearings and Appeals, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, or by email at
Phillip Harmonick, Office of Hearings and Appeals, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, (202) 287-1594,
Comments are invited on: (a) Whether the extended collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
This information collection request contains:
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This document of the Department of Energy was signed on January 26, 2022, by Poli A. Marmolejos, Director, Office of Hearings and Appeals, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.
Office of Environmental Management, Department of Energy.
Notice of open virtual meeting.
This notice announces a virtual meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Idaho Cleanup Project (ICP). The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Thursday, February 24, 2022; 8:00 a.m.-2:30 p.m.
The opportunities for public comment are at 10:00 a.m. and 1:15 p.m. MT.
These times are subject to change; please contact the ICP Citizens Advisory Board (CAB) Administrator (below) for confirmation of times prior to the meeting.
This all-virtual meeting will be open to the public virtually via Zoom only. To attend virtually, please contact Jordan Davies, ICP CAB Administrator, by email
Jordan Davies, ICP CAB Administrator, by phone (720) 452-7379 or email
Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management, and related activities.
Tentative Agenda (agenda topics may change up to the day of the meeting; please contact Jordan Davies for the most current agenda):
Office of Fossil Energy, Department of Energy.
Notice of re-establishment.
Pursuant to the Federal Advisory Committee Act and in accordance with title 41 of the Code of Federal Regulations, and following consultation with the Committee Management Secretariat of the General Services Administration, notice is hereby given that the National Advisory Committee on Coal (formerly National Coal Council) will be re-established for a two-year period. The Committee will provide advice, information, and recommendations to the Secretary of Energy on a continuing basis regarding general policy matters relating to coal issues.
The charter for the National Coal Council (NCC) lapsed on November 20, 2021 in light of DOE's commitment to fully evaluate the need to expand the scope of advisory work of the committee. In particular, the charter for the re-established National Advisory Committee on Coal (NACC) has been modernized to reflect matters currently faced by the coal industry, workers, and communities; and the priorities outlined in the Energy Policy Act of 2005, Public Law 109-48 (as amended, most recently by Public Law 116-260 on December 27, 2020) and the Bipartisan Infrastructure Law, Public Law 117-58.
Committee members will be chosen to assure a well-balanced representation from all sections of the country, all segments of the coal industry, including large and small companies, and commercial and residential consumers. The Committee will also have diverse members who represent interests including the environmental remediation, regional development experts and others as determined by the Secretary. Membership and representation of all interests will be determined in accordance with the requirements of the Federal Advisory Committee Act, and implementing regulation
The re-establishment of the Committee has been deemed essential to the conduct of the Department's business and in the public interest in conjunction with the performance of duties imposed upon the Department of Energy, by law and agreement. The Committee will operate in accordance with the provisions of the Federal Advisory Committee Act and the rules and regulations in implementation of that Act.
Tom Sarkus at (412) 386-5981; email:
This document of the Department of Energy was signed on January 26, 2022, by Miles Fernandez, Acting Committee Management Officer, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Jicarilla Solar 2 LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 14, 2022.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Federal Energy Regulatory Commission (Commission) will convene a Commission staff-led technical conference to discuss whether, and if so, how the Commission should require additional financial assurance mechanisms in the licenses and other authorizations it issues for hydroelectric projects, to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition. The technical conference will be held on Tuesday, April 26, 2022, from approximately 12:00 p.m. to 5:00 p.m. Eastern time. The conference will be held virtually.
The technical conference will be open for the public to attend virtually, and there is no fee for attendance. Supplemental notices will be issued prior to the conference with further details regarding the agenda and how to participate as a panelist. Information on this conference will also be posted on the Calendar of Events on the Commission's website,
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Graphite Solar 1, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 14, 2022.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public meeting of the chartered Science Advisory Board. The purpose of the meeting is to (1) conduct a consultation with EPA on research needed to improve the state of the science supporting cumulative impact assessments; (2) discuss recommendations received from the SAB Work Group for Review of Science Supporting EPA Decisions with regard to SAB review of planned EPA actions; and (3) conduct a quality review of the draft SAB report,
The public meeting of the chartered Science Advisory Board will be held on Wednesday, March 2, 2022, from 1:00 p.m. to 5:00 p.m. (Eastern Time) and Monday, March 7, 2022, from 1:00 p.m. to 5:00 p.m. (Eastern Time).
The meeting will be conducted virtually. Please refer to the SAB website at
Any member of the public who wants further information concerning this notice may contact Dr. Thomas Armitage, Designated Federal Officer (DFO), via telephone (202) 564-2155, or email at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDDAA), codified at 42 U.S.C. 4365, to provide independent scientific and technical advice to the EPA Administrator on the scientific and technical basis for agency positions and regulations. The SAB is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., app. 2. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Pursuant to FACA and EPA policy, notice is hereby given that the chartered Science Advisory Board will hold a public meeting to conduct a consultation with the EPA, discuss recommendations received from the SAB Work Group for Review of Science Supporting EPA Decisions, and conduct a quality review of an SAB draft report. The chartered SAB will conduct a consultation with the EPA on research needed to improve the state of the science supporting cumulative impact assessments. The chartered SAB will also discuss recommendations received from the SAB Work Group for Review of Science Supporting EPA Decisions with regard to SAB review of planned EPA actions. In addition, the chartered SAB will conduct a quality review of the SAB draft report titled
9:00 a.m., Thursday, February 10, 2022.
Because of the COVID-19 pandemic, the public may only virtually attend this meeting. If you would like to virtually attend, at least 24 hours in advance, visit
This meeting will be open to the public.
If you need more information, need assistance for accessibility reasons, or have questions, contact Ashley Waldron, Secretary to the Board. Telephone: 703-883-4009. TTY: 703-883-4056.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. In addition, a full list of the TAC membership is attached to the Public Notice.
Monday, February 28, 2022, starting at 10:00 a.m., via video conference and will be available to the public via the internet.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Michael Ha, Chief, Policy and Rules Division, 202-418-2099;
This is the first meeting of the Technological Advisory Council for 2022. This serves as Notice that, consistent with the Federal Advisory Committee Act, Federal Communications Commission (FCC or Commission) Chairwoman Jessica Rosenworcel has appointed members to serve on the Technological Advisory Council (TAC).
A full list of the TAC membership is attached to the Public Notice, DA 22-56, released January 19, 2022,
Meetings are broadcast live with open captioning over the internet from the FCC Live web page at
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than March 2, 2022.
1.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public
CDC must receive written comments on or before April 1, 2022.
You may submit comments, identified by Docket No. CDC-2021-0010 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Assessment for the
Antibiotic resistance (AR) is one of the most urgent threats to public health in the United States. Antibiotic resistant bacteria have grown more virulent, prevalent, and diverse and can spread between human and animals. Each year there are more than 2.8 million antibiotic-resistant infections in the United States and 35,000 individuals die as a result. At least 30 percent of antibiotics prescribed to outpatients and emergency departments are unnecessary which amounts to 47 million excess prescriptions per year. One of the main side effects of taking antibiotics is alteration of the microbiome which could lead to infections such as
The National Action Plan calls for federal agencies to accelerate their response to AR. The goals of the National Action Plan are to coordinate strategic actions in order to “improve the health and well-being of all Americans across the One Health Spectrum.” In 2015, the National Action Plan set off with the goal to reduce inappropriate outpatient antibiotic use by 50 percent by 2020. It prioritizes prevention and control to prevent infection and reduce the need for antibiotics. Their approach, One Health, recognizes the inter-relatedness of humans, animals, and the environment. One way to decrease the use of unnecessary antibiotic prescriptions is through antibiotic stewardship.
The goals of the
Consumer audiences include:
(1) Spanish speaking women, ages 18-64,
(2) Healthy adults who visit urgent care, ages 18-64,
(3) Community dwelling older adults, ages 65+, and
(4) Family caregivers of nursing home (long-term care) residents.
HCP audiences include:
(1) Hospitalists,
(2) Dentists,
(3) Community pharmacists,
(4) Physicians and advanced practice providers in nursing homes, and
(5) Nurses in nursing homes.
This evaluation will assist CDC in determining if the
CDC requests OMB approval for an estimated 68 annual burden hours. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC) announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public. Time will be available for public comment. The meeting will be webcast live via the World Wide Web.
The meeting will be held on February 23-24, 2022, from 10:00 a.m. to 5:00 p.m., EST (times subject to change). Written comments must be received on or before February 24, 2022.
You may submit comments identified by Docket No. CDC-2022-0015 by either of the following methods:
•
•
Written public comments submitted 72 hours prior to the ACIP meeting will be provided to ACIP members before the meeting.
Stephanie Thomas, ACIP Committee Management Specialist, National Center for Immunization and Respiratory Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H24-8, Atlanta, Georgia 30329-4027; Telephone: (404) 639-8367; Email:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
If the number of persons requesting to speak is greater than can be reasonably accommodated during the scheduled time, CDC will conduct a lottery to determine the speakers for the scheduled public comment session. CDC staff will notify individuals regarding their request to speak by email by February 22, 2022. To accommodate the significant interest in participation in the oral public comment session of ACIP meetings, each speaker will be limited to 3 minutes, and each speaker may only speak once per meeting.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal Agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Assessment for the
CDC must receive written comments on or before April 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0011 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Assessment for the
Sepsis is a life threating emergency, and it is the body's overactive and toxic response to an infection. Each year 1.7 million adults in the United States develop sepsis, with 270,000 fatalities. Sepsis is the leading cause of death in hospitals and one out of three hospital fatalities are due to sepsis infection. Sepsis management in U.S. hospitals is the highest when compared to inpatient cost for all other medical conditions. Annual costs are estimated to be over $62 billion.
In media and public health campaigns, antimicrobial resistance and sepsis are rarely presented together which does not make their linkage apparent. It has been concluded that sepsis and antimicrobial stewardship should not be discussed in isolation. Surprisingly, 24 percent of adults in the U.S. have never heard of sepsis, so this presents a unique opportunity for future messaging campaigns.
The goals of the GAOS educational campaign are to prevent and reduce infections that lead to sepsis and to optimize healthcare quality and patient safety by raising awareness, knowledge, and motivating behavior change related to sepsis prevention, early recognition, and appropriate treatment among consumer target audiences. A panel survey will be utilized to recruit participants. Surveys will be distributed to consumer target groups and HCPs both before and after the media campaign and partner outreach.
Consumer audiences include:
(1) Cancer patients and their caregivers (English speaking),
(2) Patients who survived severe COVID-19 or sepsis and their caregivers (English speaking),
(3) Women who care for a young child (children ages 12 and younger; English speaking),
(4) Women who care for a young child (children ages 12 and younger; Spanish speaking),
(5) Women who care for an aging parent 65+ (English speaking),
(6) Women who care for an aging parent 65+ (Spanish speaking),
(7) Men aged 65+ with one or more chronic conditions (English speaking), and
(8) Healthy adults 65+ (English speaking).
HCP audiences include:
(1) Emergency Medical Services personnel (English speaking),
(2) Nurse Practitioners and Physician Assistants who work at urgent care clinics (English speaking),
(3) Emergency Department triage nurses (English speaking),
(4) General medical ward staff (English speaking),
(5) Primary care physicians (English speaking),
(6) Long-term care (LTC) nurses (English speaking), and
(7) LTC medical technicians and sitters (English speaking).
This program evaluation will assist CDC in determining if the media campaign, along with partner outreach, was successful in changing awareness, knowledge, and behaviors of consumers and HCPs in select target markets. The data collected will also be used to inform future refinement and implementation of the campaign (materials and tactics).
CDC requests OMB approval for an estimated 68 annual burden hours. There are no costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Emerging Infections Program (EIP). EIP is a population-based surveillance system designed to collect information via active, laboratory case finding that is used for detecting, identifying, and monitoring emerging pathogens.
CDC must receive written comments on or before April 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0012 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information,
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Emerging Infections Program (EIP) (OMB Control No. 0920-0978, Exp. 4/30/2022)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Emerging Infections Programs (EIPs) are population-based centers of excellence established through a network of state health departments collaborating with academic institutions; local health departments; public health and clinical laboratories; infection control professionals; and healthcare providers. EIPs assist in local, state, and national efforts to prevent, control, and monitor the public health impact of infectious diseases.
Activities of the EIPs fall into the following general categories: (1) Active surveillance; (2) applied public health epidemiologic and laboratory activities; (3) implementation and evaluation of pilot prevention/intervention projects; and (4) flexible response to public health emergencies. Activities of the EIPs are designed to: (1) Address issues that the EIP network is particularly suited to investigate; (2) maintain sufficient flexibility for emergency response and new problems as they arise; (3) develop and evaluate public health interventions to inform public health policy and treatment guidelines; (4) incorporate training as a key function; and (5) prioritize projects that lead directly to the prevention of disease.
A Revision is being submitted to make existing collection instruments clearer and to add several new forms specifically surveying laboratory practices. These forms will allow the EIP to better detect, identify, track changes in laboratory testing methodology, gather information about laboratory utilization in the EIP catchment area to ensure that all cases are being captured, and survey EIP staff to evaluate program quality.
CDC requests OMB approval for an estimated burden of 61,956 hours. There is no cost to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Research Data Center Proposal (RDC) Proposal for Access to Confidential Data for the National Center for Health Statistics to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on October 25, 2021 to obtain comments from the public and affected agencies. CDC received one non-substantive comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should
Research Data Center Proposal for Access to Confidential Data for the National Center for Health Statistics—Existing Collection in use without an OMB Control Number—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306(b)(4) of the Public Health Service (PHS) Act (42 U.S.C. 242k(b)(4)), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, receive requests for providing data and statistics to the public. NCHS receives requests for confidential data from the public through the Research Data Center Proposal for Access to Confidential Data. This is a request for approval from OMB to collect information via the Researcher Data Center proposal.
As part of a comprehensive data dissemination program, the Research Data Center (RDC), National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC), requires prospective researchers who need access to confidential data to complete a research proposal. Researchers self-select whether they need access to confidential data to answer their research questions. The RDC requires the researcher to complete a research proposal so NCHS understands the research proposed, whether confidential data are available to address the research questions, how the confidential data will be used, and what data outputs the researcher needs to satisfy their project. The completed proposal is sent to NCHS for adjudication on whether the proposed research is possible. NCHS estimates receipt of an average of 110 proposals per year. All information collection is conducted electronically.
OMB approval is requested for three years. The estimated burden per response is three hours and there are no costs to respondents other than their time to complete the proposal. The total estimated annualized burden is 330 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Fire Fighter Fatality Investigation and Prevention Program Survey which will evaluate fire department implementation of the National Institute for Occupational Safety and Health (NIOSH) Fire Fighter Fatality Investigation and Prevention Program (FFFIPP) recommendations. The evaluation will assess whether NIOSH FFFIPP recommendations are utilized by fire departments, identify barriers to implementation of recommendations, and identify areas for potential intervention projects.
CDC must receive written comments on or before April 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0013 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, H21-8, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Fire Fighter Fatality Investigation and Prevention Program (FFFIPP) Survey—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The FFFIPP conducts independent investigations of fire fighter (FF) line-of-duty deaths and recommends ways to prevent deaths and injuries. In 2003, an evaluation was conducted to determine the extent to which recommendations from NIOSH investigations of FF fatalities are being implemented by fire departments (FDs). Since then, there have been changes to the FFFIPP recommendations and methods of disseminating FFFIPP reports. For example, there have been changes to: (1) The details and types of recommendations for preventing FF fatalities, and (2) the method to disseminate the FFFIPP reports to FDs (driven in large part by cost). Dissemination methods have evolved from hardcopy mailings to FDs to internet-based, with notifications of new FFFIPP reports by the fire service media and if FDs sign-up at the NIOSH website for notifications of new reports.
Understanding how or if NIOSH recommendations are used by various types of FDs will allow a better understanding of barriers to the use of proven prevention recommendations and help identify approaches to improve the delivery of services to FDs. Additionally, we will gain insight into whether changes to the communication and dissemination have impacted the reach of these recommendations. Knowing if different types of FDs are aware of and willing to access FFFIPP reports and recommendations in non-print formats is critical, as these recommendations cannot have the intended impact of saving FF lives if large numbers of FDs do not know where to find NIOSH reports or have the resources to access them.
This data collection will assess FD implementation of the NIOSH FFFIPP recommendations and identify barriers to implementation of recommendations. Results will provide an understanding of current FD operational procedures, insight into motor vehicle-related activities and related policies and identify whether FFFIPP recommendations are being utilized by FDs. Findings will inform strategies for communication of future recommendations and identify areas for potential intervention projects in order to improve the delivery of services and help ensure an effective and efficient stakeholder experience with the FFFIPP.
The estimate for burden hours is based on a pilot test of the survey instrument by eight FD personnel. In the pilot test, the average time to complete the survey including time for reviewing instructions, gathering needed information, and completing the survey was 10-25 minutes. For the purposes of estimating burden hours, the upper limit of this range is used. There are screening questions at the beginning of the survey so all respondents may not actually participate.
The respondent universe is based on: (1) 4,500 FDs, (2) eight strata (region, department type), and (3) position (FF, chief, company officer). An estimated 13,500 respondents are anticipated to participate in the survey. The annual respondent burden is estimated to be 4,050 hours.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry and FDA staff entitled “Principles of Premarket Pathways for Combination Products.” This guidance presents FDA's current thinking on principles for premarket review of combination products. This guidance includes general, high-level information regarding what combination products are, coordination within FDA and interaction between FDA and sponsors regarding combination product regulation, and how combination products are reviewed by FDA before
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Office of Combination Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
John Barlow Weiner, Office of Combination Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993-0002, 301-796-8930,
FDA is announcing the availability of a guidance for industry and FDA staff entitled “Principles of Premarket Pathways for Combination Products.” This guidance presents FDA's current thinking on principles for premarket review of combination products. This guidance includes general, high-level information regarding what combination products are, coordination within FDA and interaction between FDA and sponsors regarding combination product regulation, and how combination products are reviewed by FDA before they are marketed. The guidance also includes recommendations on how to determine which type of premarket submissions may be appropriate for combination products, as well as illustrative examples.
Section 3038 of the Cures Act (Pub. L. 114-255), enacted in December 2016, substantially amended section 503(g) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 353(g)), the principal section of the FD&C Act expressly addressing combination products. General themes of these amendments include enhancing clarity, predictability, efficiency, and consistency of premarket regulatory expectations for combination products, including by ensuring that Agency components and staff coordinate appropriately on premarket review of these products, and that Agency thinking is aligned in conducting these reviews. This guidance is part of FDA's efforts to implement section 3038 of the Cures Act.
In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Principles of Premarket Pathways for Combination Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 3 and in the guidance “How to Prepare a Pre-Request for Designation (Pre-RFD)” have been approved under OMB control number 0910-0523. The collections of information for applications for FDA approval to market a new drug (certain provisions of 21 CFR part 314) have been approved under OMB control number 0910-0001; the collections of information in 21 CFR part 601 have been approved under 0910-0338; and the collections of information in section 351(k) of the Public Health Service Act (42 U.S.C. 262) have been approved under 0910-0719. The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 814, subparts A through E, have been approved under OMB control number 0910-0231; the collections of information in 21 CFR part 860, subparts A through C, have been approved under OMB control number 0910-0138; the collections of information in the guidance document “Requests for Feedback and Meetings for Medical Device Submissions: The Q-Submission Program” have been approved under OMB control number 0910-0756; and the collections of information in 21 CFR part 860, subpart D, for De Novo classifications have been approved under OMB control number 0910-0844.
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, HHS.
Notice; renewal of Federal advisory committee.
The Food and Drug Administration (FDA or the Agency) is announcing the renewal of the Vaccines and Related Biological Products Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Vaccines and Related Biological Products Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until the December 31, 2023, expiration date.
Authority for the Vaccines and Related Biological Products Advisory Committee will expire on December 31, 2023, unless the Commissioner formally determines that renewal is in the public interest.
Prabhakara Atreya, Division of Scientific Advisors and Consultants, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 6306, Silver Spring, MD 20993-0002, 240-402-8006,
Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services and by the General Services Administration, FDA is announcing the renewal of the Vaccines and Related Biological Products Advisory Committee (the Committee). The Committee is a discretionary Federal advisory committee established to provide advice to the Commissioner. The Committee advises the Commissioner or designee in discharging responsibilities as they relate to helping to ensure safe and effective vaccines and related biological products for human use and, as required, any other product for which FDA has regulatory responsibility.
The Committee reviews and evaluates data concerning the safety, effectiveness, and appropriate use of vaccines and related biological products which are intended for use in the prevention, treatment, or diagnosis of human diseases, and, as required, any other products for which FDA has regulatory responsibility. The Committee also considers the quality and relevance of FDA's research program, which provides scientific support for the regulation of these products and makes appropriate recommendations to the Commissioner.
The Committee shall consist of a core of 15 voting members, including the Chairperson (the Chair). Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of immunology, molecular biology, rDNA, virology, bacteriology, epidemiology or biostatistics, vaccine policy, vaccine safety science, federal immunization activities, vaccine development including translational and clinical evaluation programs, allergy, preventive medicine, infectious diseases, pediatrics, microbiology, and biochemistry. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. Ex Officio voting members, one each from the Department of Health and Human Services, the Centers for Disease Control and Prevention, and the National Institutes of Health may be included. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons. In addition to the voting members, the Committee may include one non-voting member who is identified with industry interests. There may also be an alternate industry representative.
The Commissioner or designee shall have the authority to select members of other scientific and technical FDA advisory committees (normally not to exceed 10 members) to serve temporarily as voting members and to designate consultants to serve temporarily as voting members when: (1) Expertise is required that is not available among current voting standing
If functioning as a medical device panel, a non-voting representative of consumer interests and a non-voting representative of industry interests will be included in addition to the voting members.
Further information regarding the most recent charter and other information can be found at
This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the Advisory Commission on Childhood Vaccines (ACCV) will hold public meetings for the 2022 calendar year (CY). Information about the ACCV, agendas, and materials for these meetings can be found on the ACCV website at
ACCV meetings will be held on:
• March 3, 2022, 10:00 a.m. Eastern Time (ET)-4:00 p.m. ET;
• June 2, 2022, 10:00 a.m. ET-4:00 p.m. ET;
• September 1, 2022, 10:00 a.m. ET-4:00 p.m. ET; and
• December 1, 2022, 10:00 a.m. ET-4:00 p.m. ET.
Meetings may be held in-person or virtually. For updates on how the meeting will be held, visit the ACCV website 30 business days before the meeting date, where instructions for joining meetings either in-person or remotely will be posted. In-person ACCV meetings will be held at 5600 Fishers Lane, Rockville, Maryland 20857. For meeting information updates, go to the ACCV website meeting page at
Annie Herzog, Division of Injury Compensation Programs, HRSA, 5600 Fishers Lane, 08N186B, Rockville, Maryland 20857; 301-443-6634; or
The ACCV provides advice and recommendations to the Secretary of HHS on policy, program development, and other issues related to the implementation of the National Vaccine Injury Compensation Program and concerning other matters as described under section 2119 of the Public Health Service Act (42 U.S.C. 300aa-19).
Since priorities dictate meeting times, be advised that times and agenda items are subject to change. Refer to the ACCV website listed above for any meeting updates that may occur. For CY 2022 meetings, agenda items may include, but are not limited to: Updates from the Division of Injury Compensation Programs, Department of Justice, Office of Infectious Disease and HIV/AIDS Policy (HHS), Immunization Safety Office (Centers for Disease Control and Prevention), National Institute of Allergy and Infectious Diseases (National Institutes of Health) and Center for Biologics, Evaluation and Research (Food and Drug Administration). Refer to the ACCV website listed above for all current and updated information concerning the CY 2022 ACCV meetings, including draft agendas and meeting materials posted 5 calendar days before the meeting(s).
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meeting(s). Oral comments will be honored in the requested order and may be limited as time allows. Requests to submit a written statement or make oral comments to ACCV should be sent to Annie Herzog using the contact information above at least 5 business days before the meeting date(s).
Individuals who need special assistance or another reasonable accommodation should notify Annie Herzog using the contact information listed above at least 10 business days before the meeting(s) they wish to attend. If in-person meetings occur, they will be held in a federal government building and attendees must go through a security check to enter the building. Non-U.S. Citizen attendees must notify HRSA of their planned attendance at least 20 business days before the meeting to facilitate their entry into the building. All attendees are required to present government-issued identification before entry.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
Solicitation; request for applicants for appointment to the National Advisory Council.
The Federal Emergency Management Agency (FEMA) requests that qualified individuals interested in serving on the FEMA National Advisory Council (NAC) apply for appointment as identified in this notice. Pursuant to the
FEMA will accept applications until 11:59 p.m. Eastern Daylight Time on March 31, 2022.
The preferred method for application package submission is by email. Application packages by U.S. Mail may not be considered. Please submit using the following method:
•
Rob Long, Designated Federal Officer, Office of the National Advisory Council, Federal Emergency Management Agency;
The NAC is an advisory council established in accordance with the provisions of the
The NAC Charter contains more information and can be found at:
If you are interested, qualified, and want FEMA to consider appointing you to fill an open position on the NAC, please submit an application package to the Office of the NAC as listed in the
• Cover letter, addressed to the Office of the NAC, that includes or indicates: Current position title and employer or organization you represent, home and work addresses, and preferred telephone number and email address; the discipline area position(s) for which you would like consideration; why you are interested in serving on the NAC; and how you heard about the solicitation for NAC members;
• A summary of the most important accomplishments that qualify you to serve on the NAC, in the form of three to five bullets in less than 75 words total;
• Resume or Curriculum Vitae (CV); and
• One Letter of Recommendation addressed to the Office of the NAC.
Your application package must be less than eight total pages to be considered by FEMA. Information contained in your application package should clearly indicate your qualifications to serve on the NAC and fill one of the current open positions. FEMA will not consider incomplete applications. FEMA will review the information contained in application packages and make selections based on: (1) Leadership attributes; (2) emergency management experience; (3) expert knowledge in identified discipline area; and (4) ability to meet NAC member expectations. FEMA will also consider overall NAC composition, including diversity (including, but not limited to geographic, demographic, and experience) and a mix of officials, emergency managers, and emergency response providers from state, local, tribal, and territorial governments, when selecting members.
Appointees may be designated as a Special Government Employee (SGE) as defined in section 202(a) of Title 18, U.S.C., as a Representative member, or as a Regular Government Employee (RGE). SGEs speak in a personal capacity as experts in their field and Representative members speak for the stakeholder group they represent. Candidates selected for appointment as SGEs are required to complete a new entrant Confidential Financial Disclosure Form (Office of Government Ethics (OGE) Form 450) each year. You can find this form at the Office of Government Ethics website (
The NAC generally meets in person twice per year. FEMA does not pay NAC members for their time, but may reimburse travel expenses such as airfare, hotel lodging, and other transportation costs within Federal Travel Regulations when pre-approved by the Designated Federal Officer. NAC members must serve on one of the NAC subcommittees, which meet regularly by virtual means, usually teleconference call. FEMA estimates the total time commitment for subcommittee participation to be2 hours per week (more for NAC leadership).
DHS does not discriminate on the basis of race, color, religion, sex, national origin, sexual orientation, gender identity, marital status, political affiliation, disability and genetic information, age, membership in an
Office of Partnership and Engagement (OPE), Department of Homeland Security (DHS).
Request for applicants for appointment to the Homeland Security Academic Advisory Council (HSAAC).
The Secretary of Homeland Security (Secretary) is requesting senior-level individuals who are interested in serving on the Homeland Security Academic Advisory Council (HSAAC), a discretionary federal advisory committee, to apply for appointment as identified in this notice. Pursuant to the Secretary's authority within the Homeland Security Act, this agency-led committee will be established and will operate under the provisions of the Federal Advisory Committee Act (FACA). The primary purpose of the HSAAC will be to provide advice and recommendations to the Secretary and DHS senior leadership on matters related to homeland security and the academic community.
Resume and category of interest will be accepted until 11:59 p.m. Eastern Standard Time on February 15, 2022.
Due to COVID-19 safety precautions, mailed applications will not be accepted. The sole method of submission is via email to
Acting Executive Director Traci Silas via email at
In addition to this notice, DHS may solicit members through correspondence with its existing contact list of faith-based organizations, Congressional partners, and White House staff.
Members of the HSAAC are appointed by the Secretary for specified terms of appointment. The HSAAC membership selection and appointment process is designed to ensure continuity of HSAAC membership, and to afford the Secretary the advisory input of the most capable, diverse, and novel perspectives that the country has to offer. Individuals who are interested in serving on the committee are invited to apply for consideration for appointment. There is no application form; however, a current resume and category of interest is required. The appointment will be for a term of up to 3 years. Individuals selected for the appointment will serve as Representatives or regular government employees (where applicable). All non-federal members must also complete a background investigation, a gratuitous service agreement and a non-disclosure agreement.
HSAAC will meet as often as needed to fulfill its mission, but typically four times each fiscal year to address its objectives and duties. The committee will aim to meet in person at least once each fiscal year with additional meetings held via teleconference. HSAAC members may be reimbursed for travel and per diem incurred in the performance of their duties as members of the committee. All travel for HSAAC business must be approved in advance by the Designated Federal Officer. To the extent practical, members can serve on any subcommittee that is established.
DHS does not discriminate in employment on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. DHS strives to achieve a diverse candidate pool for all its recruitment actions.
The HSAAC will consist of up to 30 members who are appointed by and serve at the pleasure of the Secretary. In order for the Secretary to fully leverage broad-ranging experience and education, the HSAAC must be diverse with regard to professional and technical expertise. DHS is committed to pursuing opportunities, consistent with applicable law, to compose a committee that reflects the diversity of the nation's people. Members are appointed as representative members, except that members from federal agencies are appointed as non-voting ex-officio members. To ensure a diverse, inclusive and balanced membership, membership includes the following:
(a) Up to four members representing higher education associations
(b) Up to two members representing higher education law enforcement, public safety, and emergency management associations
(c) Up to two members representing four-year colleges and universities
(d) Up to two members representing two-year community colleges
(e) Up to two members representing Historically Black Colleges and Universities (HBCUs)
(f) Up to two members representing Hispanic serving institutions
(g) Up to two members representing Tribal colleges
(h) Up to two members representing the Asian American, Native American and Pacific Islander serving institutions
(i) Up to four members representing K-12 school systems, to include schools, school systems, and state educational agencies
(j) Up to two members representing Education Employee Associations/Labor Organizations
(k) Up to one member from the DHS Science and Technology Center of Excellence
(l) Up to one member from Cybersecurity and Infrastructure Security Agency (CISA) School Safety Task Force
(m) Up to one member from the DHS Center for Prevention Programs and Partnership
(n) Up to one member from US Secret Service National Threat Assessment Center
(o) Up to one member from Federal Emergency Management Agency (FEMA) higher education initiatives
(p) Up to one member from the DHS Office for Civil Right and Civil Liberties (CRCL)
(q) Up to one member from the Department of Education
(r) Up to one member from the Department of State
(s) Up to one member from the Department of Justice
(t) Up to one member from the Department of Health and Human Services
HSAAC is the sole advisory committee and public forum within DHS providing advice on matters
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Pascua Yaqui Tribe of Arizona Solar and Renewable Energy Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into wind and solar leases without further BIA approval.
BIA issued the approval on December 22, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Pascua Yaqui Tribe of Arizona.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Pascua Yaqui Tribe of Arizona.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada Tribal Lands Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business leases without further BIA approval.
BIA issued the approval on December 22, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Ysleta del Sur Pueblo Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into agriculture, business, residential, wind and solar, and wind energy evaluation leases without further BIA approval.
BIA issued the approval on January 21, 2022.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Ysleta del Sur Pueblo.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Ysleta del Sur Pueblo.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Eastern Shawnee Tribe of Oklahoma Agricultural Leasing Act under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into Agricultural leases without further BIA approval.
BIA issued the approval on December 22, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Eastern Shawnee Tribe of Oklahoma.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Eastern Shawnee Tribe of Oklahoma.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana Lands Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter business and wind and solar leases without further BIA approval.
BIA issued the approval on January 24, 2022.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH ACT authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Confederated Tribes of the Grand Ronde Community of Oregon Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business, residential, recreational, religious, and educational leases without further BIA approval.
BIA issued the approval on January 24, 2022.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Confederated Tribes of the Grand Ronde Community of Oregon.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Eastern Shawnee Tribe of Oklahoma Business Leasing Act under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into Business leases without further BIA approval.
BIA issued the approval on December 22, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each,
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Eastern Shawnee Tribe of Oklahoma.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Eastern Shawnee Tribe of Oklahoma Residential Leasing Act under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into Residential leases without further BIA approval.
BIA issued the approval on January 24, 2022.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Eastern Shawnee Tribe of Oklahoma.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Eastern Shawnee Tribe of Oklahoma.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Tule River Indian Tribe of the Tule River Reservation, California Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into agriculture, business, residential, wind and solar, and wind energy evaluation leases without further BIA approval.
BIA issued the approval on December 16, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Tule River Indian Tribe of the Tule River Reservation, California.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Tule River Indian Tribe of the Tule River Reservation, California.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 17, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of AbbVie Inc. of Chicago, Illinois; AbbVie Biotechnology Ltd. of Bermuda; and AbbVie Operations Singapore Pte. Ltd. of Singapore. A supplement to the complaint was filed on January 4, 2022. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States and the sale of certain adalimumab, processes for manufacturing or relating to same, and products containing same by reason of the misappropriation of trade secrets and tortious interference with contractual relations, the threat or effect of which is to destroy or substantially injure an industry in the United States. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States or in the sale of certain products identified in paragraph (2) by reason of the misappropriation of trade secrets and tortious interference with contractual relations, the threat or effect of which is to destroy or substantially injure an industry in the United States;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “adalimumab (drug substance and drug product), vials, prefilled syringes, autoinjectors or other presentations containing same, and the methods of manufacturing and processes for making the same”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainants of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a/the respondents to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing
By order of the Commission.
International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 27, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Brita LP of Switzerland. Letters supplementing the complaint were filed on January 10, 2022. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain high-performance gravity-fed water filters and products containing the same by reason of infringement of certain claims of U.S. Patent No. 8,167,141 (“the ’141 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Jessica Mullan, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-6, 20-21, and 23-24 of the ’141 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “gravity-fed water filters that meet a specified combination of high-performance criteria relating to filter rate and lead volume, lead reduction, and lifetime usage, and water container products that are sold with such filters”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
Notice of investigation and scheduling of public hearing.
Following receipt on December 14, 2021 of a request from the U.S. Trade Representative (USTR), under section 332(g) of the Tariff Act of 1930, the U.S. International Trade Commission (Commission) instituted Investigation No. 332-588,
All Commission offices are in the U.S. International Trade Commission Building, 500 E Street SW, Washington, DC. Due to the COVID-19 pandemic, the Commission's building is currently closed to the public. Once the building reopens, persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000.
Project Leader Fernando Gracia (202-205-2747 or
The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Specifically, the USTR requested that the Commission provide a report that includes the following:
• An overview of economic activity in FTZs operating in the United States, Canada, and Mexico since 2016. The overview should include to the extent practicable:
○ Data on the number of firms operating in FTZs.
○ Data on FTZ employment.
○ A list of the leading sectors/industries participating in FTZs.
○ Data on shipments into FTZs and exports from FTZs.
○ Data on foreign direct investment in FTZs.
• An overview of the current FTZ policies and practices in the United States, Canada, and Mexico. To the extent information is available, describe:
○ FTZ tariff treatment.
○ Other relevant policies and practices that affect the cost-competitiveness of products of U.S. firms operating in FTZs.
• To the extent practicable, an analysis of the effects of current FTZ policies and practices in the United States, Canada, and Mexico on the cost-competitiveness of products of firms operating in these FTZs. The analysis should include:
○ A description of these effects of these policies and practices on the relative production costs of U.S. firms operating in FTZs in the United States, Canada, and Mexico.
○ A description of the effects on U.S. employment.
○ A description of the effects on selected U.S. sectors/industries operating in FTZs in the United States, Canada, and Mexico, including through the use of case studies as appropriate.
○ A review of recent literature on the effects of FTZs on U.S. firm competitiveness and production.
As part of its investigation, the Commission intends to conduct a survey, and will post the survey on its website at a later date.
As requested by the USTR, the Commission will deliver the report on April 14, 2023. Since the USTR has indicated that USTR intends to make this report available to the public in its entirety, the Commission will not include confidential business or national security classified information in its report.
Requests to appear at the hearing should be filed no later than 5:15 p.m. on May 3, 2022, in accordance with the requirements in the “Written Submissions” section below. All prehearing briefs and statements should be filed not later than 5:15 p.m., May 5, 2022. To facilitate the hearing, including the preparation of an accurate written transcript of the hearing, oral testimony to be presented at the hearing must be submitted to the Commission electronically no later than noon, May 10, 2022. All posthearing briefs and statements should be filed no later than 5:15 p.m., May 24, 2022. Posthearing briefs and statements should address matters raised at the hearing. For a description of the different types of
In the event that, as of the close of business on May 3, 2022, no witnesses are scheduled to appear at the hearing, the hearing will be canceled. Any person interested in attending the hearing as an observer or nonparticipant should check the Commission website in the preceding paragraph for information concerning whether the hearing will be held.
(1)
(2)
(3)
(4)
In accordance with the provisions of section 201.8 of the Commission's Rules of Practice and Procedure (19 CFR 201.8) the document must identify on its cover (1) the type of document filed (
As requested by the USTR, the Commission will not include any confidential business information in its report. However, all information, including confidential business information, submitted in this investigation may be disclosed to and used: (i) By the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel for cybersecurity purposes. The Commission will not otherwise disclose any confidential business information in a way that would reveal the operations of the firm supplying the information.
International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 29, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Future Link Systems, LLC of Santa Clara, California. A supplement
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-6 of the '439 patent and 1-9 of the '614 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “processors, mobile phones, tablets, personal computers, and streaming devices containing processors”;
(3) Pursuant to Commission Rule 210.50(b)(l), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties or other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(l), (f)(1), (g)(1);
(4) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On January 8, 2020, a former Assistant Administrator, Diversion Control Division, of the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Bradley H. Chesler, M.D. (hereinafter, Respondent) of Escondido, California. Administrative Law Judge Exhibit (hereinafter, ALJ Ex.) 1, (OSC) at 1. The OSC proposed the revocation of Respondent's DEA Certificate of Registration No. BC1317165 (hereinafter, COR or registration) and the denial of any pending application to modify or renew the registration and any applications for any other DEA registrations pursuant to 21 U.S.C. 824(a)(4) and 823(f), because Respondent's “registration is inconsistent with the public interest.”
On January 28, 2020, counsel for the Respondent requested a hearing, which, following a series of continuances due to the COVID-19 pandemic, was conducted August 25, 2020, through September 1, 2020, at the DEA Hearing Facility in Arlington, Virginia with parties, counsel, and witnesses participating by video teleconference (VTC). On November 5, 2020, Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, the Chief ALJ) issued his Recommended Rulings, Findings of Fact, Conclusions of Law and Decision of the Administrative Law Judge (hereinafter, Recommended Decision or RD). On December 2, 2020, the Respondent filed exceptions to the Recommended Decision (hereinafter, Resp't Exceptions) and on December 15, 2020, the Government filed its Response to Government's Exceptions (hereinafter Gov't Response). I address the Respondent's Exceptions in the Recommendation Section, and throughout the relevant portions of the record and I issue the final order in this case following the RD. The ALJ transmitted the record to me on February 19, 2020. Having reviewed the entire record, I adopt the ALJ's rulings, findings of fact, as modified, conclusions of law and recommended sanction with minor modifications, where noted herein. *
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Although, as discussed in greater detail,
The parties entered into factual stipulations which were accepted prior to the commencement of the hearing. Accordingly, the following factual matters are deemed conclusively established in this case:
1. The Respondent currently possesses DEA COR No. BC1317165, which expires by its own terms on August 31, 2020.
2. The Respondent was issued California Physician and Surgeon License No. A43963 on August 31, 1987.
3. Alprazolam is a Schedule IV Controlled Substance.
4. Carisoprodol is a Schedule IV Controlled Substance.
5. Fentanyl is a Schedule II Controlled Substance.
6. Hydrocodone is a Schedule II Controlled Substance.
7. Hydromorphone is a Schedule II Controlled Substance.
8. Lorazepam is a Schedule IV Controlled Substance.
9. Morphine is a Schedule II Controlled Substance.
10. Oxycodone is a Schedule II Controlled Substance.
11. Temazepam is a Schedule IV Controlled Substance.
The Government presented the evidence of Diversion Investigator (hereinafter, DI). DI testified that he has been a DI for two and a half years, the majority of which has been in DEA's San Diego Field Office. Tr. 45-46. DI was the lead investigator in the case that culminated in the present charges. Tr. 46-47. He testified that the investigation into the Respondent began when DEA received information, around March 2019, from the Medical Board of California that an accusation was filed against the Respondent for over-prescribing controlled substances. Tr. 47. DI's testimony was used to authenticate a number of Government Exhibits,
DI presented as an objective regulator and investigator with no discernable motive to fabricate or exaggerate. In addition to being uncontroverted, the testimony of this witness was sufficiently detailed, plausible, and internally consistent to be afforded full credibility in this case.
The Government presented the expert testimony of Dr. Timothy Munzing. Dr. Munzing's
Dr. Munzing agreed to confine his testimony to outlining the standard of care for controlled substance prescribing in California, and to avoid conflating the bedrock standards with any discussion of best practices or his view of optimum treatment options.
A physical examination that includes the taking of vital signs and a detailed, focused examination of the locus of any discomfort is also a required element that must precede controlled medication prescribing.
The third prescribing prerequisite, according to the witness, is reaching a determination as to whether to order additional objective testing of the patient.
According to Dr. Munzing, the fourth step in the prescribing process is to assess the patient based on the information acquired in the other steps.
Once the assessment has been conducted, the next step in the process is to individualize the treatment of the patient by setting objectives and procuring informed consent for the designated treatment modalities.
Dr. Munzing stressed that throughout the process, “clear[,] true, and . . . appropriate documentation” is a required element of the standard of care for controlled substance prescribing in California.
Document . . . the history . . . , document the exam, document the vital signs, document . . . how you came up with the risk stratification, document the assessment. If you've done laboratory imaging, document those, and then document an appropriate management plan including either in the [progress] note or separate from the [progress] note an informed consent, especially sharing the most serious potential problems of the management figure.
Dr. Munzing's view is that treatment risk stratification, coupled with periodic informed consent, is a process that must continue throughout the treatment of the patient.
The Government's expert testified that he reviewed patient charts corresponding to the Six Patients
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One of the Six Patients merits additional discussion. On November 11, 2017, Patient AA died in his apartment
*
Overall, Dr. Munzing's testimony was authoritative, reasonable, and supported by the admitted evidence of record. The witness presented as a qualified, knowledgeable, and dispassionate expert evaluator of the Respondent's controlled substance prescribing practices. Although, unlike the Respondent and Dr. Polston, Dr. Munzing does not practice pain medicine exclusively and does not hold a Board subspecialty in pain management, his testimony was supportive, objective, and convincing. Dr. Munzing's testimony was unburdened by the keen interest that the Respondent has in the outcome of the case. Indeed, as discussed elsewhere in this Recommended Decision, Dr. Munzing's presentation was sufficiently persuasive that on several occasions the Respondent accepted Dr. Munzing's conclusions and changed his practices *
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The Respondent presented his own testimony at the hearing. He testified that since his graduation from the University of Minnesota in 1985, and the completion of his residency at the University of California, Irvine, he has been practicing medicine for over thirty-one years, all in Escondido, California. Tr. 895-97. The Respondent's CV
During his testimony, the Respondent narrated those of the Government's allegations which he accepts, elaborated on some areas where he took issue, and in other areas he assumed a hybrid, more nuanced stance.
Regarding the Government's allegation that ten
Similarly, the Respondent confessed error regarding the manner in which he timed his prescriptions which, as the Government alleged,
The Respondent also conceded that to the extent the Government alleges
I see in retrospect the documentation could be better, and I respect [the Government expert's] criticism when he was saying that the documents should show the next doctor what's going on. And I did not feel that I was able to do that.
The Respondent took issue with the Government's contention that chart entries regarding Patient AA “indicate that [he] never discussed the risks of opioids with” the patient.
The Government specifically alleges that the Respondent's concurrent prescribing of opioids and benzodiazepines to Patient AA was a “red flag of abuse or diversion” and “represented a dangerous combination, and constituted an extreme departure from the standard of care for the practice of medicine.” ALJ Ex. 1 ¶ 14.c. In his testimony, the Respondent sidestepped the principal issues of this allegation somewhat, by countering that, notwithstanding the absence of documentation in this regard, the risks of benzodiazepines were discussed with the patient and his standards for documenting such discussions has been enhanced. Tr. 933. No mention was made about the opinion of the Government's expert regarding whether the prescribing combination fell below the standard, only that the issue of benzodiazepine risks were discussed, if not pristinely documented.
The Respondent was unequivocal in his view that, contrary to the Government's allegation,
[Patient AA] had been on a combination of medications for a long time with no issues, and I feel badly that this event happened, but I honestly saw no issue where what we were providing was a significant component to someone who had so much additional medication in his system.
The Respondent detailed his experience with the balance of the Six Patients, much of it following the same pattern, notwithstanding a nuance or two. He agreed that the Government was right with respect to the potential reservoir of medication created by his temporally-truncated prescribing practices.
The Respondent testified that such was the case with Patient BB.
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Consistent with much of his presentation, the Respondent was unwilling to agree with the Government's allegation that prescribing the combination of opioids and benzodiazepines constituted an extreme departure from the standard of care,
The same testimonial pattern was present regarding Patient JD. The patient came to the Respondent's practice on a referral with a dramatic and acute set of pain etiologies
At that time, we're
I don't. As I stated, I received him at the higher dose. That's why it's coming to me, and I'm supposed to be the one who will contain it, control it, and reduce it over time while trying to increase function.
Again, the Respondent clung to his view that the Government's allegation that his records fail to indicate sufficient opioid risks discussions with the patient
The pattern repeated itself with respect to Patient DD. The Respondent owned up to the early refill allegation.
The analysis presented in the Respondent's testimony about Patient SM did not differ substantially from the manner in which he described his treatment of the other members of the Six Patients group. According to the Respondent, at the time of her referral to his practice, Patient SM presented with pain from complex and serious etiologies,
The Respondent adhered to a like pattern in his testimony regarding Patient ET. This referred patient arrived at his practice with high MME levels and sobering etiologies
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[PMC] said there was nothing more to offer from their perspective, in terms of intervention. And they recommended we continue the path, and that we continue to wean the patient.
The Respondent, consistent with the view he espoused in his Corrective Action Plan (CAP),
I needed to talk more about the actual conversations I had with the patient, the potential risks, including death, which was not mentioned specifically. And I see that as a deficit in my reading, documentation and my discussion with the patient.
The Respondent resisted the Government's allegation that he failed to appropriately respond to one of Patient ET's UDS results based on his view that the result was not aberrant.
The Respondent described numerous improvements he has effected in his electronic medical records software
I'm much happier. The patients are better informed. And I feel as though each of these notes, when I finish, we have all the facts, whoever goes to the primary physician and anybody else in the circle of care. And I just feel like I'm doing a much better job of inter-operability and cooperation with the other physicians.
The Respondent made clear in his testimony that he only accepted responsibility for the deficiencies he was willing to acknowledge at the hearing.
Surprisingly, although, as discussed,
As is always the case in these proceedings, among the witnesses who testified at this hearing, the Respondent unarguably possesses the greatest interest in the outcome, and hence, the greatest motivation to enhance, modify, or even fabricate his testimony. However, even apart from the risk of implicit bias, the Respondent's testimony presented a robust array of other reasons to eschew accepting his version of events without a significant level of skepticism. The Respondent initially testified, as he argued in his CAP, that his standard pain medication contracts satisfied the applicable standard of care relative to the required appraisal of the risks of opioid use and combined prescribing to his patients. However, when the identical issue arose regarding one of his patients, Patient ET, the Respondent suddenly changed course and claimed that his standard pain medication contracts did not meet the standard, and even cited this as a reason that he changed his practice and
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That is not to say that the Respondent is entirely incredible or that his professional opinions are to be easily dispatched. The Respondent is an experienced, knowledgeable, well-credentialed physician with a considerable level of subject-matter expertise. There were aspects of his biographical information, the progress of his career, and even some aspects of his testimony regarding treatment that were reliable and believable and should be relied upon and believed, but where the Respondent's testimony conflicts with the testimony of other witnesses and evidence of record (which is substantial), it must be viewed with a heightened level of scrutiny.
The Respondent presented the expert testimony of Dr. Gregory Polston.
The Respondent's expert testified that he reviewed patient files for the Six Patients from the Respondent's practice and (at least initially) testified that the Respondent's controlled substance prescribing did meet the standard of care in California.
Initially physicians would consider the functional report of pain or reduction in pain as being more important. As time evolved we felt that function was more important and it's a balancing act. There are some patients who
Dr. Polston also testified that the Respondent reduced the MME levels for Patients JD,
Dr. Polston also testified that after reviewing all patient records presented to him, it was his opinion that the Respondent met the standard of care with respect to informed consent.
The witness initially testified that there was no evidence of early refills in this case, and that the Respondent's practice of writing prescriptions of thirty day dosages every twenty-eight days was within the standard of care in California.
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Dr. Polston also testified regarding medical records presented by the Government that bore indicia of anomalous UDS results regarding Patient AA. Tr. 1243-44, 1250-53. Dr. Polston identified Patient AA's UDSs as inconsistent (not aberrant),*
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Overall, Dr. Polston's unabashed willingness to forsake his purported expert opinions at the first sign that the Respondent offered testimony that conflicted with those opinions obviously created internal inconsistencies that undermined the weight that can be attached to his presentation. While there is no question that the witness's credentials were impressive, Dr. Polston presented an overall impression that he was present to support the Respondent's position, even where the Respondent's position evolved. It was unhelpful that Dr. Polston initially testified that the Respondent's controlled substance prescribing did meet the standard of care in California, but when confronted by the Respondent's agreement with Dr. Munzing's testimony regarding informed consent, early refills, and anomalous UDSs, Dr. Polston unhesitatingly changed his view to conform with the Respondent's version. It was almost as if to say that his expert opinion was whatever the Respondent may have said before, now, or later, even if the Respondent's position toggled back and forth. To offer “whatever he said” as an expert opinion is not a feature that enhances the reliability that can be attached to the views expressed by a purported expert. Suffice it to say that Dr. Polston's amenability to instantly change course and support the Respondent's fluid opinions, based merely on being advised of them, undermines the weight that can be attached to his testimony. Additionally, at one point in his testimony, the Respondent's expert testified that “the guidelines are much different for chronic benign pain versus cancer pain.” Tr. 1156. According to Dr. Polston, a cancer diagnosis “really strips away nearly all guidelines” for prescribing controlled substances.
That is not to say that Dr. Polston is entirely unreliable. Like the Respondent, this is an extremely experienced and well-credentialed professional. There were certainly aspects of his biographical information, the progress of his career, and even some testimony regarding treatment and prescribing that presented as sensible and consistent with the record, and those opinions and information should be relied upon. However, it is where Dr. Polston's testimony conflicts with the testimony of other expert testimony and evidence of record that reliance becomes problematic. Specifically, where Dr. Polston's expert testimony conflicts with the testimony of Dr. Munzing, it is Dr. Munzing's view that must control.
Other facts necessary for a disposition of this case are set forth in the balance of this Recommended Decision.
Under 21 U.S.C. 824(a)(4), the Agency may revoke the COR of a registrant if the registrant “has committed such acts as would render his registration . . . inconsistent with the public interest.” 21 U.S.C. 824(a)(4). Congress has circumscribed the definition of public interest in this context by directing consideration of the following factors:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The [registrant's] experience in dispensing, or conducting research with respect to controlled substances.
(3) The [registrant's] conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
“These factors are to be considered in the disjunctive.”
In adjudicating a revocation of a DEA COR, the Government has the burden of proving that the requirements for the revocation it seeks are satisfied. 21 CFR 1301.44(e). Where the Government has met this burden by making a
Normal hardships to the registrant, and even to the surrounding community, which are attendant upon lack of registration, are not a relevant consideration.
Although the burden of proof at this administrative hearing is a preponderance-of-the-evidence standard,
Regarding the exercise of discretionary authority, the courts have recognized that gross deviations from past agency precedent must be adequately supported,
In this case, it is undisputed that Respondent holds a valid state medical license in California. However, possession of a state license does not entitle a holder of that license to a DEA registration.
In determining the public interest, the “recommendation of the appropriate State licensing board or professional disciplinary authority . . . shall be considered.” 21 U.S.C. 823(f)(1). Two forms of recommendations appear in Agency decisions: (1) A recommendation to DEA directly from a state licensing board or professional disciplinary authority (hereinafter, appropriate state entity), which explicitly addresses the granting or retention of a DEA COR; and (2) the appropriate state entity's action regarding the licensure under its jurisdiction on the same matter that is the basis for the DEA OSC.
In this case, neither the MBC nor any other state entity has made a direct recommendation to DEA regarding whether the Respondent's controlled substances registration should be suspended or revoked. There is evidence on the record that on October 29, 2019, the MBC found that the Respondent violated state law by prescribing dangerous controlled substances to the Board Patients. Gov't Ex. 30 at 147, 157-61, 196-199. The MBC found in favor of revocation, but stayed the revocation pending completion of probation.
The evidence before me is different than the evidence that was before the MBC. It demonstrates that Respondent engaged in additional violations of state and federal law with respect to his prescribing practices. The fact that the MBC chose to stay the revocation of Respondent's state medical license carries minimal weight under Factor One, because there is no evidence that the MBC would have made the same decision in the face of the additional misconduct found herein involving different patients.*
*
In sum, while the terms of the MBC are not dispositive of the public interest inquiry in this case and are minimized due to the differences in the evidence in the MBC Order, the record evidence before me and the severity of the sanctions ordered by the MBC, I consider the stay of the MBC's revocation of Respondent's California medical license and give it minimal weight in Respondent's favor, because the charges could have immediately resulted in the revocation of his medical license, instead of a stayed revocation.
The Government has founded its theory for sanction exclusively on Public Interest Factors Two (the Respondent's experience conducting regulated activity) and Four (the Respondent's compliance with state and federal laws related to controlled substances), and it is under those two factors that the lion's share of the evidence of record relates.
Regarding Factor Two, it is beyond argument that the Respondent is a well-credentialed, experienced medical practitioner who has been treating many patients for many years. Resp't Ex. G; Tr. 898. There is likewise no evidence of record that, prior to his present difficulties, that the Respondent has been the subject of discipline by state or federal authorities relative to his controlled substance prescribing. [Omitted for brevity.] The Respondent's experience as a registrant is lengthy, and there is no evidence to contradict his contention that he has treated many, many patients, but the Agency has long held that benign experience cannot overcome intentional misconduct, and that the misconduct established by record evidence is considered under both Factors Two and Four.
As discussed,
To effectuate the dual goals of conquering drug abuse and controlling both legitimate and illegitimate traffic in controlled substances, “Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the [Controlled Substance Act (CSA)].”
The prescription requirement is designed to ensure that controlled substances are used under the supervision of a doctor, as a bulwark against the risk of addiction and recreational abuse.
“Under the CSA, it is fundamental that a practitioner must establish and maintain a [
While true that the CSA authorizes the “regulat[ion of] medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood,”
*
Here, the relevant state law provisions largely mirror the CSA where they do not go beyond it.
California has specifically classified two categories of controlled substance prescriptions as
(1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled
During the course of his testimony, the Government's expert, Dr. Munzing, outlined six elements that compose the standard of care for prescribing controlled substances in the usual course of professional treatment in California. Dr. Munzing explained that a physician must acquire a patient history, conduct a physical examination of the patient, determine whether additional data is necessary, produce an assessment of the patient that includes risk stratification, create an individualized treatment plan and obtain informed consent, and have proper documentation throughout each step. Tr. 94-111. These elements laid out by Dr. Munzing are consistent with instructions provided by the California Board in its publication,
A medical history and physical examination must be accomplished. This includes an assessment of the pain, physical and psychological function; a substance abuse history; history of prior pain treatment; an assessment of underlying or coexisting diseases or conditions; and documentation of the presence of a recognized medical indication for the use of a controlled substance.
The treatment plan should state objectives by which the treatment plan can be evaluated, such as pain relief and/or improved physical and psychosocial function, and indicate if any further diagnostic evaluations or other treatments are planned. The physician and surgeon should tailor pharmacological therapy to the individual medical needs of each patient. Multiple treatment modalities and/or a rehabilitation program may be necessary if the pain is complex or is associated with physical and psychosocial impairment.
The California Board also suggests that a physician “should periodically review the course of pain treatment of the patient and any new information about the etiology of the pain or the patient's state of health.”
The physician and surgeon should keep accurate and complete records according to [the five other controlled substance prescribing components], including the medical history and physical examination, other evaluations and consultations, treatment plan objectives, informed consent, treatments, medications, rationale for changes in the treatment plan or medications, agreements with the patient, and periodic reviews of the treatment plan.
The applicable California Code provisions are consistent with the standards outlined by the Government's expert, Dr. Munzing. Further, the Respondent (and ultimately his expert) acceded that his controlled substance prescribing fell below the applicable standard of care in California in regard to prescribing early refills, addressing inconsistent UDSs, and (at least with respect to Patient ET) acquiring adequate informed consent. Accordingly, on these issues, the testimony of the Government's expert stands uncontroverted on the present record. When an administrative tribunal elects to disregard the uncontradicted opinion of an expert, it runs the risk of improperly declaring itself as an interpreter of medical knowledge.
At issue in this case is the Respondent's controlled substance prescribing to ten patients: The four Board Patients that were the subject of findings by MBC, and the Six Patients that were evaluated by Dr. Munzing. While the evidence of record is generally discernible, the same cannot entirely be said of the allegations propounded by the Government in its OSC relating to the Six Patients. While it is likely that the Government's intention was to contend that the Respondent issued prescriptions to the Six Patients for controlled substances outside the usual course of professional practice, that is not entirely reflected in the plain language of the Government's charging document.
As discussed,
In pursuing a sanction under the Administrative Procedure Act (APA) the Government is obligated to provide timely notice to a respondent,
However, [ ] the Agency has embraced the concept of litigation by consent.
It is beyond argument that the He-Opined Allegations are unartfully pleaded, but it is likewise irrefutable that the parties mutually understood that they were litigating the issue of whether the controlled-substance prescribing issues set forth in a subset of those allegations depicted conduct that fell below the applicable standard. In fact, the Respondent, through his counsel, frequently tracked along with the OSC allegations and phrased many of his queries on whether the Government-expert's criticisms raised by the He-Opined Allegations were valid.
*
During the course of this case, Dr. Munzing delivered his expert opinion that the Respondent's charts did not reflect that he adequately discussed the risks attendant upon the opiate course of treatment he was employing on the Six Patients. While the Respondent and Dr. Polston held differing views of this perspective, Dr. Munzing's views on this issue (and all the issues upon which he opined in this case) are afforded controlling weight. Accordingly, OSC Allegations 14.b, 18.b, 21.b, 23.b, 26.b, and 30.b are
Similarly, Dr. Munzing's expert opinion, supported by the findings of the San Diego Medical Examiner's Office in its ME Report
The Respondent's practice of refilling 30-day controlled substance prescriptions every 28 days for the Six Patients, causing a reservoir of extra medication, is an area where the Respondent, during the course of his testimony, was able to agree with the expert opinion of Dr. Munzing. Accordingly, as amended,
Although the Respondent remained convinced about the validity of the controlled medications and dosages he prescribed to the Six Patients, as well as the combinations of medicines in the context of the time and the ailments he was treating, in general he did not resist the Government's view, supported by the expert opinion of Dr. Munzing, that the documentation generated in the Respondent's charting of the Six Patients was inadequate to a point where it fell below the applicable standard of care. Dr. Munzing's expert opinion has been afforded controlling weight. Accordingly, OSC Allegations 14.a, 14.c,*
*
The OSC contains allegations regarding controlled substances with doses and amounts specific to each of the Six Patients. The record contains sufficient evidence to preponderantly sustain the amounts alleged for Patients
*
The Government alleges that the Respondent examined CURES reports eight times regarding Patient BB, but presented no evidence that this occurred (or why it would be relevant to the extent he had done so).
The Government alleges that on multiple occasions where the Respondent encountered anomalous urine drug screen results relative to two of the Six Patients,
The Government introduced an October 29, 2019 order (Board Order) issued by the California Board regarding disciplinary action taken by MBC against the Respondent. Gov't Ex. 30. In DEA administrative proceedings, factual findings and legal conclusions based on state law reached by state administrative tribunals are given preclusive effect.
The Board Order introduced by the Government includes the following findings related to MBC's decision that the Respondent violated state and/or federal law and engaged in unprofessional conduct by prescribing dangerous controlled substances to the Board Patients. Gov't Ex. 30 at 147, 157-61. MBC's findings regarding the Board Patients are herein discussed
With respect to Board Patient A, MBC found that the Respondent prescribed opioids to Patient A, between December 2011 and early 2013, in an amount that exceeded 300 MEDs.
Regarding Board Patient B, the California Board found that the Respondent committed gross negligence when he failed to discuss the attendant risks and benefits of controlled substances and failed to enter into a pain management agreement with Patient B. Gov't Ex. 30 at 130, 146, 158. The Respondent additionally prescribed greater than 30-day supplies of controlled substances to Patient B on multiple occasions during 2013, which the Board found to constitute gross negligence.
MBC found that the Respondent's treatment of Board Patient D was grossly negligent in that he continued to prescribe her controlled substances despite aberrant behaviors, possible addiction, and noncompliance with her pain management agreement. Gov't Ex. 30 at 135, 158. In finding that the Respondent failed to adequately monitor his treatment of Patient D, the Board identified that the Respondent could have employed, but did not, UDSs and random pill counts as monitoring methods.
With respect to Board Patient E, the California Board found the Respondent's conduct to similarly be grossly negligent. Gov't Ex. 30 at 137, 158. MBC found that the Respondent prescribed controlled substances to Patient E without “taking a systematic and thorough history including vitals, without periodically reviewing and documenting efficacy of treatment, without regularly assessing for possible diversion, and without discussing the risks, benefits, and alternatives of pharmacological treatment.”
All subsections of OSC Allegation 31(the Board Patient Allegations) are
OSC Allegations 1 and 2 (COR and state licensure status) are
Accordingly, even in the face of the Respondent's lengthy experience as a practitioner and registrant, a balancing of Factors Two and Four militate strongly and powerfully in favor of the imposition of the revocation sanction sought by the Government.
The evidence of record preponderantly establishes that the Respondent has committed acts which render his continued registration inconsistent with the public interest.
Agency precedent is clear that a respondent must unequivocally admit fault as opposed to a “generalized acceptance of responsibility.”
As discussed,
The Respondent's defense fares no better regarding the balance of the Government's case related to the Six Patients. During his testimony, the Respondent accepted responsibility for a standard office practice that yielded each of the Six Patients a bounty of extra medicine, but not much else. In
Furthermore, during the hearing, the Respondent sporadically persisted in his position that the standard pain management contracts executed by each of the Six Patients constituted an adequate risks/benefits discussion to support informed consent. Admittedly, he seemed to acknowledge at some points that the opioid risks discussion would have benefitted by adding more detail (
I needed to talk more about the actual conversations I had with the patient, the potential risks, including death, which was not mentioned specifically. And I see that as a deficit in my reading, documentation and my discussion with the patient.
*
The Respondent likewise declined to take any responsibility for any role that his prescribed medications [or any of his misconduct] played in the unfortunate death of Patient AA. Although this patient died from an overdose of multiple medications, some of which were prescribed by the Respondent, because Patient AA did not appear early for refills or ask for additional medications,
[Respondent notes in his Exceptions, that he believes that the Chief ALJ did not adequately credit him for what he contends was unequivocal acceptance of responsibility for failing to take vital signs for his patients until 2018. Resp't Exceptions at 13 (
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Although the Respondent testified that he has improved the detail level of his electronic charting, [takes vital signs from his patients to ensure their safety,] no longer prescribes dangerous combinations of controlled substances, now eschews the prescribing of carisoprodol, and has taken various courses to address controlled substance prescribing and documenting, in light of his refusal to enter an unequivocal acceptance of responsibility, his expressed, commendable plans further his case not at all.
To be sure, the transgressions alleged and proved here are serious and numerous, but it is at least arguable that a true, unequivocal acceptance of responsibility, coupled with a thoughtful plan of remedial action could have gone a long way to supporting a creditable case for at least some level of sanction lenity. Indeed, while true that Agency precedent holds that the lack of an unambiguous acceptance of responsibility and remedial action plan are a cold bar to the avoidance of a sanction,
The Agency is thus faced with a choice of imposing a registration sanction or imposing none and therein creating a fair likelihood that it will be instituting new proceedings, charging the same conduct against the same doctor, soon thereafter. To the extent the Respondent, after being present at this hearing, does not see that he was not acting as a reliable registrant, it is highly unlikely that he will see the light in a month, a week, or a day from an Agency action that affords him another chance.
In determining whether and to what extent imposing a sanction is appropriate, consideration must also be given to the Agency's interest in both specific and general deterrence and the
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As the regulator in this field, the Agency bears the responsibility to deter similar misconduct on the part of others for the protection of the public at large.
Regarding the egregiousness of the Respondent's conduct, as discussed,
A balancing of the statutory public interest factors, coupled with consideration of the Respondent's failure to unequivocally accept responsibility, and the Agency's interest in deterrence, supports the conclusion that the Respondent should not continue to be entrusted with a registration.
Accordingly, it is respectfully recommended that the Respondent's DEA COR should be
Dated: November 5, 2020.
On December 1, 2020, Respondent filed its Exceptions to the RD. I find that Respondent's Exceptions are either without merit or irrelevant to my Decision as explained below. Therefore, I reject Respondent's Exceptions and affirm the RD's conclusion that Respondent's continued registration is inconsistent with the public interest, and that revocation is the appropriate sanction.
(I) Respondent first argues that Dr. Munzing should not have been accepted as an expert in controlled substance prescribing for pain management. Resp't Exceptions at 2. Respondent's argument is based on his concern that his attorney raised at the hearing that “the credibility and weight” given to the testimony of Dr. Munzing should be limited due to the fact that he does not generally treat patients on high dosages of opioids.*
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Contrary to Respondent's argument, I find Dr. Munzing's opinion to be rational and to permit much more flexibility in prescribing than Respondent would like to make it seem. The problem with Respondent's prescribing of these high levels of MMEs is not the level itself—it is the risk associated with that level, which has been objectively established, and whether the Respondent adequately addressed that risk. The record demonstrates that he repeatedly did not address the risk for these patients over the course of many years, or at the very least did not meet many of the documentation requirements for addressing the risks.
I agree with the Chief ALJ that Dr. Munzing was qualified as an expert in the standard of care in prescribing controlled substances in the State of California including for the management of pain, and I reject Respondent's Exception.
(II) Respondent next argues that Dr. Munzing's testimony should not be given controlling weight over that of Dr. Polston for much of the same reasons that underlie his arguments that Dr. Munzing should not have been qualified as an expert. Respondent specifically picks apart the Chief ALJ's rationale for finding Dr. Munzing more credible. In particular, he highlights that Respondent “only changed
*
I find Respondent's argument about disqualifying Dr. Munzing's expert testimony on the applicable standard of care to be incongruous with his argument that his practices now follow the standard of care as described by Dr. Munzing. If he only changed one thing as a direct result of Dr. Munzing's testimony at the hearing, that is noted, but the record demonstrates, and Respondent actively argues, that he has changed
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Respondent next takes Exception to the individual findings on the allegations as sustained by the Chief ALJ. I have addressed some of these in footnotes in the actual findings
I note in particular here that Respondent took Exception to the finding that a physician “must avoid or carefully justify MMEs beyond 90 mg per day” and those related to the combination of controlled substances. Resp't Exceptions at 8, 10, 11. In sustaining these allegations, the Chief ALJ stated the following:
Although the Respondent remained convinced about the validity of the controlled medications and dosages he prescribed to the Six Patients, as well as the combinations of medicines in the context of the time and the ailments he was treating, in general he did not resist the Government's view, supported by the expert opinion of Dr. Munzing, that the documentation generated in the Respondent's charting of the Six Patients was inadequate to a point where it fell below the applicable standard of care.
In taking Exception to these findings, Respondent once again tries to reframe the question regarding whether his prescribing was beneath the applicable standard of care and outside the usual course of professional practice by attempting to make this question into a determination about whether his patients “demonstrated an etiology consistent with a need for pain treatment.” Resp't Exceptions at 9. He emphasizes that the “medical record shows a patient was receiving a functional benefit and pain relief based on the medications prescribed.”
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Respondent takes Exception to the Chief ALJ's findings that he did not conduct physical examinations on patients other than AA. I have amended the RD where Respondent has asked for clarification
I have addressed Respondent's Exception related to informed consent in
Respondent takes Exception to the finding that the prescriptions he issued to AA contributed to his death. Resp't Exceptions at 16. The OSC alleged that Respondent's “prescriptions to Patient AA were a contributing factor to Patient AA's overdose death.” OSC at 14.f. The ME Report, in pertinent part, renders the following ultimate conclusion: “Based on the[report's integral] findings and the history and circumstances of [Patient AA's] death as currently known, the cause of death is best listed as `fentanyl, clonazepam, alprazolam, ketamine, hydrocodone, and morphine toxicity' and the manner of death as `accident.' ”
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I find that the substantial evidence on the record as described above supports the Chief ALJ's finding that the controlled substances prescribed by Respondent to AA were
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Additionally, I do not find that Respondent has adequately accepted responsibility for his misconduct related to this patient, even setting aside whether or not the two controlled substances he prescribed were
I have addressed Exception 6 related to Respondent's change in his practices in
Respondent also takes Exception “to the conclusion he did not accept responsibility for misconduct in the Medical Board of California case.” Resp't Exceptions at 19-20. In support of his argument, he cites to several findings in the MBC case where “he admitted he committed repeated negligent acts.”
Respondent did testify that he made changes to his medical practice “regarding the Medical Board situation, which you know about, was highlighting some of the same—these are the same cases, the same era. It was my reaction to that, to show them that I was making a good faith effort to repair this.” Tr. 1052. It appears to me that this statement was very careful, stumbling almost, not to acknowledge that the MBC found many of the exact same type of violations of the standard of care as were at issue in this hearing. And in fact, even though Respondent brought it up in his testimony, he still did not take a moment to accept responsibility for the MBC findings on the record, but stated that his reasoning for the changes to his practice was to “show them”—the MBC—that he was now complying with the standard of care.
Furthermore, I find it relevant to whether Respondent accepted responsibility for the MBC findings that Respondent continued to argue that his prescribing practices were historically within reason, given what he described
Respondent states on the one hand that he has addressed and accepted responsibility the issues that the MBC found, while still re-hashing arguments that the MBC discredited—that his prescribing practices were explained given the historical period that had just ended. The MBC found that “Respondent was slow to respond to this change in the opioid pain management landscape and did not consistently use the tools available to him.”
Respondent again argues that he has adequately responsibility. I have discussed some of these specific arguments in the Recommendation Section and throughout where relevant.
The issue of trust is necessarily a fact-dependent determination based on the circumstances presented by the individual respondent; therefore, the Agency looks at factors, such as the acceptance of responsibility and the credibility of that acceptance as it relates to the probability of repeat violations or behavior and the nature of the misconduct that forms the basis for sanction, while also considering the Agency's interest in deterring similar acts.
Respondent argues that he “accepted full responsibility for deficiencies for which he agreed with Dr. Munzing. There were other allegations for which he provided a defense, as stated herein. Dr. Chesler should not be made to accept responsibility for allegations for which he does not believe are accurate. That would be disingenuous and not something he should do as an honorable and credible person.” Resp't Exceptions at 28. I disagree, as explained in more detail
Additionally, although Respondent repeatedly admitted that his documentation “could be better,”
With respect to the dosing levels, Respondent argues that I should now trust him because he has corrected something that he does not believe was a mistake. He then states that if DEA wants to ensure that he does not prescribe at high levels, “a CURES monitoring program could easily be set up between him and the DEA to track prescriptions for all patients.” Resp't Exceptions at 32. DEA is responsible for regulating more than just Respondent and Respondent has already violated my trust through the multiple, egregious proven allegations. Ensuring that a registrant is trustworthy to comply with all relevant aspects of the CSA without constant oversight is crucial to the Agency's ability to complete its mission of preventing diversion within such a large regulated population.*
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Lastly, Respondent argues that “[d]isciplining Respondent based upon findings of the deficiencies in the Recommended Decision is inconsistent with, and has no nexus to, the DEA's stated goals of avoiding diversion.” *
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The case at hand demonstrates prescribing beneath the applicable standard of care and outside the usual course of professional practice in California to multiple patients over the course of many years. I agree with the Chief ALJ that this conduct was egregious and I agree with his rationale for sanction. As stated above, for many reasons, I cannot find that I can entrust Respondent with a registration.
Accordingly, I reject Respondent's Exceptions and affirm the RD's conclusion that Respondent's registration should be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a)(4) and 21 U.S.C. 823(f), I hereby revoke DEA Certificate of Registration No. BC1317165 issued to Bradley H. Chesler, M.D. Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), I further hereby deny any pending application of Bradley H. Chesler, M.D., to renew or modify this registration, as well as any other pending application of Bradley H. Chesler, M.D. for registration in California. This Order is effective March 2, 2022.
Drug Enforcement Administration, Justice.
Notice of application.
Siegfried USA, LLC. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before April 1, 2022 Such persons may also file a written request for a hearing on the application on or before April 1, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on December 8, 2021, Siegfried USA, LLC., 33 Industrial Park Road, Pennsville, New Jersey 08070-3244, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture the above-listed controlled substance in bulk for development of a new active pharmaceutical ingredient (API) and validation for a Drug Master File submission to the Food and Drug Administration. No other activity for this drug code is authorized for this registration.
On September 30, 2021, the Acting Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Austin J. Kosier, M.D. (hereinafter, Respondent) of Zanesville, Ohio. OSC, at 1 and 3. The OSC proposed the revocation of Respondent's Certificate of Registration No. FK6714504. It alleged that Respondent “[does] not have authority to dispense or prescribe controlled substances in the [s]tate of Ohio, the state in which [Respondent is] registered with DEA.”
Specifically, the OSC alleged that on or about May 12, 2021, the State Medical Board of Ohio issued an Order suspending Respondent's state license to practice medicine and surgery.
The OSC notified Respondent of the right to request a hearing on the allegations or to submit a written statement, while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
On October 25, 2021, Respondent timely requested a hearing by email.
The Office of Administrative Law Judges put the matter on the docket and assigned it to Administrative Law Judge Teresa A. Wallbaum (hereinafter, the ALJ). On October 25, 2021, the ALJ issued a Briefing Schedule.
On December 2, 2021, the ALJ granted the Government's Motion for Summary Disposition, finding that “[t]here is no genuine issue of material fact in this case” because “[t]he Government has established that Respondent currently lacks a medical license.” RD, at 7-8. The ALJ recommended that Respondent's DEA registration be revoked and that any application to renew or modify his DEA registration be denied “because Respondent lacks state authority to handle controlled substances in Ohio.”
I issue this Decision and Order based on the entire record before me. 21 CFR 1301.43(e). I make the following findings of fact.
According to Agency records, Respondent is the holder of DEA Certificate of Registration No. FK6714504 at the registered address of 2916 Vangader Dr., Zanesville, OH 43701. Pursuant to this registration, Respondent is authorized to dispense controlled substances in Schedules II through V as a practitioner. Respondent's registration expires on December 31, 2022.
On May 12, 2021, the State Medical Board of Ohio (hereinafter, the Board) issued a Notice of Summary Suspension and Opportunity for Hearing (hereinafter, Summary Suspension) and an Entry of Order. Government Exhibit (hereinafter, GX) A, at 3 and 5. According to the Summary Suspension, on or about December 16, 2019, “the Franklin County Court of Common Pleas filed an indictment alleging [Respondent] had committed attempted unlawful sexual contact with a minor” on or about September 10, 2019.
According to Ohio's online records, of which I take official notice, Respondent's medical license is still suspended and inactive.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined the term “practitioner” to mean “a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . , to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the state in which he practices.
Moreover, because “the controlling question” in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a practitioner's registration “is currently authorized to handle controlled substances in the [S]tate,”
Under Ohio law, “[n]o person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog,” except
Here, the undisputed evidence in the record is that Respondent currently lacks authority to practice medicine in Ohio. As already discussed, a physician is authorized by law to prescribe or administer drugs in Ohio only when authorized to practice medicine and surgery under Ohio law. Thus, because Respondent lacks authority to practice medicine in Ohio and, therefore, is not authorized to handle controlled substances in Ohio, Respondent is not eligible to maintain a DEA registration. Accordingly, I will order that Respondent's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. FK6714504 issued to Austin J. Kosier, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of Austin J. Kosier, M.D. to renew or modify this registration, as well as any other pending application of Austin J. Kosier, M.D., for additional registration in Ohio. This Order is effective March 2, 2022.
Drug Enforcement Administration, Justice.
Notice of application.
Mylan Pharmaceuticals Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before March 2, 2022. Such persons may also file a written request for a hearing on the application on or before March 2, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield,
In accordance with 21 CFR 1301.34(a), this is notice that on December 7, 2021, Mylan Pharmaceuticals Inc., 2898 Manufacturers Road, Greensboro, North Carolina 27406-4600, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the above controlled substance as a Federal Drug Administration-approved drug product in finished dosage form for commercial distribution to its customers.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2).
On December 3, 2020, a former Assistant Administrator, Diversion Control Division, of the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Michael E. Smith, D.V.M. (hereinafter, Respondent) of Zanesville, Ohio. Administrative Law Judge Exhibit (hereinafter, ALJX) 1 (OSC), at 1 and 5. The OSC proposed the denial of Respondent's application for DEA Certificate of Registration No. W20010614C (hereinafter, COR or registration) and the denial of any applications for any other DEA registrations pursuant to 21 U.S.C. 824(a)(2) and 824(a)(4) because Respondent was convicted of a felony related to controlled substances and because “[Respondent's] registration would be inconsistent with the public interest, as that term is defined in 21 U.S.C. 823(f).”
On January 1, 2021, the Respondent timely requested a hearing, which commenced (and ended) on April 19, 2021, at the DEA Hearing Facility in Arlington, Virginia with the parties, counsel, and witnesses participating via video teleconference (VTC). On June 30, 2021, Administrative Law Judge Paul E. Soeffing (hereinafter, the ALJ) issued his Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter, Recommended Decision or RD).
By letter dated August 5, 2021, the ALJ certified and transmitted the record to me for final Agency action. In the letter, the ALJ advised that the Respondent filed untimely exceptions to the Recommend Decision on July 26, 2021. The ALJ stated that the Respondent had received an extension of time to file his exceptions by 2:00 p.m. ET on July 26, but did not file them until 2:58 p.m. ET. The ALJ also advised that the Government filed its Response to the Respondent's Exceptions on August 5, 2021.
Having reviewed the entire record, I find Respondent's Exceptions without merit and I adopt the ALJ's rulings, findings of fact as modified, conclusions of law and recommended sanction with minor modifications, where noted herein.*
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After carefully considering the testimony elicited at the hearing, the admitted exhibits, the arguments of counsel, and the record as a whole, I have set forth my recommended findings of fact and conclusions of law below.
The Government alleges that the Respondent's application for a DEA COR, Control No. W20010614C, should be denied and any applications by the Respondent for any other DEA registrations should be denied, pursuant to 21 U.S.C. 824, because (1) Respondent has been convicted of a felony relating to controlled substances; and (2) that registration would be inconsistent with the public interest, as that term is defined in 21 U.S.C. 823(f).
The Government and the Respondent agreed to fourteen stipulations, which I recommend be accepted as fact in these proceedings:
1. Respondent was previously registered with the DEA to handle controlled substances in Schedules II through V under DEA COR No. FS1126146 at 100 Sally Road, Zanesville, Ohio 43701.
2. Respondent surrendered DEA COR No. FS1126146 for cause on or about July 20, 2015, pursuant to his plea agreement in Case CR2015-0052,
3. Respondent submitted an electronic application for a new DEA COR on or about February 3, 2020.
4. Government Exhibit No. 1 is a true and correct copy of Respondent's February 3, 2020 application for a DEA COR.
5. Government Exhibit No. 2 is a true and correct copy of the Certification of Registration History showing Respondent's answers to the liability questions from his February 3, 2020 application for a DEA COR.
6. Government Exhibit No. 3 is a true and correct copy of the docket sheet in Case CR2015-0052,
7. Government Exhibit No. 4 is a true and correct copy of Respondent's signed plea agreement, dated July 20, 2015, in Case CR2015-0052,
8. Government Exhibit No. 5 is a true and correct copy of the court's entry of Respondent's plea agreement, dated July 23,
9. Government Exhibit No. 6 is a true and correct copy of the court's entry of Respondent's sentence, dated October 7, 2015, in Case CR2015-0052,
10. Government Exhibit No. 7 is a true and correct copy of the transcript of Respondent's plea hearing, dated July 20, 2015, in Case CR2015-0052,
11. Government Exhibit No. 8 is a true and correct copy of the transcript of Respondent's sentencing hearing, dated October 5, 2015, in Case CR2015-0052,
12. DEA lists Dilaudid (hydromorphone) as a Schedule II controlled substance under 21 CFR 1308.12(b)(1)(vii).
13. DEA lists oxycodone as a Schedule II controlled substance under 21 CFR 1308.12(b)(1)(xiii).
14. Dr. Smith currently holds an unrestricted license to practice veterinary medicine and surgery in the State of Ohio.
The Government presented its case in chief through the testimony of a single witness, Diversion Investigator (DI) K.P.
K.P. has worked for the DEA as a DI in Columbus, Ohio since May 2019. Tr. 14. She has been a DI since January 2019. Tr. 14-15. Her mission is to prevent, detect, and investigate diversion of controlled substances. Tr. 15. She conducts inspections, schedules investigations, and ensures registrants are in compliance with applicable laws. Tr. 15. If an applicant answers “yes” to a liability question
K.P. was assigned the Respondent's case because Respondent answered “yes” to three of the liability questions on the DEA Form 224, Application for Registration (“application”).
In his answer to the first liability question, the Respondent stated that he pled guilty to ten counts of Illegal Processing of Drug Documents, had surrendered his vet license and his DEA registration, and served seventeen months of incarceration. Tr. 24; Gov't Ex. 2.
K.P. did not believe that the Respondent had provided her with proof that he had been working on his addiction. Tr. 40. Although he provided her with certificates of the programs he completed, none were more recent than 2017. Tr. 40-41. She did not have an opinion on how often the Respondent should be attending a rehabilitation program or attending meetings. Tr. 41-42.
K.P.'s testimony was primarily focused on the non-controversial introduction of documentary evidence and her contact with this case.
The Respondent presented his case in chief through the testimony of four witnesses: himself and three character witnesses A.B., R.W., and G.G.
The Respondent graduated from Ohio State University and obtained his degree in 1994. Tr. 44-45; Gov't Ex. 1 at 1.
Within a few years of graduating, the Respondent's veterinary license was disciplined for the first time. Tr. 46-47. One night, sometime in the 1990's, a client offered him cocaine, he took it, and ultimately became addicted to cocaine.
In October of 2011, he learned that he had avascular necrosis of both of his hips, which he found to be quite painful. Tr. 51. He was prescribed opiates by the emergency room doctor, likely Percocet, after this diagnosis, and continued receiving opiate prescriptions after having hernias repaired in November 2011. Tr. 51, 52, 120. He had hip replacement surgery in January 2012. Tr. 52. He continued to receive opiate prescriptions from various doctors until a doctor indicated that he would no longer prescribe him opiates. Tr. 52-53. He then reached out to a surgeon who prescribed him opiates after the Respondent “used an argument of professional courtesy,” but this doctor ultimately stopped prescribing opiates to him. Tr. 53. The Respondent then started doing illegal activities
The Respondent was ultimately served with a warrant in September 2012. Tr. 56. After receiving the warrant, he went to church, attended Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings, and continued to practice as a vet.
He denied using marijuana or smoking crack in 2011 or 2012. Tr. 122.
The Respondent was also given a twenty-four-month sentence for a gun violation.
While he was incarcerated, he applied to the Seeking a New Direction (“SAND”) program, which had limited seating, attended NA and AA meetings weekly to bi-weekly, and chaired some NA meetings. Tr. 59-61, 103; Resp't Ex. B.
After being released from jail, he thanked God, took care of his wife, found employment, and took part in the ACTS program. Tr. 62, 64; Resp't Ex. C. This program focused him on maintaining his sobriety. Tr. 96. He also got a job at Winland's Complete Landscaping as a laborer, then advanced to head mower and trained others. Tr. 64, 66-67. Despite pain from his hip, he never used opiates or other illegal substances while employed there, and “will never touch another one.” Tr. 65. Instead, he took over-the-counter Ibuprofen and Tylenol and was prescribed Meloxicam and Flexeril, a muscle relaxant. Tr. 65, 99.
Post-release, he attended AA and NA meetings. Tr. 65. He “used to go a lot,” but he has “pulled back some” and now goes when he feels “a little stressed” to hear other addicts, including “ones that are newly trying to recover,” so he can “recall the pain, the discomfort, the dysfunction.” Tr. 66.
When the Respondent applied for his veterinary license to be reinstated in Ohio, the Board initially denied his application. Tr. 68. The Board then held a hearing and decided “the same day” to reinstate his license. Tr. 69; Resp't Ex. A. His veterinary license was reactivated in January 2020. Tr. 67, 70, 87. Despite the fact that the Board's decision stated that it was issuing him a license “with a reprimand letter,” the Respondent asserts that he did not receive such a letter. Tr. 107, 109; Resp't Ex. A at 3. The Respondent further testified that there are no restrictions on his veterinary license and there was no discipline or reprimand. Tr. 69. The Board did not require any particular
The Respondent built up his practice and set up an office in his house as a sole practitioner with his wife as his secretary and assistant. Tr. 70, 93-94, 106. He has seen approximately 1,000 patients since his license was reinstated. Tr. 70. The Respondent is specifically seeking the use of Schedule III, IV, and V drugs including Ketamine, which he would use as an anesthetic. Tr. 71-72, 90. He is also requesting Diazepam and Phenobarbital, which are used on animals having seizures. Tr. 73, 90. He is also seeking the use of testosterone and estrogen, which can be used on dogs with prostatitis. Tr. 74, 90. He is also seeking use of Nandrolene, an anabolic steroid, and Telazol, a short-acting narcotic. Tr. 75-76, 90. The Respondent would only administer these controlled substances, except for Phenobarbital, which he would prescribe to epileptic dogs. Tr. 91, 92. The Respondent is aware that Ketamine and Diazepam are controlled substances that are diverted. Tr. 94-95.
Every day, he prays, and he has learned many concepts and tools through NA and his rehabilitation programs. Tr. 79, 137-38. He has learned that addiction is “a lifelong condition and it needs proper maintenance” and that sobriety “takes work, it takes maintenance.” Tr. 80, 111. He would describe himself as “a grateful recovered addict.” Tr. 112. He also believes that addiction is “part of [his] personality.” Tr. 121. He testified that he appreciates that the Board reinstated his license and “can guarantee [he] would never, ever, ever abuse that authority again.” Tr. 81.
Since his incarceration, the Respondent has not taken any classes or continuing education regarding his responsibilities and duties as someone with the authority to prescribe and administer controlled substances, but he did review regulations for the storage of controlled substances and record-keeping. Tr. 85, 116. The Respondent testified that he was “not aware of any classes” regarding responsibilities and duties of those with the authority to prescribe and administer controlled substances. Tr. 116. The last time the Respondent used an illegal controlled substance or any properly prescribed controlled substance was in 2012. Tr. 56, 96-98. He has been drug tested “[m]any times” since 2012 and has never had a positive result.
The Respondent stated that what is currently different as it relates to his prescribing or administering of controlled substances is the fact that he is no longer addicted to opiates. Tr. 111-12. He also does not continue to associate with any of the people he provided false prescriptions to in 2012. Tr. 112. The Respondent asserts that he did not provide drugs to his son (or any other relatives), either by prescribing or diverting them. Tr. 113, 115-16, 117-18.
The Respondent believes a DEA COR would allow him to “practice at a higher level” and would provide for a “better outcome or safety.” Tr. 71, 76-77. The State of Ohio has never taken an action against his veterinary license due to the care he provided or failed to provide to an animal.
Regarding the Respondent's credibility, I note several areas of his testimony where there were inconsistencies or where his testimony was in direct opposition to previous testimony or established facts. First, the Respondent's testimony in this hearing that he never provided drugs to his son is in direct conflict with testimony he provided in his 2015 criminal proceedings as reflected in the sentencing transcript. Second, the Respondent's testimony in this hearing that he was not abusing other drugs, specifically crack and marijuana, at the time that he developed his addiction to opiates conflicts with testimony he provided, as reflected in the transcript, to the court during his 2015 sentencing. Third, the Respondent first testified that the Ohio Physicians' Health Plan counseling was too expensive for him to afford and also too far away for him to attend the in-person sessions. However, upon further examination by the tribunal, Respondent admitted he did not make any inquiries into the program after receiving the Board's Finding and Order and that his testimony was based on an inquiry he made back in the 1990's. Based on these inconsistencies in the Respondent's statements, and Respondent's uninformed (to be charitable) initial testimony regarding the Ohio Physicians' Health Plan counseling, I cannot fully credit the Respondent's testimony.
A.B. has known the Respondent since 1995 and has taken her pets to him as her veterinarian since that time, except when he was not able to practice. Tr. 142-43. She is not a veterinarian and has never prescribed or administered controlled substances. Tr. 147-48. She knows that the Respondent was unable
A.B. was called as a character witness,
The Respondent was employed by R.W.'s landscaping
R.W. was called as a character witness
The Respondent and the Respondent's father had taken care of G.G.'s cats in 1990.
G.G. was called as a character witness
Other facts necessary for a disposition of this case are set forth in the balance of this Recommended Decision.
The burden of proof at this administrative hearing is a preponderance-of-the-evidence standard.
Regarding the exercise of discretionary authority, the courts have recognized that gross deviations from past agency precedent must be adequately supported,
In the adjudication of a denial of a DEA registration, the DEA has the burden of proving that the requirements for such registration are not satisfied. 21 CFR 1301.44(d). Where the Government has sustained its burden and made its
The Government alleges that the Respondent's COR application should be denied because he has been convicted of a felony related to controlled substances, pursuant to 21 U.S.C. 824(a)(2). Under this provision, the Attorney General
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The Government alleges that on July 20, 2015, the Respondent pleaded guilty to ten counts of Illegal Processing of Drug Documents in violation of Ohio Rev. Code. Ann. § 2925.23(B)(1),
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The Government provided a copy of the Respondent's signed guilty plea in which the Respondent pleaded guilty to ten counts of Illegal Processing of Drug Documents and one count of Having a Weapon While Under Disability.
Incident Date: 10/05/2015 Incident Location: MUSKINGUM COUNTY OHIO Incident Nature: IN 2012 I BECAME ADDICTED TO OPIATES AFTER 5 STRAIGHT MONS OF DR. PRESCRIBED OPIATES FOR 2 MAJOR SURGERIES. WHEN THE DRS. FINALLY STOPPED THEM I WROTE OPIATE PRESCRIPTIONS FOR DOGS AND TOOK SOME FOR MY OWN USE. I DID THIS OVER A THREE MONTH PERIOD UNTIL I CAME TO MY SENSES AND SOUGHT HELP FOR MY ADDICTION. Incident Result: IN 2015 AFTER BEING CHARGED I PLEAD GUILTY TO 10 COUNTS OF ILLEGAL PROCESSING OF DRUG DOCUMENTS AND SURRENDERED MY VET. LICENSE AND MY DEA REGISTRATION. I SERVED 17 MONS. INCARCERATED AND COMPLETED 2 REHABILITATION/RECOVERY PROGRAMS . . . .
Gov't Ex. 1 at 1-2 (emphasis in original).
The Respondent also testified at the April 19, 2021 hearing that he had pleaded guilty to “10 counts . . . of illegal processing of drug documents” and that he received a seventeen-month sentence for these charges and served all seventeen months, except “possibly 30 days off the sentence for good behavior.” Tr. 58-59, 101.
During cross-examination, the Government referenced ALJ Exhibit 1, the Order to Show Cause for the instant case. Tr. 100.
Therefore, through the Respondent's testimony, the exhibits, and the stipulations, there is no controversy that the Respondent has pleaded guilty to ten counts of Illegal Processing of Drug Documents in violation of Ohio Rev.
Therefore, the allegations set forth in the OSC Allegations 7 and 8 are
Pursuant to 21 U.S.C. 823(f), the Administrator may deny an application for a registration if persuaded that maintaining such registration would be inconsistent with the public interest. The following factors shall be considered in determining the public interest:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
21 U.S.C. 823(f).
“These factors are . . . considered in the disjunctive.”
Moreover, the Agency is “not required to make findings as to all of the factors,”
The Government contends that granting the Respondent's application for registration would be inconsistent with the public interest based on Factors Two, Three, and Four.
Regarding Factor Two, the Respondent has approximately seven years of experience
As it relates to Factor Four, the record establishes multiple instances in which the Respondent failed to comply with applicable Federal and State laws. The Government alleges that the Respondent violated 21 U.S.C. 841(a), 842(a), and Ohio Admin. Code 4729:5-30.
Under the CSA, a veterinarian falls within the definition of a practitioner, and upon obtaining a registration, a veterinarian has legal authority to prescribe, administer or distribute a controlled substance to an “ultimate user,” who is a person who has lawfully obtained a controlled substance “for an animal owned by him or a member of his household.”
As discussed
Regarding Factor Three, as discussed at length throughout this Recommended Decision, the Respondent's guilty plea, which may be considered under the third factor of the public interest standard,
Therefore, OSC Allegation 10 is
As it relates to the Respondent's experience in dispensing controlled substances, the Respondent's compliance with applicable State and Federal laws relating to controlled substances, and the Respondent's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances, Factors Two, Three, and Four militate strongly in favor of the Government's position that granting the Respondent a DEA registration is inconsistent with the public interest.
Based upon my review of the allegations by the Government, it is necessary to determine if it has met its
It is clear from the stipulations, the Government's evidence, and the Respondent's position in this matter that there is no controversy between the parties that the Respondent was convicted of the underlying criminal charges. The Government's evidence clearly demonstrates the necessary elements of proof under 21 U.S.C. 824 and I find that the Government has established a
With the Government's
Although the Respondent “freely admit[s] [he] did wrong,” his language was conditional, and as opposed to taking unequivocal responsibility, the record is replete with examples of the Respondent placing the blame of his addiction on others, including a former client and his doctors. Tr. 112. For example, when he discussed using cocaine a few years after graduating from veterinary school, he prefaced this by explaining that a lot his previous friends from high school “were using illicit drugs including cocaine” and that he did not “know much about” cocaine until he “had a client one night offer” him some. Tr. 47. When the Respondent was prescribed opiates in October 2011 and ultimately became addicted to them, he blamed a string of doctors who treated him for various ailments. He testified that he was “not aware of the force of opiate addiction” (Tr. 121) and that he “had no idea what it was like until I found out myself.” Tr. 84. He explained that he “trusted the doctors to help” him, (Tr. 121), and “maybe [he] should have told the doctors, please don't give me these opiates.” Tr. 122. With this detached approach, the Respondent appears to have abdicated his responsibility to participate in the proper management of his pain by accounting for his history of drug addiction. Even in his application, which is the subject of these proceedings, he stated that he “BECAME ADDICTED TO OPIATES AFTER 5 STRAIGHT MONS OF DR. PRESCRIBED OPIATES FOR 2 MAJOR SURGERIES. WHEN THE DRS. FINALLY STOPPED THEM I WROTE OPIATE PRESCRIPTIONS FOR DOGS AND TOOK SOME FOR MY OWN USE.” Gov't Ex. 2 at 1 (emphasis in original). Essentially, the Respondent, despite his status as a medical professional and onetime DEA registrant, claimed ignorance of the potential for addiction of cocaine and opiates and instead blamed others for his addiction.
When the Respondent was cross-examined by Government counsel regarding the ten prescriptions he wrote for which he was convicted of Illegal Processing of Drug Documents, the Respondent expressed ambivalence stating that a “few of the prescriptions were actually for dogs that were damaged horribly.” Tr. 102. During this same line of questioning regarding the ten prescriptions for which he was convicted, when asked if he issued the prescriptions “without a legitimate medical purpose and outside the usual
He also appears to have regret mostly for what his actions caused to his own life and it is evident the Respondent does not fully comprehend the repercussions of his actions and the effects it had on the community at large. During his testimony, he stated that his “actions had harmed [himself] and
Therefore, I do not find that the Respondent has demonstrated an “unequivocal acceptance of responsibility” for his actions.
While a registrant must accept responsibility and demonstrate that he will not engage in future misconduct in order to establish that his continued registration is consistent with the public interest, DEA has repeatedly held these are not the only factors that are relevant in determining the appropriate sanction.
Further, in determining whether and to what extent imposing a sanction is appropriate, besides the egregiousness of the offenses established by the Government's evidence, consideration must also be given to the Agency's interest in both specific and general deterrence.
Considerations of specific and general deterrence in this case militate in favor of denial of the application.
The interests of general deterrence compel a like result. As the regulator in this field, the Agency bears the responsibility to deter similar misconduct on the part of others for the protection of the public at large.
Another factor that weighs significantly in favor of the denial sanction sought by the Government is lack of candor. In making the public interest determination, “this Agency places great weight on [a respondent's] candor, both during an investigation and in [a] subsequent proceeding.”
Although the Agency did not make any allegations regarding a lack of candor by the Respondent during the investigation, in making my credibility determination, as discussed above, I found discrepancies between the Respondent's prior testimony to the court at his sentencing hearing and statements made by the Respondent in this proceeding. During the instant proceeding, the Respondent downplayed the scope and extent of his drug use, contradicting statements he made at his sentencing hearing that he was doing crack around the same time he became addicted to opiates and disavowing his previously acknowledged “almost daily” use of marijuana by stating he was not using marijuana because he “was after something for [his] pain, not marijuana.” Tr. 126. Other statements at the hearing that his son was not the recipient of any of his diverted drugs again conflict with testimony he gave at his sentencing hearing that his son received drugs that he diverted from his false prescribing. Finally, I find that the Respondent's initial testimony that he was not participating in the Ohio Physicians' Health Plan counseling, due to its cost, exhibits a lack of candor where the basis for his statement regarding cost was from when he previously considered the program in the 1990's relating to his cocaine addiction. I find that the Respondent's statement that the program was too expensive for him to participate in demonstrated a lack of candor, inasmuch as he later admitted he had no idea how the program is run today and that he had not explored options regarding financial assistance or other accommodations regarding cost. Hence, the Respondent's lack of candor undermines the confidence that the Agency can have in the Respondent's ability to be a responsible DEA registrant.
For the above reasons, I find that the Respondent's misconduct is egregious and that deterrence considerations and the Respondent's lack of candor weigh in favor of revocation.
Considering the entire record before me, the conduct of the hearing, and observation of the testimony of the witnesses presented, I find that the Government has met its burden of proof and has established a
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Therefore, I recommend that the Respondent's application for a DEA registration, Control No. W20010614C, be
On July 26, 2021, Respondent filed his Exceptions to the Recommended Decision. DEA regulations require that Exceptions “include a statement of supporting reasons for such exceptions, together with evidence of record (including specific and complete citations of the pages of the transcript and exhibits) and citations of the authorities relied upon.” 21 CFR 1316.66. For the most part, Respondent's Exceptions not only fail to comply with this regulatory requirement, but also lack evidentiary support in the Administrative Record. Additionally, some of Respondent's Exceptions repeat arguments that were already raised throughout the proceedings and were adequately addressed in the adopted Recommended Decision. Therefore, I reject Respondent's Exceptions and adopt the Recommended Decision of the ALJ as amended above.
In his first Exception, Respondent argues that the ALJ failed to properly consider Factor One in the public interest analysis under 21 U.S.C. 823(f)(1). Respondent's Exceptions, at 1. Respondent argues that “by granting [Respondent] a license to practice medicine and surgery in the State of Ohio after he surrendered it due to the criminal matter, the Ohio Veterinary Medical Licensing Board has given their stamp of approval for [Respondent] to
In determining the public interest under Factor One, the “recommendation of the appropriate State licensing board or professional disciplinary authority . . . shall be considered.” 21 U.S.C. 823(f)(1). “Two forms of recommendations appear in Agency decisions: (1) A recommendation to DEA directly from a state licensing board or professional disciplinary authority (hereinafter, appropriate state entity), which explicitly addresses the granting or retention of a DEA COR; and (2) the appropriate state entity's action regarding the licensure under its jurisdiction on the same matter that is the basis for the DEA OSC.”
In Respondent's case, contrary to Respondent's Exception, the ALJ did consider in his Factor One analysis that the Board was aware of Respondent's history of drug use and addiction and nonetheless reinstated Respondent's Ohio veterinary license without restriction. RD, at 19 n.31. As such, the ALJ found that Factor One leaned in favor of Respondent.
Ultimately, the ALJ found, and I agree, that Factors Two, Three, and Four militate strongly in favor of the Government's position that granting the Respondent a DEA registration is inconsistent with the public interest. Accordingly, I find Respondent's assertion that the ALJ did not take the unrestricted reinstatement of Respondent's veterinary license into consideration in the Factor One analysis to lack merit.
In his second Exception, Respondent argues that the ALJ improperly interpreted Respondent's nervous demeanor as a lack of remorse or a “conditional remorse,” citing the ALJ's analysis of Respondent's acceptance of responsibility. Respondent's Exceptions, at 1-2;
In spite of Respondent's commendable sobriety thus far, I have reason to doubt his claim that he would always be a compliant registrant.
In his third Exception, Respondent argues that “[t]he Tribunal gave too much weight to the DI [K.P.]'s opinions about [Respondent's] work on his addiction.” Respondent's Exceptions, at 2. Respondent also argues that “[t]here was no reason to include this as part of the Government's case” and that “there was no reason for the Tribunal to challenge [Respondent] about the Ohio Physicians' Health Plan.”
Moreover, in his third Exception, Respondent again argues the significance of the Board reinstating his license without restriction. Respondent's Exceptions, at 2. As already discussed
In his fourth Exception, Respondent argues that rather than an unrestricted DEA registration, he should instead be granted a limited DEA registration “to utilize a limited number of [S]chedule III or lower substances.” Respondent's Exceptions, at 2. However, Respondent does not provide adequate substantiation as to why I should accept this proposal, nor is there sufficient evidence in the Administrative Record to support it. Moreover, Respondent has not adequately demonstrated that he can be entrusted with a controlled substance registration at any schedule.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), I hereby deny the pending application for a Certificate of Registration, Control Number W20010614C, submitted by Michael E. Smith, D.V.M., as well as any other pending application of Michael E. Smith, D.V.M., for additional registration in Ohio. This Order is effective March 2, 2022.
Drug Enforcement Administration, Justice.
Notice of application.
Navinta LLC, has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before April 1, 2022. Such persons may also file a written request for a hearing on the application on or before April 1, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on October 18, 2021, Navinta LLC, 1499 Lower Ferry Road, Ewing, New Jersey 08618-1414, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture active pharmaceutical ingredients (API) quantities of the listed controlled subsances for validation purpose and the Food and Drug Adminstration approval. No other activities for these drug codes are authorized for this registration.
Civil Rights Division, Department of Justice.
Notice.
This notice announces the availability on the Department of Justice's website of an updated report regarding the legal and evidentiary frameworks that justify the continued use of race or sex, in appropriate circumstances, by federal agencies to remedy the current and lingering effects of past discrimination in federal contracting programs.
Andrew Braniff, Deputy Section Chief, Employment Litigation Section, Civil Rights Division, Department of Justice, (202) 514-3831,
A substantial body of evidence, both quantitative and qualitative, demonstrates the continued pervasiveness of discriminatory barriers that impede the full and fair participation of businesses owned by women and people of color in government contracting. The nature and breadth of the evidence discussed in the report updates and expands on prior reports—in 1996 and 2010—and supports the compelling interest in the continued use of federal programs that contain remedial measures to eliminate discriminatory barriers to contracting opportunities for businesses owned by women and people of color.
Section I of the report provides an overview of the legal landscape surrounding constitutional challenges to the use of race and sex in contracting programs that are subject to strict and intermediate scrutiny, including a discussion of some recent cases challenging various federal and state contracting programs. Section II reviews a substantial body of statistical evidence published in the last decade, which demonstrates the existence of significant disparities in the amount of public contracting dollars going to businesses owned by women and people of color as compared to their availability for such contracts. Section III explores the various ways that discriminatory barriers can limit access to contracting markets, resulting in the statistical disparities identified in Section II. These include race and sex discrimination by procurement agencies and prime contractors, whether overt or subtle; exclusion from business networks crucial to making the connections necessary to learn about and compete effectively for contracting opportunities; and discrimination by bonding companies and suppliers. Section IV discusses stark disparities in the formation and success of businesses owned by women and people of color as compared to other businesses. Section V addresses discriminatory barriers that impose significant burdens on businesses owned by women and people of color—affecting both their ability to access capital to form and grow businesses in the first instance as well as their ability to compete effectively for contracts. Finally, Section VI addresses how the economic downturn that began in 2020 as a result of the COVID-19 pandemic has disproportionately affected businesses owned by women and people of color.
Evidence discussed in the report is listed in the three appendices. Appendix A identifies congressional hearings from 2010 to 2021 that address challenges facing business owned by women and people of color. Appendix B identifies dozens of disparity studies published between 2010 and 2021. Appendix C identifies additional studies and documentation pertaining to the issues discussed in the report.
The report is available on the Department of Justice's website at:
Occupational Safety and Health Administration (OSHA), Labor.
Extension of Comment Period.
The Secretary of Labor (Secretary) invites interested parties to submit nominations for individuals to
Nominations for individuals to serve on the Council must be submitted electronically by March 31, 2022.
People interested in being nominated for the Council are encouraged to review the
On September 30, 2021, President Joseph Biden signed Executive Order (E.O.) 14048 continuing or reestablishing certain federal advisory committees, including FACOSH, until September 30, 2023 (86 FR 55465 (10/05/2021)). In response, the Secretary reestablished FACOSH and the Department of Labor (DOL) filed the FACOSH charter on October 14, 2021. FACOSH will terminate on September 30, 2023, unless continued by the President. The FACOSH charter is available to read or download at
Notice of solicitation for nominations to serve on FACOSH was also published on October 22, 2021. The deadline for submission of nominations was 30 days from the date of publication, or November 22, 2021. On November 17, 2021 the Secretary extended the deadline for nominations to January 31, 2022 (86 FR 67977, November 30, 2022). The Secretary now extends the deadline for nomination to March 31, 2022.
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice pursuant to 5 U.S.C. 7902; 5 U.S.C. App. 2; 29 U.S.C. 668; E.O. 12196 (45 FR 12629 (2/27/1980)), as amended; 41 CFR part 102-3; and Secretary of Labor's Order 08-2020 (85 FR 58393).
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that 1 meeting of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference or videoconference.
See the
National Endowment for the Arts, Constitution Center, 400 7th St. SW, Washington, DC 20506.
Further information with reference to these meetings can be obtained from Ms. Sherry Hale, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of September 10, 2019, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code.
The upcoming meeting is:
American Rescue Plan (ARP) Orgs Deadline Extension Panel (review of applications): This meeting will be closed.
Notice; correction.
The National Science Foundation (NSF) published a document in the
Please contact Crystal Robinson
In the
National Science Foundation.
Notice and request for comments.
The National Science Foundation (NSF) is announcing plans to request OMB's approval to renew this collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing an opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare a submission requesting OMB clearance for this collection for no longer than three years.
Interested persons are invited to send comments regarding the burden or any other aspect of this collection of information by April 1, 2022.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Ave., Rm. W 18253, Alexandria, VA 22314; telephone: (703) 292-7556; email:
NSF's Research Experiences for Undergraduates (REU) program funds REU Site grants and REU Supplements to organizations to provide authentic research experiences and related training for postsecondary students in STEM fields.
All NSF Principal Investigators in all programs are required to submit annual and final project reports through the NSF Project Reports System in
NSF is committed to providing stakeholders with information regarding the expenditure of taxpayer funds on its investments in human capital, including activities such as REU Sites and REU Supplements. If NSF could not collect information about the students who participate in undergraduate research experiences, NSF would have no other means to consistently document the number and diversity of the participants or to identify the participants for inclusion in efforts that gauge the quality of programmatic activities and the long-term effects of the activities on the students. Without the REU Program Module, NSF also would not have information about the competitiveness of the REU opportunities, which informs the management of the program's budget.
This information collection is specific to a subset of NSF grantees. NSF has not consulted with other agencies but has gathered information from its grantee community through attendance at PI conferences. A request for public comments will be solicited through announcement of data collection in the
All NSF Principal Investigators are required to use the project reporting functionality in
If project participants include undergraduate students supported by a Research Experiences for Undergraduates (REU) Sites grant or by an REU Supplement, then the Principal Investigator is required to complete the REU Program Module in addition to the questions in NSF's standard report template.
Postal Service
Notice of a modified system of records.
The United States Postal Service
These revisions will become effective without further notice on March 2, 2022, unless comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, 202-268-3069 or
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service is constantly seeking methods to improve employee productivity and efficiency. To that end, the Postal Service will implement a suite of cloud-based workplace productivity applications. These applications will expand employee access to various programs, allowing more employees to utilize resources to increase productivity and team collaboration.
The Postal Service is proposing to modify USPS System of Records (SOR) 550.100 Commercial Information Technology Resources- Applications to support the implementation of a suite of cloud-based workplace productivity software. This system will be modified in conjunction with USPS 550.000 Commercial Information Technology Resources- Infrastructure and USPS 550.200 Commercial Information Technology Resources- Administrative to reflect the full scope of application implementation. Revisions to these SORs will be submitted independent of this notice. More information on accompanying changes can be found within those SORs.
This system specifically reflects data elements created through normal use and interactions in a software application. Revisions to the existing SOR to support this implementation are documented as additions to existing categories of records
Pursuant to 5 U.S.C. 552a (e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. The notice for USPS 550.100 Commercial Information Technology Resources- Applications, provided below in its entirety, is as follows:
550.100 Commercial Information Technology Resources- Applications
None.
All USPS facilities and contractor sites.
For records of computer access authorizations: Chief Information Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 403, and 404.
1. To provide event registration services to USPS customers, contractors, and other third parties.
2. To allow task allocation and tracking among team members.
3. To allow users to communicate by telephone, instant-messaging, and email through local machine and web-based applications on desktop and mobile operating systems.
4. To share your personal image via your device camera during meetings and web conferences, if you voluntarily choose to turn the camera on, enabling virtual face-to-face conversations.
5. To provide for the creation and storage of media files, including video recordings, audio recordings, desktop recording, and web-based meeting recordings.
6. To provide a collaborative platform for viewing video and audio recordings.
7. To create limited use applications using standard database formats.
8. To review distance driven by approved individuals for accurate logging and compensation.
9. To develop, maintain, and share computer code.
10. To comply with Security Executive Agent Directive (SEAD) 3 requirements for self-reporting of unofficial foreign travel pertaining to covered individuals who have access to classified information or who hold a sensitive position.
1. Individuals with authorized access to USPS computers, information resources, and facilities, including employees, contractors, business partners, suppliers, and third parties.
2. Individuals participating in web-based meetings, web-based video conferencing, web-based communication applications, and web-based collaboration applications.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Employees; contractors; customers.
Standard routine uses 1. through 9. apply. In addition:
(a) To appropriate agencies, entities, and persons when (1) the Postal Service suspects or has confirmed that there has been a breach of the system of records; (2) the Postal Service has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Postal Service (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Postal Service's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
Automated database, computer storage media, and paper.
1. Records relating to third-parties are retrievable by name and email address.
2. Records relating to collaboration are retrievable by name, email address, and user ID.
3. Records relating to communication are retrievable by name, email address, and user ID.
4. Records pertaining to multimedia are retrievable by user name and media title.
5. Records relating to application development are retrievable by user ID and application name.
6. Records relating to limited use applications are retrievable by name, email address, and user ID.
7. Records relating to Unofficial Foreign Travel Monitoring for covered individuals are retrievable by name.
8. Records relating to Cloud-based storage are retrievable by name, email address, and user ID.
9. Records relating to Email Applications are retrievable by name, email address, and user ID.
10. Records relating to Web Browsers are retrievable by name, email address, and user ID.
1. Records relating to third-parties are retained for twenty-four months.
2. Records relating to collaboration are retained for twenty-four months.
3. Records relating to communication are retained for twenty-four months.
4. Multimedia recordings are retained for twenty-four months.
5. Records relating to application development are retained for twenty-four months.
6. Records relating to limited use applications are retained for twenty-four months.
7. Records relating to Unofficial Foreign Travel Monitoring for covered individuals are retained for twenty-five years.
8. Records relating to Cloud-based storage are retained for twenty-four months.
9. Records relating to Email Applications are retained for twenty-four months.
10. Records relating to Web Browsers are retained for twenty-four months.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Computer access is limited to authorized personnel with a current security clearance, and physical access is limited to authorized personnel who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections.
Computers are protected by encryption, mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure and Record Access Procedures above.
Customers wanting to know if other information about them is maintained in this system of records must address inquiries in writing to the Chief Information Officer and Executive Vice President and include their name and address.
None.
May 11, 2021; 86 FR 25899.
Postal Service
Notice of a modified system of records.
The United States Postal Service
These revisions will become effective without further notice on March 2, 2022, unless comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, 202-268-3069 or
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service is constantly seeking methods to improve employee productivity and efficiency. To that end, the Postal Service will implement a suite of cloud-based workplace productivity applications. These applications will expand employee access to various programs, allowing more employees to utilize resources to increase productivity and team collaboration.
The Postal Service is proposing to modify USPS System of Records (SOR) 550.000 Commercial Information
This system specifically reflects data elements collected, gathered, or used to provide application access generally. Revisions to the existing SOR to support this implementation are documented as additions to existing categories of records
Pursuant to 5 U.S.C. 552a (e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. The notice for USPS 550.000 Commercial Information Technology Resources—Infrastructure, provided below in its entirety, is as follows:
550.000 Commercial Information Technology Resources-Infrastructure.
None.
All USPS facilities and contractor sites.
For records of computer access authorizations: Chief Information Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 403, and 404.
1. To provide USPS employees, contractors, and other authorized individuals with hierarchical access to and accounts for commercial information technology resources administered by the Postal Service and based on least privileged access.
2. To facilitate a cohesive software experience and simplify ease of use by sharing user and application data across participating IT programs.
3. To authenticate user identity for the purpose of accessing USPS information systems.
4. To assess user attributes and assign related access privileges.
5. To authenticate suppliers and contractors and facilitate further access to downstream Postal Service information systems.
6. To provide active and passive monitoring of information systems, applications, software, devices, and users for information security risks.
7. To review information systems, applications, software, devices, and users to ensure compliance with USPS regulations.
8. To facilitate and support cybersecurity investigations of detected or reported information security incidents.
9. To administer programs, processes, and procedures to assess information security risks and to detect information security threats and vulnerabilities.
10. To provide tools and analytics for USPS employees and contractors to measure work productivity and improve efficiency.
11. To improve manager-subordinate relationships within their formal reporting structure through data-based insights generated from their own email and related electronic communications with subordinates.
1. Individuals with authorized access to USPS computers, information resources, and facilities, including employees, contractors, business partners, suppliers, and third parties.
2. Individuals participating in web-based meetings, web-based video conferencing, web-based communication applications, and web-based collaboration applications.
1.
2.
3.
Employees; contractors; customers.
Standard routine uses 1. through 9. apply. In addition:
(a) To appropriate agencies, entities, and persons when (1) the Postal Service suspects or has confirmed that there has been a breach of the system of records; (2) the Postal Service has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Postal Service (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Postal Service's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
Automated database, computer storage media, and paper.
1. Records relating to information system access are retrievable by name, email address, username, geolocation data, and ACE ID.
2. Records relating to security analysis are retrievable by name, unique user ID, email address, geolocation data, IP address and computer name.
3. Records relating to productivity are retrievable by name, email address, and ACE ID.
4. Records relating to third-parties are retrievable by name, email address, user name, and IP address.
1. Records relating to information system access are retained twenty-four months after last access.
2. Records relating to security analysis are retained for twenty-four months.
3. Records relating to productivity are retained for twenty-four months.
4. Records relating to third-parties are retained for twenty-four months.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Computer access is limited to authorized personnel with a current security clearance, and physical access is limited to authorized personnel who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections.
Computers are protected by encryption, mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure and Record Access Procedures above.
Customers wanting to know if other information about them is maintained in this system of records must address inquiries in writing to the Chief Information Officer and Executive Vice President and include their name and address.
None.
May 10th, 2021; 86 FR 24907.
Postal Service
Notice of a modified system of records.
The United States Postal Service
These revisions will become effective without further notice on March 2, 2022, unless comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, 202-268-3069 or
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service is constantly seeking methods to improve employee productivity and efficiency. To that end, the Postal Service will implement a suite of cloud-based workplace productivity applications. These applications will expand employee access to various programs, allowing more employees to utilize resources to increase productivity and team collaboration.
The Postal Service is proposing to modify USPS System of Records (SOR) 550.200 Commercial Information Technology Resources—Administrative to support the implementation of a suite of cloud-based workplace productivity software. This system will be modified in conjunction with USPS 550.000 Commercial Information Technology Resources—Infrastructure and USPS 550.100 Commercial Information Technology Resources—Applications to reflect the full scope of application implementation. Revisions to these SORs will be submitted independent of this notice. More information on accompanying changes can be found within those SORs.
This system specifically reflects data elements created from a user or application's interactions with other applications. Revisions to the existing SOR to support this implementation are documented as additions to existing category of records
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. The notice for 550.200 Commercial Information Technology Resources—Administrative, provided below in its entirety, is as follows:
550.200 Commercial Information Technology Resources—Administrative.
None.
All USPS facilities and contractor sites.
For records of computer access authorizations: Chief Information Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 403, and 404.
1. To provide active and passive monitoring and review of information system applications and user activities.
2. To generate logs and reports of information system application and user activities.
3. To provide a means of auditing commercial information system activities across applications and users.
1. Individuals with authorized access to USPS computers, information resources, and facilities, including employees, contractors, business partners, suppliers, and third parties.
2. Individuals participating in web-based meetings, web-based video conferencing, web-based communication applications, and web-based collaboration applications.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
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23.
24.
25.
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38.
39.
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51.
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53.
54.
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86.
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89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
Employees; contractors; customers.
Standard routine uses 1. through 9. apply. In addition:
(a) To appropriate agencies, entities, and persons when (1) the Postal Service suspects or has confirmed that there has been a breach of the system of records; (2) the Postal Service has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Postal Service (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Postal Service's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
Automated database, computer storage media, and paper.
Records relating to system administration are retrievable by user ID.
Records relating to system administration are retained for twenty-four months.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Computer access is limited to authorized personnel with a current security clearance, and physical access is limited to authorized personnel who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections.
Computers are protected by encryption, mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure and Record Access Procedures above.
Customers wanting to know if other information about them is maintained in this system of records must address inquiries in writing to the Chief Information Officer and Executive Vice President and include their name and address.
None.
May 10th, 2021; 86 FR 24902.
Pursuant to Section 19(b)(1)
The Exchange proposes non-substantive conforming changes to Rules 10.9120 and 10.9560 of the Exchange's disciplinary rules. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes non-substantive conforming changes to
In 2019, the Exchange adopted rules relating to investigation, discipline, sanction, and other procedural rules based on the rules of its affiliate NYSE American LLC and the Financial Industry Regulatory Authority (“FINRA”).
In 2018, FINRA created a unified enforcement function and eliminated the separate enforcement function in the Department of Market Regulation.
Rule 10.9560 sets forth procedures for issuing suspension orders to immediately prohibit persons from conducting, or providing access to the Exchange to conduct, disruptive quoting and trading activity. Rule 10.9560(c)(1) & (2), (d)(1) and (e) use the term “Chief Hearing Officer.” Rule 10.9120(c) defines “Chief Hearing Officer” as the Hearing Officer that manages the Office of Hearing Officers, or his or her delegatee. Rule 10.9120(r) defines “Hearing Officer,” on the other hand, as a FINRA employee who is an attorney appointed by the Chief Hearing Officer to adjudicate and fulfill various adjudicative responsibilities and duties as described in, among other rules, the Rule 10.9550 Series regarding expedited proceedings. Since Rule 10.9560(c)(1) & (2), (d)(1) and (e) govern various aspects of the adjudicative process for expedited hearings—Rule 10.9560(c) governs hearings, Rule 10.9560(d) governs issuance of suspension orders by the hearing panel, and Rule 10.9560(e) governs hearing panel reviews—the references to Chief Hearing Officer in each of these subsections is incorrect. The correct reference should be “Hearing Officer” consistent with the rules adopted by the Exchange's other affiliates, which use “Hearing Officer” in their version of Rule 10.9560.
The proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed non-substantive conforming changes would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the proposed non-substantive changes would add clarity, transparency and consistency to the Exchange's rules. The Exchange believes that market participants would benefit from the increased clarity, thereby reducing potential confusion and ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but is rather concerned with making non-substantive conforming changes to the Exchange rules.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEARCA-2022-01 and should be submitted on or before February 22, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2:00 p.m. on Thursday, February 3, 2022.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes non-substantive conforming changes to Rule 9120 of the Exchange's disciplinary rules. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes non-substantive conforming changes to Rule
In 2013, the Exchange adopted rules relating to investigation, discipline, sanction, and other procedural rules based on the rules of the Financial Industry Regulatory Authority (“FINRA”).
In 2018, FINRA created a unified enforcement function and eliminated the separate enforcement function in the Department of Market Regulation.
The proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed non-substantive conforming changes would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the proposed non-substantive changes would add clarity, transparency and consistency to the Exchange's rules. The Exchange believes that market participants would benefit from the increased clarity, thereby reducing potential confusion and ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but is rather concerned with making non-substantive conforming changes to the Exchange rules.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 23, 2021, NYSE Arca, Inc. (“NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On September 15, 2021, pursuant to Section 19(b)(2) of the Act,
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised in the comments that have been submitted in connection therewith. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 9, 2021, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The proposed rule change was published for comment in the
FINRA's proposed rule change would amend Rule 2165, which currently permits a member firm to place a temporary hold on a disbursement from the account of a “specified adult” customer for up to 25 business days if the criteria of the rule are satisfied. A “specified adult” is someone either age 65 and older, or age 18 and older if the member firm reasonably believes that a mental or physical impairment has rendered the person incapable of protecting their own interests.
A member firm's ability to place a temporary hold on disbursements is subject to a number of conditions that are designed to help prevent misapplication of the rule.
In August 2019, FINRA commenced a retrospective review to assess the effectiveness and efficiency of its rules and administrative processes designed to protect senior investors from financial exploitation, including Rule 2165.
The proposed rule change would expand upon Rule 2165 in both scope and temporal reach by: (1) Expanding the scope of Rule 2165(b)(1) by permitting member firms to place a temporary hold on a securities transaction, in addition to the already-permitted hold on disbursements, where the conditions of the rule, including the member's reasonable belief of customer financial exploitation, are met;
Rule 2165 currently permits member firms to place temporary holds on disbursements of funds or securities when the firm has a reasonable belief that the customer is being financially exploited.
Accordingly, FINRA is proposing to amend Rule 2165 to permit firms to place a temporary hold on securities transactions when the firm has a reasonable belief that the customer is being financially exploited.
Rule 2165 currently allows a member firm to place a temporary disbursement hold on a specified adult customer's account for up to 15 business days if the specified conditions required by the rule are satisfied, unless otherwise terminated or extended by a State Authority.
FINRA stated that although some matters can be quickly resolved after placing a temporary hold (
Accordingly, FINRA is proposing to amend Rule 2165 to permit firms to extend any temporary hold (of a securities transaction or disbursement) under the rule for an additional 30 business days provided that: (1) The member firm's internal review of the facts and circumstances supports the firm's reasonable belief that financial exploitation of the specified adult has occurred, is occurring, has been attempted, or will be attempted, and (2) the member firm has reported or provided notification of its reasonable belief to a State Authority.
Rule 2165(d) currently requires member firms to retain records related to compliance with the rule, which must be readily available to FINRA upon request. To evidence compliance with Rule 2165 in placing or extending a temporary hold (of a securities transaction or disbursement), FINRA is proposing to amend Rule 2165(d) to require that a member firm retain records of the reason and support for any extension of a temporary hold, including information regarding any communications with, or by, a State Authority.
After careful review of the proposed rule change, the comment letters, and FINRA's responses to the comments, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder that are applicable to a national securities association.
The proposed rule change would amend Rule 2165 to permit firms to place a temporary hold on securities transactions when the firm has a reasonable belief that the customer is being financially exploited.
All commenters generally supported this aspect of the proposal.
One commenter suggested that notwithstanding its general support for the proposed rule change as drafted, “more may be done to further protect senior investors” and requested that “FINRA further consider making the Rule proscriptive rather than permissive.”
In response, FINRA stated that permitting a member firm to use discretion in placing a temporary hold would allow for the judicious use of temporary holds to protect customers from financial exploitation.
Permitting firms to impose a temporary hold on transactions where appropriate, in addition to the authority firms already have to impose temporary holds on disbursements, would provide an additional measure of protection to customers from the harmful impact of exploitative transactions, such as adverse tax consequences, early withdrawal penalties, or investing in securities that do not align with their investor profiles. A temporary hold on disbursements may not be sufficient to prevent or redress customer harm from financial exploitation in certain instances, such as financial exploitation involving the purchase and sale of securities. Therefore, authorizing firms to place temporary holds on securities transactions represents an important mechanism to help firms prevent harmful financial consequences that could result from a customer being subject to an exploitative securities transaction. Moreover, FINRA's approach, which balances the importance of reporting against the risk of an inefficient or ineffective use of time and resources for state regulators and agencies, is reasonable. In addition, the Commission expects firms to comply with applicable state laws mandating that firms report suspected financial exploitation. For these reasons, the Commission finds the proposed rule change is consistent with the protection of investors and in the public interest.
The proposed rule change would permit firms to extend the temporary hold on disbursements or transactions authorized by this rule for an additional 30 business days where the member firm has reported or provided notification of the member's reasonable belief of financial exploitation of a specified adult to a State Authority.
Several commenters suggested that more time is needed for the investigation of senior financial exploitation cases.
In response, FINRA stated that the proposed rule change strikes a reasonable balance between giving member firms adequate time to investigate and contact the relevant parties, as well as to seek input from a State Authority if needed, while prohibiting an open-ended hold period.
Another commenter opposed the proposed extension of the temporary hold period because the basis for whether to exercise the 10-business-day extension currently permitted by the rule
In response, FINRA stated that, as with the 10-business-day extension currently provided under Rule 2165(b)(3), the 30-business-day extension would require that the member firm's internal review of the facts and circumstances support a reasonable belief of the existence of, or potential for, financial exploitation necessitating the temporary hold.
The commenter also opposed the proposed 30-business-day extension because “a non-overridable limit on customers' ability to transact and disburse, even though temporary, unduly limits the customers autonomy, which does not strike the right balance of interests under the Exchange Act.”
In response, FINRA stated that customers are given opportunities to help resolve any circumstance giving rise to a temporary hold. For instance, FINRA stated that unless a member firm reasonably believes that doing so would cause further harm to a specified adult, FINRA encourages the firm to attempt to resolve the matter with a customer before placing a temporary hold.
Providing firms with the ability to extend the temporary hold period from a maximum of 25 business days to 55 business days reasonably aligns with FINRA's stated purpose of providing firms with additional time to resolve financial exploitation matters where circumstances warrant. FINRA has found that the average duration of an investigation for matters reported to NAMRS is 52.6 days, and the proposed rule change would extend the potential maximum duration of the hold to 55 business days—a sum that is more in line with the average amount of time needed to conduct an investigation. As FINRA noted, firms as well as the government or law enforcement entities that investigate suspected financial exploitation often need additional time to collect and share information in order to bring the investigation to resolution.
Furthermore, allowing a customer to override a temporary hold when the firm has a reasonable belief that the customer is being financially exploited
The proposed rule change would also extend Rule 2165's record retention obligation to temporary hold extensions by requiring firms to retain records of the reason and support for any extension of a temporary hold, including information regarding any communications with, or by, a State Authority—so that firms have a means to demonstrate compliance with the rule upon request by FINRA.
One commenter stated that retaining records that justify a reasonable belief of financial exploitation would help “justify the imposition of a protective temporary hold, justify limiting a customer's autonomy, justify the member firm's decision-making process, and ensure member firms do not feel free to impose unnecessary holds.”
FINRA's determination to require firms to maintain records evidencing those communications so that they can demonstrate compliance with the rule upon FINRA's request, as set forth in the proposed rule change, is reasonable. For these reasons, the Commission finds FINRA's proposed rule change is consistent with the protection of investors and in the public interest.
One commenter recommended that FINRA consider extending the Rule 2165 safe harbor to apply where there is a reasonable belief that the investor has an impairment that renders the individual unable to protect his or her own interests, irrespective of whether there is evidence the customer may be the victim of financial exploitation by a third party.
In response, FINRA stated that it did not extend Rule 2165 to situations where a member firm has a reasonable belief that the customer has cognitive decline or diminished capacity, but there is no evidence of financial exploitation because such an extension would give member firms too much discretion or would unfairly impede customer autonomy.
The Commission finds that expanding the proposed rule change to capture investors with cognitive decline or diminished capacity where there is no evidence of financial exploitation is beyond the scope of this proposed rule change.
One commenter recommended that the temporary hold rules apply to investment companies, such as mutual funds, noting that because these companies are often the custodian of the actual assets, “there is nothing to be done to hold the actual assets if the client goes to them directly and circumvents the broker-dealer.”
In response, FINRA stated that the Commission, not FINRA, has jurisdiction over investment companies and their transfer agents and, in fact, has already addressed the commenter's concern.
In general, FINRA rules apply to all members and persons associated with a member. The term “member” means any registered broker-dealer whose regular course of business consists in actually transacting securities business that is admitted to membership in FINRA.
In sum, for the above reasons, the Commission finds that the proposed rule change would strengthen the tools available to FINRA's member firms to combat the financial exploitation of vulnerable investors. In addition, the Commission finds that conditioning the ability to extend the temporary hold by requiring firms to report the matter to a specified external authority, as well as requiring firms to maintain records evidencing those communications, would aid in preventing misapplication of the rule, and complement the existing safeguards already present in Rule 2165. Accordingly, the Commission finds that the proposed rule change would facilitate a greater measure of protection for investors by providing firms with additional means to prevent customer harm by imposing temporary holds on securities transactions where appropriate, and also by providing firms with additional time to resolve financial exploitation matters through extending the duration of a temporary hold when necessary. For these reasons, the Commission finds FINRA's proposed rule change is designed to protect investors and the public interest.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Small Business Capital Formation Advisory Committee will hold a public meeting on Thursday, February 10, 2022, via videoconference.
The meeting will be conducted by remote means (videoconference) and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549. Members of the public may watch the webcast of the meeting on the Commission's website at
The meeting will begin at 10:00 a.m. (ET) and will be open to the public. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting includes matters relating to rules and regulations affecting small and emerging businesses and their investors under the federal securities laws.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
5 U.S.C. 552b.
On July 20, 2021, Cboe BZX Exchange, Inc. (“BZX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On September 15, 2021, pursuant to Section 19(b)(2) of the Act,
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change, as modified by Amendment No. 1, so that it has sufficient time to consider the proposed rule change, as modified by Amendment No. 1, and the issues raised in the comments that have been submitted in connection therewith. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes non-substantive conforming changes to Rule 10.9120 of the Exchange's disciplinary rules. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes non-substantive conforming changes to Rule 10.9120 (Definitions) of the Exchange's disciplinary rules.
In 2018, the Exchange adopted rules relating to investigation, discipline, sanction, and other procedural rules based on the rules of its affiliate NYSE American LLC and the Financial Industry Regulatory Authority (“FINRA”).
In 2018, FINRA created a unified enforcement function and eliminated the separate enforcement function in the Department of Market Regulation.
The proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed non-substantive conforming changes would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the proposed non-substantive changes would add clarity, transparency and consistency to the Exchange's rules. The Exchange believes that market participants would benefit from the increased clarity, thereby reducing potential confusion and ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but is rather concerned with making non-substantive conforming changes to the Exchange rules.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rules 5P, 5.2(j)(8)(e), 8P, and 98 to permit the listing and trading of certain Exchange Traded Products that have a component NMS Stock listed on the Exchange or that are based on, or represent an interest in, an underlying index or reference asset that includes an NMS Stock listed on the Exchange. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rules 5P, 8P, 5.2(j)(8)(e) and 98 to permit the listing of certain Exchange Traded Products (“ETPs”)
Currently, Exchange rules do not permit the listing of an ETP that has underlying NYSE Component Securities. The proposed changes would permit the listing of ETPs that satisfy the composition and concentration requirements for equity-based products set forth in the listing criteria of (1) current Rules 5.2(j)(3) (Investment Company Units), 5.2(j)(6) (Equity Index-Linked Securities), 8.100 (Portfolio
Accordingly, these ETPs would not be covered by the restrictions associated with the listing of ETPs that have an NYSE Component Security.
Currently, the Exchange trades securities, including ETPs, on its Pillar trading platform on an unlisted trading privileges (“UTP”) basis, subject to Pillar Platform Rules 1P—13P.
The Exchange's rules permit it to list ETPs under Rules 5P and 8P. Specifically, Rules 5P (Securities Traded) and 8P (Trading of Certain Exchange Traded Products) provide for the listing of certain ETPs on the Exchange that (1) meet the applicable requirements set forth in those rules, and (2) do not hold NYSE Component Securities.
The Exchange recently adopted a new Rule 5.2(j)(8)
While the trading of an equity security and its related derivative product at the same physical location (“side-by-side trading”)
In making a determination of whether an ETP is broad-based, the Commission has relied on an exchange's listing standards. For instance, in permitting integrated market making and side-by-side trading for two types of ETPs and their related options, the Commission looked to the then-American Stock Exchange LLC's listing standards that, as described below, are very similar to the Exchange's current listing standards.
In particular, the Commission observed that the ETPs at issue, an ETF and a TIR, were securities based on “groups of stocks” whose prices were based on the prices of their component securities. As such, the Commission was of the view that a market participant's ability to manipulate the price of the ETPs or the related options would be “limited.”
Finally, the Commission noted that the capitalization and liquidity requirements imposed by the listing standards—for example, the component securities that in the aggregate account for at least 90% of the weight of the portfolio must have a minimum market
The Exchange proposes to list and trade certain ETPs that include one or more underlying NYSE Component Securities. Because listed securities are assigned to DMMs, trading is on the Floor of the Exchange and thus a listed ETP with an underlying NYSE Component Security could be assigned to a DMM that is also assigned one or more NYSE Component Securities forming part of the underlying ETP index or portfolio. The Exchange believes that it would be consistent with the Exchange Act and with prior Commission actions with respect to both integrated market making and side-by-side trading for the Exchange to list an ETP that also includes NYSE Component Securities based on the broad-based listing criteria contained in the relevant listing rules.
The Exchange believes that certain of its existing listing rules, together with proposed additional criteria for ETPs that meet the criteria for listing under Rule 5.2(j)(8), incorporate salient composition and concentration criteria designed to ensure that listed ETPs with an NYSE Component Security would be sufficiently broad-based to address potential manipulation concerns. Specifically, the Exchange believes that ETPs with underlying NYSE Component Securities that would qualify for listing under the current criteria in Rules 5.2(j)(3), Supplementary Material .01(a); 5.2(j)(6)(B)(I); 8.100, Supplementary Material .01(a)(A); and 8.600, Supplementary Material .01(a), would satisfy the type of broad-based listing criteria previously identified by the Commission to address potential manipulation concerns. The Exchange believes that such ETPs could accordingly list and trade on the Exchange with no additional requirement for information barriers or physical or organizational separation based on the broad-based nature of the current listing criteria.
The current listing standards for these Rules incorporate composition and concentration criteria that includes market cap, volume, weighting and minimum number of components requirements. For instance, the generic listing requirements for Equity Index-Linked Securities Listing Standards (“ETN”) under Rule 5.2(j)(6)(B)(I) require that, among other things,
• each underlying index have at least ten (10) component securities;
• component stocks (excluding Derivative Securities Products and Index-Linked Securities) that in the aggregate account for at least 90% of the weight of the index (excluding Derivative Securities Products and Index-Linked Securities) each have a minimum global monthly trading volume of 1,000,000 shares, or minimum global notional volume traded per month of $25,000,000, averaged over the last six months;
• no underlying component security (excluding Derivative Securities Products and Index-Linked Securities) represent more than 25% of the dollar weight of the index, and, to the extent applicable, the five highest dollar weighted component securities in the index (excluding Derivative Securities Products and Index-Linked Securities) do not in the aggregate account for more than 50% of the dollar weight of the index (60% for an index consisting of fewer than 25 component securities).
The generic listing standards for equities-based Investment Company Units under Rule 5.2(j)(3), equities-based Portfolio Depositary Receipts under Rule 8.600, and equities-based Managed Fund Shares under Rule 8.601 contain comparable requirements.
By virtue of the composition and concentration requirements in the Exchange's generic listing standards for equities-based products relating to market cap, trading volume, and diversity requirements, among others, that the underlying components must meet to list on the Exchange, the generic listing standards are, among other things,
• intended to reduce the potential for manipulation by assuring that the ETP is sufficiently broad-based, and that the components of an index or portfolio underlying an ETP are adequately capitalized, sufficiently liquid, and that no one stock dominates the index.
The Exchange believes that ETPs meeting these existing listing criteria would be sufficiently broad-based to allow integrated market making and side-by-side trading in both the ETP and the NYSE Component Securities without more, and therefore should be excluded from the preambles to Rules 5P and 8P.
The Exchange further believes that Exchange Traded Fund Shares eligible to list under Rule 5.2(j)(8) that have underlying NYSE Component Securities should be eligible to list and trade on the Exchange if such Exchange Traded Fund Shares meet similar broad-based requirements as those specified in Rules 5.2(j)(3), 5.2(j)(6), 8.100, and 8.600 described above. To allow for listing of Exchange Traded Fund Shares with NYSE Component Securities, the Exchange proposes to add a new subsection e.1.B. to Rule 5.2(j)(8) to provide for additional listing requirements for such Exchange Traded Fund Shares. As with the ETPs discussed above, Exchange-Traded Fund Shares with NYSE Component Securities meeting the proposed composition and concentration measures proposed in Rule 5.2(j)(8)(e)(1)(B) would be permitted to list with no additional requirement for information barriers or physical or organizational separation, and would be excluded from the preamble to Rule 5P.
As proposed, Rule 5.2(j)(8)(e)(1)(B) would provide that if a portfolio of a series of Exchange-Traded Fund Shares has NYSE Component Securities, the
First, proposed Rule 5.2(j)(8)(e)(1)(B)(1) would provide that the portfolio or index must include a minimum of 13 equity component securities. This proposed requirement is substantively the same as listing rules for ETPs that similarly require a minimum of 13 equity component securities. For example, as set forth in Supplementary Material .01 of Rule 5.2(j)(3), the index components for investment company units (“Units”) consisting solely of US Component Stocks
Second, proposed Rule 5.2(j)(8)(e)(1)(B)(2) provides that no one single component security may exceed 30% of the equity weight of the portfolio or index. Third, proposed Rule 5.2(j)(8)(e)(1)(B)(3) would provide that the five most heavily weighted component securities may not exceed 65% of the equity weight of the portfolio or index. Both of these proposed requirements are substantively identical to current generic listing requirements for Investment Company Units under Supplementary Material .01 of Rule 5.2(j)(3), which provides that the most heavily weighted component stock (excluding Investment Company Units and securities defined in Section 2 of Rule 8P) cannot exceed 30% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted component stocks (excluding Units and securities defined in Section 2 of Rule 8P) cannot exceed 65% of the equity weight of the portfolio.
Fourth, proposed Rule 5.2(j)(8)(e)(1)(B)(4) provides that component securities that in the aggregate account for at least 90% of the equity weight of the portfolio or index each must have a minimum market value of at least $75 million. The proposed requirements are substantively identical to the current generic listing requirements for Units under Supplementary Material .01 of Rule 5.2(j)(3), which provides that component stocks in the aggregate account for at least 90% of the weight of the US Component Stocks portion of the index or portfolio (excluding Derivative Securities Products) each shall have a minimum market value of at least $75 million.
Finally, proposed Rule 5.2(j)(8)(e)(1)(B)(5) would provide that component securities that in the aggregate account for at least 70% of the equity weight of the index or portfolio each must have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months. The proposed requirement is also substantively identical to Supplementary Material .01 of Rule 5.2(j)(3), which provides that component stocks (excluding Derivative Securities Products) that in the aggregate account for at least 70% of the US Component Stocks portion of the weight of the index or portfolio (excluding Derivative Securities Products) each shall have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months.
The Exchange believes that these proposed additional initial and continued listed requirements for a series of Exchange Traded Fund Shares with one or more NYSE Component Securities mirror existing generic listing standards for equities-based products and are consistent with the listing requirements described above that the Commission determined were sufficiently broad-based to address potential manipulation concerns. Accordingly, the Exchange believes that the proposed requirements would ensure that a portfolio of a series of Exchange Traded Fund Shares listed under Rule 5.2(j)(8) with one or more NYSE Component Securities would not be unduly concentrated.
The Exchange believes that requiring Exchange Traded Fund Shares with underlying NYSE Component Securities to meet enhanced criteria is designed to ensure that the Exchange Traded Fund Shares listed on the Exchange would be broad-based and would mitigate potential issues raised by the trading of Exchange Traded Fund Shares on the same physical trading floor as one or more component securities.
To effect the above-described changes, the Exchange proposes to amend the preambles following both Rule 5P and Rule 8P.
For Rule 5P, the Exchange proposes to add “Listed and” before “Traded” in the heading. The Exchange also proposes to add the defined term “NYSE Component Securities,” which would mean the existing Rule 5P definition of “any component NMS Stock that is listed on the Exchange or that is based on, or represents an interest in, an underlying index or reference asset that includes an NMS Stock on the Exchange.” The Exchange further proposes to amend Rule 5P to exclude from the listing prohibition an Exchange Traded Product listed under NYSE Rules 5.2(j)(3), Supplementary Material .01(a); 5.2(j)(6)(B)(I); or 5.2(j)(8)(e)(1)(B). Finally, for the avoidance of doubt, the Exchange proposes to add text to the heading of Rule 5P providing that the Exchange may submit a rule filing pursuant to Section 19(b) of the Securities Exchange Act of 1934 to permit the listing and trading of an ETP that does not otherwise meet the above standards.
The Exchange similarly proposes to amend the heading of Rule 8P to add “Listing and” before “Trading.” The Exchange also proposes to replace the text “component NMS Stock that is listed on the Exchange or that is based on, or represents an interest in, an underlying index or reference asset that includes an NMS Stock listed on the Exchange” with the proposed newly defined term of “NYSE Component Securities.” Use of this new defined term would not make any substantive changes to the Rule and is designed to streamline the rule text. Finally, the Exchange would amend Rule 8P to add language similar to that proposed for Rule 5P that would exclude from the listing prohibition an Exchange Traded Product listed under Rules 8.100, Supplementary Material .01(a)(A) or 8.600, Supplementary Material .01(a).
Rule 98 governs the operation of DMM units and imposes certain restrictions on DMM trading. With respect to integrated market making, the Commission has approved changes to Rule 98 that permit a DMM unit to engage in integrated market making with off-Floor market making units in related products.
With the proposed changes above, the Exchange would be able to list ETPs that include NYSE Component Securities and are listed under Rules 5.2(j)(3), Supplementary Material .01(a); 5.2(j)(6)(B)(I); 5.2(j)(8)(e)(1)(B); 8.100, Supplementary Material .01(a)(A); or 8.600 Supplementary Material .01(a). The proposed change would also provide that ETPs listed under these rules would be excluded from the Rule 98 definition of “related products.” In addition, this proposed change would clarify that ETPs listed under Rules 8.601 (Active Proxy Portfolio Shares) and 8.900 (Managed Portfolio Shares), which are currently excluded from the preamble to Rule 8P, would also be excluded from the Rule 98 definition of “related products.”
As discussed above, for each of the ETPs proposed to be excluded from the definition of “related security,” integrated market making and side-by-side trading in both the ETP and any underlying NYSE Component Securities would be appropriate with no additional requirement for information barriers or physical or organizational separation.
In addition to the reasons why specific products present a reduced risk of manipulation, the Exchange believes that there are significant safeguards in place to prohibit the misuse of material nonpublic information by a member organization that operates a DMM unit. Specifically, Rule 98 contains narrowly tailored restrictions to address that DMMs while on the Floor may have access to certain Floor-based non-public information and requires DMM units to maintain procedures and controls to prevent the misuse of material, non-public information that are effective and appropriate for that member organization.
Specifically, under Rule 98(c)(2), a member organization seeking approval to operate a DMM unit pursuant to Rule 98 must maintain and enforce written policies and procedures reasonably designed, taking into consideration the nature of such member organization's business, (1) to prevent the misuse of material, non-public information by such member organizations or persons associated with such member organization, and (2) to ensure compliance with applicable federal laws and regulations and with Exchange rules.
Rule 98(c)(3)(C) also provides that a Floor-based employee of a DMM unit who moves to a location off the trading floor of the Exchange, or any person who provides risk management oversight or supervision of the Floor-based operations of the DMM unit and becomes aware of Floor-based non-public order information, shall not (1) make such information available to customers, (2) make such information available to individuals or systems responsible for making trading decisions in DMM securities in away markets or related products, or (3) use any such information in connection with making trading decisions in DMM securities in away markets or related products. The rule covers an individual that leaves the Floor, as well as a manager providing oversight or supervision of the Floor-based operations of the DMM unit. Submission and approval of a DMM unit's written policies and procedures addressing the requirements of Rule 98 is a prerequisite to operating a DMM unit on the Floor. The Exchange notes that all member organizations currently operating DMM units already have in place written policies and procedures to comply with Rule 98.
The significant safeguards must be viewed in the context of the evolution of equities markets away from manual executions toward an electronic market that automates executions and in many cases hard codes the rule requirements into the execution logic. Over the years the Exchange has enhanced the transparency of its marketplace and significantly reduced the amount of material, non-public information available to DMMs. For instance, the Exchange disseminates Closing Auction Imbalance Information beginning 10 minutes before the scheduled end of Core Trading Hours, which provides updated imbalance information and indicative closing prices. Moreover, the Commission recently approved a rule filing to make permanent a rule change that Floor brokers would no longer be permitted to represent verbal interest intended for the Closing Auction, as defined in Rule 7.35, and require all Floor brokers to enter orders for the
Finally, trading on the Exchange is subject to a comprehensive regulatory program that includes a suite of surveillances that review trading by DMMs and other market participants on the Floor, including surveillances designed to monitor for trading ahead and manipulative activity. To assist Exchange surveillance of DMM trading activity, a member organization operating a DMM unit must daily provide the Exchange with net position information in DMM securities by the DMM unit and any independent trading unit of which it is part for such times and in the manner prescribed by the Exchange pursuant to Rule 98(c)(5). In addition, routine examinations are conducted consistent with the current exam-based regulatory program associated with Rule 98 that reviews member organizations operating DMM units for compliance with the above-described policies and procedures to protect against the misuse of material nonpublic information. Based on the foregoing, and because the Exchange believes that DMM market-making activity is not materially different from market-making on other exchanges, the Exchange believes that these existing programs are reasonably designed to address any concerns that may be raised by the trading of the specified listed ETPs that have underlying NYSE Component Securities.
For all of the reasons stated above, the proposal is therefore consistent with the requirements of the Act.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes that listing and trading ETPs that have underlying NYSE Component Securities and that also meet the composition and concentration requirements set forth in the listing criteria of Rules 5.2(j)(3), Supplementary Material .01(a); 5.2(j)(6)(B)(I); 8.100, Supplementary Material .01(a)(A); and 8.600, Supplementary Material .01(a) as well as those proposed under Rule 5.2(j)(8)(e)(1)(B), would remove impediments to and perfect the mechanism of a free and open market and a national market system by facilitating the of listing and trading a broader range of ETPs consistent with the Exchange's current structure to trade listed securities. The Exchange believes that permitting the ETPs with underlying NYSE Component Securities that meet the criteria of the specified listing rules (including as amended) would meet the type of listing criteria previously identified by the Commission as sufficiently broad-based and well-diversified to protect against potential manipulation. The Exchange believes that these safeguards would continue to serve to prevent fraudulent and manipulative acts and practices, as well as to protect investors and the public interest from concerns that may be associated with integrated market making and any possible misuse of non-public information. Accordingly, the Exchange believes that integrated market making and side-by-side trading in both the listed ETP and underlying listed NMS stock components is appropriate with no additional requirement for information barriers or physical or organizational separation.
The Exchange believes that the proposed changes to Rule 98 to exclude any ETPs listed on the Exchange from the definition of “related products” would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would facilitate the assignment of listed ETPs, which would include ETPs with underlying NYSE Component Securities that meet the specified listing rules in Rules 5P and 8P, to DMMs and permit DMMs to trade such listed ETPs consistent with existing Rules governing DMM trading, including, for example, Rule 104.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes non-substantive conforming changes to Rule 9120 and Rule 9560. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes non-substantive conforming changes to Rule 9120 (Definitions) and Rule 9560 (Expedited Suspension Proceeding) of the Exchange's disciplinary rules.
In 2016, the Exchange adopted rules relating to investigation, discipline, sanction, and other procedural rules based on the rules of its affiliate New York Stock Exchange LLC and the Financial Industry Regulatory Authority (“FINRA”).
In 2018, FINRA created a unified enforcement function and eliminated the separate enforcement function in the Department of Market Regulation.
Rule 9560 sets forth procedures for issuing suspension orders to immediately prohibit persons from conducting, or providing access to the Exchange to conduct, disruptive quoting and trading activity. Rule 9560(c)(1) & (2), (d)(1) and (e) use the term “Chairman of the Hearing Panel.” This term is not defined in the disciplinary rules or used in Rule 476, the Exchange's legacy disciplinary rules. The references to Chairman of the Hearing Panel in Rule 9560(c)(1) & (2), (d)(1) and (e) are incorrect and should be replaced with “Hearing Officer,” defined in Rule 9120(r) as a FINRA employee who is an attorney appointed by the Chief Hearing Officer to adjudicate and fulfill various adjudicative responsibilities and duties as described in, among other rules, the Rule 9550 Series regarding expedited proceedings. The use of “Hearing Officer” would be consistent with the rules adopted by the Exchange's other affiliates, which use “Hearing Officer” in their version of Rule 9560.
The proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed non-substantive conforming changes would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the proposed non-substantive changes would add clarity, transparency and consistency to the Exchange's rules. The Exchange believes that market participants would benefit from the increased clarity, thereby reducing potential confusion and ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but is rather concerned with making non-substantive conforming changes to the Exchange rules.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEAMER-2022-01 and
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the States, including tribal agencies and United States (U.S.) territories. The purpose of the matching program is to set forth the terms and conditions governing disclosures of records, information, or data (collectively referred to herein as “data”) made by SSA to various State agencies and departments, tribal agencies, and U.S. territories (collectively referred to as “State Agencies”) that administer federally funded benefit programs, including those under various provisions of the Social Security Act (Act), as well as the state-funded state supplementary payment programs under Title XVI of the Act.
The deadline to submit comments on the proposed matching program is March 2, 2022. The matching program will be applicable on July 1, 2022, or once a minimum of 30 days after publication of this notice has elapsed, whichever is later. The matching program will be in effect for a period of 18 months.
You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2021-0032 so that we may associate your comments with the correct regulation.
1.
2.
3.
Interested parties may submit general questions about the matching program to Melissa Feldhan, Division Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, at telephone: (410) 965-1416, or send an email to
None.
• Sections 453, 1106(b), and 1137 of the Act (42 U.S.C. 653, 1306(b), and 1320b-7) (income and eligibility verification data);
• 26 U.S.C. 6103(l)(7) and (8) (Federal tax information);
• Sections 202(x)(3)(B)(iv) and 1611(e)(1)(I)(iii) of the Act (42 U.S.C. 402(x)(3)(B)(iv) and 1382(e)(1)(I)(iii)) (prisoner data);
• Section 205(r)(3) of the Act (42 U.S.C. 405(r)(3)) and the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 7213(a)(2) (death data);
• Sections 402, 412, 421, and 435 of Public Law 104-193 (8 U.S.C. 1612, 1622, 1631, and 1645) (quarters of coverage data);
• Section 1902(ee) of the Act (42 U.S.C. 1396a(ee)); Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), Public Law 111-3 (citizenship data); and
• Routine use exception to the Privacy Act, 5 U.S.C. 552a(b)(3) (data necessary to administer other programs compatible with SSA programs).
Under section 1137 of the Act, States are required to use an income and eligibility verification system to administer specified federally funded benefit programs, including the state-funded state supplementary payment programs under Title XVI of the Act. To assist the State Agencies in determining entitlement to and eligibility for benefits under those programs, as well as other federally funded benefit programs, SSA verifies the Social Security number (SSN) and discloses certain data about applicants (and in limited circumstances, members of an applicant's household) for state-administered benefits from its Privacy Act SORs.
SSA has separate agreements with the State Agencies, which describe the information SSA will disclose for specified federally funded benefit programs.
• 60-0058—Master Files of SSN Holders and SSN Applications;
• 60-0059—Earnings Recording and Self-Employment Income System;
• 60-0090—Master Beneficiary Record;
• 60-0103—Supplemental Security Income Record (SSR) and Special Veterans Benefits (SVB);
• 60-0269—Prisoner Update Processing System (PUPS); and
• 60-0321—Medicare Database (MDB) File.
States will ensure that the Federal tax information contained in SOR 60-0059 (Earnings Recording and Self-Employment Income System) will only be used in accordance with 26 U.S.C. 6103.
Notice is hereby given of the following determinations: I hereby determine that a certain object, entitled “Hercules and Omphale” by Artemisia Gentileschi, being imported from abroad pursuant to an agreement with its foreign owner or custodian for temporary conservation, scientific research, and exhibition or display at The J. Paul Getty Museum at the Getty Center, Los Angeles, California, and at possible additional exhibitions or venues yet to be determined, is of cultural significance, and, further, that its temporary conservation, scientific research, and exhibition or display within the United States as aforementioned are in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary display in the exhibition “Jurassic Oceans: Monsters of the Deep” at the Field Museum of Natural History, Chicago, Illinois and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Maserati North America, Inc., (MNA), has determined that certain model year (MY) 2014-2021 Maserati Ghibli, Quattroporte, and Levante motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
Send comments on or before March 2, 2022.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
MNA has determined that certain MY 2014-2021 Maserati Levante, Ghibli, and Quattroporte motor vehicles do not fully comply with paragraph S4.5.1(b)(3) of FMVSS No. 208,
MNA filed a noncompliance report dated August 5, 2021, pursuant to 49 CFR part 573,
This notice of receipt of the MNA's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or another exercise of judgment concerning the merits of the petition.
Approximately 78,588 MY 2017-2021 Maserati Levante, manufactured between May 20, 2016 and July 13, 2021, and MY 2014-2021 Maserati Ghibli and Quattroporte motor vehicles, manufactured between April 30, 2013, and July 13, 2021, are potentially involved.
MNA explains that the subject vehicles are equipped with air bag warning labels that are affixed to the headliner, rather than either side of the sun visor, as required by S4.5.1(b) (3) of FMVSS No. 208.
Paragraph S4.5.1(b)(3) of FMVSS No. 208, includes the requirements relevant to this petition. Vehicles certified to meet the requirements specified in S19, S21, or S23 on or after September 1, 2003 shall have a label permanently affixed to either side of the sun visor, at the manufacturer's option, at each front outboard seating position that is equipped with an inflatable restraint.
The following views and arguments presented in this section, “V. Summary of MNA's Petition,” are the views and arguments provided by MNA. They have not been evaluated by the Agency and do not reflect the views of the Agency. MNA describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, MNA submits the following reasoning:
MNA says that the sun visor is affixed with an airbag alert label that informs “passengers to flip the sun visor to the down position” to view the warning label. MNA also says that the although the airbag warning label is affixed to the headliner, the label is clearly visible when the sun visor is in the down position. In its petition, MNA provides computer-aided design (CAD) illustrations of the airbag alert label and noncompliant airbag warning label.
MNA states its belief that although the airbag warning label is not positioned on the sun visor, in combination with the airbag alert label, the airbag warning label is displayed as intended by FMVSS No. 208. In support of this argument, MNA cites a 2016 Notice of Proposed Rulemaking (NPRM) on Vehicle Defect Reporting Requirements
MNA says it “is not aware of any crashes, injuries, or customer complaints associated with this condition” and that production is being updated to correct the noncompliance in future vehicles.
MNA concludes that the subject noncompliance is inconsequential as it relates to motor vehicle safety and its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that MNA no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petitions.
Toyota Motor North America, Inc. (TMNA) on behalf of Toyota Motor Corporation (TMC) (collectively referred to as “Toyota”) has determined that certain replacement seat belt assemblies manufactured by Marutaka, Tokai Rika Japan, Autoliv, NSK, Joyson Safety Systems Acquisition, TRQSS, Key Safety Restraint Systems, Inc., Tokai Rika Czech, BMW Group Headquarters, Subaru Corporation, and Mazda North America Operations, and sold to Toyota dealerships as replacement equipment do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 209,
Send comments on or before March 2, 2022.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petitions are granted or denied, notice of the decisions will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Jack Chern, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-0661.
Toyota has determined that certain replacement seat belt assemblies manufactured by Marutaka, Tokai Rika Japan, Autoliv, NSK, Joyson Safety Systems Acquisition, TRQSS, Key Safety Restraint Systems, Inc., Tokai Rika Czech, BMW Group Headquarters, Subaru Corporation, and Mazda North America Operations, and sold to Toyota dealerships as replacement equipment do not fully comply with the requirements of paragraph S4.1(k) and (l) of FMVSS No. 209,
This notice of receipt of Toyota's petitions is published under 49 U.S.C. 30118 and 30120 and does not represent any Agency decision or other exercise of judgment concerning the merits of the petition.
Potentially involved seat belt assemblies are as follows:
1. Approximately 33,000 replacement seat belt assemblies manufactured by Marutaka and Tokai Rika Japan between November 1, 1995, and February 28, 2021;
2. approximately 1,400,000 replacement seat belt assemblies manufactured by Marutaka, Tokai Rika Japan, Autoliv, NSK, Joyson Safety Systems Acquisition, TRQSS, Key Safety Restraint Systems, Inc., and Tokai Rika Czech between October 1, 1994, and February 28, 2021; and
3. approximately 6,160 replacement seat belt assemblies manufactured by BMW Group Headquarters, Subaru Corporation, Mazda North America Operations between March 1, 2012, and April 30, 2021.
Toyota explains that the noncompliance involves replacement seat belt assemblies manufactured by Marutaka, Tokai Rika Japan, Autoliv, NSK, Joyson Safety Systems
Specifically, the items of noncompliant equipment involved are:
(1) Certain replacement seat belt assemblies, manufactured by Marutaka and Tokai Rika Japan, were packaged with an instruction sheet that was missing the following required statement: “This seat belt assembly is for use only in [insert specific seating position(s),
(2) certain replacement seat belt assemblies, manufactured by Marutaka, Tokai Rika Japan, Autoliv, NSK, Joyson Safety Systems Acquisition, TRQSS, Key Safety Restraint Systems, Inc., and Tokai Rika Czech, were packaged with an instruction sheet that was missing the aforementioned seating position(s) statement; and
(3) certain replacement seat belt assemblies, manufactured by BMW Group Headquarters, Subaru Corporation, and Mazda North America Operations, were packaged with an instruction sheet that was also missing the required seating position(s) statement, or packaged without the required usage and maintenance instructions.
Paragraphs S4.1(k) and (l) of FMVSS No. 209 include the requirements relevant to this petition. Paragraph S4.1(k) requires that a seat belt assembly, other than a seat belt assembly installed in a motor vehicle by an automobile manufacturer, shall be accompanied by an instruction sheet providing sufficient information for installing the assembly in a motor vehicle. If the assembly is for use only in specifically stated motor vehicles, the assembly shall either be permanently and legibly marked or labeled with the following statement, or the instruction sheet shall include the following statement:
This seat belt assembly is for use only in [insert specific seating position(s),
Paragraph S4.1(l) requires that a seat belt assembly or retractor shall be accompanied by written instructions for the proper use of the assembly, stressing particularly the importance of wearing the assembly snugly and properly located on the body, and on the maintenance of the assembly and periodic inspection of all components.
The following views and arguments presented in this section, “V. Summary of Toyota's Petition,” are the views and arguments provided by Toyota. They have not been evaluated by the Agency and do not reflect the views of the Agency. Toyota described the subject noncompliance and stated their belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Toyota submitted the following reasoning:
1. The subject seat belt assemblies were sold only by Toyota dealerships. Due to the dealerships' replacement parts ordering system and the parts packaging, improper replacement seat belt assembly selection would not likely occur.
Toyota states that it is unlikely that the subject replacement seat belt assemblies would be selected for an incorrect model and seating position as a result of this issue. The subject assemblies were only sold by Toyota dealerships. The parts ordering system clearly indicates the part and enables identification of the appropriate model vehicle and seating position for which the assembly is intended to be installed. When selecting a replacement part, the dealerships can search by Vehicle Identification Number, part number, and vehicle model. They can also see a diagram of the part location via the Electronic Parts Catalog. In addition, the part can be identified by the label on the packaging and the old part can be compared to the new part. The label on the packaging in which the replacement seat belt is packaged specifies the part number and part description.
Toyota says that because of the Toyota dealerships' robust part ordering system and the additional label on the packaging, it is unlikely that an incorrect seat belt would be provided or used as a replacement part. The missing instruction sheet, missing seating position, or incorrect seat position on the instruction sheet has no effect on a dealership's ability to provide the correct replacement part ordered or on the installer's ability to correctly identify the appropriate replacement part.
2. The improper installation of the seat belt assembly is unlikely. Dealership technicians and third-party installers can access Toyota's electronic repair manual and other aftermarket manuals and the subject assemblies themselves have characteristics that discourage incorrect installation.
Toyota contends that it is unlikely that an improper installation of a replacement seat belt would occur as a result of a missing instruction sheet or an instruction sheet that does not indicate the specific seating position information.
First, after identifying that the part does not have an installation instruction sheet, does not specify the specific seating position, or specifies the wrong seating position for which the part was purchased, the installer could return the part to the dealer, request the installation instruction from the dealer, or consult other sources of installation instructions that are readily available. Technicians at Toyota dealerships have access to Toyota's electronic repair manual. Third-party installers have access to various aftermarket repair manuals and can obtain access to Toyota's electronic repair manual. The installer can also request a copy of the installation instructions from Toyota, and the instructions would be provided free of charge.
Second, the subject assemblies themselves have characteristics that discourage incorrect installation. These characteristics include the appearance being visually different, an inability to connect the wire harness, the warning indicator becoming illuminated, or the seat belt being unable to buckle. Because the subject seat belts are not universal type seat belts, they are intended to be used to replace specific seat belts in specific seating positions. It is unlikely that these replacement assemblies would be installed incorrectly.
Third, the torque value for structurally mounting the seat belt assemblies is a standard value and is correct regardless of which instruction sheet is used (42Nm). Because these torque values are common, even if the technician uses the torque values from the incorrect installation instruction sheet, the torque value will still be correct.
For these reasons, Toyota believes it is unlikely that the subject seat belt assemblies would be improperly installed.
Toyota notes that the investigation leading to the submission of the part 573 reports subject of this petition was prompted by a report from a dealer technician who found a seat belt assembly with an incorrect instruction sheet. While records covering the entire scope of the seat belt assemblies
3. The replacement seat belt assemblies are intended to replace the original equipment seat belts. The owner's manual for each vehicle contains the seat belt usage and maintenance instructions.
Toyota states that it is unlikely that improper use or maintenance of a replacement seat belt would occur because of the missing usage and maintenance instructions. The affected seat belt assemblies are designed to replace the originally equipped seat belts in specific Toyota vehicles. All of the vehicle models for which these replacement seat assemblies were designed were originally equipped with an owner's manual that contains usage and maintenance instructions for these seat belt assemblies. Thus, the vehicle owner has access to the usage and maintenance instructions and would not need to refer to the instruction sheet for this information. In addition, the seat belts packaged with sheets that are only missing the specific seating position information have the correct usage and maintenance instructions.
4. The seat belts comply with all other requirements of FMVSS No. 209.
Toyota says the lack of information on the instruction sheets has no bearing on the materials or performance of the replacement seat belt assembly itself. Thus, the assemblies continue to meet the other performance requirements specified in FMVSS No. 209. There is no impact to performance, functionality, or occupant safety.
5. In similar situations, NHTSA has granted petitions for inconsequential noncompliance relating to the subject requirement of FMVSS No. 209.
Toyota states that NHTSA has previously granted at least seven similar inconsequentiality petitions for noncompliances that it contends are similar to the subject noncompliance. These include: FCA US LLC (84 FR 20948, May 3, 2019); Mitsubishi Motors North America, Inc., (77 FR 24762, April 25, 2012); Bentley Motors, Inc. (76 FR 58343, September 20, 2011); Hyundai Motor Company (74 FR 9125, March 2, 2009); Ford Motor Company, (73 FR 11462, March 3, 2008); Mazda North American Operations (73 FR 11464, March 3, 2008); and Subaru of America, Inc. (65 FR 67471, November 9, 2000).
In these cases, Toyota argues, NHTSA determined that the noncompliance was inconsequential to motor vehicle safety for reasons that included the following: (1) The dealer ordering system would make it unlikely that an inappropriate seat belt assembly would be sold for a specific seating position; (2) installers would be able to locate installation instructions from other sources; (3) the usage and maintenance instructions are available in the vehicles owner's manual; and (4) the seat belts are intended to be replacement parts for original equipment designed for specific seating positions. These reasons also apply to the subject Toyota replacement seat belt assemblies.
Toyota's complete petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) website at
Toyota concluded that the subject noncompliance is inconsequential as it relates to motor vehicle safety and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the equipment that Toyota no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant replacement seat belt assemblies under their control after Toyota notified them that the subject noncompliance existed.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for applicable date(s).
OFAC: Andrea M. Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel. 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On January 20, 2022, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 8569, Geographic Availability Statement.
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, room 6526, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to LaNita Van Dyke, at (202) 317-6009, at Internal Revenue Service, room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Relief for Service in Combat Zone and for Presidentially Declared Disaster.
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in you comment.
Requests for additional information or copies of the regulations should be directed to LaNita Van Dyke, at (202) 317-6009, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Notice 2007-52, Qualifying Advanced Coal Project Program.
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in you comment.
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke, (202) 317-6009, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden,
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning guidance on the application for determination for terminating plan, and distributable benefits from employee pension benefit plans.
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 5498-ESA, Coverdell ESA Contribution Information.
Written comments should be received on or before April 1, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in you comment.
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke at (202) 317 6009, at Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted.
(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
Regulatory Information Service Center.
Introduction to the Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions.
Publication of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions represents a key component of the regulatory planning mechanism prescribed in Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” (58 FR 51735) and reaffirmed in E.O. 13563, “Improving Regulation and Regulatory Review,” (76 FR 3821). The Regulatory Flexibility Act requires that agencies publish semiannual regulatory agendas in the
The Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), published in the fall and spring, helps agencies fulfill all of these requirements. All federal regulatory agencies have chosen to publish their regulatory agendas as part of this publication. The complete Unified Agenda and Regulatory Plan can be found online at
The Fall 2021 Unified Agenda publication appearing in the
The complete Fall 2021 Unified Agenda contains the Regulatory Plans of 27 Federal agencies and 67 Federal agency regulatory agendas.
Regulatory Information Service Center (MR), General Services Administration, 1800 F Street NW, Washington, DC 20405.
For further information about specific regulatory actions, please refer to the agency contact listed for each entry. To provide comment on or to obtain further information about this publication, contact: Boris Arratia, Director, Regulatory Information Service Center (MR), General Services Administration, 1800 F Street NW, Washington, DC 20405, 703-795-0816. You may also send comments to us by email at:
The Regulatory Plan serves as a defining statement of the Administration's regulatory and deregulatory policies and priorities. The Plan is part of the fall edition of the Unified Agenda. Each participating agency's regulatory plan contains: (1) A narrative statement of the agency's regulatory and deregulatory priorities, and, for the most part, (2) a description of the most important significant regulatory and deregulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year. This edition includes the regulatory plans of 30 agencies.
The Unified Agenda provides information about regulations that the Government is considering or reviewing. The Unified Agenda has appeared in the
The Fall 2021 Unified Agenda publication appearing in the
The following agencies have no entries for inclusion in the printed regulatory flexibility agenda. An asterisk (*) indicates agencies that appear in The Regulatory Plan. The regulatory agendas of these agencies are available to the public at
The Regulatory Information Service Center compiles the Unified Agenda for the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget. OIRA is responsible for overseeing the Federal Government's regulatory, paperwork, and information resource management activities, including implementation of Executive Order 12866 (incorporated in Executive Order 13563). The Center also provides information about Federal regulatory activity to the President and his Executive Office, the Congress, agency officials, and the public.
The activities included in the Agenda are, in general, those that will have a regulatory action within the next 12 months. Agencies may choose to include activities that will have a longer timeframe than 12 months. Agency agendas also show actions or reviews completed or withdrawn since the last Unified Agenda. Executive Order 12866 does not require agencies to include regulations concerning military or foreign affairs functions or regulations related to agency organization, management, or personnel matters.
Agencies prepared entries for this publication to give the public notice of their plans to review, propose, and issue regulations. They have tried to predict their activities over the next 12 months as accurately as possible, but dates and schedules are subject to change. Agencies may withdraw some of the regulations now under development, and they may issue or propose other regulations not included in their agendas. Agency actions in the rulemaking process may occur before or after the dates they have listed. The Regulatory Plan and Unified Agenda do not create a legal obligation on agencies to adhere to schedules in this publication or to confine their regulatory activities to those regulations that appear within it.
The Regulatory Plan and the Unified Agenda helps agencies comply with their obligations under the Regulatory Flexibility Act and various Executive orders and other statutes.
The Regulatory Flexibility Act requires agencies to identify those rules that may have a significant economic impact on a substantial number of small entities (5 U.S.C. 602). Agencies meet that requirement by including the information in their submissions for the Unified Agenda. Agencies may also indicate those regulations that they are reviewing as part of their periodic review of existing rules under the Regulatory Flexibility Act (5 U.S.C. 610). Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” signed August 13, 2002 (67 FR 53461), provides additional guidance on compliance with the Act.
Executive Order 12866, “Regulatory Planning and Review,” September 30, 1993 (58 FR 51735), requires covered agencies to prepare an agenda of all regulations under development or review. The Order also requires that certain agencies prepare annually a regulatory plan of their “most important significant regulatory actions,” which appears as part of the fall Unified Agenda. Executive Order 13497, signed January 30, 2009 (74 FR 6113), revoked the amendments to Executive Order 12866 that were contained in Executive Order 13258 and Executive Order 13422.
Executive Order 13563, “Improving Regulation and Regulatory Review,”
Executive Order 13132, “Federalism,” August 4, 1999 (64 FR 43255), directs agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have “federalism implications” as defined in the Order. Under the Order, an agency that is proposing a regulation with federalism implications, which either preempt State law or impose non-statutory unfunded substantial direct compliance costs on State and local governments, must consult with State and local officials early in the process of developing the regulation. In addition, the agency must provide to the Director of the Office of Management and Budget a federalism summary impact statement for such a regulation, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which those concerns have been met. As part of this effort, agencies include in their submissions for the Unified Agenda information on whether their regulatory actions may have an effect on the various levels of government and whether those actions have federalism implications.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, title II) requires agencies to prepare written assessments of the costs and benefits of significant regulatory actions “that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any 1 year.” The requirement does not apply to independent regulatory agencies, nor does it apply to certain subject areas excluded by section 4 of the Act. Affected agencies identify in the Unified Agenda those regulatory actions they believe are subject to title II of the Act.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” May 18, 2001 (66 FR 28355), directs agencies to provide, to the extent possible, information regarding the adverse effects that agency actions may have on the supply, distribution, and use of energy. Under the Order, the agency must prepare and submit a Statement of Energy Effects to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, for “those matters identified as significant energy actions.” As part of this effort, agencies may optionally include in their submissions for the Unified Agenda information on whether they have prepared or plan to prepare a Statement of Energy Effects for their regulatory actions.
The Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, title II) established a procedure for congressional review of rules (5 U.S.C. 801
The Regulatory Plan appears in part II in a daily edition of the
Each agency's section of the Plan contains a narrative statement of regulatory priorities and, for most agencies, a description of the agency's most important significant regulatory and deregulatory actions. Each agency's part of the Agenda contains a preamble providing information specific to that agency plus descriptions of the agency's regulatory and deregulatory actions.
The online, complete Unified Agenda contains the preambles of all participating agencies. Unlike the printed edition, the online Agenda has no fixed ordering. In the online Agenda, users can select the particular agencies' agendas they want to see. Users have broad flexibility to specify the characteristics of the entries of interest to them by choosing the desired responses to individual data fields. To see a listing of all of an agency's entries, a user can select the agency without specifying any particular characteristics of entries.
Each entry in the Agenda is associated with one of five rulemaking stages. The rulemaking stages are:
A bullet (•) preceding the title of an entry indicates that the entry is appearing in the Unified Agenda for the first time.
In the printed edition, all entries are numbered sequentially from the beginning to the end of the publication. The sequence number preceding the title of each entry identifies the location of the entry in this edition. The sequence number is used as the reference in the printed table of contents. Sequence numbers are not used in the online Unified Agenda because the unique Regulation Identifier Number (RIN) is able to provide this cross-reference capability.
Editions of the Unified Agenda prior to fall 2007 contained several indexes, which identified entries with various characteristics. These included regulatory actions for which agencies believe that the Regulatory Flexibility Act may require a Regulatory Flexibility Analysis, actions selected for periodic review under section 610(c) of the Regulatory Flexibility Act, and actions that may have federalism implications as defined in Executive Order 13132 or other effects on levels of government. These indexes are no longer compiled, because users of the online Unified Agenda have the flexibility to search for entries with any combination of desired characteristics. The online edition retains the Unified Agenda's subject index based on the
All entries in the online Unified Agenda contain uniform data elements including, at a minimum, the following information:
As defined in Executive Order 12866, a rulemaking action that will have an annual effect on the economy of $100 million or more or will adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The definition of an “economically significant” rule is similar but not identical to the definition of a “major” rule under 5 U.S.C. 801 (Pub. L. 104-121). (See below.)
A rulemaking that is not Economically Significant but is considered Significant by the agency. This category includes rules that the agency anticipates will be reviewed under Executive Order 12866 or rules that are a priority of the agency head. These rules may or may not be included in the agency's regulatory plan.
A rulemaking that has substantive impacts, but is neither Significant, nor Routine and Frequent, nor Informational/Administrative/Other.
A rulemaking that is a specific case of a multiple recurring application of a regulatory program in the Code of Federal Regulations and that does not alter the body of the regulation.
A rulemaking that is primarily informational or pertains to agency matters not central to accomplishing the agency's regulatory mandate but that the agency places in the Unified Agenda to inform the public of the activity.
Some agencies have provided the following optional information:
Alternatively, timely public comments may be submitted at the Governmentwide e-rulemaking site,
The following abbreviations appear throughout this publication:
Copies of the
Telephone: (202) 512-1800 or 1-866-512-1800 (toll-free).
Copies of individual agency materials may be available directly from the agency or may be found on the agency's website. Please contact the particular agency for further information.
All editions of The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions since fall 1995 are available in electronic form at
The Government Publishing Office's GPO GovInfo website contains copies of the Agendas and Regulatory Plans that have been printed in the
Executive Order 12866, issued in 1993, requires the annual production of a Unified Regulatory Agenda and Regulatory Plan. It does so in order to promote transparency—or in the words of the Executive Order itself, “to have an effective regulatory program, to provide for coordination of regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve the public and its State, local, and tribal officials in regulatory planning, and to ensure that new or revised regulations promote the President's priorities and the principles set forth in this Executive order.” The requirements of Executive Order 12866 were reaffirmed in Executive Order 13563, issued in 2011.
We are now providing the first Regulatory Plan of the Biden-Harris Administration for public scrutiny and review. The regulatory plans and agendas submitted by agencies and included here offer blueprints for how the Administration plans to continue delivering on the President's agenda as we build back better. This agenda is fully consistent with the priorities outlined by the President as reflected in his executive orders and our previous regulatory agenda. We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.
These new plans build on significant progress the Administration has already made advancing our priorities and proving that our Government can deliver results—from confronting the pandemic, to creating a stronger and fairer economy, to addressing climate change and advancing equity. For example, since releasing the spring regulatory agenda, we have proposed or finalized regulatory protections to:
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In addition to these significant actions, the Administration has also made key progress advancing another core objective: Effectively implementing the American Rescue Plan (ARP). Since the ARP went into effect in March, the Administration has promulgated 17 proposed and 32 final rules to get much needed relief to the communities across the countries efficiently and equitably. For example:
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In this agenda, we are adding important new measures under
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Between this regulatory agenda and the next in spring 2022, agencies will also be developing plans for implementing the Infrastructure Investment and Jobs Act (IIJA), historic legislation to rebuild crumbling infrastructure, create good paying jobs, and grow our economy. These plans will provide greater detail on how agencies will administer new IIJA programs in a manner that delivers meaningful results to all Americans, strengthens American manufacturing, and advances climate resilience. These plans will provide an opportunity for the public to be partners in the implementation of the IIJA—and all government programs. Public engagement in IIJA implementation can only make it better and more responsive to what our families and communities most need.
The U.S. Department of Agriculture's (USDA) fall 2021 Regulatory Agenda and Plan prioritizes initiatives fostering 21st century innovation, job creation, economic and market opportunity in rural America, particularly among historically underserved people and communities, and a safe end to the pandemic. USDA will continue to leverage existing programs in response to unforeseen events and national emergencies affecting the American farm economy, schools, individual households, and our National Forests. All USDA programs, including the priorities contained in this Regulatory Plan, will be structured to advance the cause of equity by removing barriers and opening new opportunities.
In 2021, the USDA:
Agricultural Marketing Service (AMS) implemented a
Outlined below are some of our most important upcoming regulatory actions. These include efforts to restore and expand economic opportunity amid a safe end to the pandemic; address the climate change emergency; and support agricultural markets that are free, open and promote competition. This Regulatory Plan also reflects USDA's continued commitments to ensuring a safe and nutritious food supply and animal welfare protections. As always, our Semiannual Regulatory Agenda contains information on a broad-spectrum of USDA's initiatives and upcoming regulatory actions.
USDA will provide additional direct financial assistance to producers of agricultural commodities who suffered eligible revenue losses in calendar year 2020 during the COVID-19 pandemic; this will expand on the assistance USDA provided last year. Payments will be made using funds under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act; Pub. L. 116-136). The rule will also implement the expanded Pandemic Cover Crop Program (PCCP) to help agricultural producers impacted by the effects of the COVID-19 outbreak. Given cover crop cultivation requires sustained, long-term investments to improve soil health and gain other agronomic benefits, the economic challenges due to the pandemic made maintaining cover cropping systems financially challenging for many producers. In addition, the rule will also update the regulations for the Emergency Conservation Program (ECP); the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP); and the Livestock Forage Disaster Program (LFP); Livestock Indemnity Program (LIP); and payment eligibility provisions. For more information about this rule, see RIN 0503-AA75.
On July 9, 2021, President Biden signed Executive Order 14036 to address the growing concerns over competition and concentration in the U.S. economy, including the agriculture sector. The order includes 72 initiatives by more than a dozen federal agencies including USDA to promptly tackle some of the most pressing competition problems across the economy. Specifically, the White House fact sheet looks to “empower family farmers and increase their incomes by strengthening the Department of Agriculture's tools to stop the abusive practices of some meat processors.” One of USDA's initiatives is this area will be to revitalize, through the following rulemakings, the Packers and Stockyards Act to fight unfair practices and rebuild a competitive marketplace:
USDA's Food Safety and Inspection Service (FSIS) continues to ensure that meat, poultry, and egg products are properly marked, labeled, and packaged, and prohibits the distribution in-commerce of meat, poultry, and egg products that are adulterated or misbranded. Consistent with the President's priorities of advancing the country's economic recovery and promoting economic resilience, FSIS is proposing several rules to improve regulatory certainty, which assure consumers that meat, poultry, and egg products are safe and truthfully labeled and fosters fair competition among the regulated industry. In a similar vein, AMS has prepared proposed standards for organic livestock and poultry production.
Sections 202(a) and 202(b) of the P&S Act are broadly written to prohibit unfair practices and undue preferences and prejudices. Industry members have complained that the regulations effectuating the Act are too vague and do not provide adequate clarity about the types of conduct or action that are likely to violate the Act. This rule is needed to provide essential clarity about what would be considered violations of the Act, regardless of whether such violations harm or are likely to harm competition.
The final rule published in January 2017 elicited mixed responses and was opposed by a multitude of producer groups, representing both organic and non-organic producers. Publication of this proposed rule is likely to produce similar responses. Additionally, USDA argued in its withdrawal of the rule that USDA had no authority under the Organic Foods Production Act to promulgate the rule, so there is legal risk in reversing direction and publishing a similar rule.
Finally, AMS plans to seek comment on providing an extended compliance date (15 years) for poultry operations that do not provide birds with access to soil or vegetation in outdoor spaces (
Mandated by the U.S. District Court for the District of Columbia in a May 26, 2020 Stay (Case # 1:18-cv-01138-TNM).
This rule is expected to reduce the number of labels industry is required to submit to FSIS for evaluation by approximately 35 percent. Establishments will realize a cost savings because they will no longer need to incur costs for submitting certain types of labels to FSIS for evaluation (
FSIS will also benefit from a reduction in the number of labels submitted to it for review. FSIS will be able to reallocate staff hours from evaluating labels towards the development of labeling policy.
Established in 1903, the Department of Commerce (Commerce or Department) is one of the oldest Cabinet-level agencies in the Federal Government. Commerce's mission is to create the conditions for economic growth and opportunity across all American communities by promoting innovation, entrepreneurship, competitiveness, and environmental stewardship. Commerce has 12 operating units, which manage a diverse portfolio of programs and services ranging from trade promotion and economic development assistance to improved broadband access and the National Weather Service, and from standards development and statistical data production, including the decennial census, to patents and fisheries management. Across these varied activities, the Department seeks to provide a foundation for a more equitable, resilient, and globally competitive economy.
To fulfill its mission, Commerce works in partnership with businesses, educational institutions, community organizations, government agencies, and individuals to:
• Innovate by creating new ideas through cutting-edge science and technology, from advances in nanotechnology to ocean exploration to broadband deployment, and by protecting American innovations through the patent and trademark system;
• Support entrepreneurship and commercialization by enabling community development and
• Maintain U.S. economic competitiveness in the global marketplace by promoting exports and foreign direct investment, ensuring a level playing field for U.S. businesses, and ensuring that technology transfer is consistent with our nation's economic and security interests;
• Provide effective management and stewardship of our nation's resources and assets to ensure sustainable economic opportunities; and
• Make informed policy decisions and enable better understanding of the economy and our communities by providing timely, accessible, and accurate economic and demographic data.
Commerce's Regulatory Plan tracks the most important regulations that the Department anticipates issuing to implement these policy and program priorities and foster sustainable and equitable growth. Of Commerce's 12 primary operating units, three bureaus—the National Oceanic and Atmospheric Administration (NOAA), the United States Patent and Trademark Office (USPTO), and the Bureau of Industry and Security (BIS)—issue the vast majority of the Department's regulations, and these three bureaus account for all the planned actions that are considered the Department's most important significant pre-regulatory or regulatory actions for FY 2022.
NOAA's mission is built on three pillars: Science, service, and stewardship—to understand and predict changes in climate, weather, oceans, and coasts; to share that knowledge and information with others; and to conserve and manage coastal and marine ecosystems and resources.
At its core, NOAA is a scientific agency. It observes, measures, monitors, and collects data from the depths of the ocean to the surface of the sun, and it does so following principles of scientific integrity. These data are turned into weather and climate models and forecasts that are then used for everything from local weather forecasts to predicting the movement of wildfire smoke to identifying the impacts of climate change on fisheries and living marine resources.
With respect to service, NOAA not only collects data but is mandated to make it operational, and NOAA seeks to be the authoritative provider of climate products and services. By providing Federal, State, and local government partners, the private sector, and the public with actionable environmental information, NOAA can facilitate decisions in the face of climate change. Such decisions can range from businesses planning the location of offices; insurance companies trying to incorporate climate risk into their insurance policies; and municipalities looking to ensure that plans for construction of new housing developments will be resilient to increasing sea level risk, flooding, and heavy precipitation.
The final pillar of NOAA's mission is stewardship. NOAA seeks to conserve our lands, waters, and natural resources, protecting people and the environment now and for future generations. As part of Commerce, moreover, NOAA recognizes that economic growth must go hand-in-hand with environmental stewardship. For example, with respect to the nation's fisheries, NOAA looks simultaneously to optimize productivity and ensure sustainability in order to boost long-term economic growth and competitiveness in this vital sector of the U.S. economy. Similarly, national marine sanctuaries both protect important natural resources and also are significant drivers of eco-tourism and local recreation.
Within NOAA, the National Marine Fisheries Services (NMFS) and the National Ocean Service (NOS) are the components that most often exercise regulatory authority to implement NOAA's mission. NMFS oversees the management and conservation of the nation's marine fisheries; protects marine mammals and Endangered Species Act (ESA)-listed marine and anadromous species; and promotes economic development of the U.S. fishing industry. NOS assists the coastal states in their management of land and ocean resources in their coastal zones, including estuarine research reserves; manages national marine sanctuaries; monitors marine pollution; and directs the national program for deep-seabed minerals and ocean thermal energy.
Much of NOAA's rulemaking is conducted pursuant to the following key statutes:
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) rulemakings concern the conservation and management of fishery resources in the U.S. Exclusive Economic Zone (generally 3-200 nautical miles from shore). As itemized in the Unified Agenda, NOAA plans to take several hundred actions in FY 2022 under Magnuson-Stevens Act authority, of which roughly 20 are expected to be significant rulemakings, as defined in Executive Order 12866. With certain exceptions, rulemakings under Magnuson-Stevens are usually initiated by the actions of eight regional Fishery Management Councils (FMCs or Councils). These Councils are comprised of representatives from the commercial and recreational fishing sectors, environmental groups, academia, and Federal and State government, and they are responsible for preparing fishery management plans (FMPs) and FMP amendments, and for recommending implementing regulations for each managed fishery. FMPs address a variety of issues, including maximizing fishing opportunities on healthy stocks, rebuilding overfished stocks, and addressing gear conflicts. After considering the FMCs' recommendations in light of the standards and requirements set forth in the Magnuson-Stevens Act and in other applicable laws, NOAA may issue regulations to implement the proposed FMPs and FMP amendments.
The Marine Mammal Protection Act of 1972 (MMPA) provides the authority for the conservation and management of marine mammals under U.S. jurisdiction. It expressly prohibits, with certain exceptions, the intentional take of marine mammals. The MMPA allows, upon request and subsequent authorization, the incidental take of marine mammals by U.S. citizens who engage in a specified activity (
The Endangered Species Act of 1973 (ESA) provides for the conservation of
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary of Commerce to designate and protect as national marine sanctuaries areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or aesthetic qualities. The primary objective of the NMSA is to protect marine resources, such as coral reefs, sunken historical vessels, or unique habitats.
NOAA's Office of National Marine Sanctuaries (ONMS), within NOS, has the responsibility for management of national marine sanctuaries. ONMS regulations, issued pursuant to NMSA, prohibit specific kinds of activities, describe and define the boundaries of the designated national marine sanctuaries, and set up a system of permits to allow the conduct of certain types of activities that would otherwise not be allowed.
These regulations can, among other things, regulate and restrict activities that may injure natural resources, including all extractive and destructive activities, consistent with community-specific needs and NMSA's purpose to “facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas.” In FY 2022, NOAA is expected to have at least three regulatory actions under NMSA.
The Coastal Zone Management Act (CZMA) was passed in 1972 to preserve, protect, and develop and, where possible, to restore and enhance the resources of the nation's coastal zone. The CZMA creates a voluntary state-federal partnership, where coastal states (States in, or bordering on, the Atlantic, Pacific or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes), may elect to develop comprehensive programs that meet federal approval standards. Currently, 34 of the 35 eligible entities are implementing a federally approved coastal management plan approved by the Secretary of Commerce.
Of the numerous regulatory actions that NOAA is planning for this year and that are included in the Unified Agenda, there are five, described below, that the Department considers to be of particular importance.
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The USPTO's mission is to foster innovation, competitiveness, and economic growth, domestically and abroad, by delivering high quality and timely examination of patent and trademark applications, guiding domestic and international intellectual property policy, and delivering intellectual property information and education worldwide.
The USPTO is responsible for granting U.S. patents and registering trademarks. This system of secured property rights, which has its foundation in Article I, Section 8, Clause 8, of the Constitution (providing that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) has enabled American industry to flourish. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The continued demand for patents and trademarks underscores the importance to the U.S. economy of effective mechanisms to protect new ideas and investments in innovation, as well as the ingenuity of American inventors and entrepreneurs.
In addition to granting patents and trademarks, the USPTO advises the President of the United States, the Secretary of Commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes strong and effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners.
As part of its work, the USPTO administers regulations located at title 37 of the Code of Federal Regulations concerning its patent and trademark services and the other functions it performs.
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The two new ex parte proceedings created by this rulemaking—one for expungement and one for reexamination—are intended to help ensure the accuracy of the trademark register by providing a new mechanism for removing a registered mark from the trademark register or cancelling the registration as to certain goods and/or services, when the registrant has not used the mark in commerce. The proposed changes will give U.S. businesses new tools to clear away unused registered trademarks from the federal trademark register and will give the USPTO the ability to move applications through the system more efficiently.
BIS advances U.S. national security, foreign policy, and economic objectives by maintaining and strengthening adaptable, efficient, and effective export control and treaty compliance systems as well as by administering programs to prioritize certain contracts to promote the national defense and to protect and enhance the defense industrial base.
BIS administers four sets of regulations. The Export Administration Regulations (EAR) regulate exports and reexports to protect national security, foreign policy, and short supply interests. The EAR includes the Commerce Control List (CCL), which describes commodities, software, and technology that are subject to licensing requirements for specific reasons for control. The EAR also regulates U.S. persons' participation in certain boycotts administered by foreign governments. The National Security Industrial Base Regulations provide for prioritization of certain contracts and allocations of resources to promote the national defense, require reporting of foreign government-imposed offsets in defense sales, provide for surveys to assess the capabilities of the industrial base to support the national defense, and address the effect of imports on the defense industrial base. The Chemical Weapons Convention Regulations implement declaration, reporting, and on-site inspection requirements in the private sector necessary to meet United States treaty obligations under the Chemical Weapons Convention treaty. The Additional Protocol Regulations implement similar requirements for certain civil nuclear and nuclear-related items with respect to an agreement between the United States and the International Atomic Energy Agency.
BIS also has an enforcement component with nine offices covering the United States, as well as BIS export control officers stationed at several U.S. embassies and consulates abroad. BIS works with other U.S. Government agencies to promote coordinated U.S. Government efforts in export controls and other programs. BIS participates in U.S. Government efforts to strengthen
In FY 2022, BIS plans to publish a number of proposed and final rules amending the EAR. These rules will cover a range of issues, including emerging and foundational technology, country specific policies, CCL revisions based on decisions by the four multilateral export control regimes (Australia Group, Missile Technology Control Regime, Nuclear Suppliers Group, and Wassenaar Arrangement), and implementation of any interagency agreed transfers from the United States Munitions List to the CCL.
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Additional input from the public is needed to assist in the interagency process of evaluating BCI technology as a potential emerging technology and to determine if there are specific BCI technologies for which export controls would be appropriate. The public's responses to the questions posed in this ANPRM will be considered during the aforementioned interagency process to evaluate BCI technology as a potential emerging technology and to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications).
If the interagency process results in a determination that certain BCI technology constitutes an emerging technology, for purposes of section 1758 of ECRA, then BIS is required, pursuant to ECRA to institute export controls on such technology. However, BIS does have some flexibility to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications).
Commerce is publishing this interim final rule to remove a subset of General Approved Exclusions (GAEs) added in the December 14 rule after public comments on the December 14 rule and subsequent Commerce analysis of data in the 232 Exclusions Portal identified these HTSUS codes as not meeting the criteria for inclusion as a GAE. These cases include HTSUS codes with exclusion requests that recently received objections and/or denials in the 232 Exclusions Portal. Commerce is removing these GAEs in this interim final rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs.
For the anticipated benefits, these changes will ensure the effectiveness of the GAEs under the 232 exclusions process. By ensuring that only those GAEs that meet the stated criteria for what should be considered a GAE, will help improve the effectiveness, fairness and transparency of the 232 exclusions process. Importers and other users of steel and aluminum in the U.S. and U.S. producers and steel and aluminum have comments in response to the various section 232 interim final rules published that creating an effective 232 exclusion process is key to reduce burdens on the public. The adoption of the GAEs was an important step in improving efficiency, but in order ensure U.S. national security interests are protected, only items that meet the GAE criteria should be eligible and any other item should be required to be included in the normal 232 exclusion process.
As there is no specific ECCN data in AES for the new export controls in new ECCNs 4A005 and 4D004 or new paragraph 4E001.c, BIS uses other data to estimate the number of shipments of these new ECCNs that will require a license. Bureau of Economic Analysis (BEA) data from 2019 show a total dollar value of $55,657 million for Telecom, Computer, and Information Technology Services exports. Multiplying this value by 12.1% (the percentage of all exports that are subject to an EAR license requirement as determined by using AES data) suggests that $6,734,497,000 of Telecom/Computer/IT exports are now subject to EAR license requirements. Based on AES data on the existing ECCNs affected by this rule, BIS estimates the average value of each shipment for the new ECCNs at about $40,000, and further estimates that 0.6% of all new ECCN shipments (1,010 shipments) are now eligible for License Exception ACE and 0.03% of all new ECCN shipments (50 shipments) require a license application submission. Therefore, the annual total estimated cost associated with the paperwork burden imposed by this rule (that is, the projected increase of license application submissions based on the additional shipments requiring a license) is estimated to be 170 new applications × 29.6 minutes = 5,032/60 min = 84 hours × $30 = $2,520.
There is no paperwork submission to BIS associated with using License Exception ACE, and therefore there is no increase to any paperwork burden or information collection cost associated with License Exception ACE requirements in this rule.
Prior to the addition of nucleic acid assembler/synthesizer software to the AG biological equipment list, BIS identified this software as a technology to be evaluated as an emerging technology, consistent with the interagency process described in section 1758 of the Export Control Reform Act of 2018 (ECRA) (codified at 50 U.S.C. 4817). This identification was based on a finding that this software is capable of being used to operate nucleic acid assemblers and synthesizers controlled under ECCN 2B352 for the purpose of generating pathogens and toxins without the need to acquire controlled genetic elements and organisms. Consequently, the absence of export controls on this software could be exploited for biological weapons purposes.
If the interagency process results in a determination that a certain technology constitutes an emerging technology, for purposes of section 1758 of ECRA, then BIS is required, pursuant to ECRA, to institute export controls on such technology. However, BIS does have some flexibility to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications). In this particular instance, the controls on this technology will be multilateral, because they have been adopted by the Australia Group (AG) for inclusion in their biological equipment Common Control List.
The number of additional license applications that would have to be submitted per year, as a result of the addition of ECCN 2D352 to the CCL, as described above, is not expected to exceed fifteen license applications. This total represents a relatively insignificant portion of the overall trade in such items and is well within the scope of the information collection approved by the Office of Management and Budget (OMB) under control number 06940088.
The Department of Defense (DoD) is the largest Federal department, employing over 1.6 million military personnel and 750,000 civilians with operations all over the world. DoD's enduring mission is to provide combat-credible military forces needed to deter war and protect the security of our nation. In support of this mission, DoD adheres to a strategy where a more lethal force, strong alliances and partnerships, American technological innovation, and a culture of performance will generate a decisive and sustained United States military advantage. Because of this expansive and diversified mission and reach, DoD regulations can address a broad range of matters and have an impact on varied members of the public, as well as other federal agencies.
Pursuant to Executive Order 12866, “Regulatory Planning and Review” (September 30, 1993) and Executive Order 13563, “Improving Regulation and Regulatory Review” (January 18, 2011), the DoD Regulatory Plan and Agenda provide notice about the DoD's regulatory and deregulatory actions within the Executive Branch.
Pursuant to section 6 of Executive Order 13563 “Improving Regulation and Regulatory Review” (January 18, 2011), the Department continues to review existing regulations with a goal to eliminate outdated, unnecessary, or ineffective regulations; account for the currency and legitimacy of each of the Department's regulations; and ultimately reduce regulatory burden and costs.
The regulatory and deregulatory actions identified in this Regulatory Plan embody the core of DoD's regulatory priorities for Fiscal Year (FY) 2022 and help support President Biden's regulatory priorities and the Secretary of Defense's top priorities, along with those of the National Defense Strategy, to defend the Nation. The DoD prioritization is focused on initiatives that:
• Promote the country's economic resilience, including addressing COVID-related issues.
• Support underserved communities and improve small business opportunities.
• Promote diversity, equity, inclusion, and accessibility in the Federal workforce.
• Support national security efforts, especially safeguarding Federal Government information and information technology systems.
• Support the climate change emergency; and
• Promote Access to Voting.
Pursuant to Executive Order 13987, “Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19 and to Provide United States Leadership on Global Health and Security,” January 20, 2021; Executive Order 13995, “Ensuring an Equitable Pandemic Response and Recovery,” January 21, 2021; Executive Order 13997, “Improving and Expanding Access to Care and Treatments for COVID-19,” January 21, 2021; and Executive Order 13999, “Protecting Worker Health and Safety,” January 21, 2021, the Department has temporarily modified its TRICARE regulation so TRICARE beneficiaries have access to the most up-to-date care required for the diagnosis and treatment of COVID-19. TRICARE continues to reimburse like Medicare, to the extent practicable, as required by statute. The Department is researching the impacts of making some of those modifications permanent and may pursue such future action.
These modifications include:
DoD is finalizing an interim final rule that temporarily amended 32 CFR part 199 to revise: (1) 32 CFR part 199.4 to remove the restriction on audio-only telemedicine services; (2) 32 CFR part 199.6 to authorize reimbursement for interstate practice by TRICARE-authorized providers when such authority is consistent with State and Federal licensing requirements; and (3) 32 CFR part 199.17 to eliminate copayments for telemedicine services. These changes reduce the spread of COVID-19 among TRICARE beneficiaries by incentivizing use of telemedicine services, and aid providers in caring for TRICARE beneficiaries by temporarily waiving some licensure requirements. The final rule adopts this interim final rule as final with changes.
DoD is finalizing an interim final rule that temporarily amended 32 CFR part 199 to revise certain elements of the TRICARE program under 32 CFR part 199 to: (1) Waive the three-day prior hospital qualifying stay requirement for coverage of skilled nursing facility care; (2) add coverage for treatment use of investigational drugs under expanded access authorized by the United States (U.S.) Food and Drug Administration (FDA) when for the treatment of coronavirus disease 2019 (COVID-19); (3) waive certain provisions for acute care hospitals that permitted authorization of temporary hospital facilities and freestanding ambulatory surgical centers providing inpatient and outpatient hospital services; and, consistent with similar changes under the Centers for Medicaid and Medicare Services; (4) revise diagnosis related group (DRG) reimbursement by temporarily reimbursing DRGs at a 20 percent higher rate for COVID-19
This interim final rule temporarily amended section 199.4(e)(26) of 32 CFR 199 to revise certain elements of the TRICARE program to add coverage for National Institute of Allergy and Infectious Disease-sponsored clinical trials for the treatment or prevention of coronavirus disease 2019 (COVID-19).
Title 10, U.S.C. 1079(a)(12) authorizes, pursuant to an agreement with the Secretary of Health and Human Services (HHS) and under such regulations as the Secretary of Defense may prescribe, a waiver of the requirement that covered care be medically or psychologically necessary in connection with clinical trials sponsored by the NIH, provided the Secretary of Defense determines that such a waiver will promote access by covered beneficiaries to promising new treatments and contribute to the development of such treatments. On September 19, 2020, the DoD entered into an agreement with NIH to permit coverage of such trials. Based on an agreement with the National Cancer Institute (NCI) and 32 CFR 199.4(e)(26), TRICARE currently covers NCI sponsored clinical trials related to cancer prevention, screening, and early detection. The intent of these statutory and regulatory provisions is to expand TRICARE beneficiary access to new treatments and to contribute to the development of such treatments.
This rule, pursuant to the agreement with the NIH, temporarily amends the TRICARE regulation to authorize coverage of cost-sharing for medical care and testing of TRICARE-eligible patients who participate in Phase I, II, III, or IV clinical trials examining the treatment or prevention of COVID-19 that are sponsored by NIAID, enforcing the provisions within the agreement between DoD and NIH. Additionally, this change establishes requirements for TRICARE cost-sharing care related to NIAID-sponsored COVID-19 clinical trials; these new requirements mirror the existing requirements set forth in 32 CFR 199.4(e)(26)(ii)(B) for coverage of cancer clinical trials. This amendment supports statutory intent by encouraging participation of TRICARE beneficiaries in clinical trials studying the prevention or treatment of COVID-19 and contributing to the development of treatments, including vaccines, for COVID-19.
This interim final rule will temporarily amend the TRICARE regulation at 32 CFR part 199 by: (1) Adding freestanding End Stage Renal Disease facilities as a category of TRICARE-authorized institutional provider and modifying the reimbursement for such facilities; (2) adding coronavirus 2019 (COVID-19) Immunizers who are not otherwise an eligible TRICARE-authorized provider as providers eligible for reimbursement for COVID-19 vaccines and vaccine administration; (3) and adopting Medicare New COVID-19 Treatments Add-on Payments (NTCAPs).
This rule supports Executive Order 14005, “Ensuring the Future is Made in All of America by All of America's Workers,” January 25, 2021, that builds upon a previous Executive Order 13881, Maximizing Use of American-Made Goods, Products, and Materials,” July 15, 2019. The rule implements Executive Order 13881 which requires an amendment to the FAR to provide that materials shall be considered of foreign origin if: (a) For iron and steel end products, the cost of foreign iron and steel used in such iron and steel end products constitutes 5 percent or more of the cost of all the products used in such iron and steel end products; or (b) for all other end products, the cost of the foreign products used in such end products constitutes 45 percent or more of the cost of all the products used in such end products. The FAR changes were accomplished under FAR Case 2019-016, published in the
In addition, the Executive Order 13881 provides that in determining price reasonableness, the evaluation factors of 20 percent (for other than small businesses), or 30 percent (for small businesses) shall be applied to offers of materials of foreign origin. The DFARS currently applies a 50 percent factor and requires no additional revisions. This DFARS rule makes conforming changes as a result of implementation of the Executive Order in the FAR.
This rule implements changes made by the Small Business Administration (SBA) related to data rights in the Small Business Innovation Research (SBIR) Program and Small Business Technology Transfer (STTR) Program Policy Directive, published in the
This rule implements section 872 of the National Defense Authorization Act for Fiscal Year 2020. Section 872 reauthorizes and modifies the DoD Mentor-Protégé Program. The purpose of the Program is to provide incentives for DoD contractors to assist eligible small businesses (protégés) in enhancing their capabilities and to increase participation of such firms in Government and commercial contracts. Under this program, protégés expand their footprint in the defense industrial base by partnering with larger companies (mentors). As a result of this rule, the date by which new mentor-protégé agreements may be submitted and approved is extended to September 30, 2024. In addition, mentors incurring costs prior to September 30, 2026, may
Revisions to this regulation: (1) Update and clarify the obligations that Section 504 of the Rehabilitation Act of 1973 (section 504) imposes on recipients of Federal financial assistance and the Military Departments and Components (DoD Components); (2) reflect the most current Federal statutes and regulations, as well as developments in Supreme Court jurisprudence, regarding unlawful discrimination on the basis of disability and promotes consistency with comparable provisions implementing title II of the Americans with Disabilities Act (ADA); (3) implement section 508 of the Rehabilitation Act of 1973 (section 508), requiring DoD make its electronic and information technology accessible to individuals with disabilities; (4) establish and clarify obligations under the Architectural Barriers Act of 1968 (ABA), which requires that DoD make facilities accessible to individuals with disabilities; and (5) Provide complaint resolution and enforcement procedures pursuant to section 504 and the complaint resolution and enforcement procedures pursuant to section 508. These revisions are particularly relevant in light of Executive Order 14035, “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.
This rule will amend the DoD—Defense Industrial Base (DIB) Cybersecurity (CS) activities regulation. It will allow a broader community of defense contractors access to relevant cyber threat information that is critical in defending unclassified networks and information systems and protecting DoD warfighting capabilities. These amendments seek to address the increasing cyber threat targeting all defense contractors including those in the vulnerable supply chain by expanding eligibility to defense contractors that process, store, develop, or transmit DoD Controlled Unclassified Information (CUI). These steps align with the Administration's efforts to provide defense contractors with critical and real-time cybersecurity resources needed to safeguard DoD CUI.
Where a party other than the USACE seeks to use or alter a Civil Works project that USACE constructed, the proposed use or alteration is subject to the prior approval of the USACE. Some examples of such alterations include an improvement to the project; relocation of part of the project; or installing utilities or other non-project features. This requirement was established in section 14 of the Rivers and Harbors Act of 1899 and is codified at 33 U.S.C. 408 (section 408). Section 408 provides that the USACE may grant permission for another party to alter a Civil Works project, upon a determination that the alteration proposed will not be injurious to the public interest and will not impair the usefulness of the Civil Works project. The USACE is proposing to convert its policy that governs the section 408 program to a binding regulation. This policy, Engineer Circular 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408, was issued in September 2018.
The USACE proposes to implement a new credit program for dam safety work at non-Federal dams. The program is authorized under the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) and Division D, Title 1 of the Consolidated Appropriations Act of 2021. WIFIA authorizes the USACE to provide secured (direct) loans and loan guarantees (Federal Credit instruments) to eligible water resources infrastructure projects and to charge fees to recover all or a portion of the USACE' cost of providing credit assistance and the costs of conducting engineering reviews and retaining expert firms, including financial and legal services, to assist in the underwriting and servicing of Federal credit instruments. Projects would be evaluated and selected by the Secretary of the Army (the Secretary), based on the requirements and the criteria described in this rule.
Section 103(m) of the Water Resources Development Act (WRDA) of 1986, as amended (33 U.S.C. 2213(m)), authorizes the USACE to reduce the non-Federal share of the cost of a study or project for certain communities that are not able financially to afford the standard cost-share. Part 241 of title 33 in the Code of Federal Regulations provides the criteria that the USACE uses in making these determinations where the primary purpose of the study or project is flood damage reduction. The proposed rule would update this regulation, including by broadening the project purposes for which the USACE could reduce the non-Federal cost-share on this basis.
In April 2020, the EPA, and the Department of the Army (“the agencies”) published the Navigable Waters Protection Rule (NWPR) that revised the previously codified definition of “waters of the United States” (85 FR 22250, April 21, 2020). The agencies are now initiating this new rulemaking process that restores the regulations (51 FR 41206) in place prior to the 2015 “Clean Water Rule: Definition of `Waters of the United States' ” (80 FR 37054, June 29, 2015), updated to be consistent with relevant Supreme Court decisions. The agencies intend to consider further revisions in a second rule in light of additional stakeholder engagement and implementation considerations, scientific developments, and environmental justice values. This effort will also be informed by the experience of implementing the pre-2015 rule, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.
The Department of the Army and the Environmental Protection Agency intend to pursue a second rule defining “Waters of the United States” to consider further revisions to the agencies' first rule (RIN 0710-AB40) which proposes to restore the regulations in place prior to the 2015 “Clean Water Rule: Definition of `Waters
DOD is finalizing an interim final rule for its Federal Voting Assistance Program (FVAP). The FVAP assists overseas service members and other overseas citizens with exercising their voting rights by serving as a critical resource to successfully register to vote. On March 7, 2021, the White House released Executive Order 14019 on Promoting Access to Voting. The purpose of the Executive Order is to protect and promote the exercise of the right to vote, eliminate discrimination and other barriers to voting, expand access to voter registration and accurate election information, and ensure registering to vote and the act of voting be made simple and easy for all those eligible to do so. To accomplish this purpose, with this final rule DoD is doing the following:
• Maximizing voter awareness of Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) eligibility and resources by providing better coordination with the Federal Government's voting assistance services to improve voter accessibility and communication.
• Requiring DoD components to establish component-wide programs to communicate and disseminate voting information, with the goal of improving communication and clarity for the impacted population.
• Requiring federal agencies to enter into memorandums of understanding (MOU) with the DoD to provide accurate, nonpartisan voting information and assistance to ensure military and overseas voters understand their voting rights, how to register and apply for an absentee ballot, and how to return their absentee ballot successfully.
• Promoting opportunities to register to vote and participate in elections to include civilians working for the Department who vote locally.
• Distributing voter information and use of
• Creating innovative solutions to reduce barriers and increase voter awareness of their status in the Uniformed and Overseas Citizens Absentee Voting Act absentee voting process, including increased visibility of overseas ballots.
• Developing materials to support absentee voting by military and overseas U.S. citizens with limited English proficiency.
In support of Executive Orders 14017, “America's Supply Chains,” 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, and 14036, Promoting Competition in the American Economy,” DoD published a RFI on September 8, 2021, titled “Notice of Request for Comments on Barriers Facing Small Businesses in Contracting with the Department of Defense.” The participation of dynamic, resilient, and innovative small businesses in the defense industrial base is critical to the United States' efforts to maintain its technological superiority, military readiness, and warfighting advantage. In furtherance of its efforts to maximize opportunities for small businesses to contribute to national security, the DoD sought public input on the barriers that small businesses face in working with the DoD.
Additionally, in support of Executive Order 14017, “America's Supply Chains,” DoD published an RFI on September 28, 2021, titled “Federal Register Notice of Request for Written Comments in Support of the Department of Defense's One-Year Response to Executive Order 14017, “America's Supply Chains.” The Executive Order directs six Federal agencies to conduct a review of their respective industrial bases, with the objective to use this assessment to secure and strengthen America's supply chains. One of these directives is for the Secretary of Defense, in consultation with the heads of appropriate agencies, to submit a report on supply chains for the defense industrial base, including key vulnerabilities and potential courses of action to strengthen the defense industrial base. The effort will build on the Executive Order. report, Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States (released October 2018) and the Annual Industrial Capabilities Report, which is mandated by the Congress.
Contractors are encouraged to voluntarily report information to promote sharing of cyber threat indicators that they believe are valuable in alerting the Government and others, as appropriate, in order to better counter cyber threat actor activity. This cyber information may be of interest to the DIB and DoD for situational awareness and does not include mandatory cyber incident reporting included under DFARS 252.204-7012.
The costs are under review.
DoD Instruction 1020.dd (“Unlawful Discrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance from, or Conducted by, the DoD”) will be codified as a rule under 32 CFR part 56. The rule was originally reported as being codified under 32 CFR part 195.
Voters who received assistance from FVAP or Voting Assistance Officers were significantly more likely to submit a ballot than if they did not receive that assistance a consistent finding across the last four General Elections. The impacted public, without coordinated FVAP voter assistance, could experience confusion with the voting registration process, and may endure inefficient FVAP assistance leading up to, and on Election Day. With no purposeful effort to streamline these regulations, there is a dire possibility that absentee voter ballots will not be sent and received in time to be counted. DoD, as the presidential designee agency, pursuant to Executive Order 12642, shoulders the responsibility and desire to resolve known issues, better communicate with the public, and provide a seamless and uniform voting assistance framework for the public populations overseas.
While the Department estimates that the public will not incur any costs as a result of this rule, the public may receive better voter assistance since DoD will improve the Government's coordination to provide voter assistance to absent uniformed service voters and overseas voters and support the government's efforts to implement a comprehensive program to cover all executive branch agencies and overseas citizens more broadly.
Should FVAP become unable to foster voter awareness through the States and voter assistance programs, the Department of Defense will become less effective to meet military and civilian voter assistance requirements, thus increasing the possible risk of absentee ballot rejections during federal election cycles. This may bring unwanted stakeholder and Congressional scrutiny. FVAP would cease to provide active engagement mechanisms to elicit input and offer recommendations to improve levels of voter success and effectiveness for State absentee balloting processes for absent overseas uniformed voters and citizens.
(A) For iron and steel products, the cost of foreign iron and steel used in such iron and steel products constitutes 5 percent or more of the cost of all the product's domestic content; or
(B) For all other products, the cost of the foreign components used in such
In addition, the Executive order provides that in determining price reasonableness, the evaluation factors of 20 percent (for other than small businesses), or 30 percent (for small businesses) shall be applied to offers of materials of foreign origin. The DFARS applies a 50 percent factor and requires no additional revisions. This rule makes conforming changes to the applicable clauses as a result of implementation of the Executive order requirements in the FAR.
The Fiscal 2021 Consolidated Appropriations Act, provided USACE WIFIA appropriations of $2.2M admin, and $12M credit subsidy and a loan volume limit of $950M. These appropriated funds are limited to fund projects focused on maintaining, upgrading, and repairing dams identified in the National Inventory of Dams owned by non-federal entities.
The final rule adopts this interim final rule as final with changes.
The modifications to section 199.4(g)(52) in this interim final rule (IFR) will allow TRICARE beneficiaries to obtain telephonic office visits with TRICARE-authorized providers for medically necessary care and treatment and allow reimbursement to those providers during the COVID-19 pandemic. It provides an exception to the regulatory exclusion prohibiting audio-only telephone services.
The modifications to section 199.6(c)(2)(i) in this IFR will allow providers to be reimbursed for interstate practice, both in person and via telehealth, during the global pandemic so long as the provider meets the requirements for practicing in that State or under Federal law. It removes the requirement that the provider must be licensed in the State where practicing, even if that license is optional. For providers overseas, this will allow providers, both in person and via telehealth, to practice outside of the nation where licensed when permitted by the host nation.
The modifications to section 199.17(l)(3) will remove cost-shares and copayments for telehealth services for TRICARE Prime and Select beneficiaries utilizing telehealth services with an in-network, TRICARE-authorized provider during the global pandemic. It adds in-network telehealth services as a special cost-sharing rule to waive the beneficiary copay.
(1) No action.
(2) Only apply the regulatory modifications to COVID-19-related diagnoses. This was rejected because the effects of the COVID-19 pandemic are causing stress on the entire health care system. The regulatory modifications in this IFR will take the pressure off of the health care system by: (1) Covering telephone appointments with a TRICARE-authorized provider and thereby supporting social distancing recommendations; (2) covering TRICARE-authorized providers practicing across state lines, thereby increasing the overall access to medical care and treatment; and (3) waiving all copayments for in-network telehealth services, thereby removing the potential cost barrier to obtaining medical services remotely and inducing demand for these services, reducing potential person-to-person transmission of COVID-19 during medical appointments.
There are three factors that would increase Department of Defense (DoD) health care costs due to this rule. First, the government would lose cost-sharing revenue paid by beneficiaries on the existing level of telehealth visits. Second, there would be induced demand costs, as removal of patient costs will increase patient demand for these services. Finally, there would be a substitution effect, as the COVID-19 pandemic and removal of telehealth cost-shares would encourage a shift from in-person visits, for which beneficiaries would pay a copay, to telehealth visits, which would be free to beneficiaries.
The below provides a summary of the combined government health care and administrative costs of the IFR.
There are two types of savings for beneficiaries estimated here. First, beneficiaries would avoid the cost-sharing they otherwise would have paid on existing telehealth visits and on in-person visits that would shift to telehealth. It is estimated the cost-sharing savings to beneficiaries would be: $26,830,844 for a three-month scenario; $48,924,899 for a six-month scenario; and $65,930,641 for a nine-
An important value to beneficiaries that is not feasible to estimate but worth noting is the possibility that shifting visits from in-person to telehealth might reduce the risk of COVID-19 exposure, with all the potential benefits that could accompany that reduced exposure risk. This reduced risk of COVID-19 exposure may also result in downstream reductions in cost to the TRICARE Program in avoided COVID-19 diagnostics and treatment.
The final rule adopts the interim final rule with changes, except for the note to section 199.4(g)(15)(i)(A), published at 85 FR 54923, September 3, 2020, which remains interim.
The modification to paragraph 199.4(b)(3)(xiv) waives the requirement for a minimum three-day prior hospital stay, not including leave day, for coverage of a skilled nursing facility admission. This provision reduces stress on acute care hospitals.
The modification to paragraph 199.4(g)(15) permits cost-sharing of investigational new drugs (INDs). This provision also increases access to emerging therapies.
The modification to paragraph 199.6(b)(4)(i) waives certain provisions for acute care hospitals that will permit authorization of temporary hospital facilities and freestanding ambulatory surgical centers. This provision supports increased access to acute care.
The modifications to paragraph 199.14(a)(1)(iii)(E) increase the diagnosis related group (DRG) amount by 20 percent for an individual diagnosed with COVID-19 and adopt Medicare's New Technology Add-On Payments (NTAPs) and Hospital Value-Based Purchasing (HVBP) Program. These provisions support the requirement that TRICARE reimburse like Medicare. The NTAPs and HVBP Program are adopted permanently.
The modification to paragraph 199.14(a)(9) waives site neutral payment provisions by reimbursing all long-term care hospitals (LTCHs) at the standard federal rate for claims. This provision supports the requirement that TRICARE reimburse like Medicare.
(1) No action.
(2) The second alternative the Department of Defense considered was implementing a more limited benefit change for COVID-19 patients by not covering treatment INDs. While this would have the benefit of reimbursing only care that has more established evidence in its favor, this alternative is not preferred because early access to treatments is critical for TRICARE beneficiaries given the rapid progression of the disease and the lack of available approved treatments.
The cost estimates related to the changes discussed in this Interim Final Rule (IFR) include incremental health care cost increases as well as administrative costs to the government. The duration of the COVID-19 national emergency and Health and Human Services Public Health Emergency (PHE) are uncertain, resulting in a range of estimates for each provision in this IFR. Cost estimates are provided for an approximate nine-month (ending 12/31/2020) and eighteen-month scenario (ending 9/30/2021). The nine-month and 18-month periods would be longer for those provisions applicable beginning in January of this year, and shorter for those effective the date this IFR publishes. The terms nine-month and 18-month period are used throughout this estimate for the sake of simplicity.
The cost estimates consider whether the outbreak will have more than one active stage. The first active stage is considered to be March through August 2020, based on the Institutes for Health Metrics and Evaluation data as of May 12, 2020 (
Based on these factors, we estimate that the total cost estimate for this IFR will be between $43.6M and $59.4M for a nine-month period, and $66.3M to $82.1M for an 18-month period. This estimate includes just over $1M in administrative start-up costs and no ongoing administrative costs. The primary cost drivers in this analysis are the reimbursement changes being adopted under the statutory requirement that TRICARE reimburse like Medicare; that is, the 20 percent DRG increase for COVID-19 patients, the adoption of NTAPs and HVBP, and the waiver of LTCH site neutral payment reductions.
A breakdown of costs, by provision, is provided in the below table. A discussion of assumptions follows.
Depending on the impact of certain provisions of this IFR, some cost savings could be achieved from a reduction in hospitalization rates (
Any benefits achieved in reduced hospitalizations and/or mechanical ventilator use are also benefits to TRICARE beneficiaries, for whom avoidance of more serious COVID-19 illness is of paramount concern. While we cannot estimate the value of this avoidance in quantitative figures, the potential long-term consequences of a serious COVID-19 illness, including permanent cardiac or lung damage, are not insignificant. If beneficiaries are able to access emerging therapies that prevent long-term consequences (including death), this will be a benefit to the beneficiary.
The largest creators of costs under this IFR (reimbursement changes) are not anticipated or intended to create any cost savings. However, these changes will benefit TRICARE institutional providers and take stress off the entire health care system by ensuring adequate reimbursement during the PHE, at a time during which hospitals are losing revenue due to reduced elective procedures and patients who delay care due to fears of contracting COVID-19 during health care encounters. Ensuring a robust health care system is of benefit to our beneficiaries and the general public, particularly in rural or underserved areas, even though this benefit is not quantifiable.
(1) No action.
(2) The second alternative the DoD considered was implementing a more limited benefit change for COVID-19 patients by not covering phase I clinical trials. Although this would have the benefit of reimbursing only care that has more established evidence in its favor, this alternative is not preferred because early access to treatments is critical for TRICARE beneficiaries given the rapid progression of the disease and the lack of available approved treatments.
TRICARE providers will be positively affected by being able to provide their patients with a broader range of treatment options. The general public will benefit from an increased pool of available participants for the development of treatments and vaccines for COVID-19, as well as the evidence (favorable or otherwise) that results from this participation.
The modifications to paragraphs 199.6(b)(4)(xxi) and 199.14(a)(1)(iii)(E)(7) establish freestanding End Stage Renal Disease (ESRD) facilities as a category of TRICARE-authorized institutional provider and modify TRICARE reimbursement of freestanding ESRD facilities. These provisions will improve TRICARE beneficiary access to medically necessary dialysis and other ESRD services and supplies. These provisions also support the requirement that TRICARE reimburse like Medicare, and will help to alleviate regional health care shortages due to the COVID-19 pandemic by ensuring access to dialysis care in freestanding ESRD facilities rather than hospital outpatient departments.
The modification to paragraph 199.14(a)(iii)(E) adopts Medicare's New COVID-19 Treatments Add-on Payment (NCTAP) for COVID-19 cases that meet Medicare's criteria. This provision increases access to emerging COVID-19 treatments and supports the requirement that TRICARE reimburse like Medicare.
The modification to paragraph 199.6(d)(7) adds providers who administer COVID-19 vaccinations, but are not otherwise authorized under 199.6, as TRICARE-authorized providers. This provision increases access to COVID-19 vaccinations. This provision increases access to COVID-19 vaccines for eligible TRICARE beneficiaries and supports the United States (U.S.) public health goal of ending the COVID-19 pandemic.
(1) No action.
(2) The second alternative the Department of Defense considered was to adopt Medicare's ESRD reimbursement methodology, the ESRD Prospective Payment System (PPS), in total. While this would have been completely consistent with the statutory provision to pay institutional providers using the same reimbursement methodology as Medicare, this alternative is not preferred because there is still a relatively low volume of TRICARE beneficiaries who receive dialysis services from freestanding ESRDs and who are not enrolled to Medicare. The cost of implementing the full ESRD PPS system is estimated to be at least $600,000.00 in start-up costs, plus ongoing administrative costs, to ensure all adjustments were made for each claim, plus additional special pricing software or algorithms. In contrast, we estimate that the option provided in this IFR can be implemented relatively quickly (within six months of publication), and for approximately $300,000.00 in start-up costs with lower ongoing administrative costs. Further, the flat rate will provide the ESRD facilities with predictability with regard to TRICARE payments and will reduce uncertainty and specialized coding or case-mix documentation requirements that may be required by the ESRD PPS, reducing the administrative burden on the provider.
To summarize, adopting the ESRD PPS was considered, but was deemed impracticable and overly burdensome to both the Government and providers due to the relative low volume of claims that will be priced and paid by TRICARE as primary under this system.
The Independent Cost A by Kennell and Associates, Inc., estimates a total of $6.8M. Only the ESRD provisions are expected to result in recurring incremental health care costs; the remaining two provisions are expected to result in one-time cost increases. For these temporary changes to the regulation, our cost estimate assumes that the majority of adults in the U.S. will be vaccinated by September 2021, based on the most recent information provided by Federal and state agencies, and, as a result, that the President's emergency declaration and the public health emergency relating to the COVID-19 pandemic will end by September 2021. While this estimate would have the President's emergency declaration end shortly after publication of the rule, the COVID-19 pandemic contains substantial uncertainty including the possibility of a virus variant resistant to current vaccines. As such, we find it appropriate to make these regulatory changes despite the potential short effective period, as the end of the pandemic is by no means a certainty.
Based on these factors, as well as the assumptions for each provision detailed below, we estimate that the total cost estimate for this Interim Final Rule (IFR) will be approximately $6.8M. This estimate includes approximately $0.9M in administrative costs and $5.9M in direct health care costs. $1.8M of the total cost impact is expected to be a one-time start-up cost for both the temporary and permanent provisions, while the permanent ESRD provisions are expected to result in $5M in incremental annual costs.
A breakdown of costs, by provision, is provided in the below table.
The U.S. Department of Education (Department) supports States, local communities, institutions of higher education, and families in improving education and other services nationwide to ensure that all Americans, including those with disabilities and who have been underserved, receive a high-quality and safe education and are prepared for employment that provides a livable wage. We provide leadership and financial assistance pertaining to education and related services at all levels to a wide range of stakeholders and individuals, including State educational and other agencies, local school districts, providers of early learning programs, elementary and secondary schools, institutions of higher education, career and technical schools, nonprofit organizations, students, members of the public, families, and many others. These efforts are helping to advance equity, recover from the COVID-19 pandemic, and ensure that all children and students from pre-kindergarten through grade 12 will be ready for, and succeed in, postsecondary education, and employment, and that students attending postsecondary institutions, or participating in other postsecondary education options, are prepared for a profession or career.
We also vigorously monitor and enforce the implementation of Federal civil rights laws in educational programs and activities that receive Federal financial assistance from the Department, and support innovative and promising programs, research and evaluation activities, technical assistance, and the dissemination of data, research, and evaluation findings to improve the quality of education.
Overall, the laws, regulations, and programs that the Department administers will affect nearly every American during his or her life. Indeed, in the 2020-21 school year, about 56 million students attended an estimated 131,000 elementary and secondary schools in approximately 13,600 districts, and about 20 million students were enrolled in postsecondary schools. Many of these students may benefit from some degree of financial assistance or support from the Department.
In developing and implementing regulations, guidance, technical assistance, evaluations, data gathering and reporting, and monitoring related to our programs, we are committed to working closely with affected persons and groups. Our core mission includes serving the most vulnerable, and facilitating equal access for all, to ensure all students receive a high-quality and safe education, and complete it with a well-considered and attainable path to a sustainable career. Toward these ends, we work with a broad range of interested parties and the general public, including families, students, and educators; State, local, and Tribal governments; other Federal agencies; and neighborhood groups, community-based early learning programs, elementary and secondary schools, postsecondary institutions, rehabilitation service providers, adult education providers, professional associations, civil rights, nonprofits, advocacy organizations, businesses, and labor organizations.
If we determine that it is necessary to develop regulations, we seek public participation at the key stages in the rulemaking process. We invite the public to submit comments on all proposed regulations through the internet or by regular mail. We also continue to seek greater public participation in our rulemaking activities through the use of transparent and interactive rulemaking procedures and new technologies.
To facilitate the public's involvement, we participate in the Federal Docket Management System (FDMS), an electronic single Government-wide access point (
The following are the key rulemaking actions the Department is planning for the coming year. These rulemaking actions advance the Department's mission of “promot[ing] student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.” These rulemaking actions also advance the President's priorities of ensuring that every American has access to a high-quality education, regardless of background, and that government should affirmatively work to expand educational opportunities for underserved communities. During his first year in office, the President has repeatedly made clear the importance of advancing equity and opportunity for those who have historically been underserved, both as a general matter and with regard to the education system in particular. See Executive Order 13985 (On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government); Executive Order 14021 (Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity); Executive Order 14041 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities); Executive Order 14045 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Hispanics); Executive Order 14049 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Native Americans and Strengthening Tribal Colleges and Universities); and Executive Order 14050 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Black Americans). The rulemaking actions on the Department's agenda seek to advance the President's priorities, as set out in these executive orders and more broadly. The rules below cover a wide range of topics, and a wide range of educational institutions—from those serving our youngest children to colleges, universities, and adult education programs. In each of these contexts, promoting equity and opportunity for students who have been historically underserved is central to the Department's regulatory plan.
These key rulemakings include Public Service Loan Forgiveness, Income Contingent Repayment, Improving Student Loan Cancellation Authorities, Pell Grants for Prison Education Programs, State-Defined Processes for Ability to Benefit, and Civil Rights, such as Title IX Nondiscrimination on the Basis of Sex in Education Program or Activities Receiving Federal Financial Assistance. For example, the Pell Grants for Prison Education Programs rule would support increased educational opportunities for individuals who are incarcerated and provide quality options for individuals in this underserved community. Additionally, the Income Contingent Repayment rule would make student loan payments
For rulemakings that we are just beginning now, we have limited information about their potential costs and benefits. We note that some policies that were previously included in the Spring Unified Agenda, such as policies impacting the magnet schools and charter school programs, are still part of the Department's plans but do not require regulation and, therefore, are not included as items in the Fall regulatory agenda or in this regulatory plan. We have also identified the Innovative Assessment Demonstration Authority (IADA) rulemaking as a long-term action because we are waiting for the forthcoming progress report on the initial demonstration authority to inform any potential regulatory proposal.
The Department's upcoming higher education regulatory efforts include the following areas:
Specifically, the Department is currently conducting negotiated rulemaking addressing, among other things, student loan repayment and targeted student loan discharges by improving Public Service Loan Forgiveness, Borrower Defense to Repayment, and other targeted student loan cancellation authorities. On Income Contingent Repayment, the Department plans to create or adjust an income-contingent repayment plan that would allow borrowers to more easily afford their student loan payments. For Public Service Loan Forgiveness, the Department plans to streamline the process for receiving loan forgiveness after 10 years of qualifying payments on qualifying loans while engaging in public service. For Borrower Defense, the Secretary plans to amend the regulations that specify the acts or omissions of an institution of higher education that a borrower may assert as a defense to repayment of a loan made under the Federal Direct Loan Program. In Improving Student Loan Cancellation Authorities, the Department plans to propose improvements in areas where Congress has provided borrowers with relief or benefits related to Federal student loans. This includes authorities granted under the Higher Education Act (HEA) that allow the Department to cancel loans for borrowers who meet certain criteria, such as having a total and permanent disability, attending a school that closed, or having been falsely certified for a student loan. For these borrowers, the Secretary plans to amend the regulations relating to borrower eligibility and streamline application requirements and the application and certification processes. To increase access to educational opportunities, the Department also plans to propose regulations that would guide correctional facilities and eligible institutions of higher education that seek to establish eligibility for the Pell Grant program for individuals who are incarcerated.
The Department also plans to conduct negotiated rulemaking on Gainful Employment and how to determine the amount of Federal educational assistance received by institutions of higher education through implementation of the 90/10 rule. For Gainful Employment, the Department plans to propose regulations on program eligibility under the HEA, including regulations that determine whether postsecondary educational programs prepare students for gainful employment in recognized occupations, and the conditions under which programs remain eligible for student financial assistance programs under title IV of the HEA. On the 90/10 rule, in response to changes to the HEA made by the American Rescue Plan Act of 2021, the Department plans to amend provisions governing whether proprietary institutions meet requirements that institutions receive at least 10 percent of their revenue from sources other than Federal education assistance funds.
The Secretary is planning a new rulemaking to amend its regulations implementing Title IX of the Education Amendments of 1972, as amended, consistent with the priorities of the Biden-Harris Administration. These priorities include those set forth in Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and Executive Order 14021 on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.
The Department is considering policy options to amend the Family Educational Rights and Privacy Act (FERPA) regulations, to update, clarify, and improve the current regulations. The proposed regulations are also needed to implement statutory amendments to FERPA contained in the Uninterrupted Scholars Act of 2013 and the Healthy, Hunger-Free Kids Act of 2010, to reflect a change in the name of the office designated to administer FERPA, and to make changes related to the enforcement responsibilities of the office concerning FERPA.
As part of the Biden-Harris Administration's efforts to combat COVID-19, safely reopen and support schools, and implement the American Rescue Plan Act (ARP), the Department has issued: Interim final requirements to promote accountability, transparency, and the effective use of ARP Elementary and Secondary School Emergency Relief
Over the next year, we may need to issue other regulations because of new legislation or programmatic changes. In doing so, we will follow the Principles for Regulating, which determine when and how we will regulate. Through consistent application of those principles, we have eliminated unnecessary regulations and identified situations in which major programs could be implemented without regulations or with limited regulatory action.
In deciding when to regulate, we consider the following:
• Whether regulations are essential to promote quality and equality of opportunity in education.
• Whether a demonstrated problem cannot be resolved without regulation.
• Whether regulations are necessary to provide a legally binding interpretation to resolve ambiguity.
• Whether entities or situations subject to regulation are similar enough that a uniform approach through regulation would be meaningful and do more good than harm.
• Whether regulations are needed to protect the Federal interest, that is, to ensure that Federal funds are used for their intended purpose and to eliminate fraud, waste, and abuse.
In deciding how to regulate, we are mindful of the following principles:
• Regulate no more than necessary.
• Minimize burden to the extent possible and promote multiple approaches to meeting statutory requirements if possible.
• Encourage coordination of federally funded activities with State and local reform activities.
• Ensure that the benefits justify the costs of regulating.
• To the extent possible, establish performance objectives rather than specify the behavior or manner of compliance a regulated entity must adopt.
• Encourage flexibility, to the extent possible and as needed to enable institutional forces to achieve desired results.
The Department of Energy (Department or DOE) makes vital contributions to the Nation's welfare through its activities focused on improving national security, energy supply, energy efficiency, environmental remediation, and energy research. The Department's mission is to:
• Promote dependable, affordable and environmentally sound production and distribution of energy;
• Advance energy efficiency and conservation;
• Provide responsible stewardship of the Nation's nuclear weapons;
• Provide a responsible resolution to the environmental legacy of nuclear weapons production; and
• Strengthen U.S. scientific discovery, economic competitiveness, and improve quality of life through innovations in science and technology.
The Department's regulatory activities are essential to achieving its critical mission and to implementing the President's clean energy and climate initiatives. Among other things, the Regulatory Plan and the Unified Agenda contain the rulemakings the Department will be engaged in during the coming year to fulfill the Department's commitment to meeting deadlines for issuance of energy conservation standards and related test procedures. The Regulatory Plan and Unified Agenda also reflect the Department's continuing commitment to cut costs, reduce regulatory burden, and increase responsiveness to the public.
Pursuant to Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” DOE reviewed all regulations, orders, guidance documents and policies promulgated or adopted between January 20, 2017, and January 20, 2021, and determined whether these actions are consistent with the policy goals of protecting public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to the impacts of climate change. DOE identified fourteen rulemakings that the Department will review under E.O. 13990.
In response to E.O. 13990, DOE published ten notices of proposed rulemakings or technical determinations re-evaluating rulemakings finalized in the prior four years. Four of these
Other 2021 proposed Departmental appliance standards program actions triggered by E.O. 13990 but based on DOE statutory authorities included a rule to revert to the prior, water-saving definition of showerheads; a rule to remove a product class for dishwashers, clothes washers and clothes dryers that had the effect of removing standards from these products; a rule to streamline the test procedure waiver process; a rule to broaden the definition of general service lamps; and a rule proposing to reinterpret a features provision for some types of consumer products and commercial equipment.
The Energy Policy and Conservation Act requires DOE to set appliance efficiency standards at levels that achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. The Department continues to follow its schedule for setting new appliance efficiency standards by both addressing its backlog of rulemakings with missed statutory deadlines and advancing rulemakings with upcoming statutory deadlines. In the August 2021 Energy Policy Act of 2005 Report to Congress, DOE notes that it plans to publish 31 actions relating to energy conservation standards, including four final rules, and 31 actions related to test procedures, including six final rules, before the end of 2021. See:
In the Department's 2021 Fall Regulatory Plan, DOE is highlighting three important appliance rules. The first rule is “Energy Conservation Standards for Commercial Water Heating Equipment.” DOE estimates that the energy conservation standards rulemaking for commercial water heating-equipment will result in energy savings for combined natural gas and electricity of up to 1.8 quads over 30 years and the net benefit to the Nation will be between $2.26 billion and $6.75 billion.
The second rule is “Procedures, Interpretations, and Policies for Consideration in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment.” This rulemaking is focused on both the procedural requirements as well as the methodologies used to establish all DOE energy conservation standards and their related test procedures. DOE anticipates that the contemplated revisions would allow DOE to eliminate inefficiencies that lengthen the rulemaking process and consume DOE and stakeholder resources without appreciable benefit, while not affecting the ability of the public to participate in the agency's rulemaking process. Eliminating these inefficiencies would allow DOE to more quickly develop energy conservation standards that deliver benefits to the Nation, including environmental benefits such as reductions in greenhouse gas emissions.
The third rule is “Backstop Requirement for General Service Lamps.” This rulemaking would codify in the Code of Federal Regulations the 45 lumens per watt backstop requirement for general service lamps (“GSLs”) that Congress prescribed in the Energy Policy and Conservation Act, as amended. Codifying the statutory standard, which would also prohibit sales of GSLs that do not meet a minimum 45 lumens per watt standard, is estimated to result in total net benefits of $3.3 billion to $4.9 billion per year.
Beyond the appliance program, DOE is supporting Federal agency leadership in climate change in various ways, including in its Federal government energy efficiency rulemakings. DOE is highlighting one rule supporting Federal agency leadership in climate change under the Energy Conservation and Production Act. The rule establishes baseline Federal energy efficiency performance standards for the construction of new Federal commercial and multi-family high-rise residential buildings. The total incremental first cost savings under the rule is $32.67 million per year, with a potential cost reduction in new Federal construction costs of 0.85%, and life-cycle cost net savings of $161.9 million. Compared to the prior building standard, DOE expects a 4,472,870 metric ton reduction in carbon dioxide emissions over 30 years.
As the federal agency with principal responsibility for protecting the health of all Americans and for providing essential human services, the Department of Health and Human Services (HHS or the Department) implements programs that strengthen the health care system; advance scientific knowledge and innovation; and improve the health, safety, and wellbeing of the American people.
The Department's Regulatory Plan for Fiscal Year 2022 delivers on the Biden-Harris Administration's commitment to tackle the COVID-19 pandemic, build, and expand access to affordable health care, address health disparities, increase health equity, and promote the wellbeing of children and families:
• This agenda expands access to quality, affordable health care for all Americans, with rules to provide evidence-based behavioral health treatment via telehealth and rules to streamline enrollment and improve access to care in Medicaid and the Children's Health Insurance Program (CHIP) to ensure that children and families eligible for these programs are able to maintain coverage and obtain needed care.
• As we work to expand access to affordable health care, we will simultaneously tackle disparities that persist in who gain access to care. Forthcoming rules—including one designed to prevent discrimination in accessing care and coverage—serve to protect every person's right to access the health care they need, no matter where they live or who they are.
• Building on recent rules requiring COVID-19 vaccinations for staff at most Medicare- and Medicaid-participating health care providers and in Head Start programs, our Regulatory Plan augments our fight against COVID-19 and future pandemics by including new rules that permit CDC to set vaccination requirements for airline passengers entering the U.S. and increase the resilience of HHS programs to deal with COVID-19 and future public health emergencies.
• Our work to promote the health and wellbeing of every person includes extending additional support and resources to children and families. Whether we are providing flexibility to ensure more children in foster care are placed in homes with their relatives or reimbursing state foster care agencies for the cost of providing independent legal representation for children and parents, we are working to support our next generation of leaders—and the people who help raise them.
In short, this agenda allows the Department to support government-wide efforts to build a healthy America by charting a course to Build Back Better with rules designed to help protect public health and improve the health and wellbeing of every person touched by our programs.
Since its enactment, the Affordable Care Act (ACA) has dramatically reduced the number of uninsured Americans while strengthening consumer protections and improving our nation's health care system. Yet high uninsured rates and other barriers to care continue to persist, compounded by the health and economic challenges facing Americans nationwide due to the COVID-19 pandemic. From day one, the Biden-Harris Administration has been focused on closing these gaps in coverage and access. The American Rescue Plan (ARP) alongside the ACA and executive actions by the Biden-Harris Administration have already led to lower premiums for consumers and more opportunities to gain coverage, achieving record-high enrollment in ACA Marketplace and Medicaid coverage.
The Department plans to continue expanding access to affordable health care over the next year, including through its regulatory actions. Secretary Becerra's regulatory priorities in this area include: Enhancing coverage and access for Americans in the ACA Marketplace, Medicaid, CHIP, and Medicare; expanding the accessibility and affordability of drugs and medical products; addressing behavioral health needs; and streamlining the secure exchange of health information.
The Department will take several regulatory actions in the next year building on the success of the ACA and improving access to care for Americans. In his Executive Order on Strengthening Medicaid and the Affordable Care Act (E.O. 14009), President Biden asked the Department to consider a range of actions, including actions that would protect and strengthen Medicaid. Following this regulatory review, the Department is issuing two rules. First, the Department will issue a proposed rule on Assuring Access to Medicaid and Children's Health Insurance Program (CHIP) Services. Together, Medicaid and CHIP cover nearly one in four Americans and provide for access to a broad array of health benefits and services critical to underserved populations, including low-income adults, children, pregnant women, elderly, and people with disabilities. This rule would empower the Department to assure and monitor equitable access to services in Medicaid and CHIP.
Additionally, the Department will issue a proposed rule on Streamlining the Medicaid and CHIP Application, Eligibility Determination, Enrollment, and Renewal Processes. Although considerable progress has been made in these areas, gaps remain in states' ability to seamlessly process beneficiaries' eligibility and enrollment. This rule would streamline eligibility and enrollment processes for all Medicaid and CHIP populations and create new enrollment pathways to maximize enrollment and retention of eligible individuals. The first step to ensuring access to services is making certain that people can maintain a consistent source of high-quality coverage.
The Department also plans to issue a proposed rule on Requirements for Rural Emergency Hospitals. This rule would establish health and safety requirements as Conditions of Participation (CoPs) for Rural Emergency Hospitals (REHs) participating in Medicare or Medicaid, in accordance with Section 125 of the Consolidated Appropriations Act, 2021, and will establish payment policies and payment rates for REHs. This rule will aim to address barriers to health care, unmet social needs, and other health challenges and risks faced by rural communities.
Improving access to care for populations with ACA Marketplace coverage is also a regulatory priority of the Department. For instance, the Department will issue a proposed rule to protect patients' access to care and promote competition by ensuring that plans do not engage in unlawful discrimination against health care providers. While the ACA's provider nondiscrimination protections are currently set forth in guidance, the No Surprises Act directs the Department to implement these protections through regulation.
The Department will also work to ensure access to benefits and services afforded under the law. A critical part of this work will include amending regulations on contraceptive coverage which guarantee cost-free coverage to the consumer under the ACA. In addition to the actions described above, the Department's regulatory agenda includes several payment rules and notices issued annually by the Centers for Medicare & Medicaid Services (CMS) that affect Medicare, Medicaid, and the ACA Marketplace. These rules, though they are not included in the HHS Regulatory Plan, will include policies in service of the Secretary's priority of expanding access to affordable, high-quality health care.
The Department is committed to improving Americans' access to affordable drugs and medical products. Earlier this year, the Department issued a proposed rule entitled Medical Devices; Ear, Nose and Throat Devices; Establishing Over-the-Counter Hearing Aids and Aligning Other Regulations. Consistent with President Biden's Executive Order on Promoting Competition in the American Economy (E.O. 14036), this rule proposes to establish a new category of over the counter of hearing aids. If finalized, the rule would allow hearing aids within this category to be sold directly to consumers in stores or online without a medical exam or a fitting by an audiologist. This action will address existing barriers on access to hearing aids, improve consumer choice, and have a direct impact on quality of life.
Over the next year, the Department will continue pursuing greater accessibility and affordability for Americans in need of drugs and medical products, consistent with the Department's Comprehensive Plan for Addressing High Drug Prices, released in September 2021. For example, the Department plans to issue a proposed
In addition, the Department will issue a proposed rule entitled 340B Drug Pricing Program; Administrative Dispute Resolution. The 340B Drug Pricing Program, which requires drug manufacturers to provide discounts on outpatient prescription drugs to certain safety net providers, is critical to the ability of safety net providers to stretch scarce federal resources and reach patients with low incomes or without insurance. The rule would establish new requirements and procedures for the Program's Administrative Dispute Resolution (ADR) process, making the process more equitable and accessible for participation by program participants. This is intended to replace the previous administration's rulemaking on the same subject, which was finalized in December 2020.
The COVID-19 pandemic has made clear that too many Americans have unmet behavioral health needs, which have seen an alarming rise during the pandemic due to illness, grief, job loss, food insecurity, and isolation. The Secretary is committed to addressing the behavioral health effects of the COVID-19 pandemic—including mental health conditions and substance use disorders—especially in underserved communities. This commitment informs the Department's regulatory priorities over the next year.
The Department is proposing two rules intended to extend telehealth flexibilities for substance use disorder treatments that were granted during the COVID-19 public health emergency. First, the Department will issue a proposed rule on Treatment of Opioid use Disorder With Extended Take Home Doses of Methadone. This rule would propose revisions to Substance Abuse and Mental Health Services Administration (SAMHSA) regulations to make permanent regulatory flexibilities for opioid treatment programs to provide extended take-home doses of methadone to patients when it is safe and appropriate to do so. Likewise, the Department also plans to issue a proposed rule on Treatment of Opioid Use Disorder with Buprenorphine Utilizing Telehealth. This rule would propose revisions to SAMHSA regulations to permanently allow opioid treatment programs and certain other providers to provide buprenorphine via telehealth. Both changes would allow more patients to receive comprehensive opioid use disorder treatment and could address barriers to treatment such as transportation, geographic proximity, employment, or other required activities of daily living.
Furthermore, the Department, working closely with the Department of Labor, will issue a proposed rule on the Mental Health Parity and Addiction Equity Act (MHPAEA) and the Consolidated Appropriations Act, 2021. The MHPAEA is a federal law that prevents group health plans and health insurance issuers that provide mental health or substance use disorder benefits from imposing less favorable benefit limitations on those benefits than on medical and surgical benefits. This rule would clarify group health plans and health insurance issuers' obligations under the MHPAEA and promote compliance with MHPAEA, among other improvements.
Finally, the Department also plans to issue a proposed rule on the Confidentiality of Substance Use Disorder Patient Records. Section 3221 of the CARES Act modifies the statute that establishes protections for the confidentiality of substance use disorder treatment records and directs the Department to work with other federal agencies to update the regulations at 42 CFR part 2 (part 2). As required by the CARES Act, this rule would align certain provisions of part 2 with aspects of the HIPAA Privacy, Breach Notification, and Enforcement Rules; strengthen part 2 protections against uses and disclosures of patients' substance use disorder records for civil, criminal, administrative, and legislative proceedings; and require that a HIPAA Notice of Privacy Practices address privacy practices with respect to Part 2 records.
The secure exchange of health information among health care providers and other entities improves patient care, reduces costs, and provides more accurate public health data. The 21st Century Cures Act (Cures Act) included important provisions related to improving the interoperability and transparency of health information.
Two of the Department's planned rulemakings directly address and implement these statutory provisions. First, the Department plans to finalize the implementation of the Cures Act provision that authorizes the Department to impose civil monetary penalties, assessments, and exclusions upon individuals and entities that engage in fraud and other misconduct related to HHS grants, contracts, and other agreements. It would also implement Cures Act provisions on information blocking, which authorize the Office of Inspector General (OIG) to investigate claims of information blocking and grant the Department the power to impose civil monetary penalties (CMPs) for information blocking. The Department's regulations would also be updated to include the increased civil monetary penalties provided in the Bipartisan Budget Act of 2018.
Additionally, the Department will issue a proposed rule entitled Health Information Technology: Updates to the ONC Health IT Certification Program, Establishment of the Trusted Exchange Framework and Common Agreement Attestation Process, and Enhancements to Support Information Sharing. This rule would implement certain provisions of the Cures Act, including the Electronic Health Record (EHR) Reporting Program condition and maintenance of certification requirements under the ONC Health IT Certification Program (Certification Program); a process for health information networks that voluntarily adopt the Trusted Exchange Framework and Common Agreement to attest to the agreed upon interoperable data exchange; and enhancements to support information sharing under the information blocking regulations.
Equity is the focus of over a dozen Executive Orders issued by President Biden, and it remains a cornerstone of the Biden-Harris Administration's agenda. The Department recognizes that people of color, people with disabilities, lesbian, gay, bisexual, transgender, and
The Department is taking action to promote equity in health care programs and delivery. Earlier this year, the Department finalized a rule on Ensuring Access to Equitable, Affordable, Client-centered, Quality Family Planning Services. This rule revoked the previous administration's harmful restrictions on the use of Title X family planning funds, which had a disproportionate impact on low-income clients and caused substantial decreases in utilization among clients of color. Revoking the previous rule will allow the Title X service network to expand in size and capacity to provide quality family planning services to more clients.
In addition, the rule updates the Title X regulations to ensure access to equitable, affordable, client-centered, quality family planning services.
The Department is also committed to improving the effectiveness of federal health programs that constitute an important source of care for underserved communities. For instance, the Department plans to issue a proposed rule on the Catastrophic Health Emergency Fund (CHEF). CHEF was established to reimburse tribally operated Indian Health Service (IHS) Purchased/Referred Care programs, which serve American Indian/Alaska Native patients, for medical expenses related to high-cost illnesses and events after a threshold cost has been met. This rule would establish regulations governing CHEF, set the threshold cost that must be reached before CHEF reimbursement can be paid, and establish the procedures for reimbursement under the program.
The Department recognizes that people of color, LGBTQ+ people, people with disabilities, people with low incomes, and other underserved populations experience longstanding disparities in leading public health indicators—including obesity and the use of certain tobacco products. To protect the public health and advance equity, the Department is pursuing regulatory action with respect to consumer products that have a disproportionate impact on the health of underserved groups.
For instance, the Department plans to propose two rules on tobacco product standards. First, the Department will issue a proposed rule on Tobacco Product Standard for Menthol in Cigarettes, which would ban menthol as a characterizing flavor in cigarettes. Menthol cigarettes are marketed to and disproportionately used by Black smokers and increase the appeal of smoking for youth and young adults. This standard would reduce the availability of menthol cigarettes. By likely decreasing consumption and increasing the likelihood of cessation, the standard would likely improve the health of current menthol cigarette smokers. Similarly, the Department plans to issue a proposed rule on Tobacco Product Standard for Characterizing Flavors in Cigars. This rule is a tobacco product standard that would ban characterizing flavors—such as strawberry, grape, orange, and cocoa—in all cigars. As with menthol cigarettes, flavored cigars appeal to youth and disproportionately affect underserved communities. This product standard would likely reduce the appeal of cigars, particularly to youth and young adults, and is intended to decrease the likelihood of experimentation, progression to regular use, and the potential for addiction to nicotine.
Furthermore, the Department will issue a proposed rule entitled Nutrient Content Claims, Definition of Term: Healthy. This rule would update the definition for the implied nutrient content claim “healthy” to be consistent with current nutrition science and federal dietary guidelines. This would ensure that foods labeled “healthy” can help consumers build more healthful diets to help reduce their risk of diet-related chronic disease. This action is necessary to improve the public health and reduce disparities in health outcomes, particularly among people of color and people with low incomes in the U.S., who are disproportionately affected by obesity and diet-related chronic illness.
The Department is taking actions to eliminate discrimination as a barrier for historically marginalized communities seeking access to HHS programs and activities. This includes two proposed rules in the Department's Regulatory Plan for the coming year. First, the Department will issue a proposed rule on Nondiscrimination in Health Programs and Activities, which would make changes to the previous administration's final rule implementing the nondiscrimination provisions in section 1557 of the ACA. The current section 1557 regulations significantly narrow the scope of section 1557's protections. Because discrimination in the U.S. health care system is a driver of health disparities, the Section 1557 regulations present a key opportunity for the Department to promote equity and ensure protection of health care as a right. Additionally, the Department will issue a proposed rule entitled Rulemaking on Discrimination on the Basis of Disability in Critical Health and Human Services Programs or Activities. This rule would revise regulations under section 504 of the Rehabilitation Act of 1973 to address unlawful discrimination on the basis of disability in certain vital HHS-funded health and human services programs. Covered topics include nondiscrimination in life-sustaining care, organ transplantation, suicide prevention services, child welfare programs and services, health care value assessment methodologies, accessible medical equipment, auxiliary aids and services, Crisis Standards of Care and other relevant health and human services activities.
Consistent with President Biden's Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (E.O. 13985), the Department is working to embed equity throughout HHS programs and policies, including in the awarding of grants, loans, and procurement contracts.
For instance, the Department plans to issue a proposed rule on the National Institute for Disability, Independent Living, and Rehabilitation Research
As the federal agency charged with protecting the health of all Americans, the Department plays a central role in the Biden-Harris Administration's whole-of-government response to the COVID-19 pandemic. From ensuring access to COVID-19 testing, treatment, and vaccines, to bolstering the capacity of the health care system in a public health emergency, to addressing the effects of the pandemic on the behavioral health of Americans, Secretary Becerra has leveraged the Department's full resources to pursue a comprehensive strategy to combat COVID-19. Over the last several months, the Secretary has pursued this regulatory priority by issuing a number of critical rules requiring COVID-19 vaccinations to keep schools, workplaces, and communities safe and increasing regulatory oversight of SARS-CoV-2 laboratory experimentation. Over the next year, the Department plans to continue its work to address COVID-19 through new regulations.
Despite tremendous gains over the course of 2021, tens of millions of people remain unvaccinated against COVID-19. Reaching this population is an essential component of the Biden-Harris Administration's strategy to accelerate our nation's path out of the pandemic. For this reason, vaccine requirements are one of the Department's most impactful regulatory options in combatting COVID-19.
Accordingly, the Department has recently issued rules expanding COVID-19 vaccine requirements. For example, the Department issued an interim final rule requiring COVID-19 vaccinations for staff at most Medicare- and Medicaid-participating providers and suppliers.
Additionally, the Department issued an interim final rule with comment period to add new provisions to the Head Start Program Performance Standards to mitigate the spread of the COVID-19 in Head Start programs through COVID-19 vaccine requirements.
Building on these accomplishments, in the coming months, the Department plans to issue an interim final rule that will provide CDC with authority to require individuals entering the U.S. at any port of entry to present proof of vaccination or other proof of immunity against any quarantinable communicable diseases for which the Centers for Disease Control and Prevention (CDC) determines that a public health need exists. This rule will provide CDC with authority to require travelers to be fully vaccinated upon arrival and will reduce the number of international travelers arriving while infected.
The Department is planning to introduce new flexibilities in HHS programs to minimize disruptions and alleviate burdens that may be caused by COVID-19 or future emergencies. For example, the Department issued a final rule on Flexibility for Head Start Designation Renewals in Certain Emergencies. This rule adds a new provision to the Head Start Program Performance Standards to establish parameters by which the Administration for Children and Families (ACF) may make designation renewal determinations during widespread disasters or emergencies and in the absence of all normally required data.
The Department also plans to issue a proposed rule on Administration for Native Americans (ANA) Non-federal Share Emergency Waivers. The rule will propose the ability for current grantees to request an emergency waiver for the non-federal share match. This update to ANA's regulation would provide a new provision for recipients to request an emergency waiver in the event of a natural or man-made emergency such as a public health pandemic.
Additionally, the Department issued a proposed rule on Paternity Establishment Percentage Performance Relief. This rule proposes to modify the Paternity Establishment Percentage performance requirements in child support regulations to provide relief from financial penalties to states impacted by the COVID-19 pandemic. Without regulatory relief, 20 out of the 54 child support programs may be subject to financial penalties associated with their failure to achieve performance for the Paternity Establishment Percentage (PEP). PEP-related financial penalties, which are imposed as reductions in the state's Temporary Assistance for Needy Families (TANF) program funding, place an undue burden on state budgets and threaten funding that supports the very families who are most in need during this time of crisis.
The Department's mission to provide effective human services to Americans includes a focus on protecting the wellbeing of children and families. This focus has special significance given the COVID-19 pandemic and its economic consequences, which have deeply affected the lives of children and youth, especially those who are in foster care or otherwise involved in the child welfare system. Secretary Becerra has therefore prioritized children and youth that are in, or candidates for, foster care in the HHS Regulatory Plan.
In support of this priority, the Department will issue a proposed rule to allow Licensing Standards for Relative or Kinship Foster Family Homes that are different from non-relative homes. Currently, in order to claim Title IV-E funding, federal regulations require that all foster family homes meet the same licensing standards, regardless of whether the foster family home is a relative or non-relative placement. The proposed change would address barriers to licensing relatives and kin who can provide continuity and a safe and loving home for children when they cannot be with their parents.
The Department will also issue a proposed rule to reimburse agencies for Title IV-E Administrative Expenditures for Independent Legal Representation in Foster Care and other Related Civil Legal Issues. This rule would make it easier for Title IV-E agencies to facilitate the provision of independent legal representation to a child who is a candidate for foster care or in foster care and to a parent preparing for participation in foster care legal proceedings. Improving access to independent legal representation may help prevent the removal of a child from the home or, for a child in foster care, achieve permanence faster.
The CARES Act requires the revisions to regulations with respect to uses and disclosures of information occurring on or after the date that is 12 months after the date of enactment of the Act (March 27, 2021); and not later than one year after the date of enactment, an update to the Notice of Privacy Practices (NPP) provisions of the HIPAA Privacy Rule at 45 CFR 164.520.
Final, Statutory, July 24, 2019, Publish a list of the health information networks that have adopted the common agreement and are capable of trusted exchange pursuant to the common agreement.
FDA is proposing to update the existing nutrient content claim definition of “healthy” based on the food groups recommended by the Dietary Guidelines for Americans and also require a food product to be limited in certain nutrients, including saturated fat, sodium, and added sugar, to ensure that foods bearing the claim can help consumers build more healthful diets to help reduce their risk of diet-related chronic disease.
In 2016, FDA published “Use of the Term `Healthy' in the Labeling of Human Food Products: Guidance for Industry.” This guidance was intended to advise food manufacturers of FDA's intent to exercise enforcement discretion relative to foods that use the implied nutrient content claim “healthy” on their labels which: (1) Are not low in total fat, but have a fat profile makeup of predominantly mono and polyunsaturated fats; or (2) contain at least 10 percent of the Daily Value (DV) per reference amount customarily consumed (RACC) of potassium or vitamin D.
One alternative is to codify the policy in this guidance. Although guidance is non-binding, we assume that most packaged food manufacturers are aware of the guidance and, over the past 2 years, have already made any adjustments to their products or product packaging. Therefore, we assume that this alternative would have no costs to industry and no benefits to consumers.
Extending the anticipated proposed compliance date on the rule updating the definition by 1 year would reduce costs to industry as they would have more time to change products that may be affected by the rule or potentially coordinate label changes with already scheduled label changes. On the other hand, a longer compliance date runs the risk of confusing consumers that may not understand whether a packaged food product labeled “healthy” follows the old definition or the updated one.
Updating the definition of “healthy” to align with current dietary recommendations can help consumers build more healthful diets to help reduce their risk of diet-related chronic diseases. Discounted at seven percent over 20 years, the mean present value of benefits of the proposed rule is $260 million, with a lower bound estimate of $17 million and an upper bound estimate of $700 million.
The Department of Homeland Security (DHS or Department) was established in 2003 pursuant to the Homeland Security Act of 2002, Public Law 107-296. The DHS mission statement contains these words: “With honor and integrity, we will safeguard the American people, our homeland, and our values.”
DHS was created in the aftermath of the horrific attacks of 9/11, and its distinctive mission is defined by that commitment. The phrase “homeland security” refers to the security of the American people, the homeland (understood in the broadest sense), and the nation's defining values. A central part of the mission of protecting “our values” includes fidelity to law and the rule of law, reflected above all in the Constitution of the United States, and also in statutes enacted by Congress, including the Administrative Procedure Act. That commitment is also associated
The regulatory priorities of DHS are founded on insistence on the rule of law—and also on a belief that individual dignity, symbolized and made real by the opening words of the Constitution (“We the People”), the separation of powers, and the Bill of Rights (including the Due Process Clause), helps to define our mission.
Fulfilling that mission requires the dedication of more than 240,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector, from the economist seeking to identify the consequences of our actions to the scientist and policy analyst seeking to make the nation more resilient against flooding, drought, extreme heat, and wildfires. Our duties are wide-ranging, but our goal is clear: Keep America safe.
Six overarching homeland security missions make up DHS's strategic plan: (1) Counter terrorism and homeland security threats; (2) secure U.S. borders and approaches; (3) secure cyberspace and critical infrastructure; (4) preserve and uphold the Nation's prosperity and economic security; (5) strengthen preparedness and resilience (including resilience from risks actually or potentially aggravated by climate change); and (6) champion the DHS workforce and strengthen the Department. See also 6 U.S.C. 111(b)(1) (identifying the primary mission of the Department). In promoting these goals, we attempt to evaluate our practices by reference to evidence and data, not by hunches and guesswork, and to improve them in real time. We also attempt to deliver our multiple services in a way that, at once, protects the American people and does not impose excessive or unjustified barriers and burdens on those who use them.
In achieving those goals, we are committed to public participation and to listening carefully to the American people (and to noncitizens as well). We are continually strengthening our partnerships with communities, first responders, law enforcement, and Government agencies—at the Federal, State, local, tribal, and international levels. We are accelerating the deployment of science, technology, and innovation in order to make America more secure against risks old and new—and to perform our services better. We are becoming leaner, smarter, and more efficient, ensuring that every security resource is used as effectively as possible. For a further discussion of our mission, see the DHS website at
The regulations we have summarized below in the Department's Fall 2021 Regulatory Plan and Agenda support the Department's mission. We are committed to continuing evaluation of our regulations, consistent with Executive Order 13563, and Executive Order 13707, and in a way that improves them over time. These regulations will improve the Department's ability to accomplish its mission. In addition, these regulations respond to and implement legislative initiatives such as those found in the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), FAA Extension, Safety, and Security Act of 2016, and the Synthetics Trafficking and Overdose Prevention Act of 2018 (STOP Act). We emphasize here our commitments (1) To fidelity to law; (2) to treating people with dignity and respect; (3) to increasing national resilience against multiple risks and hazards, including those actually or potentially associated with climate change; (4) to modernization of existing requirements; and (5) to reducing unjustified barriers and burdens, including administrative burdens.
DHS strives for organizational excellence and uses a centralized and unified approach to managing its regulatory resources. The Office of the General Counsel manages the Department's regulatory program, including the agenda and regulatory plan. In addition, DHS senior leadership reviews each significant regulatory project in order to ensure that the project fosters and supports the Department's mission.
The Department is committed to ensuring that all of its regulatory initiatives are aligned with its guiding principles to protect civil rights and civil liberties, integrate our actions, listen to those affected by our actions, build coalitions and partnerships, eliminate unjustified burdens and barriers, develop human resources, innovate, and be accountable to the American public.
DHS is strongly committed to the principles described in Executive Orders 13563 and 12866 (as amended). Both Executive Orders direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13563 explicitly draws attention to human dignity and to equity.
Finally, the Department values public involvement in the development of its regulatory plan, agenda, and regulations. It is particularly concerned with the impact its regulations have on small businesses and startups, consistent with its commitment to promoting economic growth. Consistent with President Biden's
The Fall 2021 regulatory plan for DHS includes regulations from multiple DHS components, including U.S. Citizenship and Immigration Services (USCIS), the U.S. Coast Guard (the Coast Guard), U.S. Customs and Border Protection (CBP), Transportation Security Administration (TSA), the U.S. Immigration and Customs Enforcement (ICE), the Federal Emergency Management Agency (FEMA), and the Cybersecurity and Infrastructure Security Agency (CISA). We next describe the regulations that comprise the DHS fall 2021 regulatory plan.
The Federal Emergency Management Agency (FEMA) is the government agency responsible for helping people before, during, and after disasters. FEMA supports the people and communities of our Nation by providing experience, perspective, and resources in emergency management. FEMA is particularly focused on national resilience in the face of the risks of flooding, drought, extreme heat, and wildfire; it is acutely aware that these risks, and others, are actually or potentially aggravated by climate change. FEMA seeks to ensure, to the extent possible, that changing weather
Consistent with President Biden's
FEMA will also propose a regulation titled
FEMA will issue a regulation titled
On October 12, 2021, FEMA issued a Request for Information to receive the public's input on revising the NFIP's floodplain management standards for land management and use regulations to better align with the current understanding of flood risk and flood risk reduction approaches, as directed by Executive Order 14030. FEMA seeks input on the floodplain management standards that communities should adopt to result in safer, stronger, and more resilient communities. Additionally, FEMA seeks input on how the NFIP can better promote protection of and minimize any adverse impact to threatened and endangered species, and their habitats.
U.S. Citizenship and Immigration Services (USCIS) is the government agency that administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values. USCIS is committed to taking the necessary steps to reduce barriers to legal immigration, increase access to immigration benefits (consistent with law), and reinvigorate the size and scope of humanitarian relief. In the coming year, USCIS intends to pursue several regulatory actions that support these goals while balancing our fiscal stability.
The Coast Guard is a military, multi-mission, maritime service of the United States and the only military organization within DHS. It is the principal Federal agency responsible for maritime safety, security, and stewardship in U.S. ports and waterways.
Effective governance in the maritime domain hinges upon an integrated approach to safety, security, and stewardship. The Coast Guard's policies and capabilities are integrated and interdependent, delivering results through a network of enduring partnerships with maritime stakeholders. Consistent standards of universal application and enforcement, which encourage safe, efficient, and responsible maritime commerce, are vital to the success of the maritime industry. The Coast Guard's ability to field versatile capabilities and highly trained personnel is one of the U.S. Government's most significant and important strengths in the maritime environment.
America is a maritime nation, and our security, resilience, and economic prosperity are intrinsically linked to the oceans. Safety, efficient waterways, and freedom of transit on the high seas are essential to our well-being. The Coast Guard is leaning forward, poised to meet the demands of the modern maritime environment. The Coast Guard creates value for the public through solid prevention and response efforts. Activities involving oversight and regulation, enforcement, maritime presence, and public and private partnership foster increased maritime safety, security, and stewardship.
The statutory responsibilities of the Coast Guard include ensuring marine safety and security, preserving maritime mobility, protecting the marine environment, enforcing U.S. laws and international treaties, and performing search and rescue. The Coast Guard supports the Department's overarching goals of mobilizing and organizing our Nation to secure the homeland from terrorist attacks, natural disasters, and other emergencies. These goals include protection against the risks associated with climate change, and the Coast Guard seeks to obtain scientific information to assist in that task, while also acting to promote resilience and adaptation.
The Coast Guard highlights the following regulatory actions:
Customs and Border Protection (CBP) is the Federal agency principally responsible for the security of our Nation's borders, both at and between the ports of entry into the United States. CBP must accomplish its border security and enforcement mission without stifling the flow of legitimate trade and travel. The primary mission of CBP is its homeland security mission, that is, to
CBP is also responsible for administering laws concerning the importation of goods into the United States and enforcing the laws concerning the entry of persons into the United States. This includes regulating and facilitating international trade; collecting import duties; enforcing U.S. trade, immigration and other laws of the United States at our borders; inspecting imports; overseeing the activities of persons and businesses engaged in importing; enforcing the laws concerning smuggling and trafficking in contraband; apprehending individuals attempting to enter the United States illegally; protecting our agriculture and economic interests from harmful pests and diseases; servicing all people, vehicles, and cargo entering the United States; maintaining export controls; and protecting U.S. businesses from theft of their intellectual property.
In carrying out its mission, CBP's goal is to facilitate the processing of legitimate trade and people efficiently without compromising security. Consistent with its primary mission of homeland security, CBP intends to issue several regulations that are intended to improve security at our borders and ports of entry. During the upcoming year, CBP will also work on various projects to streamline CBP processing, reduce duplicative processes, reduce various burdens on the public, and automate various paper forms. Below, CBP provides highlights of certain planned actions for the coming fiscal year.
In addition to the regulations that CBP issues to promote DHS's mission, CBP issues regulations related to the mission of the Department of the Treasury. Under section 403(1) of the Homeland Security Act of 2002, the former-U.S. Customs Service, including functions of the Secretary of the Treasury relating thereto, transferred to the Secretary of Homeland Security. As part of the initial organization of DHS, the Customs Service inspection and trade functions were combined with the immigration and agricultural inspection functions and the Border Patrol and transferred into CBP. The Department of the Treasury retained certain regulatory authority of the U.S. Customs Service relating to customs revenue function. In the coming year, CBP expects to continue to issue regulatory documents that will facilitate legitimate trade and implement trade benefit programs. For a discussion of CBP regulations regarding the customs revenue function, see the regulatory plan of the Department of the Treasury.
The Transportation Security Administration (TSA) protects the Nation's transportation systems to ensure freedom of movement for people and commerce. TSA applies an intelligence-driven, risk-based approach to all aspects of its mission. This approach results in layers of security to mitigate risks effectively and efficiently. TSA seeks to ensure ever-improving “customer service” so as to improve the experience of the many millions of travelers whom it serves. In fiscal year 2022, TSA is prioritizing the following actions that are required to meet statutory mandates and that are necessary for national security.
U.S. Immigration and Customs Enforcement (ICE) is the principal criminal investigative arm of DHS and one of the three Department components charged with the criminal and civil enforcement of the Nation's immigration laws. Its primary mission is to protect national security, public safety, and the integrity of our borders through the criminal and civil enforcement of Federal law governing border control, customs, trade, and immigration. During the coming fiscal year, ICE will focus rulemaking efforts on regulations pertaining to adjusting fees, including the rule mentioned below.
The Cybersecurity and Infrastructure Security Agency (CISA) is responsible for leading the national effort to develop cybersecurity and critical infrastructure security programs, operations, and associated policy to enhance the security and resilience of physical and cyber infrastructure.
A more detailed description of the priority regulations that comprise the DHS regulatory plan follows.
Furthermore, on February 2, 2021, President Biden issued Executive Order 14010 that directs DOJ and DHS within 270 days of the date of this order, [to] promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a `particular social group,' as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The CFO Act requires each agency's chief financial officer to “review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value.”
DHS intends to proceed with rulemaking to define the term public charge and identify considerations relevant to the public charge inadmissibility determination. DHS will conduct the rulemaking consistent with section 212(a)(4) of the INA and consistent with the principles described in Executive Order 14012. Such principles include recognizing our character as a Nation of opportunity and of welcome and of providing due consideration to the confusion, fear, and negative public health consequences that may result from public charge policies.
Consistent with section 6 of Executive Order 12866 (58 FR 51735) and section 2 of Executive Order 13563 (76 FR 3821), and in consideration of the significant public interest in this rulemaking proceeding, DHS published an advance notice of proposed rulemaking and notice of virtual public listening sessions on August 23, 2021. There is a 60-day public comment period and the listening sessions are scheduled for September 14 and October 5, 2021.
In conjunction with the above changes, the Departments are proposing to return the regulatory framework governing the credible fear screening process so as to once more apply the longstanding “significant possibility” screening standard to all protection claims, but not apply the mandatory bars to asylum and withholding of removal (with limited exception) at this initial screening stage. The Departments also propose that, if an asylum officer makes a positive credible fear determination, the documentation the USCIS asylum officer creates from the individual's sworn testimony during the credible fear screening process would serve as an initial asylum application, thereby improving efficiency in the asylum adjudication system. Lastly, the Departments are proposing to allow, when detention is unavailable or impracticable, for the consideration of parole prior to a positive credible fear determination of an individual placed into expedited removal who makes a fear claim. The Departments are reviewing the public comments received and plan to issue a final rule.
There could also be cost-savings related to Forms I-589 and I-765 filing volume changes. In addition, some asylum applicants may realize potential early labor earnings, which could constitute a transfer from workers in the U.S. labor force to certain asylum applicants, as well as tax impacts. Qualitative benefits include, but may not be limited to: (i) Beneficiaries of new parole standards may not have to wait lengthy times for a decision on whether their asylum claims will receive further consideration; (ii) some individuals could benefit from de novo review by an IJ of the asylum officer's denial of their asylum; (iii) DOJ-EOIR may focus efforts on other priority work and reduce its substantial current backlog; (iv) as some applicants may be able to earn income earlier than they otherwise could currently, burdens to the support network of the applicant may be lessened.
USCG expects the proposed rule to have unquantified benefits from reduction in fatalities and injuries due to pollutant in engine emissions, and also reduced risk of retaliation due to breaching international agreement.
However, this rule will provide considerable benefits and cost savings to both vessel operators and CBP. Following this rule's implementation, vessel operators will enjoy cost savings from forgone paper Form I-418 submissions and form printing. CBP will experience a cost savings from the rule's avoided printing, streamlined mobile post-inspection processing and electronic recordkeeping. In turn, CBP may dedicate these cost savings to other agency mission areas, such as improving border security or facilitating trade.
Sections 1411 and 1520 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (121 Stat. 266, Aug. 3, 2007), require background checks of frontline public transportation and railroad employees not later than one year from the date of enactment. Requirement will be met through regulatory action.
Alex Moscoso, Chief Economist, Economic Analysis Branch-Coordination & Analysis Division, Department of Homeland Security, Transportation Security Administration, Policy, Plans, and Engagement, 6595 Springfield Center Drive, Springfield, VA 20598-6028,
Christine Beyer, Senior Counsel, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Chief Counsel's Office, 6595 Springfield Center Drive, Springfield, VA 20598-6002,
Requires the TSA to establish a process to implement the requirements of section 612(a) of Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176, 117 Stat. 2490, Dec. 12, 2003), including the fee provisions, not later than 60 days after the enactment of the Act.
Alex Moscoso, Chief Economist, Economic Analysis Branch—Coordination & Analysis Division, Department of Homeland Security, Transportation Security Administration, Policy, Plans, and Engagement, 6595 Springfield Center Drive, Springfield, VA 20598-6028,
David Ross, Attorney-Advisor, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Chief Counsel's Office, 6595 Springfield Center Drive, Springfield, VA 20598-6002,
The SFIP is a single-peril (flood) policy that pays for direct physical damage to insured property. There are currently three forms of the SFIP: The Dwelling Form, the General Property Form, and the Residential Condominium Building Association Policy (RCBAP) Form. The Dwelling Form insures a one-to-four family residential building or a single-family dwelling unit in a condominium building. See 44 CFR part 61, Appendix A(1). Policies under the Dwelling Form offer coverage for building property, up to $250,000, and personal property up to $100,000. The General Property Form ensures a five-or-more family residential building or a non-residential building. See 44 CFR part 61, Appendix A(2). The General Property Form offers coverage for building and contents up to $500,000 each. The RCBAP Form insures residential condominium association buildings and offers building coverage up to $250,000 multiplied by the number of units and contents coverage up to $100,000 per building. See 44 CFR part 61, appendix A(3). RCBAP contents coverage insures property owned by the insured condominium association. Individual unit owners must purchase their own Dwelling Form policy in order to insure their own contents.
FEMA last substantively revised the SFIP in 2000. See 65 FR 60758 (Oct. 12, 2000). In 2020, FEMA published a final rule that made non-substantive clarifying and plain language improvements to the SFIP. See 85 FR 43946 (July 20, 2020). However, many policyholders, agents, and adjusters continue to find the SFIP difficult to read and interpret compared to other, more modern, property and casualty insurance products found in the private market. Accordingly, FEMA proposes to adopt a new Homeowner Flood Form.
The new Homeowner Flood Form, which FEMA proposes to add to its regulations at 44 CFR 61 appendix A(4), would protect property owners in a one-to-four family residence. Upon adoption, the Homeowner Flood Form would replace the Dwelling Form as a source of coverage for this class of residential properties. FEMA would continue to use the Dwelling Form to insure landlords, renters, and owners of mobile homes, travel trailers, and condominium units. Compared to the current Dwelling Form, the new Homeowner Flood Form would clarify coverage and more clearly highlight conditions, limitations, and exclusions in coverage as well as add and modify coverages and coverage options. FEMA also proposes adding to its regulations five endorsements to accompany the new Form: Increased Cost of Compliance Coverage, Actual Cash Value Loss Settlement, Temporary Housing Expense, Basement Coverage, and Builder's Risk. These endorsements, which FEMA proposes to codify at 44 CFR 61 appendices A(101)-(105), respectively, would give policyholders the option of amending the Homeowner Flood Form to modify coverage with a commensurate adjustment to premiums charged. Together, the Homeowner Flood Form and accompanying endorsements would increase options and coverage for owners of one-to-four family residences.
FEMA intends that this new Form will be more user-friendly and comprehensible. As a result, the new Homeowner Flood Form and its accompanying endorsements would provide a more personalized, customizable product than the NFIP has offered during its 50 years. In addition to aligning with property and casualty homeowners' insurance, the result would increase consumer choice and simplify coverage.
In 2013, the Sandy Recovery Improvement Act amended section 422(b) of the Stafford Act and required FEMA to complete an analysis to determine whether an increase in the large project threshold was appropriate. Following this analysis, in 2014 FEMA updated the maximum threshold from $68,500 to $120,000 and continued to adjust the threshold annually to reflect changes in the Consumer Price Index, as required under section 422(b)(2). Section 422(b)(3) requires FEMA to review the threshold every three years. FEMA conducted an analysis in 2017 and recommended no change to the threshold at that time. As a result, the maximum threshold for Fiscal Year (FY) 2021 is currently set at $132,800.
Since FEMA's analysis in 2017, the U.S. has seen increased disaster activity either due to, or amplified or aggravated by, the climate crisis. For example, in 2017, Hurricanes Harvey, Irma, and Maria caused a combined total of $293.6 billion in damages. Damages from wildfires in that year and the next totaled approximately $61 billion. In 2020, FEMA responded to 22 one billion-dollar events the highest in its history which included a record number of tropical storms in the Atlantic and the Nation's most active wildfire year recorded. The estimated damages from these 22 events totaled approximately $95 billion. In addition to increased natural disasters, in 2020 FEMA also issued an unprecedented 57 major disaster declarations in response to COVID-19, including for every State, 5 territories, the Seminole Tribe of Florida, and the District of Columbia. In FY 2020 declarations, FEMA's funding under the PA program is over $32 billion. Although costs for COVID-19 accounted for 94 percent of this funding, FEMA expects climate change to make natural disasters more frequent and more destructive, requiring greater spending on recovery in the future.
As a result, in 2020, FEMA conducted another analysis to ensure that FEMA is maximizing the benefits of simplified procedures in light of its more recent disaster spending. Based on this analysis, FEMA determined that it should increase the threshold to $1,000,000, with continued annual adjustment for inflation based on the Consumer Price Index.
The Regulatory Plan for the Department of Housing and Urban Development (HUD) for Fiscal Year (FY) 2022 highlights the most significant regulations and policy initiatives that HUD seeks to complete during the upcoming fiscal year. As the Federal agency that serves as the nation's housing agency, HUD is committed to addressing the housing needs of all Americans by creating strong, sustainable, inclusive communities, and quality affordable homes for all. As a result, HUD plays a significant role in the lives of families and in communities throughout America.
HUD is currently working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes; utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination and transform the way HUD does business. Under the leadership of Secretary Marcia L. Fudge, HUD is dedicated to implementing the Administration's priorities by setting forth initiatives related to recovery from the COVID-19 pandemic, providing economic relief to those HUD serves, advancing racial equity and civil rights, and tackling the climate emergency.
Since the beginning of the Administration, HUD has taken a number of actions to advance equity in its programs and secure equal access to housing opportunity for all. For example, on February 11, 2021, HUD issued a memorandum directing its Office of Fair Housing and Equal Opportunity and organizations that enter into agreements with the Department to carry out fair housing laws and activities to fully enforce the Fair Housing Act to prohibit discrimination based on sexual orientation and gender identity; on April 26, 2021, HUD issued a plan of action the Department will take to
The rules highlighted in HUD's regulatory plan for FY 2022 reflect HUD's efforts to continue its work in meeting the needs of underserved communities and providing for equal access to housing opportunities. In addition, it reflects HUD's efforts to strengthen the housing market and protect consumers, and to aid in recovery from the COVID-19 pandemic. Additionally, HUD notes that the FY 2022 Semiannual Regulatory Agenda includes additional rules that advance the Administration's priorities, including, rules to advance equity by ensuring non-discrimination based on disability in HUD programs, and a rule to help address the climate emergency by improving the resilience of HUD-assisted or financed projects to the effect of climate change.
Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” (86 FR 7009, January 20, 2021) requires each agency to consider whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs. Further, on January 26, 2021 (86 FR 7487), President Biden issued a “Memorandum on Redressing Our Nation's and the Federal Government's History of Discriminatory Housing Practices and Policies,” which explained that the Federal Government will work with communities to, among other things, end housing discrimination, lift barriers that restrict housing and neighborhood choice, promote diverse and inclusive communities, and to secure equal access to housing opportunity for all.
As noted above, on June 10, 2021, HUD published an interim final rule to restore certain definitions and certifications to its regulations implementing the Fair Housing Act's requirement. HUD will build on that rule and issue an AFFH proposed rule that seeks to ensure that HUD and its grantees are sufficiently effective in fulfilling the purposes and policies of the Fair Housing Act. HUD's proposed rule will provide HUD and its program participants with a more effective Fair Housing Planning Process as a means to meet their duty to affirmatively further the Fair Housing Act. Currently, HUD funding recipients must certify compliance with their duty to AFFH on an annual basis and HUD itself has a continuous statutory obligation to ensure that the Fair Housing Act's AFFH obligations are followed.
For decades, courts have held that the AFFH obligation imposes a duty on HUD and its grantees to affirmatively further the purposes of the Fair Housing Act. These courts have held that for funding recipients to meet their AFFH obligations they must, at a minimum, make decisions informed by preexisting racial and socioeconomic residential segregation. The courts have further held that, informed by such information, funding recipients must strive to dismantle historic patterns of racial segregation; preserve integrated housing that already exists; and otherwise take meaningful steps to further the Fair Housing Act's purposes beyond merely refraining from taking discriminatory actions and banning others from such discrimination. Through this proposed rule, HUD plans to implement the AFFH mandate and work towards a more equitable future for all by developing a Fair Housing Planning Process that reduces burdens for program participants and achieves material, positive change that affirmatively furthers fair housing. Specifically, HUD is focused on advancing equity and providing access to opportunity for underserved populations in a manner that is more effective in achieving measurable improvements while avoiding unnecessary burden.
Executive Order 12866, as amended, requires the agency to provide its best estimate of the combined aggregate costs and benefits of all regulations included in the agency's Regulatory Plan that will be pursued in FY 2022. HUD expects that the neither the total economic costs nor the total efficiency gains will exceed $100 million. HUD grantees are already familiar with the AFFH compliance process as instituted by the 2015 rule and the 2021 interim final rule. Having learned from prior rulemakings, HUD believes that the rule will create the right balance of analysis so that grantees will have the available data necessary to help them in completing any analytical requirements without adding the same level of costs associated with the 2015 rulemaking.
The rule is needed to conform HUD regulations with statutory standards and judicial interpretations of those standards, and to ensure consistency in fair housing certifications across HUD programs. This proposed rule would consider HUD's AFFH rule published on July 16, 2015 (80 FR 42272) (2015 AFFH rule) but improve upon its framework and impose less regulatory burden.
Executive Order 14002, “Economic Relief Related to the COVID-19 Pandemic” (Jan. 22, 2021), directs federal agencies to “promptly identify actions they can take within existing authorities to address the current economic crisis resulting from the [COVID 19] pandemic.” In response to this Executive Order and in support of the goal of achieving broad economic recovery following the COVID-19 pandemic, HUD has established expanded COVID-19 Loss Mitigation Options to address the impacts many Americans are experiencing in recovering financially from the long-lasting effects of the pandemic. HUD continues to evaluate both the effects of the pandemic on its portfolio as well as the economic indicators of the broader recovery.
This proposed rule would amend HUD's current regulation to allow for mortgagees to recast the total unpaid loan and other eligible costs for a new term not exceeding 480 months. HUD anticipates that this would allow mortgagees greater ability to assist defaulted borrowers, including borrowers affected by the COVID-19 pandemic, with avoiding foreclosure.
HUD's current regulations allow mortgagees to modify a Federal Housing Administration (FHA) insured mortgage by recasting the total unpaid loan and other eligible costs for a term limited to 360 months to cure a borrower's default. Mortgagees are required to consider utilizing deeds in lieu of foreclosure, pre-foreclosure sales, partial claims, assumptions, special forbearance, and recasting of mortgages.
Allowing mortgagees to provide a 40-year loan modification would support HUD's mission of fostering homeownership by assisting more borrowers with retaining their homes after a default episode while mitigating losses to FHA's Mutual Mortgage Insurance (MMI) Fund. For many borrowers who have become delinquent, a lowered monthly payment is key to their ability to bring the mortgage current, prevent re-default, and ultimately retain their home and build wealth through homeownership. The difference between the monthly payment provided under a 40-year loan modification and a 30-year loan modification may be significant for a borrower and their ability to afford the modified payment.
Executive Order 12866, as amended, requires the agency to provide its best estimate of the combined aggregate costs and benefits of all regulations included in the agency's Regulatory Plan that will be pursued in FY 2021. HUD expects that neither the total economic costs nor the total efficiency gains will exceed $100 million. This proposed rule would increase available loss mitigation options for borrowers and enable more borrowers to avoid foreclosure and remain in their homes. HUD also anticipates that this would have a positive effect on the FHA Mutual Mortgage Insurance Fund by lowering defaults.
Borrowers impacted by the COVID-19 pandemic, including those who may re-default in the future after having received a loss mitigation option under HUD's COVID-19 policies, may need a 40-year loan modification to provide a monthly payment that they can afford. It is vital that these borrowers receive any loss mitigation options at HUD's disposal and for which they are eligible to avoid foreclosure whenever possible and to mitigate the impact of the COVID-19 pandemic.
Additionally, given the large number of FHA-insured mortgages that have been originated or refinanced in the past few years in a historically low interest rate environment, simply extending out the term of a mortgage in default for another 30 years at a similar interest rate would not provide a substantial reduction to a borrower's monthly mortgage payment. Therefore, providing this option for relief for all borrowers and originators is prudent for all FHA-insured mortgages.
HUD has considered other loss mitigation options which would allow borrowers to avoid foreclosure in response to the COVID-19 pandemic. HUD has made many of these options available through mortgagee letter. HUD does not view these options as alternatives, as different circumstances may call for different forms of loss mitigation. Additionally, HUD finds that this new option should not be limited only in response to the COVID-19 pandemic, but should be available in all circumstances where it could help individuals keep their homes.
Although the impact of introducing a 40-year loan modification option for borrowers on the MMI Fund will needed to be modeled, HUD anticipates a favorable impact through reduced utilization of other, more costly loss mitigation options and foreclosure prevention.
Additionally, HUD anticipates that the effect on FHA-insured mortgagors will be minor. HUD recognizes that a 40-year mortgage would cost the borrower in the form of greater interest paid over time and slower equity building. However, HUD notes that the average life of an FHA-insured mortgage is approximately seven years, and HUD anticipates that a borrower would similarly refinance a 40-year mortgage. Any additional interest and slowed equity build that a borrower might pay with a 40-year modified loan compared to a 30-year modified loan, especially when looked at over the life of an average FHA-insured mortgage, would not impose a significant burden to borrowers and would be outweighed by the benefits to a borrower of being able to retain their home.
Additionally, given the large number of FHA-insured mortgages that have been originated or refinanced in the past few years in a historically low interest rate environment, simply extending out the term of a mortgage in default for another 30 years at a similar interest rate would not provide a substantial reduction to a borrower's monthly mortgage payment. Therefore, providing this option for relief for all borrowers and originators is prudent for all FHA-insured mortgages.
Additionally, HUD anticipates that the effect on FHA-insured mortgagors will be minor. HUD recognizes that a 40-year mortgage would cost the borrower in the form of great interest paid over time and slower equity building. However, HUD notes that the average life of an FHA-insured mortgage is approximately seven years, and HUD anticipates that a borrower would similarly refinance a 40-year mortgage. Any additional interest and slowed equity build that a borrower might pay with a 40-year modified loan compared to a 30-year modified loan, especially when looked at over the life of an average FHA-insured mortgage, would not impose a significant burden to borrowers and would be outweighed by the benefits to a borrower of being able to retain their home.
The U.S. Department of the Interior (Department) is the principal steward of our Nation's public lands and resources, including many of our cultural treasures. The Department serves as trustee to Native Americans, Alaska Natives, and Federally-Recognized Tribes and is responsible for our ongoing relationships with the island territories under U.S. jurisdiction and the freely associated states. Among the Department's many responsibilities is managing more than 500 million surface acres of Federal land, which constitutes approximately 20 percent of the Nation's land area, as well as approximately 700 million subsurface acres of Federal mineral estate, and more than 2.5 billion acres of submerged lands on the Outer Continental Shelf (OCS).
In addition, the Department protects and recovers endangered species; protects natural, historic, and cultural resources; provides scientific and other information about those resources; and manages water projects that are an essential lifeline and economic engine for many communities.
Hundreds of millions of people visit Department-managed lands each year to take advantage of a wide range of recreational pursuits—including camping, hiking, hunting, fishing, and various other forms of outdoor recreation—and to learn about our Nation's history. Each of these activities supports local communities and their economies. The Department also provides access to Federal lands and offshore areas for the development of energy, minerals, and other natural resources that generate billions of dollars in revenue.
In short, the Department of the Interior plays a central role in how the United States stewards its public lands, ensures environmental protections, pursues environmental justice, honors the nation-to-nation relationship with tribes and the special relationships with other indigenous people and the insular areas.
To help advance the Secretary of the Interior's (Secretary) commitment to honoring the Nation's trust responsibilities and to conserve and manage the Nation's natural resources and cultural heritage, the Department's regulatory and deregulatory priorities in the coming fiscal year (FY) will focus on:
• Tackling the Climate Crisis, Strengthening Climate Resiliency, and Facilitating the Transition to Renewable Energy;
• Upholding Trust Responsibilities to Federally-Recognized American Indian and Alaska Native Tribes Restoring Tribal Lands, and Protecting Natural and Cultural Resources Advancing Equity and Supporting Underserved Communities;
• Investing in Healthy Lands, Waters and Local Economies and Strengthening Conservation, and Protecting Endangered Species and their Habitat
In one of his first official actions after taking the oath of office on January 20, 2021, President Biden signed Executive Order (E.O.) 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” This Executive order established the Biden-Harris administration's policy to “improve public health and protect our environment, to ensure access to clean air and water, to reduce greenhouse gas emissions and to bolster resilience of the impacts of climate change.” An accompanying document, entitled “Fact Sheet: List of Agency Actions for Review,” directed several Federal agencies, including the Department, to review various regulations in accordance with E.O. 13990, and that review will continue for FY 2022.
To help implement the commitment to tackling the climate crisis, Secretary Haaland signed her first Secretary's Order (SO), SO 3398, entitled “Revocation of Secretary's Orders Inconsistent with Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” SO 3398 implements the review of Departmental actions mandated by Executive Order 13990. Foundational to this process is the commitment to science and transparency and a pledge “to conserve and restore our land, water, and wildlife; to reduce greenhouse gas emissions; to create jobs through a growing clean energy economy; and to bolster resilience to the impacts of climate change.” SO 3398 revoked 12 SOs that were issued between March 29, 2017, and December 22, 2020, and directed the Department to conduct reviews and take appropriate actions on certain regulations. The SO further directed Bureaus and Offices to review all policies and guidance documents that may warrant further action to be consistent with Executive Order 13990.
Recognizing the ongoing threat that climate change poses to our Nation and to the world, on January 27, 2021, President Biden also issued Executive Order 14008 entitled, “Tackling the Climate Crisis at Home and Abroad.” Executive Order 14008 directed Federal agencies to take a government-wide approach to the climate crisis and established a National Climate Task Force to facilitate the organization and deployment of such an approach.
To implement the directives in Executive Order 14008, on April 16, 2021, Secretary Haaland issued SO 3399, which directs a “Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process.” SO 3399 established a Departmental Climate Task Force charged with developing a strategy to reduce climate pollution; improving and increasing adaptation and resilience to the impacts of climate change; addressing current and historic environmental injustice; protecting public health; and conserving Department-managed lands.
In accordance with Executive Orders 13990 and 14008, a number of bureaus in the Department are pursuing regulatory actions to implement these administration priorities. The Bureau of Land Management (BLM), for example, is proposing rules to ensure the responsible development of oil and gas on public lands, including “Waste Prevention, Production Subject to Royalties, and Resource Conservation 43 CFR parts 3160 and 3170” (1004-AE79), known as the Waste Prevention Rule, and “Revision of Existing Regulations Pertaining to Fossil Fuel Leases and Leasing Process 43 CFR parts 3100 and 3400” (1004-AE80), known as the Fossil Fuel Rule. The Waste Prevention Rule would reduce methane emissions in the oil and gas sector and mitigate impacts of climate change. The Fossil Fuel Rule would update BLM's process for leasing to ensure the protection and proper stewardship of the public lands, including potential climate and other impacts associated with fossil fuel activities. Also, to comply with Executive Order 14008, BLM plans to complete a comprehensive review and reconsideration of Federal fossil fuel leasing practices considering BLM's broad stewardship responsibilities over the public lands, including potential climate and other impacts associated with fossil fuel activities on public lands.
Similarly, the Bureau of Ocean Energy Management (BOEM) is also undertaking a comprehensive review and reconsideration of offshore Federal oil and gas permitting and leasing practices, including potential climate and other impacts associated with offshore oil and gas activities. The BOEM will evaluate the sources and impacts of climate change on the OCS, working in consultation with the Secretary of Agriculture, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, and the Secretary of Energy. Given the Secretary's Outer Continental Shelf Lands Act (OCSLA) mandate to conserve the natural resources on the OCS, this initiative will evaluate the causes and effects of climate change and determine what appropriate measures BOEM should take to further control emissions of greenhouse gasses, including whether to adjust royalties associated with coal, oil, and gas resources extracted from public lands and offshore waters, develop regulations, or to take other action to account for corresponding climate costs.
One of the explicit directions in Executive Order 14008 provides that the Secretary, in consultation with the heads of other relevant agencies, will review siting and permitting processes on public lands and in offshore waters to identify steps that can be taken, consistent with applicable law, to increase renewable energy production. The Department is committed to fully facilitating the development of renewable energy on public lands and waters, as well as supporting tribal and territorial efforts to develop renewable energy, including deploying 30 gigawatts (GW) of offshore wind by 2030 and 25GW of onshore renewable energy by 2025. This mandate is to be undertaken while also ensuring appropriate protection of public lands, waters, and biodiversity and creating good jobs.
As part of these efforts in FY 2022, BOEM will propose a rule entitled, “Renewable Energy Modernization Rule” (1010-AE04), that will substantially update the existing renewable energy regulations to facilitate responsible development of renewable energy resources more rapidly on the OCS and promote U.S. energy independence. This rule would also significantly reduce costs to developers for expanding renewable energy development in an environmentally sound manner. Similarly, BLM plans to update its regulations for onshore rights-of-way, leasing, and operations related to all activities associated with renewable energy and transmission lines (1004-AE78). This proposed rule would improve permitting activities and processes to facilitate increased renewable energy production on public lands.
Among the Department's most important responsibilities is its commitment to honor the nation-to-nation relationship between the Federal Government and Tribes. Secretary Haaland is strongly committed to strengthening how the Department carries out its trust responsibilities and to increasing economic development opportunities for Tribes and other historically underserved communities.
As part of these efforts, on April 27, 2021, Secretary Haaland signed SO 3400 entitled, “Delegation of Authority for Non-Gaming Off-Reservation Fee-to-Trust Acquisitions.” SO 3400 is intended to ensure that off-reservation fee-to-trust applications are effectively and efficiently processed. As Secretary Haaland noted upon signing the SO, “At Interior, we have an obligation to work with Tribes to protect their lands and ensure that each Tribe has a homeland where its citizens can live together and lead safe and fulfilling lives . . . Our actions today will help us meet that obligation and will help empower Tribes to determine how their lands are used—from conservation to economic development projects.”
To advance the Department's trust responsibilities, the Bureau of Indian
In consultation with Tribes, BIA has been engaged in efforts to update and improve its regulations governing how it manages land held in trust or in restricted status for Tribes and individual Indians. This year, BIA published a final rule that modernizes the way the BIA Land Title and Records Office (LTRO) maintains title to Indian trust land and streamlines the process for probating estates that contain trust property to reduce delays (1076-AF56) (86 FR 45631, August 16, 2021). The bureau has also launched a broader review to determine whether any regulatory reforms are needed to facilitate restoration of Tribal lands and safeguard natural and cultural resources. The BIA has preliminarily identified as a candidate for revision the regulations governing leases of Indian land for agricultural purposes, which are found at 25 CFR part 162 (1076-AF66).
The BIA is also committed to improving regulations meant to protect sacred and cultural resources. The BIA is working with the National Park Service (NPS) to consult with Tribes on updates to regulations implementing the Native American Graves and Repatriation Act (NAGPRA), 43 CFR 10 (1024-AE19). These regulations would provide a systematic process for the disposition and repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The updates are intended to simplify and improve the regulatory process for repatriation, rectify provisions in the current regulations that inhibit and effectively prevent respectful repatriation, and remove the burden on Indian Tribes and Native Hawaiian organizations to initiate the process and add a requirement for museums and Federal agencies to complete the process.
The Biden-Harris administration and Secretary Haaland recognize and support the goals of advancing equity and addressing the needs of underserved communities. In January 2021, the President signed Executive Order 13985 entitled, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” This Executive order directs all Federal agencies to pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. In FY 2022, the Department will undertake a number of regulatory actions that will assist people who reside in underserved communities.
The BLM (1004-AE60), FWS (1018-BD78), and NPS (1024-AE75), are proposing right-of-way (ROW) rules that would improve efficiencies in the communications programs, including plans and agreements for electric transmission, distribution facilities and broadband facilities. These rules are intended to increase services, such as broadband connectivity, with resulting benefits to underserved communities and visitors to Departmental lands and promote good governance.
The Department's FY 2022 regulatory agenda will continue to advance the goals of investing in healthy lands, waters, and local economies across the country. These regulatory efforts, which are consistent with the Biden-Harris administration's “America the Beautiful” Initiative, include expanding opportunities for outdoor recreation, including hunting and fishing, for all Americans; enhancing conservation stewardship; and improving the management of species and their habitat.
For example, the U.S. Fish and Wildlife Service (FWS) opened, for the first time, seven national wildlife refuges (NWRs), totaling 2.1 million acres of public lands, that were previously closed to hunting and sport fishing. Hunters and anglers are among the most ardent conservationists. The FWS opened or expanded hunting and sport fishing at 81 other NWRs and added pertinent station-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2021-2022 season. The FWS also opened hunting or sport fishing on one unit of the National Fish Hatchery System (NFH), adding pertinent station-specific regulations for migratory game bird hunting, upland game hunting, big game hunting, and sport fishing at this NFH for the 2021-2022 season. Finally, FWS made regulatory changes to existing station-specific regulations to reduce the regulatory burden on the public, increase access for hunters and anglers on FWS lands and waters, and comply with a Presidential mandate for plain language standards. By responsibly expanding these opportunities, the Department is enhancing the lives of millions of Americans, promoting conservation stewardship, and stimulating the national economy (86 FR 48822, August 31, 2021).
The NPS is also pursuing several regulatory actions under the Department's direction and in accordance with these goals. These regulatory actions would authorize recreational activities, such as off-road vehicle use, snowmobiling, the use of motorized and non-motorized vessels, personal watercraft, and bicycling, within appropriate, designated areas of certain National Park System units. These regulations would benefit local economies as well as promote healthy lands and waters.
The Biden-Harris administration and Secretary Haaland are strongly committed to strengthening conservation and improving conservation partnerships. Through this regulatory plan, the Department affirms the importance of the Endangered Species Act (ESA) in providing a broad and flexible framework to facilitate conservation with a variety of stakeholders. The Department, through FWS, is committed to working with diverse Federal, Tribal, state, and industry partners to not only protect and recover America's imperiled wildlife but to ensure the ESA is helping meet 21st century challenges.
In FY 2022, FWS will continue its reviews of several ESA rules that were finalized prior to January 20, 2021, to continue improving the implementation of the ESA so that it is clearly and consistently applied, helps recover listed species, and provides the maximum degree of certainty possible to all parties. For example, FWS and the National Marine Fisheries Service (NMFS) are reviewing the final rule that became effective on January 15, 2021, entitled, “Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat,” that established a regulatory definition of “habitat.” FWS is also reviewing the final rule entitled, “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat,” that became effective on
The following is an overview of some of the major regulatory and deregulatory priorities of the Department's Bureaus and Offices.
The BIA enhances the quality of life, promotes economic opportunity, and protects and improves the trust assets of approximately 1.9 million American Indians, Indian Tribes, and Alaska Natives. The BIA maintains a government- to-government relationship with the 574 Federally-Recognized Indian Tribes. The BIA also administers and manages 55 million acres of surface land and 57 million acres of subsurface minerals held in trust by the United States for American Indians and Indian Tribes.
In FY 2021, BIA finalized a rule that removed several required items from TERA applications and offers a new economic development option for TEDOs (86 FR 40147, July 27, 2021).
The BIA also published a final rule that modernizes the manner in which the BIA LTRO maintains title to Indian trust land and streamlines the process for adjudicating probates of estates containing trust property to reduce delays (86 FR 45631, August 16, 2021).
The BIA intends to prioritize the following rulemakings in FY 2022:
This rule would change the allowable length of access roads in the National Tribal Transportation Facilities Inventory, as determined by 25 CFR 170.447, to increase the 15-mile limits on the length of access roads and create parity among all Tribes, regardless of land base or remoteness of location.
This rule would update the qualifications required for Indian Affairs personnel who conduct reviews of supervised individual Indian Money (IIM) accounts to ensure that personnel have appropriate accounting skills and make other changes to reflect the transition of duties from social services providers to IIM account specialists in the newly established Bureau of Trust Funds Administration (BTFA).
The regulations in 25 CFR part 226 would be revised because they are outdated; do not reflect current oil and gas operations within the Osage Mineral Estate or the industry at large; and are inconsistent with Departmental regulations governing oil and gas exploration and development throughout the rest of Indian country. The last substantive revision to the regulations in 25 CFR part 226 occurred in 1974, with many provisions remaining unchanged since well before then.
The current regulations governing 105(l) leases at 25 CFR 900, subpart H, allow Tribes to be compensated for a broad range of expenses ranging from rent to depreciation and “other reasonable expenses.” The revisions would establish sideboards on what costs the Department will pay Tribes for 105(l) leases including, for examples, more specific direction on the timing and scope of future 105(l) leases.
This rule would implement the requirements of the PROGRESS Act requiring updates to BIA's regulations governing Tribal Self-Governance. The PROGRESS Act amends subchapter I of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301
This rule would establish the structure for the Office of Indian Energy and Economic Development (IEED) to implement the Native American Business Incubators Program, which was established by statute in October 2020. The rule will establish how IEED will provide competitive grants to eligible applicants to establish and operate business incubators that serve Tribal reservation communities. The business incubators will provide tailored business incubation services to Native businesses and Native entrepreneurs to overcome the unique obstacles they confront in offering products and services to reservation communities.
This rule would update provisions addressing leasing of trust or restricted land (Indian land) for agricultural purposes to reflect updates that have been made to business and residential leasing provisions and address outdated provisions.
This rule will establish criteria and procedures for groups seeking recognition as Tribes under the Alaska Indian Reorganization Act (Alaska IRA), which is separate and distinct from the Indian Reorganization Act of 1934, which has its own set of regulations for seeking recognition as Tribes. The Alaska IRA provides that groups of Indians in Alaska having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district may organize to adopt constitutions and bylaws and receive charters of incorporation and Federal loans. This rule will also establish what documents are required to apply. To date, there has been no regulatory process or criteria established for seeking recognition under the Alaska IRA.
Current BIA regulations address how BIA conducts elections of offices of the Osage Tribe, including provisions addressing nominating conventions and
The Bureau of Indian Education (BIE) mission is to provide students at BIE-funded schools with a culturally relevant, high-quality education that prepares students with the knowledge, skills, and behaviors needed to flourish in the opportunities of tomorrow, become healthy and successful individuals, and lead their communities and sovereign nations to a thriving future that preserves their unique cultural identities. The BIE is the preeminent provider of culturally relevant educational services and supports provided by highly effective educators to students at BIE-funded schools to foster lifelong learning.
As BIE continues its work to fulfill its mission while keeping students and school staff safe and healthy, BIE finalized a new regulation in FY 2021 that will allow individual BIE-operated schools to retain the funding received through leasing their lands and facilities to third-parties, and direct that funding back into the school (86 FR 34943, July 1, 2021). The new regulation will also allow individual BIE-operated schools to retain fundraising proceeds and use those proceeds for the benefit of the school.
This rule would clarify the processes for appeals of actions taken by officials in the Office of the Assistant Secretary Indian Affairs, BIA, BIE, and BTFA (collectively, Indian Affairs).
The BLM manages more than 245 million acres of public land, known as the National System of Public Lands, primarily located in 12 Western states, including Alaska. The BLM also administers 700 million acres of sub-surface mineral estate throughout the Nation. The agency's mission is to sustain the health, diversity, and productivity of America's public lands for the use and enjoyment of present and future generations.
The BLM has identified the following priority rulemaking actions for FY 2022:
This proposed rule would revise BLM's grazing regulations to improve resource management and increase efficiency by streamlining and clarifying grazing processes and improving coordination among Federal, State, and local government entities. The proposed rule would revise the regulations at 43 CFR parts 4100, 1600, and 1500. These revisions and additions would help to provide the public and land managers with accurate and reliable information regarding grazing administration on public lands.
The BLM is proposing amendments to its existing ROW regulations to streamline and improve efficiencies in the communications uses program, update the cost recovery fee schedules for ROW work activities, and include provisions governing the development and approval of operating plans and agreements for ROWs for electric transmission and distribution facilities. Communications uses, such as broadband, are a subset of ROW activities authorized under the Federal Land Policy and Management Act of 1976 (FLPMA), as amended. Cost recovery fees apply to most ROW activities authorized under either FLPMA or the Mineral Leasing Act of 1920, as amended. This proposed rule would also implement vegetation management requirements included in the Consolidated Appropriations Act, 2018 (codified at 43 U.S.C. 1772) to address fire risk from and to power-line ROWs on public lands and national forests. The regulatory amendments would also codify legislated agency requirements regarding review and approval of utilities maintenance plans, liability limitations, and definitions of hazard trees and emergency conditions.
This proposed rule would update the bonding procedures for ROWs on BLM-managed public land. The proposed rule would revise the bonding portion of the BLM's ROW regulations to make them clearer and easier to understand, which would facilitate efficient bond calculations.
This proposed rule would revise BLM's regulations for ROWs, leasing, and operations related to all activities associated with renewable energy and transmission lines. The Energy Act of 2020 and E.O. 14008 prioritize the Department's need to improve permitting activities and processes to facilitate increased renewable energy production on public lands.
This proposed rule would update BLM's regulations governing the waste of natural gas through venting, flaring, and leaks on onshore Federal and Indian oil and gas leases. The proposed rule would address the priorities associated with Executive Order 14008. In addition, in accordance with Executive Order 13990, this proposed rule would reduce methane emissions in the oil and gas sector and mitigate impacts of climate change.
This proposed rule would revise BLM's fossil fuel regulations to update the fees, rents, royalties, and bonding requirements related to oil and gas leasing, development, and production. The proposed rule would also update BLM's process for leasing to ensure the protection and proper stewardship of the public lands, including potential climate and other impacts associated with fossil fuel activities.
This proposed rule would update and codify BLM's Geothermal Resource Orders into regulation, including common geothermal standard practices, and inspection requirements and procedures.
This proposed rule would address wild horse and burro management challenges by adding regulatory tools that better reflect BLM's current statutory authorities. For example, the existing regulations do not address certain management authorities that Congress has provided since 1986 to
The mission of BOEM is to manage development of U.S. OCS energy and mineral resources in an environmentally and economically responsible way. The BOEM is responsible for stewardship of U.S. OCS energy and mineral resources, as well as protecting the environment that the development of those resources may impact. The resources we manage belong to the American people and future generations of Americans; wise use of and fair return for these resources are foremost in our management efforts.
In accordance with its statutory mandate under OCSLA, BOEM is committed to implementing its dual mission of promoting the expeditious and orderly development of the Nation's energy resources while simultaneously protecting the marine, human, and coastal environment of the OCS State submerged lands and the coastal communities. Consistent with the policy outlined by the administration in E.O. 14008, BOEM is reevaluating all of its programs related to the offshore development of energy and mineral resources offshore. The BOEM is working with the Department as a whole to review options for expanding renewable energy production while evaluating alternatives to better protect the lands, waters, and biodiversity of species located within the U.S. exclusive economic zone.
In FY 2022, the BOEM plans to prioritize the following rulemaking actions:
The BOEM's most important regulatory initiative is focused on expanding offshore wind energy's role in strengthening U.S. energy security and independence, create jobs, provide benefits to local communities, and further develop the U.S. economy. The BOEM's renewable energy program has matured over the past 10 years, a time in which BOEM has conducted numerous auctions and issued and managed multiple commercial leases. Based on this experience, BOEM has identified multiple opportunities to update its regulations to better facilitate the development of renewable energy resources and to promote U.S. energy independence.
The BOEM is proposing a rule that would update the existing renewable energy regulations to help facilitate the timely and responsible development of renewable energy resources on the OCS and promote U.S. energy independence. This proposed rule contains reforms identified by BOEM and recommended by industry, including proposals for incremental funding of decommissioning accounts; more flexible geophysical and geotechnical survey submission requirements; streamlined approval of meteorological buoys; revised project verification procedures; and greater clarity regarding safety requirements. This rule advances the administration's energy policies in a safe and environmentally sound manner that provides a fair return to the American taxpayer while, at the same time, significantly reducing industry development.
In accordance with the administration's renewed commitment to ensure the robust protection for the lands, waters, and biodiversity of the United States, BOEM is reevaluating the entirety of its air quality regulatory program and will propose further enhancements. The BOEM and the Department are proposing a new offshore air quality rule to tighten pollution standards for offshore operations and require improved pollution control technology. The proposed rule would amend regulations for air quality measurement, evaluation, and control for offshore oil and gas operations. The goal of this new proposed rule would be to improve the ambient air quality of the coastal States and their corresponding State submerged lands by addressing a number of issues that were not addressed by BOEM's prior final air quality rule. The BOEM expects to revisit a number of the topics that were originally reviewed in 2016.
The Bureau of Safety and Environmental Enforcement's (BSEE) mission is to promote safety, protect the environment, and conserve resources offshore through vigorous regulatory oversight and enforcement. The BSEE is the lead Federal agency charged with improving safety and ensuring environmental protection related to conventional and renewable energy activities on the U.S. OCS.
The BSEE has identified the following rulemaking priorities for FY 2022:
The Oil Spill Response Requirements regulations in 30 CFR part 254 were last updated over 20 years ago (62 FR 13996, Mar. 25, 1997). This proposed rule would update the existing regulations in order to incorporate the latest advancements in spill response and preparedness policies and technologies, as well as lessons learned and recommendations from reports related to the Deepwater Horizon explosion and subsequent oil spill.
This proposed rule would revise specific provisions of the current Pipelines and Pipeline ROW regulations under 30 CFR 250 subpart J in order to bring those regulations up to date with current technology and state-of-the-art safety equipment and procedures, primarily through the incorporation of industry standards.
Currently, BSEE has no regulations specific to high pressure and/or high temperature (HPHT) projects, requiring BSEE to issue multiple guidance documents clarifying the specific HPHT information prospective operators should submit to BSEE to support the Bureau's programmatic reviews and approvals of such projects. This proposed rule would formally codify BSEE's existing process for reviewing and approving projects in HPHT environments.
The BSEE is revising existing regulations for well control and blowout preventer systems.
The BOEM currently has authority over all renewable energy activities on the OCS under regulations at 30 CFR part 585. The BOEM and BSEE are in the process of amending the Department's Manual chapters to transfer the safety, environmental enforcement, and compliance functions relevant to renewable energy activities from BOEM to BSEE. Consistent with that effort, BSEE and BOEM would amend their respective regulations to reflect the split of functions between the two Bureaus.
The Office of the Chief Information Officer (OCIO) provides leadership to the Department and its Bureaus in all areas of information management and technology. To successfully serve the Department's multiple missions, the OCIO applies modern Information Technology tools, approaches, systems, and products. Effective and innovative use of technology and information resources enables transparency and accessibility of information and services to the public.
For FY 2022, OCIO is working on these priority rules:
This rule would revise the Department's Privacy Act regulations at 43 CFR 2.254 to claim Privacy Act exemptions for certain records in the DOI-49, Network Security, system of records from one or more provisions of the Privacy Act pursuant to 5 U.S.C 552a(j) and (k), because of criminal, civil, and administrative law enforcement requirements.
This rule would revise the Department's Privacy Act regulations at 43 CFR 2.254 to claim Privacy Act exemptions for certain records in the DOI-50, Insider Threat Program, system of records from one or more provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k), because of criminal, civil, and administrative law enforcement requirements.
This rule would revise the Department's Privacy Act regulations at 43 CFR 2.254 to claim Privacy Act exemptions for certain records in the DOI-45, Personnel Security Files, system of records from one or more provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k), because of criminal, civil, and administrative law enforcement requirements.
This direct final rule will amend 43 CFR part 2 to add subpart M to implement the Social Security Number Fraud Prevention Act of 2017, which directs Federal agencies to issue regulations that prohibit the inclusion of an individual's Social Security number (SSN) on any document sent through the mail unless the Secretary deems it necessary. The regulations also include requirements for protecting documents with SSNs sent through postal mail.
The Office of Environmental Policy and Compliance (OEPC) serves as a leader in conservation stewardship and the sustainable development and use of Department-managed resources for the benefit of the public. The office fosters partnerships to enhance resource use and protection, as well as to expand public access to safe and clean lands under the Department's jurisdiction. The office also strives to continually streamline environmental policies and procedures to increase management effectiveness and efficiency, reduce duplicative practices, and realize cost savings.
For FY 2022, OEPC will publish in the
This rule would develop regulations to streamline OEPC's NEPA process and comply with E.O. 13990 and SO 3399.
The Office of Grants Management is responsible for providing executive leadership, oversight, and policy for the financial assistance across the Department.
This rule will align the Department's regulations with new regulatory citations and requirements adopted by the Office of Management and Budget (OMB). On August 13, 2020, OMB published a revision to sections of Title 2 of the Code of Federal Regulations, Guidance for Grants and Agreements. The revision was an administrative simplification and did not make any substantive changes to 2 CFR part 200 policies and procedures. This rule will codify these changes in the Department's financial assistance regulations located in 2 CFR part 1402. (86 FR 57529, October 18, 2021).
The Office of Hearings and Appeals (OHA) exercises the delegated authority of the Secretary to conduct hearings and decide appeals from decisions of the Bureaus and Offices of the Department. The OHA provides an impartial forum for parties who are affected by the decisions of the Department's Bureaus and Offices to obtain independent review of those decisions. The OHA also handles the probating of Indian trust estates, ensuring that individual Indian interests in allotted lands, their proceeds, and other trust assets are conveyed to the decedents' rightful heirs and beneficiaries.
This final rule will make regulatory changes relating to efficiency and streamlining of probate processes, ensuring that the Department meets its trust obligations, and helping achieve the American Indian Probate Reform Act/statutory goal of reducing fractionalization of trust property interests.
This direct final rule will amend existing regulations to keep up to date office addresses for hearings and appeals purposes, to allow for the OHA Director to issue interim orders in emergency circumstances, and to allow for the OHA Director to issue standing orders that will improve OHA's service to the public and the parties by modernizing its processes.
The Office of Natural Resources Revenue (ONRR) continues to collect, account for, and disburse revenues from Federal offshore energy and mineral leases and from onshore mineral leases on Federal and Indian lands. The ONRR operates nationwide and is primarily responsible for the timely and accurate collection, distribution, and accounting of revenues associated with mineral and energy production.
The ONRR is withdrawing the ONRR 2020 Valuation Reform and Civil
This rule will amend mailing addresses listed in parts of Title 30 CFR, Chapter XII due to ONRR's main building renovation, which changed the organizations mailing addresses.
This rule will adjust the maximum civil monetary penalty rates for inflation and announces the rates applicable to calendar year 2022.
The Office of Small and Disadvantaged Business Utilization advises the Secretary on small business issues and collaborates with leadership to maximize small business opportunities. The office implements policies, procedures, and training programs for the Department to emphasize its commitment to contracting with small businesses. The mission also includes outreach to small and disadvantaged business communities, including Indian economic enterprises, small disadvantaged, women-owned, veteran-owned, service-disabled veteran owned, small businesses located in historically underutilized business zones areas, and the Ability One Program.
This rule would revise regulations implementing the Buy Indian Act, which provides the Department with authority to set aside procurement contracts for Indian-owned and controlled businesses. These revisions would eliminate barriers to Indian Economic Enterprises from competing on certain construction contracts, expand Indian Economic Enterprises' ability to subcontract construction work consistent with other socio-economic set-aside programs, and give greater preference to Indian Economic Enterprises when a deviation from the Buy Indian Act is necessary, among other updates (86 FR 59338, October 27, 2021).
The Office of Surface Mining Reclamation and Enforcement (OSMRE) was created by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The OSMRE works with States and Tribes to ensure that citizens and the environment are protected during coal mining and that the land is restored to beneficial use when mining is finished. The OSMRE and its partners are also responsible for reclaiming and restoring lands and water degraded by mining operations before 1977. The OSMRE focuses on overseeing the state programs and developing new tools to help the states and tribes get the job done.
The OSMRE also works with colleges and universities and other State and Federal agencies to further the science of reclaiming mined lands and protecting the environment, including initiatives to promote planting more trees and establishing much-needed wildlife habitat.
The OSMRE does not currently expect to finalize any significant regulatory actions during FY 2022. The OSMRE does anticipate publishing:
This rule would reexamine OSMRE's regulations on the ten-day notices rule that went into effect on December 24, 2020.
This rule would incorporate certain aspects of the Federal Guidelines for Dam Safety (FGDS) into OSMRE's existing regulations. These regulations relate to emergency preparedness for impoundments and propose to incorporate the FGDS Emergency Action Plans (EAP) and After-Action Reports (AAR). The proposed rule may result in revisions to OSMRE's regulations at 30 CFR 701.5, 780.25, 784.16, 816.49, 817.49, 816.84, and 817.84. Also, OSMRE may add new provisions to the regulations to explain the EAP and AAR requirements and align the classification of impoundments with industry and other Government agency standards.
The mission of FWS is to work with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people. The FWS also provides opportunities for Americans to enjoy the outdoors and our shared natural heritage. The FWS also promotes and encourages the pursuit of recreational activities such as hunting and fishing and wildlife observation.
The FWS manages a network of 567 NWRs, with at least one refuge in each U.S. State and territory, and with more than 100 refuges close to major urban centers. The Refuge System plays an essential role in providing outdoor recreation opportunities to the American public. In 2019, more than 59 million visitors went to refuges to hunt, fish, observe or photograph wildlife, or participate in environmental education or interpretation.
The FWS fulfills its responsibilities through a diverse array of programs that:
• Protect and recover endangered and threatened species;
• Monitor and manage migratory birds;
• Restore nationally significant fisheries;
• Enforce Federal wildlife laws and regulate international trade;
• Conserve and restore wildlife habitat such as wetlands;
• Manage and distribute over a billion dollars each year to States, territories, and Tribes for fish and wildlife conservation;
• Help foreign governments conserve wildlife through international conservation efforts; and
• Fulfill our Federal Tribal trust responsibility.
The FWS has identified the following priority rulemaking actions for FY 2022:
The FWS will promulgate multiple regulatory actions under the ESA to prevent the extinction of and facilitate the recovery of both domestic and foreign animal and plant species. Accordingly, FWS will add species to, remove species from, and reclassify species on the Lists of Endangered and Threatened Wildlife and Plants and designate critical habitat for certain listed species, in accordance with the National Listing Workplan. The Workplan enables FWS to prioritize workloads based on the needs of candidate and petitioned species, while providing greater clarity and predictability about the timing of listing determinations to State wildlife agencies, nonprofit organizations, and other stakeholders and partners. The Workplan represents the conservation priorities of FWS based on its review of scientific information. The goal is to encourage proactive conservation so that Federal protections are not needed in the first place. The FWS also plans to promulgate several species-specific rules to protect threatened species under section 4(d) of the ESA.
The Unified Agenda includes rulemaking actions pertaining to these issues:
This rule revised the designated critical habitat for the northern spotted owl
This rule would list the monarch butterfly under the ESA in FY 2024, if listing is still warranted at that time. FWS would also propose to designate critical habitat for the species, if prudent and determinable.
The FWS and the National Marine Fisheries Service propose to rescind the final rule titled “Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” that was published on December 16, 2020, and became effective on January 15, 2021. The proposed rescission, if finalized, would remove the regulatory definition of “habitat” established by that rule.
The FWS proposes to rescind the final rule titled “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat” that published on December 18, 2020, and became effective January 19, 2021. The proposed rescission, if finalized, would remove the regulations established by that rule.
This joint Departments of Commerce and the Interior (the Departments) rule would review the previous rulemaking action with the title “Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat,” (84 FR 45020; August 27, 2019), in which we revised the regulations for adding and removing species from the Lists of Endangered and Threatened Wildlife and Plants and clarified procedures for designation of critical habitat. The Departments' review will determine whether and how that rule should be revised.
This joint rule by the Departments of Commerce and the Interior would review Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation (84 FR 44976; August 27, 2019) to determine whether and how the rule should be revised or rescinded.
This rulemaking action would address section 329 of the National Defense Authorization Act for Fiscal Year 2021, Objectives, Performance Standards, and Criteria for Use of Wildlife Conservation Banking Programs. This law requires FWS to publish an advance notice of proposed rulemaking (ANPRM) by January 1, 2022. The purpose of the ANPRM is to inform FWS's development of regulations related to wildlife conservation banking to ensure opportunities for Department of Defense participation in wildlife conservation banking programs pursuant to section 2694c of title 10, United States Code.
On January 7, 2021, the FWS published a final rule defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. We are now revoking that rule. The effect of this rule is a return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent.
This rule would amend FWS regulations by providing definitions to terms used in the MBTA. This proposed rule would clarify that the MBTA's prohibitions on taking and killing migratory birds includes foreseeable, direct taking and killing that is incidental to other activities. The rule would also propose to establish authorizations for compliance with MBTA prohibitions.
This rule would provide potential approaches for further expediting and simplifying the permit process authorizing incidental take of eagles. The new process would improve and make more efficient the permitting process for incidental take of eagles in a manner that is compatible with the preservation of bald and golden eagles.
This rule would propose extending legal access to bald and golden eagle parts and feathers for religious use to persons other than enrolled members of federally recognized Tribes.
The FWS opens, for the first time, seven National Wildlife Refuges (NWRs) that are currently closed to hunting and sport fishing. In addition, the Service opens or expands hunting and sport fishing at 81 other NWRs and adds pertinent station-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2021-2022 season. The Service also opens hunting or sport fishing on one unit of the National Fish Hatchery System (NFH). We add pertinent station-specific regulations that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing at this NFH for the 2021-2022 season. Finally, we make regulatory changes to existing station-specific regulations in order to reduce the regulatory burden on the public, increase access for hunters and anglers on Service lands and waters, and comply with a Presidential mandate for plain language standards (86 FR 48822, August 31, 2021).
The FWS is taking direct final action to revise regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES or Treaty) by incorporating certain non-controversial provisions adopted at the sixteenth through eighteenth meetings of the Conference of the Parties (CoP16-CoP18) to CITES and clarifying and updating certain other provisions. These changes will bring U.S. regulations in line with certain revisions adopted at the three most recent meetings of the CoP, which took place in March 2013 (CoP16), September-October 2016 (CoP17), and August 2019 (CoP18). The revised regulations will help FWS more effectively promote species conservation, help us continue to fulfill our responsibilities under the Treaty, and help those affected by CITES to understand how to conduct lawful international trade.
The National Park Service (NPS) preserves the natural and cultural resources and values within 423 units of the National Park System encompassing more than 85 million acres of lands and waters for the enjoyment, education, and inspiration of this and future generations. The NPS also cooperates with partners to extend the benefits of resource conservation and outdoor recreation throughout the United States and the world.
The following are the NPS's rulemaking priorities during FY 2022 year:
This rule would revise the NAGPRA implementing regulations. The rule would eliminate ambiguities, correct inaccuracies, simplify excessively burdensome and complicated requirements, clarify timelines, and remove offensive terminology in the existing regulations that have inhibited the respectful repatriation of most Native American human remains. This rule would simplify and improve the regulatory process for repatriation and thereby advance the goals of racial justice, equity, and inclusion.
This final rule will amend the special regulations for Colonial National Historical Park. This rule will remove a regulation that prevents the Superintendent from designating sites within the park for launching and landing private vessels. The rule will also remove outdated permit and fee requirements for commercial passenger-carrying vehicles.
This proposed rule would implement the Visitor Experience Improvements Authority (VEIA) given to NPS by Congress in title VII of the National Park Service Centennial Act. This authority allows the NPS to award and administer commercial services contracts for the operation and expansion of commercial visitor facilities and visitor services programs in units of the National Park System. The VEIA supplements but does not replace the existing authority granted to the NPS in the Concessions Management Improvement Act of 1988 to enter into concession contracts.
This rule would allow bicycles on approximately 75 miles of trails throughout Whiskeytown National Recreation Area; 17 miles of trail will be newly constructed. Bicycling is an established use at the recreation area that has never been properly authorized under NPS bicycle regulations.
This final rule will clarify where snowmobiles may be used within the boundaries of the Lakeshore by replacing general language allowing snowmobiles on unplowed roads and the shoulders of plowed roads with a comprehensive list of designated snowmobile routes.
This final rule will amend special regulations for Gulf Island National Seashore that govern the use of personal watercraft (PWC) within the National Seashore in Mississippi and Florida. NPS regulations only allow for the operation of PWCs in park areas were authorized by special regulation.
This final rule will revise regulations that govern the solicitation, award, and administration of concessions contracts to provide commercial visitor services at National Park System units under the Concessions Management Improvement Act of 1998. This rule would reduce administrative burdens and expand sustainable, high quality, and contemporary concessioner-provided visitor services in national parks.
This final rule will amend the regulations for the curation of federally-owned and administered archeological collections to establish definitions, standards, and procedures to dispose of particular material remains that are determined to be of insufficient archaeological interest. This rule will promote more efficient and effective curation of these archeological collections.
This rule would amend special regulations for Ozark National Scenic Riverways. The rule would modify regulations governing the use of motorized vessels within the Riverways to help accommodate a variety of desired river conditions and recreational uses, promote high quality visitor experiences, promote visitor safety, and minimize conflicts among different user groups. The rule would implement a management action that represents a compromise between user groups and was the result of a long planning process with robust community engagement.
This rule would revise special regulations for Mount Rainier National Park to remove all fishing closures and restrictions from 36 CFR 7.5. Instead, the NPS would manage fishing though administrative orders in the Superintendent's Compendium. This action would help implement a 2018 Fish Management Plan that aims to conserve native fish populations and restore aquatic ecosystems by reducing or eliminating nonnative fish.
The Bureau of Reclamation's Reclamation mission is to manage, develop, and protect water and related resources in an environmentally and economically sound manner in the interest of the American public. To accomplish this mission, Reclamation employs management, engineering, and
Reclamation's projects provide: Irrigation water service; municipal and industrial water supply; hydroelectric power generation; water quality improvement; groundwater management; fish and wildlife enhancement; outdoor recreation; flood control; navigation; river regulation and control; system optimization; and related uses. In addition, Reclamation continues to provide increased security at its facilities.
Reclamation's rulemaking priorities for FY 2022 include the following:
This proposed update to an existing rule would revise existing definitions for the use of aircraft, the possession of firearms, camping, swimming, and winter recreation for the wide range of circumstances found across Reclamation and would clarify the permitting of memorials and correct inconsistencies found within this part.
For FY 2022, the Department intends to publish in the
This rule addresses the management, collection, and curation of paleontological resources on or from Federal lands administered by the Department using scientific principles and expertise, including collection in accordance with permits; curation in an approved repository; and maintenance of confidentiality of specific locality data.
The mission of the Department of Justice is to uphold the rule of law, to protect the public against foreign and domestic threats, to provide Federal leadership in preventing and controlling crime, and to ensure equal justice under the law for all. In carrying out this mission, the Department is guided by the core values of integrity, fairness, and commitment to promoting the impartial administration of justice—including for those in historically underserved, vulnerable, or marginalized communities. Consistent with its mission and values, the Department is prioritizing activities that strengthen enforcement of civil rights laws, defend against domestic and international terrorism, combat gun violence, and reform criminal justice systems. Because the Department of Justice is primarily a law enforcement agency, not a regulatory agency, it carries out its principal investigative, prosecutorial, and other enforcement activities through means other than the regulatory process.
The regulatory priorities of the Department include initiatives in the areas of immigration, criminal justice reform, and gun violence reduction. Those initiatives, as well as regulatory initiatives by several other components carrying out key law enforcement priorities, are summarized below.
ATF issues regulations to enforce the Federal laws relating to the manufacture, importation, sale, and other commerce in firearms and explosives. ATF's mission and regulations are designed to, among other objectives: (1) Curb illegal traffic in, and criminal use of, firearms and explosives; and (2) assist State, local, and other Federal law enforcement agencies in reducing violent crime. ATF will continue, as a priority during fiscal year 2021, to seek modifications to its regulations governing commerce in firearms and explosives in furtherance of these important goals.
ATF plans to finalize regulations regarding definitions of firearm, firearm frame or receiver, gunsmith, complete weapon, complete muffler or silencer device, privately made firearm, and readily, and finalize regulations on marking and recordkeeping that are necessary to implement these new or amended definitions (RIN 1140-AA54). The intent of this rulemaking is to consider technological developments and modern terminology in the firearms industry, and to enhance public safety by helping to stem the proliferation of unmarked, privately made firearms that have increasingly been recovered at crime scenes. Further, ATF plans to finalize regulations to implement certain provisions of Public Law 105-277, Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (RIN 1140-AA10), and to set forth factors considered when evaluating firearms with an attached stabilizing brace to determine whether they are considered firearms under the National Firearms Act and/or the Gun Control Act (RIN 1140-AA55). This second rule would make clear that all weapons that fall under the National Firearms Act, however they are made, are subject to its heightened regulations—including registration and background check requirements. ATF also has begun a rulemaking process that amends 27 CFR part 447 to update the terminology in ATF's import control regulations based on similar terminology amendments made by the Department of State on the U.S. Munitions List in the International Traffic in Arms Regulations, and the Department of Commerce on the Commerce Control List in the Export Administration Regulations (RIN 1140-AA49).
BOP issues regulations to enforce the Federal laws relating to its mission: To protect public safety by ensuring that federal offenders serve their sentences of imprisonment in facilities that are safe, humane, cost-efficient, and appropriately secure, and to provide reentry programming to ensure their successful return to the community.
Over the past year, the Bureau has successfully implemented its Incident Action Plan, developed in response to 2020 pandemic conditions to facilitate continuity of operations, supplies, inmate movement, visitation, staff training, and official staff travel. As pandemic conditions continue to evolve, BOP plans to continue to employ and improve its Incident Action Plan, currently comprised of BOP's approved Pandemic Influenza Plan; its Incident Command System (ICS) framework; and guidance and directives from the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), the Office of Personnel Management (OPM), DOJ, and the Office of the Vice President.
In the near future, BOP plans to finalize procedures for eligible inmates to earn FSA Time Credits, as authorized by the First Step Act of 2018 (FSA), Public Law 115-391, 132 Stat. 5194 (2018). The FSA provides that eligible inmates earn FSA Time Credits towards prerelease custody or early transfer to supervised release for successfully completing approved Evidence-Based Recidivism Reduction (EBRR) Programs or Productive Activities (PAs) assigned to each inmate based on the inmate's risk and needs assessment.
BOP will also finalize regulations implementing additional legislative changes enacted in the FSA to broaden the Good Conduct Time Credit system, revise inmate disciplinary regulations, and provide effective literacy programming which serves both general and specialized inmate needs.
CRT works to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society. Consistent with this mission, CRT plans to engage in three separate rulemakings under the Americans with Disabilities Act (ADA).
First, CRT plans to amend its current regulations under section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on disability in programs and activities conducted by an Executive agency, to bring them up to date. Second, the Department plans to publish a new ANPRM seeking public input on possible revisions to its ADA regulations to ensure the accessibility of equipment and furniture in public entities and public accommodations programs and services. Third, the Department of Justice intends to propose requirements for the construction and alteration of pedestrian facilities covered by subtitle A of title II of the ADA that are consistent with the Access Board's minimum “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way.” These requirements would ensure that sidewalks and other pedestrian facilities in the public right-of-way are accessible to and usable by individuals with disabilities.
DEA is the primary agency responsible for coordinating the drug law enforcement activities of the United States and assists in the implementation of the President's National Drug Control Strategy. DEA implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the Controlled Substances Import and Export Act (21 U.S.C. 801-971), as amended, collectively referred to as the Controlled Substances Act (CSA). DEA's mission is to enforce the CSA and its regulations and bring to the criminal and civil justice system those organizations and individuals involved in the growing, manufacture, or distribution of controlled substances and listed chemicals appearing in or destined for illicit traffic in the United States. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States.
Pursuant to its statutory authority, DEA intends to propose a regulation that allows practitioners, subject to certain limitations, to supply up to a three-day supply of buprenorphine or other medications for maintenance and detoxification treatment of opioid use disorder, as instructed by Congress in Public Law 116-215 (RIN-1117-AB73). The intent of this rulemaking is to ensure patients with opioid use disorder have access to needed medications while longer-term treatment is being coordinated. DEA also anticipates finalizing a rulemaking action clarifying the procedures a registrant must follow in the event a suspicious order for controlled substances is received (RIN 1117-AB47).
EOIR's primary mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. Immigration judges in EOIR's Office of the Chief Immigration Judge adjudicate cases to determine whether noncitizens should be ordered removed from the United States or should be granted some form of protection or relief from removal. The Board of Immigration Appeals (BIA) has jurisdiction over appeals from the decisions of immigration judges, as well as other matters. Accordingly, the Department of Justice has a significant role in the administration of the Nation's immigration laws. The Attorney General also is responsible for civil litigation and criminal prosecutions relating to the immigration laws.
Consistent with Executive Order 14010, EOIR is developing numerous regulations related to the asylum system. Specifically, EOIR is working with the Department of Homeland Security (DHS) to finalize a recently proposed rule to amend the procedures for the processing of asylum claims in expedited removal proceedings (RIN 1125-AB20). In addition, EOIR and DHS intend to propose a rule to address the circumstances in which an individual would be considered a member of a “particular social group” (RIN 1125-AB13). Similarly, EOIR and DHS intend to propose a rule to rescind bars to asylum implemented by three prior rules: RIN 1125-AA87 related to an applicant's criminal activity, RIN 1125-AA91 related to an applicant's transit through third countries, and RIN 1125-AB08 related to public health concerns. Moreover, EOIR intends to issue a rule to rescind or revise previous regulatory amendments regarding the time allowed for filing applications for asylum and withholding of removal by individuals in proceedings before EOIR (RIN 1125-AB15). EOIR is developing a proposed rule that would require immigration judges to conduct a hearing in which the applicant may provide testimony on his or her application for asylum and withholding of removal before the judge could deny the application (RIN 1125-AB22).
Finally, EOIR is also working to revise and update the regulations relating to immigration proceedings to increase efficiencies and productivity, while also safeguarding due process. EOIR is in the process of publishing a final rule regarding its new EOIR Case and Appeals System, which provides for greatly expanded electronic filing and calendaring for cases before EOIR's immigration courts and the BIA (RIN 1125-AA81). In addition, EOIR is drafting a proposed rule that would codify administrative closure procedures before the immigration courts and the BIA and make other revisions to ensure that BIA adjudications appropriately balance due process and efficiency considerations (RIN 1125-AB18). Further, EOIR is planning to finalize a rule that would establish procedures for practitioners to provide individual document assistance without triggering the full obligations required of practitioners engaging in full representation of a noncitizen in EOIR proceedings (RIN 1125-AA83)
The Federal Bureau of Investigation is responsible for protecting and defending the United States against terrorist and foreign intelligence threats, upholding and enforcing the criminal laws of the United States, and providing leadership and criminal justice services to Federal, State, municipal, and international agencies and partners. Only in limited contexts does the FBI rely on rulemaking. For example, the FBI is currently drafting a rule that establishes the criteria for use by a designated entity in deciding fitness as described under the Child Protection Improvements Act (CPIA), 34 U.S.C. 40102, Public Law 115-141, div. S. title I, section 101(a)(1), Mar. 23, 2018, 132 Stat. 1123.
The CPIA requires that the Attorney General shall, by rule, establish the criteria for use by designated entities in making a determination of fitness described in subsection (b)(4) of the Act concerning whether the provider has been convicted of, or is under pending indictment for, a crime that bears upon
OJP provides innovative leadership to Federal, State, local, and tribal justice systems by disseminating state-of-the-art knowledge and practices and providing financial assistance for the implementation of crime fighting strategies.
OJP published a notice of proposed rulemaking for the Office of Juvenile Justice and Delinquency Prevention (OJJDP) Formula Grant Program on August 8, 2016, and in early 2017 published a final rule addressing some of those provisions. For other provisions included in the proposed rule, OJJDP received many comments that require additional time for OJJDP to consider. OJP published an additional final rule removing certain provisions of the regulations that are no longer legally supported, and to make technical corrections, in June 2021. OJJDP now plans to publish a second notice of proposed rulemaking addressing amendments to the Juvenile Justice and Delinquency Prevention Act included in the Juvenile Justice Reform Act signed into law on December 21, 2018, and the remaining changes that OJJDP intends to make to the formula grant program regulation.
While some types of fixed equipment and furniture are explicitly covered by the 2010 Standards for Accessible Design, there are no specific provisions in the ADA regulations that include standards for the accessibility of equipment and furniture that are not fixed. See,
The Department plans to publish an ANPRM seeking public input on possible revisions to its ADA regulations to ensure the accessibility of equipment and furniture in public entities' and public accommodations' programs and services.
The Americans with Disabilities Act (ADA) directs the Architectural and Transportation Barriers Compliance Board (Access Board) to issue minimum guidelines to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities. The Access Board intends to issue minimum accessibility guidelines for pedestrian facilities in the public right-of-way, called the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way.
The ADA directs the Department of Justice to promulgate regulations implementing subtitle A of title II of the ADA. The ADA further directs that the Department of Justice's regulations include standards that are consistent with the minimum ADA guidelines issued by the Access Board. Accordingly, the Department of Justice intends to propose requirements for the construction and alteration of pedestrian facilities covered by subtitle A of Title II of the ADA that are consistent with the Access Board's minimum Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way.
This rule is consistent with Executive Order 14010 of February 2, 2021, which directs the Departments to, within 270 days, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a particular social group.
Furthermore, on February 2, 2021, President Biden issued Executive Order 14010 that directs DOJ and DHS within 270 days of the date of this order, [to] promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
There could also be cost-savings related to Forms I-589 and I-765 filing volume changes. In addition, some asylum applicants may realize potential early labor earnings, which could constitute a transfer from workers in the U.S. labor force to certain asylum applicants, as well as tax impacts. Qualitative benefits include, but may not be limited to: (i) Beneficiaries of new parole standards may not have to wait lengthy times for a decision on whether their asylum claims will
The Department's Fall 2021 Regulatory Agenda continues to advance the Department's mission to foster, promote, and develop the welfare of wage earners, job seekers, and retirees; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights. These rules will strengthen protections for some of the Nation's most vulnerable workers, empower and support opportunities for advancement, secure our safety nets and advance equity and economic security.
In just the first months of the Biden Administration, the Department of Labor has begun historic rulemakings on issues central to workers in the United States and their families, including worker safety, protections from discrimination, fair wages, and retirement security and health care. These include the following rulemakings:
• We issued an Emergency Temporary Standard to help protect millions of frontline healthcare workers from exposure and spread of COVID-19, a virus that has already claimed the lives of over 750,000 people in the U.S. We also issued an Emergency Temporary Standard on Vaccination and Testing to protect more than 84 million additional workers from the consequences of COVID-19 exposure on the job. These science-based standards outline workplace safety protocols and will help save thousands of lives and prevents hundreds of thousands of hospitalizations.
• We finalized Interim Final Rules with the U.S. Department of Health and Human Services, the U.S. Department of Treasury, and the Office of Personnel Management to implement the No Surprises Act and protect people from unexpected medical expenses. Surprise billing can cause economic devastation for patients. This rule puts patients first by providing safeguards to keep families from financial ruin when they need medical care.
• We have also expeditiously withdrawn or rescinded rules as necessary to protect and strengthen workers' economic security, including withdrawing the Independent Contractor Rule and rescinding the Joint Employer Rule.
The 2021 Regulatory Plan highlights the Labor Department's most noteworthy and significant rulemaking efforts, with each addressing the top priorities of its regulatory agencies: Employee Benefits Security Administration (EBSA), Employment and Training Administration (ETA), Mine Safety and Health Administration (MSHA), Office of Federal Contract Compliance Programs (OFCCP), Occupational Safety and Health Administration (OSHA), Office of Workers' Compensation Programs (OWCP), and Wage and Hour Division (WHD). These regulatory priorities exemplify the Secretary's agenda to empower all workers morning, noon, and night, including:
• Investing in and valuing the nation's care economy;
• Building a safe, modern, inclusive workforce; and
• Supporting a lifetime of worker empowerment.
Under Secretary Walsh's leadership, the Department is committed to ensuring that equity, a strong foundation of evidence, and extensive stakeholder outreach are integral to all of our regulatory efforts. Our Regulatory Agenda additionally reflects our ongoing commitment to the Biden Administration's prioritization of economic relief, raising wages, and addressing the threat of climate change, while embedding equity across the department's agencies, policies, and programs.
The Department's regulatory priorities reflect the Secretary's focus on care infrastructure to ensure workers have the opportunity and support to thrive in their jobs. That means ensuring workers can care for their families without risking their jobs, stay home when they're sick or when they need to care for a sick family member, and have access to the resources they need to manage their mental health.
• EBSA's rulemaking implementing the Mental Health Parity and Addiction Equity Act (MHPAEA) will strengthen health enforcement by clarifying plan and issuer obligations, promote compliance and address amendments to the Act from the Consolidated Appropriations Act of 2021.
In addition, OSHA will supplement its outreach and enforcement with rulemaking that protects employees in the care economy. Enhancing our care infrastructure starts with making sure our frontline care providers are safe on the job.
• OSHA will propose an Infectious Diseases rulemaking to protect employees in healthcare and other high risk environments from exposure to and transmission of persistent and new infectious diseases, ranging from ancient scourges such as tuberculosis to newer threats such as Severe Acute Respiratory Syndrome (SARS), the 2019 Novel Coronavirus (COVID-19), and other diseases.
• OSHA will initiate small business consultations as its first step in developing a Workplace Violence rulemaking, to provide protections for healthcare and other care economy workers, who are the most frequent victims of violence on the job.
The Department's regulatory priorities reflect the Secretary's focus on ensuring people can have a good job and
The Department's health and safety regulatory proposals are aimed at eliminating preventable workplace injuries, illnesses and fatalities. Workplace safety also protects workers' economic security, ensuring that illness and injury do not force families into poverty. Our efforts will prevent workers from having to choose between their lives and their livelihood.
• OSHA will propose a rulemaking on heat illness prevention. Increased temperatures are posing a serious threat to workers laboring outdoors and in non-climate controlled indoor settings. Exposure to excessive heat is not only a hazard in itself, causing heat illness and even death; it is also an indirect hazard linked to the loss of cognitive skills which can also lead to workplace injuries and worker deaths. OSHA will develop a standard to protect workers from these heat hazards in the workplace, helping to save lives while we confront the growing threat of climate change.
• MSHA will propose a new silica standard to effectively assess health concerns with a goal of ensuring that all miners are safe at their work places.
• MSHA will promulgate a rule establishing that mine operators must develop and implement a written safety program for surface mobile equipment used at surface mines and surface areas of underground mines, in order to provide safe environments for miners.
The Department's regulatory agenda prioritizes workers' economic security; ensures they receive a fair day's pay for a fair day's work, and do not face discrimination in hiring, employment, or benefits on the basis of race, gender, religion, disability, national origin, veteran's status, sexual orientation, or gender identity. ETA, OFCCP and WHD will focus on regulatory changes that will have significant impact on workers of color, immigrant workers, and workers with disabilities.
• OFCCP is proposing to rescind certain provisions related to the religious exemption for federal contractors and subcontractors, ensuring that the religious exemption contained in Executive Order 11246 is applied consistently with nondiscrimination principles of Title VII of the Civil Rights Act of 1964, as amended.
• OFCCP will issue a proposal to modify the procedures for resolving potential employment discrimination, which is creating hurdles to effective enforcement.
• WHD issued regulations to implement President Biden's executive order requiring federal contractors to pay a $15 minimum wage to hundreds of thousands of workers who are working on federal contracts. This will eliminate subminimum wages paid to some tipped workers and workers with disabilities, improve the economic security of families and make progress toward reversing decades of income inequality.
• WHD is proposing to update and modernize the regulations implementing the Davis Bacon and Related Acts to provide greater clarity and ensure workers are truly paid local prevailing wages on federal construction contracts.
• WHD will propose updates to the overtime regulations to ensure that middle class jobs pay middle class wages, extending important overtime pay protections to millions of workers and raising their pay.
• WHD engaged in rulemaking to ensure the economic security of tipped workers.
• ETA will ensure fair wages and strengthen protections for foreign and U.S. workers under the H-1B/H-2A visa programs through regulatory changes.
The Department is committed to ensuring workers have opportunities for employment and training and advancement in their jobs.
• ETA will ensure job-seekers can more easily get the support they need by proposing changes to the Wagner-Peyser Employment Service regulations.
• ETA is focused on ensuring high-quality apprenticeship programs, and as part of this, has proposed rescinding Industry Recognized Apprenticeship Programs (IRAP) rules and suspending further application review efforts for new IRAP Standard Recognition Entities in order to renew focus on Registered Apprenticeship.
The Department is committed to ensuring workers have a seat at the table and furthering this Administration's support for unions and workers who are organizing unions, which are critical to achieving economic fairness and racial and gender justice.
We are focused on making sure people do not have to worry that the loss of a job or need for medical care will destroy their financial well-being. People should be able to save for retirement, access health care, and have the support they need to get through a personal or family crisis or when they become injured or ill on the job.
• EBSA will support the administration's agenda to address the threat of climate change by implementing two executive orders that increase transparency in climate-related financial investment options. To carry out Executive Order 13990 “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” and Executive Order 14030, “Climate-Related Financial Risks,” EBSA is proposing to remove provisions of the current regulation that inappropriately discourage consideration of environmental, social, and governance issues by fiduciaries in making investment and proxy voting decisions, and provide further clarity that would help safeguard the interests of participants and beneficiaries in the plan benefits.
The Department considered defining the term United States to exclude contracts performed in the territories listed above, consistent with the discretionary decision made in the Department's prior rulemaking implementing Executive Order 13658. Such an alternative would result in fewer contracts covered by Executive Order 14026 and fewer workers entitled to an initial $15 hourly minimum wage for work performed on or in connection with such contracts. This alternative was rejected because the Department has further examined the issue since its prior rulemaking in 2014 and consequently determined that the Federal Government's procurement interests in economy and efficiency would be promoted by extending the Executive Order 14026 minimum wage to workers performing on or in connection with covered contracts.
A second alternative the Department considered in the final rule was raising (or eliminating) the 20 percent threshold for an exclusion for FLSA-covered workers performing in connection with covered contracts. If the Department were to omit this exclusion, more workers would be covered by the rule, and contractors would be required to pay more workers the applicable minimum wage rate (initially $15 per hour) for time spent performing in connection with covered contracts. This would result in greater income transfers to workers. Conversely, if the Department were to raise the 20 percent threshold, fewer workers would be covered by the rule, resulting in a smaller income transfer to workers.
The Department rejected this regulatory alternative because having an exclusion for FLSA-covered workers performing in connection with covered contracts based on a 20 percent of hours worked in a week standard is a reasonable interpretation.
The direct transfer payments associated with this rule are transfers of income from employers to employees in the form of higher wage rates. Estimated average annualized transfer payments are $1.75 billion per year over 10 years.
The Department expects that increasing the minimum wage of Federal contract workers will generate several important benefits. However, due to data limitations, these benefits are not monetized. As noted in the Executive order, the NPRM will promote economy and efficiency. Specifically, the proposed rule discusses benefits from improved government services, increased morale and productivity, reduced turnover, reduced absenteeism, and reduced poverty and income inequality for Federal contract workers.
Healthcare and social services account for nearly as many serious violent injuries as all other industries combined. Workplace violence comes at a high cost. It harms workers often both physically and emotionally and makes it more difficult for them to do their jobs.
Workers in some medical and social service settings are more at risk than others. According to the Bureau of Labor Statistics, in 2018 workers at psychiatric and substance abuse hospitals
Heat stress killed 815 US workers and seriously injured more than 70,000 workers from 1992 through 2017, according to the Bureau of Labor Statistics. However, this is likely a vast underestimate, given that injuries and illnesses are under reported in the US, especially in the sectors employing vulnerable and often undocumented workers. Further, heat is not always recognized as a cause of heat-induced injuries or deaths and can easily be misclassified, because man of the symptoms overlap with other more common diagnoses.
To date, California, Washington, Minnesota, and the US military have issued heat protections. OSHA currently relies on the general duty clause (OSH Act Section 5(a))(1)) to protect workers from this hazard. Notably, from 2013 through 2017, California used its heat standard to conduct 50 times more inspections resulting in a heat-related violation than OSHA did nationwide under its general duty clause. It is likely to become even more difficult to protect workers from heat stress under the general duty clause in light of the 2019 Occupational Safety and Health Review Commission's decision in
OSHA was petitioned by Public Citizen for a heat stress standard in 2011. The Agency denied this petition in 2012, but was once again petitioned by Public Citizen, on behalf of approximately 130 organizations, for a heat stress standard in 2018 and 2019. Most recently in 2021, Public Citizen petitioned OSHA to issue an emergency temporary standard on heat stress. OSHA is still considering these petitions and has neither granted nor denied to date. In 2019 and 2021, some members of the Senate also urged OSHA to initiate rulemaking to address heat stress.
Given the potentially broad scope of regulatory efforts to protect workers from heat hazards, as well as a number of technical issues and considerations with regulating this hazard (
A standard could also apply to laboratories, which handle materials that may be a source of pathogens, and to pathologists, coroners' offices, medical examiners, and mortuaries. OSHA offered several alternatives to the SBREFA panel when presenting the proposed Infectious Disease (ID) rule. OSHA considered a specification oriented rule rather than a performance oriented rule, but has preliminarily determined that this type of rule would provide less flexibility and would likely fail to anticipate all of the potential hazards and necessary controls for every type and every size of facility and would under-protect workers. OSHA also considered changing the scope of the rule by restricting the ID rule to workers who have occupational exposure during the provision of direct patient care in institutional settings but based on the evidence thus far analyzed, workers performing other covered tasks in both institutional and non-institutional settings also face a risk of infection because of their occupational exposure.
DOT has statutory responsibility for ensuring the United States has the safest and most efficient transportation system in the world. To accomplish this goal, DOT regulates safety in the aviation, motor carrier, railroad, motor vehicle, commercial space, transit, and pipeline transportation areas. The Department also regulates aviation consumer and economic issues and provides financial assistance and writes the necessary implementing rules for programs involving highways, airports, mass transit, the maritime industry, railroads, motor transportation and vehicle safety. DOT also has responsibility for developing policies that implement a wide range of regulations that govern Departmental programs such as acquisition and grants management, access for people with disabilities, environmental protection, energy conservation, information technology, occupational safety and health, property asset management, seismic safety, security, emergency response, and the use of aircraft and vehicles. In addition, DOT writes regulations to carry out a variety of statutes ranging from the Air Carrier Access Act and the Americans
The U.S. Department of Transportation (Department or DOT) issues regulations to ensure the United States transportation system is the safest in the world, and addresses other urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID-19) pandemic, job creation, equity, and climate change. These issues are addressed, in part, by encouraging innovation, thereby ensuring that the Department's regulations keep pace with the latest developments and reflect its top priorities.
The Department's actions are also governed by several recent executive orders issued by the President, which direct agencies to utilize all available regulatory tools to address pressing national challenges. On January 20, 2021, the President signed Executive Order 13992, Revocation of Certain Executive Orders Concerning Federal Regulation. This Executive Order directs Federal agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies that would hamper the agencies' flexibility to use robust regulatory action to address national priorities. On January 20, the President also issued Executive Order 13990, Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis. This Executive Order directs Federal agencies to review all regulatory actions issued in the previous Administration and revise or rescind any of those actions that do not adequately respond to climate change, protect the environment, advance environmental justice, or improve public health. Section 2(a)(ii) of Executive Order 13990 specifically requires the Department of Transportation to review “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 FR 51310 (September 27, 2019) (SAFE I Rule) and “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks,” 85 FR 24174 (April 30, 2020) (SAFE II Rule). The Secretary of Transportation directed NHTSA to review these fuel economy rules.
On July 9, 2021, the President signed Executive Order 14036, Promoting Competition in the American Economy. Among other things, this Executive Order requires the Department to enhance consumer access to airline flight information and ensure that consumers are not exposed or subject to advertising, marketing, pricing, and charging of ancillary fees that may constitute an unfair or deceptive practice or an unfair method of competition. This Executive Order also requires the Department to: (1) Publish a notice of proposed rulemaking (NPRM) requiring airlines to refund baggage fees when a passenger's luggage is substantially delayed and other ancillary fees when passengers pay for a service that is not provided; and (2) consider initiating a rulemaking to ensure that consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees,” at the time of ticket purchase.
On August 5, 2021, the President signed Executive Order 14037, Strengthening American Leadership in Clean Cars and Trucks. This Executive Order requires that the Department consider beginning work on a rulemaking to establish new fuel economy standards for passenger cars and light-duty trucks beginning with model year 2027 and extending through and including at least model year 2030. This Executive Order also requires the Department to consider beginning work on a rulemaking to establish new fuel efficiency standards for heavy-duty pickup trucks and vans beginning with model year 2028 and extending through and including at least model year 2030. Finally, this Executive Order requires the Department to consider beginning work on a rulemaking to establish new fuel efficiency standards for medium- and heavy-duty engines and vehicles to begin as soon as model year 2030.
In response to Executive Order 13992, in April 2021, the Department issued a final rule revising the regulations governing its regulatory process to ensure that it has the maximum flexibility necessary to quickly respond to the urgent challenges facing our Nation. Following implementation of the final rule, in June 2021, the Secretary of Transportation signed a Departmental Order strengthening the Department's internal rulemaking procedures and revitalizing the partnership between Operating Administrations and the Office of the Secretary in promulgating regulations to better achieve the Department's goals and priorities. As part of this critical overhaul, a Regulatory Leadership Group was established, led by the Deputy Secretary of Transportation, which provides vital legal and policy guidance on the Department's regulatory agenda.
In response to Executive Order 13990, in May 2021, the Department issued an NPRM proposing to repeal the SAFE I Rule and associated guidance documents. In August 2021, the Department issued a Supplemental Notice of Proposed Rulemaking inviting comments on the appropriate path forward regarding civil penalties imposed on violations of DOT's vehicle emissions rules. Finally, in September 2021, the Department issued an NPRM proposing more stringent vehicle emission limits than those set by the SAFE II Rule.
In response to Executive Orders 14036 and 14037, the Department is considering the following rulemakings: (1) Refunding Fees for Delayed Checked Bags and Ancillary Services That Are Not Provided; (2) Airline Ticket Refunds; (3) Amendments to Department's Procedures in Regulating Unfair and Deceptive Practices; and (4) fuel economy standards for passenger cars, light-duty trucks, heavy-duty pickup trucks, and vans.
The Department's regulatory activities also remain directed toward protecting safety for all persons. Safety is a pressing national concern and our highest priority; the Department remains focused on managing safety risks and ensuring that the United States has the safest and most efficient transportation system in the world. This focus is as urgent as ever; after decades of declines in the number of fatalities on our roads, the United States has been seeing a recent increase in fatalities among pedestrians, bicyclists, and vehicle occupants that must be reversed. Similarly, we must address disparities in how the burden of these safety risks fall on different communities.
The regulatory plan laid out below reflects a careful balance that emphasizes the Department's priorities in responding to the urgent challenges facing our nation.
All OAs are prioritizing their regulatory actions in accordance with Executive Orders 13985, 13990, and 13992 to make sure they are providing the highest level of safety while responding to the urgent challenges facing our Nation. Since each OA has its own area of focus, we summarize the regulatory priorities of each below. More information about each of the rules discussed below can be found in the DOT Unified Agenda.
OST oversees the regulatory processes for the Department. OST implements the Department's regulatory policies and procedures and is responsible for ensuring the involvement of senior officials in regulatory decision making. Through the Office of the General Counsel, OST is also responsible for ensuring that the Department complies with the Administrative Procedure Act, Executive Orders 12866 and 13563, DOT's Regulatory Policies and Procedures, and other legal and policy requirements affecting the Department's rulemaking activities. In addition, OST has the lead role in matters concerning aviation consumer and economic rules, Title VI of the Civil Rights Act, the Americans with Disabilities Act, and rules that affect multiple elements of the Department.
OST provides guidance and training regarding compliance with regulatory requirements and processes for personnel throughout the Department. OST also plays an instrumental role in the Department's efforts to improve our economic analyses; risk assessments; regulatory flexibility analyses; other related analyses; retrospective reviews of rules; and data quality, including peer reviews. The Office of the General Counsel (OGC) is the lead office that works with the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) to comply with Executive Order 12866 for significant rules, coordinates the Department's response to OMB's intergovernmental review of other agencies' significant rulemaking documents, and other relevant Administration rulemaking directives. OGC also works closely with representatives of other agencies, the White House, and congressional staff to provide information on how various proposals would affect the ability of the Department to perform its safety, infrastructure, and other missions.
In July 2021, the President issued Executive Order 14036, which directed the Department to take actions that would promote competition and deliver benefits to America's consumers, including potentially initiating a rulemaking to ensure that air consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees,” at the time of ticket purchase. Among a number of steps to further the Administration's goals in this area, the Department has initiated a rulemaking to enhance consumers' ability to determine the true cost of travel, titled “Enhancing Transparency of Airline Ancillary Service Fees.” In addition, OST will further enhance its airline passenger protections through the rulemaking initiatives required by Executive Order 14036.
Advancing equity in air transportation for individuals with disabilities is also a priority for the Administration. To further this goal, the Department is developing a rulemaking to improve the accessibility of lavatories on single-aisle aircraft. In this rulemaking, the Department is considering options to significantly improve the ability of passengers with disabilities to travel with freedom and dignity by being able to access the lavatory.
FAA is charged with safely and efficiently operating and maintaining the most complex aviation system in the world. To enhance aviation safety, FAA is finalizing a rulemaking that would require certain airport certificate holders to develop, implement, maintain, and adhere to a safety management system.
The FAA will continue to advance rulemakings to ensure that the United States has the safest aviation, most efficient, and modern aviation system in the word, including proposing a rulemaking that would require certain aircraft, engine, and propeller manufacturers; certificate holders conducting common carriage operations; certain maintenance providers; and persons conducting certain, specific types of air tour operations to implement a Safety Management System. FAA will also manage rulemakings to further advance the integration of unmanned aircraft systems and commercial space operations into the national airspace system. In addition, the FAA will propose requirements for the certification of certain airplanes to enforce compliance with the emissions standards adopted by the Environmental Protection Agency under the Clean Air Act.
FHWA carries out the Federal highway program in partnership with State and local agencies to meet the Nation's transportation needs. FHWA's mission is to improve the quality and performance of our Nation's highway system and its intermodal connectors.
Consistent with this mission, FHWA is scheduled to update the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), conforming technical provisions of the 2009 edition to reflect advances in technologies and operational practices that are not currently allowed in the MUTCD. This update will incorporate the latest human factors research to make road signage more accessible, thereby ensuring that both pedestrians and vehicles comply with that signage and reduce the risk of an accident. The Agency will also pursue a new regulation requiring safety integration across all Federal-aid programs and any necessary mitigation on Federal-aid projects. In addition, FHWA will work on a rulemaking to establish a method for the measurement and reporting of greenhouse gas emissions associated with transportation.
The mission of FMCSA is to reduce crashes, injuries, and fatalities involving commercial trucks and buses. A strong regulatory program is a cornerstone of FMCSA's compliance and enforcement efforts to advance this safety mission. In addition to Agency-directed regulations, FMCSA develops regulations mandated by Congress, through legislation such as the Moving Ahead for Progress in the 21st Century (MAP-21) and the Fixing America's Surface Transportation (FAST) Acts. FMCSA regulations establish minimum safety standards for motor carriers, commercial drivers, commercial motor vehicles, and State agencies receiving certain motor carrier safety grants and issuing commercial drivers' licenses.
FMCSA will continue to coordinate efforts on the development of autonomous vehicle technologies and review existing regulations to identify changes that might be needed to ensure that DOT regulations ensure safety and keep pace with innovations. Additionally, in support of the National Highway Traffic Safety Administration's (NHTSA) automatic emergency braking (AEB) rulemaking for heavy trucks, FMCSA will seek information and comment concerning the maintenance and operation of AEB by motor carriers.
The mission of NHTSA is to save lives, prevent injuries, and reduce economic costs due to roadway crashes. The statutory responsibilities of NHTSA relating to motor vehicles include reducing the number, and mitigating the effects, of motor vehicle crashes and related fatalities and injuries; providing safety-relevant information to aid prospective purchasers of vehicles, child restraints, and tires; and improving light-, medium-, and heavy-duty vehicle fuel efficiency requirements. NHTSA pursues policies that enable safety, climate and energy policy and conservation, equity, and mobility. NHTSA develops safety standards and regulations driven by data and research, including those mandated by Congress under the MAP-21 Act, the FAST Act, and the Energy Independence and Security Act, among others. NHTSA's regulatory priorities for Fiscal Year 2022 focus on issues related to safety, climate, equity, and vulnerable road users.
To enhance the safety of vulnerable road users and vehicle occupants, NHTSA plans to issue a proposal to require automatic emergency braking (AEB) on light vehicles, including Pedestrian AEB. For heavy trucks, NHTSA also plans to propose to require AEB. For climate and equity, NHTSA plans to complete a rulemaking to address corporate average fuel economy (CAFE) preemption, pursuant to Executive Order 13990. Improving fuel economy for light, medium and heavy-duty vehicles can have significant public health impacts, especially for overburdened communities. NHTSA also plans to issue a final rule for Model Year 2024-2026 CAFE standards for passenger cars and light trucks. More information about these rules can be found in the DOT Unified Agenda.
FRA exercises regulatory authority over all areas of railroad safety and, where feasible, incorporates flexible performance standards. The current FRA regulatory program continues to reflect a number of pending proceedings to satisfy mandates resulting from the Rail Safety Improvement Act of 2008 (RSIA08), the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), and the FAST Act. These actions support a safe, high-performing passenger rail network, address the safe and effective movement of energy products, and encourage innovation and the adoption of new technology in the rail industry to improve safety and efficiencies. FRA's regulatory priority for Fiscal Year 2022 is to propose regulations addressing the issue of the requirements for safe minimum train crew size depending on the type of operation.
The mission of FTA is to improve public transportation for America's communities. To further that end, FTA provides financial and technical assistance to local public transit systems, including buses, subways, light rail, commuter rail, trolleys, and ferries, oversees safety measures, and helps develop next-generation technology research. FTA's regulatory activities implement the laws that apply to recipients' uses of Federal funding and the terms and conditions of FTA grant awards.
In furtherance of its mission and consistent with statutory changes, in Fiscal Year 2022, FTA will update its Buy America regulation to incorporate changes to the waiver process made by MAP-21 and the FAST Act and to make other conforming updates and amendments. FTA will also modify its Bus Testing regulation to improve testing procedures and to respond to technological advancements in vehicle testing. Finally, the Agency is considering a rulemaking that would address transit roadway worker protections and operator assaults.
MARAD administers Federal laws and programs to improve and strengthen the
MARAD's regulatory objectives and priorities reflect the Agency's responsibility for ensuring the availability of water transportation services for American shippers and consumers and, in times of war or national emergency, for the U.S. armed forces.
For Fiscal Year 2022, MARAD will continue its work increasing the efficiency of program operations by updating and clarifying implementing rules and program administrative procedures.
PHMSA has responsibility for rulemaking focused on hazardous materials transportation and pipeline safety. In addition, PHMSA administers programs under the Federal Water Pollution Control Act, as amended by the Oil Pollution Act of 1990.
In Fiscal Year 2022, PHMSA will focus on the Gas Pipeline Leak Detection and Repair rulemaking, which would amend the Pipeline Safety Regulations to enhance requirements for detecting and repairing leaks on new and existing natural gas distribution, gas transmission, and gas gathering pipelines. PHMSA anticipates that the amendments proposed in this rulemaking would reduce methane emissions arising from avoidance/remediation of leaks and incidents from natural gas pipelines and address environmental justice concerns by improving the safety of natural gas pipelines near environmental justice communities and mitigating the risks for those communities arising from climate change.
PHMSA will also focus on the Improving the Safety of Transporting Liquefied Natural Gas rulemaking. This rulemaking action would amend the Hazardous Materials Regulations governing transportation of liquefied natural gas (LNG) in rail tank cars. This rulemaking action would incorporate the results of ongoing research efforts and collaboration with other Department of Transportation Operating Administrations and external technical experts; respond to a directive in Executive Order 13990 for PHMSA to review recent actions that could be obstacles to Administration policies promoting public health and safety, the environment, and climate change mitigation; and provide an opportunity for stakeholders and the public to contribute their perspectives on rail transportation of LNG.
The Department of Transportation is proposing to amend its aviation consumer protection regulations to ensure that consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees” at the time of ticket purchase. This rulemaking would also examine whether fees for certain ancillary services should be disclosed at the first point in a search process where a fare is listed. This rulemaking implements section 5, paragraph (m)(i)(F) of Executive Order 14.
The primary mission of the Department of the Treasury is to maintain a strong economy and create economic and job opportunities by promoting the conditions that enable economic growth and stability at home and abroad, strengthen national security by combatting threats and protecting the integrity of the financial system, and manage the U.S. Government's finances and resources effectively.
Consistent with this mission, regulations of the Department and its constituent bureaus are promulgated to interpret and implement the laws as enacted by Congress and signed by the President. It is the policy of the Department to comply with applicable requirements to issue a Notice of Proposed Rulemaking and carefully consider public comments before adopting a final rule. Also, the Department invites interested parties to submit views on rulemaking projects while a proposed rule is being developed.
To the extent permitted by law, it is the policy of the Department to adhere to the regulatory philosophy and principles set forth in Executive Orders 12866, 13563, and 13609 and to develop regulations that maximize aggregate net benefits to society while minimizing the economic and paperwork burdens imposed on persons and businesses subject to those regulations.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) issues regulations to implement and enforce Federal laws relating to alcohol, tobacco, firearms, and ammunition excise taxes and certain non-tax laws relating to alcohol. TTB's mission and regulations are designed to:
(1) Collect the taxes on alcohol, tobacco products, firearms, and ammunition;
(2) Protect the consumer by ensuring the integrity of alcohol products;
(3) Ensure only qualified businesses enter the alcohol and tobacco industries; and
(4) Prevent unfair and unlawful market activity for alcohol and tobacco products.
In FY 2022, TTB will continue its multi-year Regulations Modernization effort by prioritizing projects that reduce regulatory burdens, streamline and simplify requirements, and improve service to regulated businesses. Specifically, TTB plans to publish deregulatory rules that will reduce the amount of information industry members must submit to TTB in connection with permit and similar applications to engage in regulated businesses, and reduce the types of operational activities that require prior approval. TTB expects these proposals to ultimately reduce the amount of operational information industry members must submit to TTB and provide for the piloting of a combined tax return and simplified operations report, reducing the overall number of reports industry members must submit. These measures are expected to reduce burden on industry member and provide them greater flexibility, and make starting new businesses easier and faster for new industry members.
TTB will also prioritize rulemaking to amend its regulations to reflect statutory changes pursuant to the Taxpayer Certainty and Disaster Tax Act of 2020, which made permanent most of the Craft Beverage Modernization and Tax Reform provisions of the Tax Cuts and Jobs Act of 2017. These legislative changes include reduced tax rates for beer and distilled spirits and tax credits for wine, among other provisions that had previously been provided on a temporary basis, as well as new provisions on the types of activities that qualify for reduced tax rates for distilled spirits and on permissible transfers of bottled distilled spirits in bond. Additionally, as a result of this legislation, and as addressed in a June 2021 Report to Congress on Administration of Craft Beverage Modernization Act Refund Claims for Imported Alcohol, TTB will also prioritize rulemaking to implement and administer refund claims for imported alcohol.
Additional priority projects include rulemaking to authorize new container sizes (standards of fill) for wine and responding to industry member petitions to authorize new wine treating materials and processes, new grape varietal names for use on labels of wine, and new American Viticultural Areas (AVAs).
This fiscal year TTB plans to prioritize the following measures:
In FY 2017, TTB engaged in a review of its regulations to identify any regulatory requirements that could potentially be eliminated, modified, or streamlined to reduce burdens on industry related to application and qualification requirements. Since that time, TTB has removed a number of requirements, particularly with regard to the information that is required to be submitted on TTB permit-related forms. In FY 2022, TTB intends to propose amending its regulations to further streamline the qualification and application requirements for new and existing businesses, including distilled spirits plants, wineries, and breweries.
In FY 2022, TTB intends to propose for notice and comment regulatory amendments to substantially streamline current requirements pertaining to tax returns and operational reports and reducing the amount of information and the number of reports submitted. This measure will also include updates to return and report requirements to improve overall tax oversight and enforcement.
The Federal Alcohol Administration Act requires that alcohol beverages introduced in interstate commerce have a label approved under regulations prescribed by the Secretary of the Treasury. TTB conducted an analysis of its alcohol beverage labeling regulations to identify any that might be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with that analysis. These regulations were also reviewed to assess their applicability to the modern alcohol beverage marketplace. As a result of this review, in FY 2019, TTB proposed revisions to the regulations concerning the labeling requirements for wine, distilled spirits, and malt beverages. TTB anticipated that these regulatory changes would assist industry in voluntary compliance, decrease industry burden, and result in the regulated industries being able to bring products to market without undue delay. TTB received over 1,100 comments in response to the notice, which included suggestions for further revisions. In FY 2020, TTB published in the
TTB is amending its regulations for beer, wine, and distilled spirits, including those related to administration of import claims, to implement changes made to the Internal Revenue Code by the Taxpayer Certainty and Disaster Act of 2020, which made permanent most of the Craft Beverage Modernization and Tax Reform (CBMA) provisions of the Tax Cuts and Jobs Act of 2017. The CBMA provisions reduced excise taxes on all beverage alcohol producers, large and small, foreign and domestic. In 2020, these tax cuts were made permanent. The 2020 provisions also transferred responsibility for administering certain CBMA provisions for imported alcohol from U.S. Customs and Border Protection (CBP) to the Treasury Department after December 31, 2022. Importers will be required to pay the full tax rate at entry and submit refund claims to Treasury. Treasury intends for TTB to administer these claims.
In FY 2017, TTB proposed to amend its regulations pertaining to the production of wine to authorize additional treatments that may be applied to wine and to juice from which wine is made. These proposed amendments were made in response to requests from wine industry members to authorize certain wine treating materials and processes not currently authorized by TTB regulations. Although TTB may administratively approve such treatments, such administrative approval does not guarantee acceptance in foreign markets of any wine so treated. Under certain international agreements, wine made with wine treating materials is not subject to certain restrictions if the authorization to use the treating materials is implemented through public notice; thus, rulemaking facilitates the acceptance of exported wine made using those treatments in foreign markets. In FY 2018, TTB reopened the comment period for the notice in response to industry member requests and, after consideration of the comments, TTB intends in FY 2022 to issue a final rule on those proposals. In FY 2022, TTB also intends to propose for public comment additional changes to the regulations governing wine treating materials, in response to a petition to more broadly amend the regulations to allow more wine treating materials to be used within the limitations of “good manufacturing practice” rather than within specified numerical limits.
TTB plans to publish a proposal to amend the regulations governing wine containers to add additional authorized standards of fill in response to requests it has received for such standards, and to be consistent with a Side Letter included as part of a U.S.-Japan Trade Agreement that addresses issues related to market access and, specifically, to alcohol beverage standards of fill. TTB will also propose a technical amendment to add equivalent standard United States measures to the wine labeling regulations for recently approved wine standards of fill and for the additional sizes proposed in this notice.
On August 25, 2021, TTB published a proposal (86 FR 47429) to amend the regulations that set forth the standards of identity for distilled spirits to include Singani as a type of brandy that is a distinctive product of Bolivia. This proposal follows a joint petition submitted by the Plurinational State of Bolivia and Singani 63, Inc., and subsequent discussions with the Office of the United States Trade Representative. TTB solicited comments on this proposal, including comments on its proposal to authorize a minimum bottling proof of 35 percent alcohol by volume (or 70° proof) for Singani. TTB expects to publish a final rule in FY22.
In FY 2017, TTB proposed to amend its wine labeling regulations by adding a number of new names to the list of grape variety names approved for use in designating American wines. The proposed deregulatory amendments would allow wine bottlers to use these additional approved grape variety names on wine labels and in wine advertisements in the U.S. and international markets. In 2018, TTB reopened the comment period for the notice in response to requests. TTB was unable to complete this project in FY 2020 because of redirected efforts to address COVID-19 guidance, and TTB now intends to issue a final rule in FY 2022.
The Office of the Comptroller of the Currency (OCC) charters, regulates, and supervises all national banks and Federal savings associations (FSAs). The agency also supervises the Federal branches and agencies of foreign banks. The OCC's mission is to ensure that national banks and FSAs operate in a safe and sound manner, provide fair access to financial services, treat customers fairly, and comply with applicable laws and regulations.
Regulatory priorities for fiscal year 2022 are described below.
The OCC, the Board of Governors of the Federal Reserve System (FRB), and
The OCC, the FRB, and the FDIC plan to issue a notice of proposed rulemaking that would comprehensively revise the agencies' risk-based capital rules, including revisions to the current standardized and advanced approaches capital rules.
The OCC, the FRB, and the FDIC plan to issue a notice of proposed rulemaking to revise their respective capital requirements for market risk, which are generally applied to banking organizations with substantial trading activity. The banking agencies expect the proposal to be generally consistent with the standards set forth in the Fundamental Review of the Trading Book published by the Basel Committee on Bank Supervision.
The OCC plans to issue a proposal to replace the current Community Reinvestment Act (CRA) rule with revised rules largely based on the 1995 CRA regulations.
Along with the Federal Deposit Insurance Agency and the Board of Governors of the Federal Reserve, the OCC plans to issue a joint rule to modernize the Community Reinvestment Act regulations.
The OCC, FRB, and FDIC plan to issue a final rule that would require a banking organization to notify its primary federal regulator of significant computer-security incidents on a timely basis. The rule would also require a bank service provider to promptly notify banking organization customers of certain significant computer-security incidents. The notice of proposed rulemaking was published on January 12, 2021 (86 FR 2299).
The OCC plans to issue a final rule to modify the requirements for national banks and Federal savings associations to file Suspicious Activity Reports. The rule would amend the OCC's Suspicious Activity Report regulations to allow the OCC to issue exemptions from the requirements of those regulations. The rule would make it possible for the OCC to grant relief to national banks or federal savings associations that develop innovative solutions to meet Bank Secrecy Act requirements more efficiently and effectively. The notice of proposed rulemaking was published on January 22, 2021 (86 FR 6572).
Section 104A of the Community Development Banking and Financial Institutions Act of 1994, which was added by the Consolidated Appropriations Act, 2021, authorizes the Secretary of the Treasury to establish the Emergency Capital Investment Program (ECIP) through which the Department of the Treasury (Treasury) can make capital investments in low- and moderate-income community financial institutions. The purpose of ECIP is to support the efforts of such financial institutions to, among other things, provide financial intermediary services for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities. In order to support and facilitate the timely implementation and acceptance of ECIP and promote its purpose, the OCC, FRB, and FDIC plan to issue a final rule that provides that preferred stock issued to Treasury under ECIP qualifies as additional tier 1 capital and that subordinated debt issued to Treasury under ECIP qualifies as tier 2 capital under the agencies' capital rule. The interim final rule was published on March 22, 2021 (86 FR 15076).
The OCC, FRB, and FDIC plan to issue a proposed rule to amend their rules of practice and procedure to reflect modern filing and communication methods and improve or clarify other procedures.
The OCC, FRB, and FDIC plan to issue a final rule requiring banks that file income taxes as part of a consolidated group to develop and maintain tax allocation agreements with other members of the consolidated group. The notice of proposed rulemaking was published on May 10, 2021 (86 FR 24755).
The Homeland Security Act of 2002 (the Act) provides that, although many functions of the former United States Customs Service were transferred to the Department of Homeland Security, the Secretary of the Treasury retains sole legal authority over customs revenue functions. The Act also authorizes the Secretary of the Treasury to delegate any of the retained authority over customs revenue functions to the Secretary of Homeland Security. By Treasury Department Order No. 100-16, the Secretary of the Treasury delegated to the Secretary of Homeland Security authority to prescribe regulations pertaining to the customs revenue functions subject to certain exceptions, but further provided that the Secretary of the Treasury retained the sole authority to approve such regulations.
During fiscal year 2021, CBP and Treasury plan to give priority to regulatory matters involving the customs revenue functions which streamline CBP procedures, protect the public, or are required by either statute or Executive Order. Examples of these efforts are described below.
Treasury and CBP plan to finalize interim regulations (81 FR 56477) which amended CBP regulations implementing section 421 of the Trade Facilitation and Trade Enforcement Act of 2015, which set forth procedures to investigate claims of evasion of antidumping and countervailing duty orders.
Treasury and CBP plan to finalize proposed amendments to the CBP regulations pertaining to importations of merchandise that violate or are suspected of violating the copyright laws, including the Digital Millennium Copyright Act (DMCA), in accordance with Title III of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) and Executive Order 13785, “Establishing Enhanced Collection and Enforcement of Anti-dumping and Countervailing Duties and Violations of Trade and Customs Laws.” The proposed amendments are intended to enhance CBP's enforcement efforts against increasingly sophisticated piratical goods, clarify the definition of piracy, simplify the detention process relative to goods suspected of violating the copyright laws, and prescribe new regulations enforcing the DMCA.
Treasury and CBP plan to publish a proposal to amend its regulations with respect to administrative rulings related to the importation of articles in light of exclusion orders issued by the United States International Trade Commission (“Commission”) under section 337 of the Tariff Act of 1930, as amended. The proposed amendments seek to promote
Treasury and CBP plan to publish a proposed rule to update, modernize, and streamline the process for enforcing the prohibition in 19 U.S.C. 1307 against the importation of merchandise that has been mined, produced, or manufactured, wholly or in part, in any foreign country by convict labor, forced labor, or indentured labor under penal sanctions. The proposed rule would generally bring the forced labor regulations and detention procedures into alignment with other statutes, regulations, and procedures that apply to the enforcement of restrictions against other types of prohibited merchandise.
Treasury and CBP plan to finalize a proposed rule to harmonize non-preferential origin determinations for merchandise imported from Canada or Mexico. Such determinations would be made using certain tariff-based rules of origin to determine when a good imported from Canada or Mexico has been substantially transformed resulting in an article with a new name, character, or use. Once finalized, the rule is intended to reduce administrative burdens and inconsistency for non-preferential origin determinations for merchandise imported from Canada or Mexico for purposes of the implementation of the USMCA.
As administrator of the Bank Secrecy Act (BSA), the Financial Crimes Enforcement Network (FinCEN) is responsible for developing and implementing regulations that are the core of the Department's anti-money laundering (AML) and countering the financing of terrorism (CFT) efforts. FinCEN's responsibilities and objectives are linked to, and flow from, that role. In fulfilling this role, FinCEN seeks to enhance U.S. national security by making the financial system increasingly resistant to abuse by money launderers, terrorists and their financial supporters, and other perpetrators of crime.
The Secretary of the Treasury, through FinCEN, is authorized by the BSA to issue regulations requiring financial institutions to file reports and keep records that are highly useful in criminal, tax, or regulatory investigations, risk assessments, or proceedings, or intelligence or counter-intelligence activities, including analysis, to protect against terrorism. The BSA also authorizes FinCEN to require that designated financial institutions establish AML/CFT programs and compliance procedures. To implement and realize its mission, FinCEN has established regulatory objectives and priorities to safeguard the financial system from the abuses of financial crime, including terrorist financing, proliferation financing, money laundering, and other illicit activity.
These objectives and priorities include: (1) Issuing, interpreting, and enforcing compliance with regulations implementing the BSA; (2) supporting, working with, and as appropriate overseeing compliance examination functions delegated by FinCEN to other Federal regulators; (3) managing the collection, processing, storage, and dissemination of data related to the BSA; (4) maintaining a government-wide access service to that same data for authorized users with a range of interests; (5) conducting analysis in support of policymakers, law enforcement, regulatory and intelligence agencies, and (for compliance purposes) the financial sector; and (6) coordinating with and collaborating on AML/CFT initiatives with domestic law enforcement and intelligence agencies, as well as foreign financial intelligence units.
FinCEN's regulatory priorities for fiscal year 2022 include:
On September 24, 2021, FinCEN issued an Advance Notice of Proposed Rulemaking (ANPRM) in order to implement Section 6110 of the Anti-Money Laundering Act of 2020 (the AML Act). This section amends the BSA (31 U.S.C. 5312(a)(2)) to include as a financial institution a person engaged in the trade of antiquities, including an advisor, consultant, or any other person who engages as a business in the solicitation or the sale of antiquities, subject to regulations prescribed by the Secretary of the Treasury. The section further requires the Secretary of the Treasury to issue proposed rules to implement the amendment within 360 days of enactment of the AML Act.
FinCEN is amending 31 CFR 1010.820 to withdraw the reports of foreign financial accounts (FBAR) civil monetary penalties language at 31 CFR 1010.820(g), which was made obsolete with the enactment of the American Jobs Creation Act of 2004. The American Jobs Creation Act of 2004 amended 31 U.S.C. 5321(a)(5) to allow for a greater maximum penalty for a willful violation of 31 U.S.C. 5314 than was previously authorized.
The Board of Governors of the Federal Reserve System and FinCEN (collectively, the “Agencies”) intend to issue a revised proposal to clarify the meaning of “money” as used in the rules implementing the BSA requiring financial institutions to collect, retain, and transmit information on certain funds transfers and transmittals of funds. The Agencies intend that the revised proposal will ensure that the rules apply to domestic and cross-border transactions involving convertible virtual currency, which is a medium of exchange (such as cryptocurrency) that either has an equivalent value as currency, or acts as a substitute for currency, but lacks legal tender status. The Agencies further intend that the revised proposal will clarify that these rules apply to domestic and cross-border transactions involving digital assets that have legal tender status.
FinCEN will issue an Advanced Notice of Proposed Rulemaking (ANPRM) to seek guidance on a future rulemaking that would require certain legal entities involved in real estate transactions to submit reports and keep records. Specifically, the ANPRM will seek comment to assist FinCEN in preparing a proposed rule that would potentially impose nationwide recordkeeping and reporting requirements on financial institutions and nonfinancial trades and businesses participating in purchases of real estate by certain legal entities that are not financed by a loan, mortgage, or other similar instrument.
FinCEN intends to issue a Notice of Proposed Rulemaking (NPRM) in order
FinCEN intends to issue a NPRM to implement Section 6101 the AML Act. That section, among other things, amends section 5318(h) to title 31 of the United States Code to: (1) Require financial institutions to establish CFT programs in addition to AML programs; (2) require FinCEN to establish national AML/CFT Priorities and, as appropriate, promulgate implementing regulations within 180 days of the issuance of those priorities; and (3) provide that the duty to establish, maintain, and enforce a BSA AML/CFT program remains the responsibility of, and must be performed by, persons in the United States who are accessible to, and subject to oversight and supervision by, the Secretary of the Treasury and the appropriate Federal functional regulator. Additionally, FinCEN intends to propose other changes, including regulatory amendments to establish that all financial institutions subject to an AML/CFT program requirement must maintain an effective and reasonably designed AML/CFT program, and that such a program must include a risk assessment process.
FinCEN will issue an ANPRM following the implementation of Section 6305 of the AML Act. This section required FinCEN to conduct an assessment on whether to issue no-action letters in response to specific conduct requests from third parties, and propose rulemaking if appropriate. The assessment concluded that FinCEN should issue no-action letters, subject to sufficient resources, and proposed rulemaking to follow the issuance of the report. The ANPRM will seek guidance on the contours of a FinCEN no-action letter process, and, if necessary and appropriate, may be followed by a NPRM establishing regulations to govern the process. The ANPRM will also solicits feedback on FinCEN's current forms of regulatory guidance and relief.
FinCEN is considering issuing this rule to strengthen the administration of the regulation implementing the statutory safe harbor that allows eligible financial institutions and associations of financial institutions to voluntarily share information regarding activities that may involve terrorist acts or money laundering.
FinCEN intends to issue a NPRM relating to Section 6314 of the AML Act. Section 6314 of AML Act amends Section 5323 of title 31, United States Code. Section 6314, enacted on January 1, 2021, established a whistleblower program that requires FinCEN to pay an award, under regulations prescribed by FinCEN and subject to certain limitations, to eligible whistleblowers who voluntarily provide FinCEN or the Department of Justice (DOJ) with original information about a violation of the Bank Secrecy Act that leads to the successful enforcement of a covered judicial or administrative action, or related action, and requires that FinCEN preserve the confidentiality of a whistleblower.
Additionally, section 6314 of the AML Act repealed 31 U.S.C. 5328, the previous whistleblower protection provision, and replaced it with a new subsection to 31 U.S.C. 5323: Subsection (g) “Protection of Whistleblowers.” The new subsection (g) prohibits retaliation by employers against individuals that provide FinCEN or the DOJ with information about potential Bank Secrecy Act violations; any individual alleging retaliation may seek relief by filing a complaint with the Department of Labor.
On April 5, 2021, FinCEN issued an ANPRM entitled “Beneficial Ownership Information Reporting Requirements,” relating to the Corporate Transparency Act (Sections 6401-6403 of the AML Act), and intends to issue a NPRM. Section 6403 of the AML Act amends the BSA by adding new Section 5336 to title 31 of the United States Code. New Section 5336 requires FinCEN to issue rules requiring: (i) Reporting companies to submit certain information about the individuals who are beneficial owners of those entities and the individuals who formed or registered those entities; (ii) establishing a mechanism for issuing FinCEN identifiers to entities and individuals that request them; (iii) requiring FinCEN to maintain the information in a confidential, secure, non-public database; and (iv) authorizing FinCEN to disclose the information to certain government agencies and financial institutions for purposes specified in the legislation and subject to protocols to protect the confidentiality of the information. Section 5336 requires that the first of these requirements, notably the beneficial ownership information reporting regulation for legal entities (the “reporting regulation”), be published in final form by January 1, 2022. The ANPRM solicited comments on a wide range of questions having to do with the possible shape of the reporting regulation, as well as questions that concern the interaction of the requirements of this regulation and the shape and functionality of the database that will be populated with the information reported under Section 5336.
On November 15, 2021, FinCEN issued a final rule to update the regulation set forth at 31 CFR 1010.370 to reflect amendments to the underlying statute, 31 U.S.C. 5326, concerning the authority of FinCEN to issue orders imposing additional reporting and recordkeeping requirements on financial institutions and nonfinancial trades or businesses in a geographic area.
FinCEN is proposing to amend the regulations implementing the BSA to require banks and money service businesses to submit reports, keep records, and verify the identity of customers in relation to transactions involving convertible virtual currency (CVC) or digital assets with legal tender status (“legal tender digital assets” or “LTDA”) held in unhosted wallets, or held in wallets hosted in a jurisdiction identified by FinCEN.
FinCEN is proposing to amend the regulations implementing the BSA regarding reports of foreign financial accounts (FBARs). The proposed changes are intended to clarify which persons will be required to file reports of foreign financial accounts and what information is reportable. The proposed changes are intended to amend two provisions of the FBAR regulation: (1) Signature or other authority; and (2) special rules. Treasury is considering whether the relevant statutory objectives can be achieved at a lower cost.
FinCEN is amending 31 CFR 1010.820 to withdraw the civil money penalty provisions for BSA violations that are obsolete. Statutory amendments have been made to specific civil BSA penalties since the regulation was last revised. In addition, the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended, 28 U.S.C. 2461 note, requires agencies to issue regulations making annual adjustments reflecting the effect of inflation for civil penalties expressed in terms of a dollar amount. Those inflation adjustments are correctly captured in a separate regulation, and therefore the obsolete and inconsistent provisions will be withdrawn.
FinCEN is finalizing amendments to the regulatory definitions of “broker or dealer in securities” under the regulations implementing the BSA. The changes are intended to expand the current scope of the definitions to include funding portals. In addition, these amendments would require funding portals to implement policies and procedures reasonably designed to achieve compliance with all of the BSA requirements that are currently applicable to brokers or dealers in securities. The rule to require these organizations to comply with the BSA regulations is intended to help prevent money laundering, terrorist financing, and other financial crimes.
FinCEN also will continue to issue proposed and final rules pursuant to section 311 of the USA PATRIOT Act, as appropriate. Finally, FinCEN expects that it may propose various technical and other regulatory amendments in conjunction with ongoing efforts with respect to a comprehensive review of existing regulations to enhance regulatory efficiency required by Section 6216 of the AML Act.
The Bureau of the Fiscal Service (Fiscal Service) administers regulations pertaining to the Government's financial activities, including: (1) Implementing Treasury's borrowing authority, including regulating the sale and issue of Treasury securities; (2) administering Government revenue and debt collection; (3) administering government-wide accounting programs; (4) managing certain Federal investments; (5) disbursing the majority of Government electronic and check payments; (6) assisting Federal agencies in reducing the number of improper payments; and (7) providing administrative and operational support to Federal agencies through franchise shared services.
During fiscal year 2022, Fiscal Service will accord priority to the following regulatory projects:
Fiscal Service is proposing to amend its regulations governing surety companies doing business with the United States, found at 31 CFR part 223. When a federal law requires a person to post a bond through a surety, the person satisfies the requirement if the bond is underwritten by a company that is certified by Treasury to write federal bonds. Fiscal Service administers the regulations governing the issuance, renewal, and revocation of certificates of authority to surety companies to write or reinsure federal bonds. Fiscal Service proposes to amend its regulations governing how it values the assets and liabilities of sureties to keep pace with changes in regulation of the surety industry occurring at the state and international levels.
The Fiscal Service is proposing to amend its regulation at 31 CFR part 210 governing the government's participation in the Automated Clearing House (ACH). The proposed amendment would address changes to the National Automated Clearing House Association's (Nacha) private-sector ACH rules that have been adopted since those rules were last incorporated by reference in part 210. Among other things, the amendment would address the increase in the Same-Day ACH transaction limit from $100,000 per transaction to $1,000,000 per transaction.
The Fiscal Service is proposing to amend its offset regulations currently codified in 31 CFR part 285 subpart A. These regulations govern how Fiscal Service administers the offset of federal and state payments to collect federal and state debt through the Treasury Offset Program. Through the amendment, Fiscal Service will re-write and reorganize the current regulations. The main purpose of the amendment will be to improve the clarity of the regulations. A second purpose will be to restore flexibility where previously-issued regulations may have unintentionally narrowed statutory authority.
The Internal Revenue Service (IRS), working with the Office of Tax Policy, promulgates regulations that interpret and implement the Internal Revenue Code (Code), and other internal revenue laws of the United States. The purpose of these regulations is to carry out the tax policy determined by Congress in a fair, impartial, and reasonable manner, taking into account the intent of Congress, the realities of relevant transactions, the need for the Government to administer the rules and monitor compliance, and the overall integrity of the Federal tax system. The goal is to make the regulations practical and as clear and simple as possible, which reduces the burdens on taxpayers and the IRS.
During fiscal year 2022, the IRS and Treasury's Office of Tax Policy's priority is to continue providing guidance regarding implementation of key provisions of the American Rescue Plan Act of 2021, Public Law 117-2, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law 116-136, Public Law 115-97, known as the Tax Cuts and Jobs Act, as well as the Taxpayer First Act, Public Law 116-25, Division O of the Further Consolidated Appropriations Act, 2020, and Public Law 116-94, known as the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act).
Every year, Treasury and the IRS identify guidance projects that are priorities for allocation of the resources during the year in the Priority Guidance Plan (PGP) (available on
The Department of Veterans Affairs (VA) administers services and benefit programs that recognize the important public obligations to those who served
Most of the regulations issued by VA involve at least one of three VA components: The Veterans Benefits Administration, the Veterans Health Administration, and the National Cemetery Administration. The primary mission of the Veterans Benefits Administration is to provide high-quality and timely nonmedical benefits to eligible veterans and their dependents. The primary mission of the Veterans Health Administration is to provide high-quality health care on a timely basis to eligible veterans through its system of medical centers, nursing homes, domiciliaries, and outpatient medical and dental facilities. The primary mission of the National Cemetery Administration is to bury eligible veterans, members of the Reserve components, and their dependents in VA National Cemeteries and to maintain those cemeteries as national shrines in perpetuity as a final tribute of a grateful Nation to commemorate their service and sacrifice to our Nation.
VA's regulatory priority plan consists of three high priority regulations:
(1)
The Department of Veterans Affairs (VA) proposes to amend its medical regulations that govern copayments for outpatient medical care and medications for at-risk veterans.
(2)
The Department of Veterans Affairs proposes to revise its medical regulations to establish a new pilot program on graduate medical education and residency, as required by section 403 of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Network Act of 2018.
(3)
The Department of Veterans Affairs (VA) is issuing this interim final rule to implement legislation authorizing VA initiate a three-year community-based grant program to award grants to eligible entities to provide or coordinate the provision of suicide prevention services to eligible individuals and their families. This rulemaking specifies grant eligibility criteria, application requirements, scoring criteria, constraints on the allocation and use of the funds, and other requirements necessary to implement this grant program.
A phase-in period for the regulation was considered. There were no burdens, likely failures, or negative comments identified that a phase-in period would help mitigate. There were no potential cost savings or other net benefits identified that would make phasing in the regulation a more beneficial option.
VA has determined that there are transfers associated with this rulemaking and a loss of revenue to VA from the reduction of specific veteran copayments. The transfers are estimated to be $9.43M in FY2022 and $54.35M over a 5-year period. The loss of revenue to VA is estimated to be $0.21M in FY2022 and $1.11M over a five-year period. The total budgetary impact of this rulemaking is estimated to be $9.63M in FY2022 and $55.47M over a five-year period.
VA estimates that costs of this program will be $4,160,259 in FY22 and 13,691,052 over a 5-year period. Transfers will be zero in FY22 and $25,687,106 over a 5-year period. Combined, this results in a budget impact of $4,160,259 in FY 22 and $39,378,158 over a 5-year window.
EPA works to ensure that all Americans are protected from significant risks to human health and the environment, including climate change, and that overburdened and underserved communities and vulnerable individuals—including low-income communities and communities of color, children, the elderly, tribes, and indigenous people—are meaningfully engaged and benefit from focused efforts to protect their communities from pollution. EPA acts to ensure that all efforts to reduce environmental harms are based on the best available scientific information, that federal laws protecting human health and the environment are enforced equitably and effectively, and that the United States plays a leadership role in working with other nations to protect the global environment. EPA is committed to environmental protection that builds and supports more diverse, equitable, sustainable, resilient, and productive communities and ecosystems.
By taking advantage of the latest science, the newest technologies and the most cost-effective and sustainable solutions, EPA and its federal, tribal, state, local, and community partners have made important progress in addressing pollution where people live, work, play, and learn. By cleaning up contaminated waste sites, reducing greenhouse gases, lowering emissions of mercury and other air pollutants, and investing in water and wastewater treatment, EPA's efforts have resulted in tangible benefits to the American public. Efforts to reduce air pollution alone have produced hundreds of billions of dollars in benefits in the United States, and tremendous progress has been made in cleaning up our nation's land and waterways. But much more needs to be done to implement the nation's environmental statutes and ensure that all individuals and communities benefit from EPA's efforts to protect human health and the environment and to address the climate crisis.
EPA has initiated cross-Agency efforts to address our most complex environmental challenges including PFAS pollution. Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals, including PFOA and PFOS, that have been manufactured and used in a variety of industries around the globe, including in the United States, since the 1940s. Both chemicals persist in the environment and in the human body. The EPA Administrator established a Council on PFAS, comprised of a group of senior agency leaders who are charged with accelerating the Agency's progress on PFAS. EPA is committed to using all the Agency's authorities to address PFAS pollution including Safe Drinking Water Act, Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. EPA also is expanding our existing data collection efforts to better understand the environmental and human health impacts of PFAS. Similarly, EPA has developed a cross-Agency strategy to coordinate the Agency's efforts to reduce lead exposure and protect children and families from the harmful effects of lead.
EPA will use its regulatory authorities, along with grant- and incentive-based programs, technical and compliance assistance, and research and educational initiatives, to address the following priorities set forth in EPA's upcoming Strategic Plan:
• Tackle the Climate Crisis
• Advance Environmental Justice and Civil Rights
• Ensure Clean and Healthy Air for All Communities
• Ensure Clean and Healthy Water for All Communities
• Safeguard and Revitalize Communities
• Ensure Safety of Chemicals for People and the Environment
All this work will be undertaken with a strong commitment to scientific integrity, the rule of law and transparency, the health of children and other vulnerable populations, and with special focus on supporting and achieving environmental justice at federal, tribal, state, and local levels.
This Regulatory Plan highlights our most important upcoming regulatory actions. As always, our Semiannual Regulatory Agenda contains information on a broader spectrum of EPA's upcoming regulatory actions.
EPA must take bold and decisive steps to respond to the severe and urgent threat of climate change, including taking appropriate regulatory action under existing statutory authorities to reduce emissions from our nation's largest sources of greenhouse gases (GHG). The impacts of climate change are affecting people in every region of the country, threatening lives and livelihoods and damaging infrastructure, ecosystems, and social systems. Overburdened and underserved communities and individuals are particularly vulnerable to these impacts, including low-income communities and communities of color, children, the elderly, tribes, and indigenous people. Exercising its authority under the Clean Air Act (CAA), EPA will address major sources of GHGs that are driving these impacts by taking regulatory action to minimize emissions of methane from new and existing sources in the oil and natural gas sector; reduce GHGs from new and existing fossil fuel-fired power plants; limit GHGs from new light-duty vehicles and heavy-duty trucks; and set requirements for the use of renewable fuel. EPA will also carry out the mandates of the recently enacted American Innovation and Manufacturing (AIM) Act to implement, and where appropriate accelerate, a national phasedown in the production and consumption of hydrofluorocarbons (HFCs), which are highly potent GHGs.
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All people regardless of race, ethnicity, national origin, or income deserve to breathe clean air. EPA has the responsibility to protect the health of vulnerable and sensitive populations, such as children, the elderly, and persons overburdened by pollution or adversely affected by persistent poverty or inequality. Since enactment of the CAA, EPA has made significant progress in reducing harmful air pollution even as the U.S. population and economy have grown. Between 1970 and 2020, the combined emissions of six key pollutants dropped by 78%, while the U.S. economy remained strong growing 272% over that time period. As required by the CAA, EPA will continue to build on this progress and work to ensure clean air for all Americans, including those in underserved and overburdened communities. Among other things, EPA will take regulatory action to review and implement health-based air quality standards for criteria pollutants such as particulate matter (PM); limit emissions of harmful air pollution from both stationary and mobile sources; address sources of hazardous air pollution (HAP), such as ethylene oxide, that disproportionately affect communities with environmental justice concerns; and protect downwind communities from sources of air pollution that cross state lines. Along with the full set of CAA actions listed in the regulatory agenda, the following high priority actions will allow EPA to continue its progress in reducing harmful air pollution.
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The Nation's water resources are the lifeblood of our communities, supporting our health, economy, and way of life. Clean and safe water is a vital resource that is essential to the protection of human health. The EPA is committed to ensuring clean and safe water for all, including low-income communities and communities of color, children, the elderly, tribes, and indigenous people. Since the enactment of the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA), EPA and its state and tribal partners have made significant progress toward improving the quality of our waters and ensuring a safe drinking water supply. Along with the full set of water actions listed in the regulatory agenda, the regulatory initiatives listed below will help ensure that this important progress continues.
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EPA works to improve the health and livelihood of all Americans by cleaning up and returning land to productive use, preventing contamination, and responding to emergencies. EPA collaborates with other federal agencies, industry, states, tribes, and local communities to enhance the livability and economic vitality of neighborhoods. Challenging and complex environmental problems persist at many contaminated properties, including contaminated soil, sediment, surface water, and groundwater that can cause human health concerns. EPA's regulatory program works to incorporate new technologies and approaches to cleaning up land to provide for an environmentally sustainable future more efficiently and effectively, as well as to strengthen climate resilience and to integrate environmental justice and equitable development when returning sites to productive use. Along with the other land and emergency management actions in the regulatory agenda, EPA will take the following priority actions to address the contamination of soil, sediment, surface water, and groundwater.
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EPA is responsible for ensuring the safety of chemicals and pesticides for all people at all life stages. Chemicals and pesticides released into the environment as a result their manufacture, processing, distribution, use, or disposal can threaten human health and the environment. EPA gathers and assesses information about the risks associated with chemicals and pesticides and acts to minimize risks and prevent unreasonable risks to individuals, families, and the environment. EPA acts under several different statutory authorities, including the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Federal Food, Drug and Cosmetic Act (FFDCA), the Toxic Substances Control Act (TSCA), the Emergency Planning and Community Right-to-Know-Act (EPCRA), and the Pollution Prevention Act (PPA). Using best available science, the Agency will continue to satisfy its overall directives under these authorities and highlights the following rulemakings intended for release in FY2022:
As announced on June 30, 2021, EPA reviewed the TSCA risk evaluations issued for the first 10 chemicals and as a result intends to implement policy changes to ensure the Agency is protecting human health and the environment under the requirements of TSCA. Upon review of the risk evaluations issued for Cyclic Aliphatic Bromide Cluster (HBCD) (RIN 2070-AK71), C.I. Pigment Violet 29 (PV29) (RIN 2070-AK87), and asbestos (part 1: Chrysotile asbestos) (RIN 2070-AK86), EPA currently believes these risk evaluations are likely sufficient to inform the risk management approaches being considered and that these approaches will be protective; therefore, the Agency does not think it needs to conduct any additional technical analysis that would amend the risk evaluation. However, EPA does intend to reissue individual chemical risk determinations that amend the approach to personal protective equipment (PPE) and include a whole chemical risk determination for HBCD (RIN 2070-AK71) and PV29 (RIN 2070-AK87) and, during part 2 of the risk evaluation for asbestos. The Agency is also working expeditiously on risk management and believes the proposed rules for HBCD (RIN 2070-AK71) and asbestos (part 1: Chrysotile asbestos) (RIN 2070-AK86)
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By better coordinating small business activities, EPA aims to improve its technical assistance and outreach efforts, minimize burdens to small businesses in its regulations, and simplify small businesses' participation in its voluntary programs. Actions that may affect small entities can be tracked on EPA's Regulatory Flexibility website (
Steve Fruh, Environmental Protection Agency, Office of Air and Radiation, E143-01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711,
Christy Parsons, Environmental Protection Agency, Office of Air and Radiation, USEPA National Vehicle and Fuel Emissions Laboratory, Ann Arbor, MI 48105,
Nick Hutson, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive. Mail Code D243-01, Research Triangle Park, NC 27711,
Nick Hutson, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-01, Research Triangle Park, NC 27711,
Nick Parsons, Environmental Protection Agency, Office of Air and Radiation, NVFEL, 2565 Plymouth Road, Ann Arbor, MI 48105,
Melanie King, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-01, Research Triangle Park, NC 27711,
Steve Fruh, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code E143-01, Research Triangle Park, NC 27711,
Jodi Howard, Environmental Protection Agency, Office of Air and Radiation, E143-01, Research Triangle Park, NC 27711,
Nicole Hagan, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code C504-06, Research Triangle Park, NC 27709,
Cameo Smoot, Environmental Protection Agency, Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code 7101M, Washington, DC 20460,
Final, Statutory, September 15, 2022, TSCA section 6(c).
Erik Winchester, Environmental Protection Agency, Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code 7404T, Washington, DC 20460,
Final, Statutory, December 28, 2022, TSCA sec. 6(c).
Michelle Lloyd, Environmental Protection Agency, Office of Land and Emergency Management, Mail Code 5304T, 1200 Pennsylvania Avenue NW, Washington, DC 20460,
On January 20, 2021, Executive Order 13990, Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis (E.O. 13990), directed federal agencies to review existing regulations and take action to address priorities established by the new administration including bolstering resilience to the impact of climate change and prioritizing environmental justice. The EPA is considering developing a regulatory action to revise the current RMP regulations. The proposed rule would address the administration's priorities and focus on regulatory revisions completed since 2017. The proposed rule would also expect to contain a number of proposed modifications to the RMP regulations based in part on stakeholder feedback received from RMP public listening sessions held on June 16 and July 8, 2021.
Veronica Southerland, Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW, Mail Code 5104A, Washington, DC 20460,
Jessica Mroz, Environmental Protection Agency, Office of Air and Radiation, 1200 Pennsylvania Avenue NW, Washington, DC 20460,
Frank Behan, Environmental Protection Agency, Office of Land and Emergency Management, Mail Code 5304T, 1200 Pennsylvania Avenue NW, Washington, DC 20460,
Final, Statutory, September 3, 2024, Safe Drinking Water Act.
The U.S. General Services Administration (GSA) delivers value and savings in real estate, acquisition, technology, and other mission-support services across the Federal Government. GSA's acquisition solutions supply Federal purchasers with cost-effective, high-quality products and services from commercial vendors. GSA provides workplaces for Federal employees and oversees the preservation of historic Federal properties. GSA helps keep the nation safe and efficient by providing tools, equipment, and non-tactical vehicles to the U.S. military, and providing State and local governments with law enforcement equipment, firefighting and rescue equipment, and disaster recovery products and services.
GSA serves the public by delivering products and services directly to its Federal customers through the Federal Acquisition Service (FAS), the Public Buildings Service (PBS), and the Office of Government-wide Policy (OGP). GSA has a continuing commitment to its Federal customers and the U.S. taxpayers by providing those products and services in the most cost-effective manner possible.
FAS is the lead organization for procurement of products and services (other than real property) for the Federal Government. The FAS organization leverages the buying power of the Government by consolidating Federal agencies' requirements for common goods and services. FAS provides a range of high-quality and flexible acquisition services to increase overall Government effectiveness and efficiency by aligning resources around key functions.
PBS is the largest public real estate organization in the United States. As the landlord for the civilian Federal Government, PBS acquires space on behalf of the Federal Government through new construction and leasing, and acts as a manager for Federal properties across the country. PBS is responsible for over 370 million rentable square feet of workspace for Federal employees, has jurisdiction, custody, and control over more than 1,600 federally owned assets totaling over 180 million rentable square feet, and contracts for more than 7,000 leased assets totaling over 180 million rentable square feet.
Later in FY22, GSA expects to update the existing internal guidance and issue a new PBS Order following the release of an E.O. on Federal Sustainability which is likely to be issued in late October or early November.
OGP sets Government-wide policy in the areas of personal and real property, mail, travel, relocation, transportation, information technology, regulatory information, and the use of Federal advisory committees. OGP also helps direct how all Federal supplies and services are acquired as well as GSA's own acquisition programs. Pursuant to Executive Order 12866, “Regulatory Planning and Review” (September 30, 1993) and Executive Order 13563, “Improving Regulation and Regulatory Review” (January 18, 2011), the Regulatory Plan and Unified Agenda provides notice regarding OGP's regulatory and deregulatory actions within the Executive Branch.
GSA prepared a list of 20 non-regulatory actions in the areas of Climate Risk Management, Resilience, and Adaptation; Environmental Justice; Greenhouse Gas (GHG) Reduction; Clean Energy; Energy Reduction; Water Reduction; Performance Contracting; Waste Reduction; Sustainable Buildings; and Electronics Stewardship & Data Centers. Detailed information on actions GSA is considering taking through December 31, 2025, to implement the Administration's policy set by Executive Orders 13990 and Executive Order 14008 were provided in GSA's Executive Order 13990 90-day response; GSA Climate Change Risk Management Plan and GSA 2021 Sustainability Plan. More specifics will be known on the Sustainability Plan when feedback is obtained from the Council on Environmental Quality (CEQ) and Office of Management and Budget (OMB).
OGP's Office of Government wide Policy, Office of Asset and Transportation Management and Office of Acquisition Policy are prioritizing rulemaking focused on initiatives that:
• Tackle the climate change emergency.
• Promote the country's economic resilience and improve the buying power of U.S. citizens.
• Support underserved communities, promoting equity in the Federal government; and,
• Support national security efforts, especially safeguarding Federal government information and information technology systems.
The Fall 2021 Unified Agenda consists of fourteen (14) active Office of Asset and Transportation Management (MA) agenda items, of which four (4) active actions are included in the Federal Travel Regulation (FTR) and ten (10) active actions are included in the Federal Management Regulation (FMR).
The Federal Travel Regulation (FTR) enumerates the travel and relocation policy for all title 5 Executive Agency employees. The Code of Federal Regulations (CFR) is available at
The FTR is the regulation contained in title 41 of the CFR, chapters 300 through 304, that implements statutory requirements and Executive branch policies for travel by Federal civilian employees and others authorized to travel at Government expense. The FTR presents policies in a clear manner to both agencies and employees to assure that official travel is performed responsibly.
The Federal Management Regulation (FMR) establishes policy for Federal aircraft management, mail management, transportation, personal property, real property, and committee management.
FTR Case 2020-301-1, Definition for “Fuel”, Rental Car Policy Updates and Clarifications, replaces the word “gasoline” where appropriate and replaces it with the term “fuel” to acknowledge the use of alternative fuels, such as electricity.
FTR Case 2021-301-1, Removal Reservation of part 300-90-Telework Travel Expenses Test Programs and appendix E to chapter 301-Suggested Guidance for Conference Planning, supports sustainability by reducing the number of paper pages required for publication in the Code of Federal Regulations.
FTR Case 2020-302-01, Taxes on Relocation Expenses, Withholding Tax Allowance (WTA) and Relocation Income Tax Allowance (RITA) Eligibility, creates equity among all Federal Government employees by authorizing agencies to reimburse new hires and others previously not eligible for relocation benefits afforded to employees transferred in the interest of the Government.
FMR Case 2021-01, Use of Federal Real Property to Assist the Homeless” will streamline the process by which excess Federal real property is screened for potential conveyance to homeless interests.
FMR Case 2021-102-1, “Real Estate Acquisition” will clarify the policies for entering into leasing agreements for high security space (
The Fall 2021 Unified Agenda consists of nineteen (19) active Office of Acquisition Policy (MV) agenda items, all of which are for the General Services Administration Acquisition Regulation (GSAR).
The GSAR establishes agency acquisition regulations that affect GSA's business partners (
GSAR Case 2021-G530, Extension of Federal Minimum Wage to Lease Acquisitions, will increase efficiency and cost savings in the work performed for leases with the Federal Government by increasing the hourly minimum wage paid to those contractors in accordance with Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors” dated April 27,
GSAR Case 2020-G511, Updated Guidance for Non-Federal Entities Access to Federal Supply Schedules, will clarify the requirements for use of Federal Supply Schedules by eligible Non-Federal Entities, such as state and local governments. The regulatory changes are intended to increase understanding of the existing guidance and expand access to GSA sources of supply by eligible Non-Federal Entities, as authorized by historic statutes including the Federal Supply Schedules Usage Act of 2010.
GSAR Case 2021-G529, Updates to References to Individuals with Disabilities, will provide more inclusive acquisition guidance for underserved communities by updating references from “handicapped individuals” to “individuals with disabilities”, pursuant to Section 508 of the Rehabilitation Act
GSAR Case 2016-G511, Contract Requirements for GSA Information Systems, will streamline and update requirements for contracts that involve GSA information systems. GSA's policies on cybersecurity and other information technology requirements have been previously issued and communicated by the Office of the Chief Information Officer through the GSA public website. By incorporating these requirements into the GSAR, the GSAR will provide centralized guidance to ensure consistent application across the organization.
GSAR Case 2020-G534, Extension of Certain Telecommunication Prohibitions to Lease Acquisitions, will protect national security by prohibiting procurement from certain covered entities using covered equipment and services in lease acquisitions pursuant to Section 889 of the National Defense Authorization Act for Fiscal Year 2019. The regulatory changes will implement the Section 889 requirements in lease acquisitions by requiring inclusion of the related Federal Acquisition Regulation (FAR) provisions and clauses.
GSAR Case 2021-G522, Contract Requirements for High-Security Leased Space, will incorporate contractor disclosure requirements and access limitations for high-security leased space pursuant to the Secure Federal Leases Act. Covered entities are required to identify whether the beneficial owner of a high-security leased space, including an entity involved in the financing thereof, is a foreign person or entity when first submitting a proposal and annually thereafter.
GSAR Case 2021-G527, Immediate and Highest-Level Owner for High-Security Leased Space, addresses the risks of foreign ownership of Government-leased real estate and requires the disclosure of immediate and highest-level ownership information for high-security space leased to accommodate a Federal agency.
Dated: September 8, 2021.
The National Aeronautics and Space Administration's (NASA) aim is to increase human understanding of the solar system and the universe that contains it and to improve American aeronautics ability. NASA's basic organization consists of the Headquarters, nine field Centers, the Jet Propulsion Laboratory (a federally funded research and development center), and several component installations which report to Center Directors. Responsibility for overall planning, coordination, and control of NASA programs is vested in NASA Headquarters, located in Washington, DC.
NASA continues to implement programs according to its 2018 Strategic Plan. The Agency's mission is to “Lead an innovative and sustainable program of exploration with commercial and international partners to enable human expansion across the solar system and bring new knowledge and opportunities back to Earth. Support growth of the Nation's economy in space and aeronautics, increase understanding of the universe and our place in it, work with industry to improve America's aerospace technologies, and advance American leadership.” The FY 2018 Strategic Plan (available at
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The Agency's rulemaking program strives to be responsive, efficient, and transparent. NASA adheres to the general principles set forth in Executive Order 12866, “Regulatory Planning and Review.” NASA is a signatory to the Federal Acquisition Regulatory (FAR) Council. The FAR at 48 CFR chapter 1 contains procurement regulations that apply to NASA and other Federal agencies. Pursuant to 41 U.S.C. 1302 and FAR 1.103(b), the FAR is jointly prepared, issued, and maintained by the Secretary of Defense, the Administrator of General Services, and the Administrator of NASA, under their several statutory authorities.
NASA is also mindful of the importance of international regulatory cooperation, consistent with domestic law and U.S. trade policy, as noted in Executive Order 13609, “Promoting International Regulatory Cooperation” (May 1, 2012). NASA, along with the Departments of State, Commerce, and Defense, engage with other countries in the Wassenaar Arrangement, Nuclear Suppliers Group, Australia Group, and Missile Technology Control Regime through which the international community develops a common list of items that should be subject to export controls. NASA has also been a key participant in interagency efforts to overhaul and streamline the U.S. Munitions List and the Commerce Control List. These efforts help facilitate transfers of goods and technologies to allies and partners while helping prevent transfers to countries of national security and proliferation concerns.
NASA is highlighting one priority in this agenda and a short summary is provided below.
NASA is revising its policy and procedures for implementing the National Environmental Policy Act of 1969 (NEPA) and the Council on Environmental Quality (CEQ) regulations. These proposed amendments would update procedures
The National Archives and Records Administration (NARA) primarily issues regulations directed to other Federal agencies. These regulations include records management, information services, and information security. For example, records management regulations directed to Federal agencies concern the proper management and disposition of Federal records. Through the Information Security Oversight Office (ISOO), NARA also issues Government-wide regulations concerning information security classification, controlled unclassified information (CUI), and declassification programs; through the Office of Government Information Services, NARA issues Government-wide regulations concerning Freedom of Information Act (FOIA) dispute resolution services and FOIA ombudsman functions; and through the Office of the Federal Register, NARA issues regulations concerning publishing Federal documents in the
NARA regulations directed to the public primarily address access to and use of our historically valuable holdings, including archives, donated historical materials, Nixon Presidential materials, and other Presidential records. NARA also issues regulations relating to the National Historical Publications and Records Commission (NHPRC) grant programs.
NARA's regulatory priority for fiscal year 2022 is included in The Regulatory Plan. This priority is a multi-year project to update our entire set of records management regulations (36 CFR 1220-1239) to reflect an overall change for the Federal Government from paper to electronic records, account for updates in processes and technologies, and streamline these regulations.
Changes to 44 U.S.C. 3302 require NARA to issue standards for digital reproductions of records with an eye toward allowing agencies to then dispose of the original source records. Changes to 44 U.S.C. 2904 require NARA to promulgate regulations requiring all Federal agencies to transfer records to the National Archives of the United States in digital or electronic form to the greatest extent possible. In addition, our Strategic Plan for 2018-2022 establishes that we will no longer accept paper records from agencies by the end of 2022.
As a result of these deadlines, agencies have begun major digitization projects and will be doing more in the future so that they can meet deadlines and requirements for electronic records and reduce the storage and cost burdens involved with managing paper records. Under the statutory provisions in 44 U.S.C. 3302, however, agencies may not dispose of original source records due to having digitized them (prior to the disposal authority date established in a records schedule), unless they have digitized the records according to standards established by NARA. So, the first priority for our overarching records management project was to initiate two rulemaking actions in FY 2019 and FY2020 to establish digitizing standards for Federal records. Both actions add new subparts to 36 CFR 1236, Electronic Records Management. The first regulatory action focused on digitizing temporary records (records of short-term, temporary value that are not appropriate for preservation in the National Archives of the United States) and was issued as a final rule effective on May 10, 2019. We began developing the second action during FY 2019 as well, focused on digitizing permanent records (permanently valuable and appropriate for preservation in the National Archives of the United States), and we expect to publish it as a final rule in the winter of 2021, depending upon the scope and range of agency comments.
We are also revising 36 CFR 1224, Records Disposition Programs, and 36 CFR 1225, Scheduling Records, during FY 2022 to incorporate more regular review and assessment of records. These changes include a requirement for agencies to periodically review established records schedules to ensure they remain viable and up to date. This will help agencies as they manage records and set priorities for digitizing projects.
We are also revising 36 CFR 1222, Creation and Maintenance of Federal Records, to incorporate requirements in the Electronic Messages Preservation Act (EMPA), passed in January 2021. Although our regulations at 36 CFR 1236 already include requirements for preserving electronic messages that are records, these requirements are general requirements for all electronic records, so we are also adding them to 36 CFR 1222 to comply with the new law.
During FY 2021 we also worked on extensive revisions to all the records management regulations, which will continue during FY 2022 and FY 2023.
• Mission and Overview
OPM works in several broad categories to recruit, retain and honor a world-class workforce for the American people.
• We manage Federal job announcement postings at
• We uphold and defend the merit systems in Federal civil service, making sure that the Federal workforce uses fair practices in all aspects of personnel management.
• We manage pension benefits for retired Federal employees and their families. We also administer health and other insurance programs for Federal employees and retirees.
• We provide training and development programs and other management tools for Federal employees and agencies.
• In many cases, we take the lead in developing, testing and implementing new governmentwide policies that relate to personnel issues.
Altogether, we work to make the Federal government America's model employer for the 21st century.
• Statement of Regulatory and Deregulatory Priorities Management Priorities
OPM is required to amend the regulations to implement statutory and policy initiatives. OPM prioritization is focused on initiatives that:
• Actions that advance equity and support underserved, vulnerable and marginalized communities;
• Actions that counter the COVID-19 public health emergency and expand access to healthcare;.
• Actions that create and sustain good jobs with a free and fair choice to join a union and promote economic resilience in general.
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3206-AO26
The Office of Personnel Management (OPM) is issuing proposed regulations governing implementation of the Elijah E. Cummings Federal Employee Discrimination Act of 2020, which became law on January 1, 2021. OPM is proposing to conform its regulations to the Act, which amends existing or adds new requirements to the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002. The proposed regulations, among other things, establish a new requirement to post findings of discrimination that have been made, establish new electronic format reporting requirements for Agencies, and establish new disciplinary action reporting requirements for Agencies.
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3206-AO00
The Fair Chance Act prohibits agencies from making inquiries or soliciting information concerning job applicant's criminal history record information prior to receipt of conditional offer. It requires OPM to publish regulations by December 20, 2020, covering the entire Executive civil service. Regulations must include position specific exceptions and a process for receiving and investigating complaints against Federal employees by applicants and specifies adverse actions for founded violations.
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3206-AO30
This interim final rule with comment would implement certain protections against surprise medical bills under the No Surprises Act.
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3206-AO29
This joint interim final rule with comment with the Departments of Health and Human Services, Labor, and Treasury would implement additional protections against surprise medical bills under the No Surprises Act, including provisions related to the independent dispute resolution processes.
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3206-AN91
The U.S. Office of Personnel Management (OPM) is issuing a proposed rule to expand eligibility for enrollment in the Federal Employees Dental and Vision Insurance Program (FEDVIP) to additional categories of Federal employees. This proposed rule expands eligibility for FEDVIP to certain Federal employees on temporary appointments and certain employees on seasonal and intermittent schedules that became eligible for Federal Employees Health Benefits (FEHB) enrollment beginning in 2015.This rule also expands access to FEDVIP benefits to certain firefighters on temporary appointments and intermittent emergency response personnel who became eligible for FEHB coverage in 2012. These additions will align FEDVIP with FEHB Program eligibility requirements. This proposed rule also updates the provisions on enrollment for active duty service members who become eligible for FEDVIP as uniformed service retirees pursuant to the National Defense Authorization Act of 2017 (FY17 NDAA), Public Law 108-496. In addition, this rule proposes to add qualifying life events (QLEs) for enrollees who may become eligible for and enroll in dental and/or vision services from the Department of Veterans Affairs, since this issue may impact TRICARE-eligible individuals (TEIs) and other enrollees.
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3206-AO23
The Office of Personnel Management (OPM) is issuing regulations governing probation on initial appointment to a competitive position, performance-based reduction in grade and removal actions, and adverse actions. The rule rescinds certain regulatory changes made in an OPM final rule published at 85 FR 65940 on November 16, 2020 per E.O. 14003 on Protecting the Federal Workforce. This rule also proposes new requirements for procedural and appeal rights for dual status National Guard technicians for certain adverse actions. Elements of the November 16, 2020, rule due to statutory changes will remain in effect, such as procedures for disciplinary action against supervisors who retaliate against whistleblowers and the inclusion of appeals rights information in proposal notices for adverse actions.
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3206-AO23
The U.S. Office of Personnel Management (OPM) is issuing an interim rule to amend its career and career-conditional employment regulations. The revision is necessary to implement section 1108 of Public Law 115-232, John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019, which requires OPM to issue regulations establishing hiring authorities for certain college graduates to positions in the competitive service under 5 U.S.C. 3115. The intended effect of the authority is to provide additional flexibility in recruiting and hiring eligible and qualified individuals from all segments of society. This authority may also be a useful tool in helping agencies implement Agency Diversity, Equity, Inclusion, and Accessibility Strategic Plans as required by E.O. 14035.
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3206-AO25
The U.S. Office of Personnel Management (OPM) is issuing proposed regulations to modify the Pathways Internship program (IP) to allow agencies greater flexibility when making appointments. OPM is proposing these changes to improve and enhance the effectiveness of the IP consistent with E.O. 13562, which requires OPM to support agency internship needs, and E.O 14035, which requires OPM to support and promote agency use of paid internships.
The Pension Benefit Guaranty Corporation (PBGC or Corporation) is a federal corporation created under title IV of the Employee Retirement Income Security Act of 1974 (ERISA) to guarantee the payment of pension benefits earned by over 33 million workers and retirees in private-sector defined benefit plans. PBGC administers two insurance programs—one for single-employer defined benefit pension plans and a second for multiemployer defined benefit pension plans.
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While risks remain, the financial status of the single-employer program improved to a positive net financial position of $30.9 billion at the end of FY 2021. Due to enactment of ARP, the net financial position of the multiemployer program improved dramatically during FY 2021 from a negative net position of $63.7 billion at the end of FY 2020 to a positive net position of $481 million at the end of FY 2021. ARP substantially improves the financial condition and the outlook for PBGC's multiemployer program. By forestalling the near-term insolvency of the most troubled multiemployer plans, the multiemployer program is no longer expected to go insolvent in FY 2026 and can accumulate a greater level of reserve assets in its insurance fund in the near-term.
To carry out its statutory functions, PBGC issues regulations on such matters as how to pay premiums, when reports are due, what benefits are covered by the insurance program, how to terminate a plan, the liability for underfunding, and how withdrawal liability works for multiemployer plans. PBGC follows a regulatory approach that seeks to encourage the continuation and maintenance of securely-funded defined benefit plans. In developing new regulations and reviewing existing regulations, PBGC seeks to reduce burdens on plans, employers, and participants, and to ease and simplify employer compliance wherever possible. PBGC particularly strives to meet the needs of small businesses that sponsor defined benefit plans. In all such efforts, PBGC's mission is to protect the retirement incomes of plan participants.
PBGC's regulatory/deregulatory objectives and priorities are developed in the context of the Corporation's statutory purposes, priorities, and strategic goals.
Pension plans and the statutory framework in which they are maintained and terminated are complex. Despite this complexity, PBGC is committed to issuing simple, understandable, flexible, and timely regulations to help affected parties. PBGC's regulatory/deregulatory objectives and priorities are:
• To enhance the retirement security of workers and retirees;
• To implement regulatory actions that ease compliance burdens and achieve maximum net benefits while protecting retirement security; and
• To simplify existing regulations and reduce burden.
PBGC endeavors in all its regulatory and deregulatory actions to promote clarity and reduce burden with the goal that net cost impact on the public is zero or less overall.
The American Rescue Plan Act of 2021 (ARP) added a new section 4262 of ERISA to create a program to enhance retirement security for more than 3 million Americans by providing special financial assistance (SFA) to certain financially troubled multiemployer plans. In turn, the SFA program improves the financial condition of PBGC's multiemployer insurance program. For plans that adopted a benefit suspension under the Multiemployer Pension Reform Act of 2014 (MPRA), and for certain insolvent plans that suspended benefits upon insolvency, the SFA includes make-up payments of suspended benefits for participants and beneficiaries who are in pay status at the time SFA is paid, and prospective reinstatement of suspended benefits for all participants and beneficiaries.
Under new section 4262 of ERISA, PBGC was required within 120 days to prescribe in regulations or other guidance the requirements for SFA applications. To implement the program, on July 9, 2021, PBGC released an interim final rule adding a new part 4262 to its regulations, “Special Financial Assistance by PBGC,” which was published in the
In other multiemployer plan rulemakings, PBGC plans to publish a proposed rule prescribing actuarial assumptions which may be used by a multiemployer plan actuary in determining an employer's withdrawal liability (RIN 1212-AB54). Section 4213(a) of ERISA permits PBGC to prescribe by regulation such assumptions.
PBGC also plans to propose a rulemaking that would add a new part 4022A to PBGC's regulations to provide guidance on determining the monthly amount of multiemployer plan benefits guaranteed by PBGC (“Multiemployer Plan Guaranteed Benefits,” RIN 1212-AB37). For example, the proposed rule would explain what multiemployer plan benefits are eligible for PBGC's guarantee, how to determine credited service, how to determine a benefit's accrual rate, and how to calculate the guaranteed monthly benefit amount.
Most of PBGC's regulatory/deregulatory actions are the result of its ongoing retrospective review to identify and correct unintended effects, inconsistencies, inaccuracies, and requirements made irrelevant over time. For example, PBGC's regulatory review identified a need to improve PBGC's recoupment of benefit overpayment rules (“Improvements to Rules on Recoupment of Benefit Overpayments,” RIN 1212-AB47). The “Benefit Payments” rulemaking (RIN 1212-AB27) would make clarifications and codify policies in PBGC's benefit payments and valuation regulations
PBGC considers very seriously the impact of its regulations and policies on small entities. PBGC attempts to minimize administrative burdens on plans and participants, improve transparency, simplify filing, and assist plans to comply with applicable requirements. PBGC particularly strives to meet the needs of small businesses that sponsor defined benefit plans. In all such efforts, PBGC's mission is to protect the retirement incomes of plan participants.
PBGC encourages public participation in the regulatory process. For example, PBGC's “Federal Register Notices Open for Comment” web page highlights when there are opportunities to comment on proposed rules, information collections, and other
Section 4262(c) as added to the Employee Retirement Income Security Act of 1974 (ERISA) by section 9704 of Subtitle H of the American Rescue Plan Act of 2021, requires that within 120 days of the date of enactment of this section, PBGC shall issue regulations or guidance setting forth requirements for special financial assistance (SFA) applications under this section.
The mission of the U.S. Small Business Administration (SBA) is to maintain and strengthen the Nation's economy by enabling the establishment and viability of small businesses, and by assisting in the physical and economic recovery of communities after disasters. In accomplishing this mission, SBA strives to improve the economic environment for small businesses, including: those in rural areas, in areas that have significantly higher unemployment and lower income levels than the Nation's averages, and those in traditionally underserved markets.
SBA has several financial, procurement, and technical assistance programs that provide a crucial foundation for those starting or growing a small business. For example, the Agency serves as a guarantor of loans made to small businesses by lenders that participate in SBA's programs. The Agency also licenses small business investment companies that make equity and debt investments in qualifying small businesses using a combination of privately raised capital and SBA guaranteed leverage. SBA also funds various training and mentoring programs to help small businesses, particularly businesses owned by women, veterans, minorities, and other historically underrepresented groups, gain access to Federal government contracting opportunities. The Agency also provides management and technical assistance to existing or potential small business owners through various grants, cooperative agreements, or contracts. Finally, as a vital part of its purpose, SBA also provides direct financial assistance to homeowners, renters, and businesses to repair or replace their property in the aftermath of a disaster.
SBA's regulatory policy reflects a commitment to developing regulations that reduce or eliminate the burden on the public, in particular the Agency's core constituents—small businesses. SBA's regulatory process generally includes an assessment of the costs and benefits of the regulations as required by Executive Order No. 12866, 1993, “Regulatory Planning and Review”; Executive Order No. 13563, 2011, “Improving Regulation and Regulatory Review”; and the Regulatory Flexibility Act. SBA's program offices are particularly invested in finding ways to
SBA promotes transparency, collaboration, and public participation in its rulemaking process. To that end, SBA routinely solicits comments on its regulations, even those that are not subject to the public notice and comment requirement under the Administrative Procedure Act. Where appropriate, SBA also conducts hearings, webinars, and other public events as part of its regulatory process.
The SBA Strategic Plan serves as the foundation for the regulations that the Agency will develop during the next twelve months. This Strategic Plan provides a framework for strengthening, streamlining, and simplifying SBA's programs; and leverages collaborative relationships with other agencies and the private sector to maximize the tools small business owners and entrepreneurs need to drive American innovation and strengthen the economy. The plan sets out four Strategic Goals: (1) Support small business revenue and job growth; (2) build healthy entrepreneurial ecosystems and create business friendly environments; (3) restore small businesses and communities after disasters; and (4) strengthen SBA's ability to serve small businesses. The regulations reported in SBA's semi-annual Regulatory Agenda and Plan are intended to facilitate achievement of these goals and objectives.
Over the past 18 months, SBA's regulatory activities focused primarily on rulemakings that were necessary to implement the Paycheck Protection Program and the Economic Injury Disaster Loan program, which made it possible for millions of businesses, sole proprietors, independent contractors, certain non-profits, and veterans' organizations, among other entities, to receive financial assistance to alleviate the economic crisis caused by the COVID-19 pandemic. Over the next 12 months, SBA will take further regulatory action if necessary to tweak requirements for the programs to further advance the country's economic recovery.
To the extent possible and consistent with the Agency's statutory purpose, SBA will also take steps to support the Administration's priorities highlighted in
As small businesses across multiple industries continue to face economic uncertainties, SBA will continue to provide financial assistance consistent with existing statutory authorities to help alleviate the financial burdens still facing small businesses. SBA will take steps, including regulatory action where necessary, to modify requirements for its various COVID-related assistance programs to alleviate burdens on eligible program recipients and further advance the country's economic recovery. For example, the interim final rule (RIN: 3245-AH80) included in SBA's Fall Regulatory Agenda expands the number of small businesses, nonprofit organizations, qualified agricultural businesses, and independent contractors within various sectors of the economy that are eligible for a loan under the COVID-EIDL program and also expands the eligible uses of loan proceeds. These and other program amendments made by the rule will increase the flow of funds to the businesses and put them in a better position to recover from the economic losses caused by the pandemic, sustain their operations and retain or hire employees. SBA's other currently available COVID financial assistance programs do not require regulations; however, the Agency is committed to ensuring that they are executed in a manner that are as impactful as the loan program.
As evidenced by SBA's equity assessment report, the Agency has made great strides in identifying potential barriers facing underserved and marginalized communities and ways in which SBA can help to overcome those barriers. The responsive actions identified to date do not require regulations for implementation and include the following: Promoting greater access for small businesses to all our programs including addressing language and cultural differences and social economic factors; targeting lending groups that work with underserved communities; improving outreach through technology and addressing digital/technological divide. To help identify gaps and develop a more targeted outreach effort, SBA will continue to revise information collection instruments and enter into agreements with federal statistical agencies to gather demographic data on recipients of its programs and services.
To help combat the climate change crisis, SBA is implementing a multi-year priority goal to help prepare and rebuild resilient communities by enhancing communication efforts for mitigation. SBA's regulations in 13 CFR part 123 contain the legal framework for financing projects specifically targeted for pre-disaster and post-disaster mitigation projects. Proceeds from other SBA financing programs can also be used for mitigating measures. At this point no regulations are necessary to implement any of these options; therefore, SBA will focus its efforts on educating the public on the benefits of investing in mitigation and resilience projects and also on increasing awareness of SBA loan programs that can be used for renovating, retrofitting, or purchasing buildings and equipment to reduce greenhouse gas emissions; improving energy efficiency; or enabling the development of innovative solutions that support the green economy.
In the context of its Regulatory Agenda, SBA plans to prioritize the regulations that are necessary to implement new authority for SBA to take over responsibility from the Department of Veterans Affairs (VA) for certifying veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs) for sole source and set-asides contracts. Section 862 of the NDAA FY 2021 requires transfer of the program to SBA on January 1, 2023. SBA is prioritizing development of the required rulemaking to ensure that the affected public is aware of the regulatory requirements that will govern the VOSB and SDVOSB certification process at SBA and that the Agency is positioned to begin certifications on the transfer date. This statutorily mandated program is consistent with SBA's ongoing efforts to support businesses in underserved markets, including veteran-
The Veteran-Owned Small Business (VOSB) and Service-Disabled Veteran-Owned Small Business (SDVOSB) Programs, as managed by the Department of Veterans Affairs (VA) in compliance with 38 U.S.C. 8127, authorize Federal contracting officers to restrict competition to eligible VOSBs and SDVOSBs for VA contracts. There is currently no government wide VOSB set-aside program, and firms seeking to be awarded SDVOSB set-aside contracts with Federal agencies other than the VA are required only to self-certify their SDVOSB status. Section 862 of the National Defense Authorization Act, Fiscal Year 2021, Public Law 116-283, 128 Stat. 3292 (January 1, 2021), amended the VA certification authority and transferred the responsibility for certification of VOSBs and SDVOSBs to SBA and created a government-wide certification requirement for SDVOSBs seeking sole source and set-aside contracts.
Before SBA officially takes over responsibility for the certification on January 1, 2023, the Agency must put in place the regulations and other guidance that will govern the certification program at SBA. As a first step in this process, SBA will publish an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public input on how to implement a program that would best serve the needs of America's veterans who aspire to start or grow their businesses and access the billions of dollars in contracts that Federal agencies award annually. SBA will seek comments on how the certification processes are currently working, how they can be improved, and how best to incorporate those improvements into any new certification program at SBA. Shortly after evaluating the comments received on the ANPRM, SBA will issue a proposed rule to set out how the Agency plans to structure the certification program and to solicit final public comments.
We administer the Retirement, Survivors, and Disability Insurance programs under title II of the Social Security Act (Act), the Supplemental Security Income (SSI) program under title XVI of the Act, and the Special Veterans Benefits program under title VIII of the Act. As directed by Congress, we also assist in administering portions of the Medicare program under title XVIII of the Act. Our regulations codify the requirements for eligibility and entitlement to benefits and our procedures for administering these
The entries in our regulatory plan represent issues of major importance to the Agency. Through our regulatory plan, we intend to:
A. Simplify a specific policy within the SSI program by no longer considering food expenses as a source of In-Kind Support and Maintenance (RIN 0960-AI60);
B. Revise our regulations to confirm that we will allow a $20 tolerance that prevents us from assessing In-Kind Support and Maintenance if an SSI claimant is close to meeting his or her fair share of expenses (RIN 0960-AI68); and
C. Simplify policies and business processes while assisting vulnerable populations who may need assistance providing their intent to file and recording their protective filing. We would also allow third parties who are assisting the potential claimants to submit a written statement regardless of whether the written inquiry is signed, which will protect claimants who are unable to provide the information by themselves (RIN 0960-AI69).
Two of our regulations target changes to the In-Kind Support and Maintenance policy in our SSI program. They would simplify a specific policy within the SSI program by no longer considering food expenses as a source of ISM (RIN 0960-AI60) and would revise our regulations to confirm that we will allow a $20 tolerance that prevents us from assessing In-Kind Support and Maintenance if an SSI claimant is close to meeting his or her fair share of expenses (RIN 0960-AI68).
In addition, our proposed regulations would simplify policies and business processes while assisting vulnerable populations who may need assistance providing their intent to file and recording their protective filing. The proposed regulation would allow third parties who are assisting the potential claimants to submit a written statement regardless of whether the written inquiry is signed, which will protect claimants who are unable to provide the information by themselves (RIN 0960-AI69).
We are not including any of our regulations in the final rule stage in this statement of regulatory priorities.
Pursuant to section 6 of Executive Order 13563, “Improving Regulation and Regulatory Review” (January 18, 2011), SSA regularly engages in retrospective review and analysis for multiple existing regulatory initiatives. These initiatives may be proposed or completed actions, and they do not necessarily appear in The Regulatory Plan. You can find more information on these completed rulemakings in past publications of the Unified Agenda at
Revising the regulations and combining them to provide one set of rules for both situations will simplify policies and business processes while assisting vulnerable populations who may need assistance providing their intent to file and recording their protective filing.
Amending both regulations to allow third parties who are assisting the potential claimants to submit a written statement regardless of whether the written inquiry is signed will protect claimants who are unable to provide the information by themselves.
The Federal Acquisition Regulation (FAR) was established to codify uniform policies for acquisition of supplies and services by executive agencies. It is issued and maintained jointly under the statutory authorities granted to the Secretary of Defense, Administrator of General Services, and the Administrator, National Aeronautics and Space Administration, known as the Federal Acquisition Regulatory Council (FAR Council). Overall statutory authority is found at chapters 11 and 13 of title 41 of the United States Code.
Pursuant to Executive Order 12866, “Regulatory Planning and Review” (September 30, 1993) and Executive Order 13563, “Improving Regulation and Regulatory Review” (January 18, 2011), the Regulatory Plan and Unified Agenda provide notice about the FAR Council's proposed regulatory and deregulatory actions within the Executive Branch. The Fall 2021 Unified Agenda consists of forty-seven (48) active agenda items.
The FAR Council is required to amend the Federal Acquisition Regulation to implement statutory and policy initiatives. The FAR Council prioritization is focused on initiatives that:
• Promote the country's economic resilience, including addressing COVID-related issues.
• Tackle the climate change emergency.
• Support equity and underserved communities; and
• Support national security efforts, especially safeguarding Federal Government information and information technology systems.
FAR Case 2021-021, “Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors,” will promote economy and efficiency in procurement by implementing the safeguard requirements of Executive Order 14042, “Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors” dated September 9, 2021, and the guidance published by the Safer Federal Workforce Task Force. Contracting with sources that provide adequate safeguards to their workers will decrease worker absence, reduce labor costs and therefore, improve the efficiency of contractors and subcontractors performing on Federal procurements.
FAR Case 2021-014, “Increasing the Minimum Wage for Contractors,” will increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by increasing the hourly minimum wage paid to those contractors in accordance with Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors” dated April 27, 2021, and Department of Labor regulations at 29 CFR part 23.
FAR Case 2021-008, Amendments to the FAR Buy American Act Requirements, will strengthen the impact of the Buy American Act through amendments, such as increasing the domestic content threshold and enhancing price preference for critical domestic products, in accordance with section 8 of Executive Order 14005, “Ensuring the
FAR Case 2021-015, “Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk,” will consider requiring major Federal suppliers to publicly disclose greenhouse gas emissions and climate-related financial risk, and to set science-based reductions targets per section 5(b)(i) of Executive Order 14030, “Climate-Related Financial Risk.”
FAR Case 2021-016, “Minimizing the Risk of Climate Change in Federal Acquisitions,” will consider amendments to ensure major agency procurements minimize the risk of climate change and require consideration of the social cost of greenhouse gas emissions in procurement decisions per section 5(b)(ii) of Executive Order 14030, “Climate-Related Financial Risk.”
FAR Case 2021-010, “Subcontracting to Puerto Rican and Other Small Businesses,” will provide contracting incentives to mentors that subcontract to protege firms that are Puerto Rican businesses in accordance with section 861 of the National Defense Authorization Act of Fiscal Year 2019 as implemented in the Small Business Administration final rule published October 16, 2020.
FAR Case 2021-012, 8(a) Program, will implement regulatory changes made to the 8(a) Business Development Program by the Small Business Administration, in its final rule published in the
FAR Case 2020-013, “Certification of Women-Owned Small Businesses,” will implement the statutory requirement for certification of women-owned and economically disadvantaged women-owned small businesses participating in the Women-Owned Small Business Program, as implemented by the Small Business Administration in its final rule published May 11, 2020.
FAR Case 2019-007, “Update of Historically Underutilized Business Zone Program,” will implement SBA's regulatory changes issued in its final rule published on November 26, 2019. The regulatory changes are intended to reduce the regulatory burden associated with the Historically Underutilized Business Zone (HUBZone) Program.
FAR Case 2021-017, “Cyber Threat and Incident Reporting and Information Sharing,” will increase the sharing of information about cyber threats and incident information and require certain contractors to report cyber incidents to the Federal Government to facilitate effective cyber incident response and remediation per sections 2(b), (c), and (g)(i) of Executive Order 14028, “Improving the Nation's Cybersecurity.”
FAR Case 2021-019, “Standardizing Cybersecurity Requirements for Unclassified Information Systems,” will standardize cybersecurity contractual requirements across Federal agencies for unclassified information systems per sections 2(i) and 8(b) of Executive Order 14028, Improving the Nation's Cybersecurity.
FAR Case 2020-011, “Implementation of Issued Exclusion and Removal Orders,” will implement authorities authorized by section 2020 of the SECURE Technology Act for the Federal Acquisition Security Council (FASC), the Secretary of Homeland Security, the Secretary of Defense and the Director of National Intelligence to issue exclusion and removal orders. These exclusions and removal orders are issued to protect national security by excluding certain covered products, services, or sources from the Federal supply chain.
The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of death and injury associated with consumer products. To achieve this goal, CPSC, among other things:
• Develops mandatory product safety standards or bans when other efforts are inadequate to address a safety hazard, or where required by statute;
• obtains repairs, replacements, or refunds for defective products that present a substantial product hazard;
• develops information and education campaigns about the safety of consumer products;
• participates in the development or revision of voluntary product safety standards; and
• follows statutory mandates.
Unless otherwise directed by congressional mandate, when deciding which of these approaches to take in any specific case, CPSC gathers and analyzes data about the nature and extent of the risk presented by the product. The Commission's rules at 16 CFR 1009.8 require the Commission to consider the following criteria, among other factors, when deciding the level of priority for any particular project:
• The frequency and severity of injuries;
• the causality of injuries;
• chronic illness and future injuries;
• costs and benefits of Commission action;
• the unforeseen nature of the risk;
• the vulnerability of the population at risk;
• the probability of exposure to the hazard; and
• additional criteria that warrant Commission attention.
Currently, the Commission is considering taking action in the next 12 months on one rule, table saws (RIN 3041-AC31), which would constitute a “significant regulatory action” under the definition of that term in Executive Order 12866.
The Federal Trade Commission is an independent agency charged with rooting out unfair methods of competition and unfair or deceptive acts or practices. This mission is vital to our national interest because, when markets are fair and competitive, honest businesses and consumers alike reap the rewards. The Commission is committed to deploying all its tools to realize this mission.
In 2021, a number of changed circumstances caused the Commission to consider deploying new tools to advance its mission. First, the Supreme Court decided that the Commission cannot invoke its authority under Section 13(b) of the FTC Act to seek restitution or disgorgement in federal court.
The Commission is particularly focused on developing rules that allow the agency to recover redress for consumers who have been defrauded and seek penalties for firms that engage in data abuses. The Commission's recent action to prohibit Made in USA labeling fraud offers a model for how the agency can deter the worst abuses without imposing burdens on honest businesses.
Among the many pressing issues consumers confront in the modern economy, the abuses stemming from surveillance-based business models are particularly alarming. The Commission is considering whether rulemaking in this area would be effective in curbing lax security practices, limiting intrusive surveillance, and ensuring that algorithmic decision-making does not result in unlawful discrimination. Importantly, it is not only consumers that are threatened by surveillance-based business models but also competition.
Over the coming year, the Commission will also explore whether rules defining certain “unfair methods of competition” prohibited by section 5 of the FTC Act would promote competition and provide greater clarity to the market. A recent Executive Order encouraged the Commission to consider competition rulemakings relating to non-compete clauses, surveillance, the right to repair, pay-for-delay pharmaceutical agreements, unfair competition in online marketplaces, occupational licensing, real-estate listing and brokerage, and industry-specific practices that substantially inhibit competition.
Recently, the Commission published in the
In 1992, the Commission implemented a program to review its rules and guides on a regular basis. The Commission's review program is patterned after provisions in the Regulatory Flexibility Act, 5 U.S.C. 601-612, and complies with the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission's review program is also consistent with section 5(a) of Executive Order 12866, which directs executive branch agencies to reevaluate periodically all their significant regulations.
The program provides an ongoing, systematic approach for obtaining information about the costs and benefits of rules and guides and whether there are changes that could minimize any adverse economic effects, not just a “significant economic impact upon a substantial number of small entities.”
On July 2, 2021, the Commission issued an updated ten-year review schedule.
During the first quarter of 2022, staff anticipates that the Commission will propose a rulemaking to update the HSR Form and Instructions to the new cloud-based, e-filing system, which will eliminate paper filings.
The following proceedings for the retrospective review of Commission rules and guides described in the 2020 Regulatory Plan are ongoing:
Since the publication of the 2020 Regulatory Plan, the Commission has initiated or plans to take further steps as described below in the following rulemaking proceedings:
Since the publication of the 2020 Regulatory Plan, the Commission has issued the following final agency actions in rulemaking proceedings:
The Commission has no proposed rule that would be a “significant regulatory action” under the definition in Executive Order 12866. The Commission also has no proposed rule that would have significant international impacts, or any international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations, as defined in Executive Order 13609.
The actions under consideration advance the Commission's mission by informing and protecting consumers while minimizing burdens on honest businesses. The Commission continues to identify and weigh the costs and benefits of proposed regulatory actions and possible alternative actions.
In 1988, Congress adopted the Indian Gaming Regulatory Act (IGRA) (Pub L. 100-497, 102 Stat. 2475) with a primary purpose of providing “a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” IGRA established the National Indian Gaming Commission (NIGC or the Commission) to protect such gaming, amongst other things, as a means of generating tribal revenue for strengthening tribal governance and tribal communities.
At its core, Indian gaming is a function of sovereignty exercised by tribal governments. In addition, the Federal government maintains a government-to-government relationship with the tribes—a responsibility of the NIGC. Thus, while the Agency is committed to strong regulation of Indian gaming, the Commission is equally committed to strengthening government-to-government relations by engaging in meaningful consultation with tribes to fulfill IGRA's intent. The NIGC's vision is to adhere to principles of good government, including transparency to promote agency accountability and fiscal responsibility, to operate consistently to ensure fairness and clarity in the administration of IGRA, and to respect the responsibilities of each sovereign in order to fully promote tribal economic development, self-sufficiency, a strong workforce, and strong tribal governments.
As an independent regulatory agency, the NIGC has been performing a retrospective review of its existing regulations. The NIGC recognizes the importance of Executive Order 13563, issued on January 18, 2011, and its regulatory review is being conducted in the spirit of Executive Order 13563, to identify those regulations that may be outmoded, ineffective, insufficient, or excessively burdensome and to modify, streamline, expand, or repeal them in accordance with input from the public. In addition, as required by Executive Order 13175, issued on November 6, 2000, the Commission has been conducting government-to-government consultations with tribes regarding each regulation's relevancy, consistency in application, and limitations or barriers to implementation, based on the tribes' experiences. The consultation process is also intended to result in the identification of areas for improvement and needed amendments, if any, new regulations, and the possible repeal of outdated regulations.
The following Regulatory Identifier Numbers (RINs) have been identified as associated with the review:
More specifically, the NIGC is currently considering promulgating new regulations in the following areas: (i) Amendments to its regulatory definitions to conform to the newly-promulgated rules; (ii) updates or revisions to its management contract regulations to address the current state of the industry; (iii) updates or revisions to the existing audit regulations to reduce cost burdens for small or charitable gaming operations; (iv) the review and revision of the minimum technical standards for Class II gaming; (v) the review and revision of the minimum internal control standards (MICS) for Class II gaming; (vi) background and licensing; (vii) self-regulation of Class II gaming activities; (viii) gaming ordinance submission requirements; (ix) substantial violations; (x) appeals to the Commission; (xi) facility license notification and submission; (xii) fees; (xiii) updating its regulations concerning suspension of licenses issued to Key Employees and Primary Management Officials who the NIGC determines are not eligible for employment; (xiv) amending its regulations concerning fee rate assessment, carry over status reporting process, budget commitments for maintaining transition funds, and fee rate calculation guidelines for self-regulated tribes; (xv) amending a substantial violations identified in its regulations to provide that closure for a tribe's failure to construct and operate its gaming operation in a manner that adequately protects the environment, public health, and safety includes issues related to cyber-security.
NIGC is committed to staying up-to-date on developments in the gaming industry, including best practices and emerging technologies. Further, the Commission aims to continue reviewing its regulations to determine whether they are overly burdensome to tribes and industry stakeholders, including smaller or rural operations. The NIGC anticipates that the ongoing consultations with tribes will continue to play an important role in the development of the NIGC's rulemaking efforts.
Under the authority of the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, as amended, the U.S. Nuclear Regulatory Commission (NRC) regulates the possession and use of source, byproduct, and special nuclear material. Our regulatory mission is to license and regulate the Nation's civilian use of byproduct, source, and special nuclear materials to ensure adequate protection of public health and safety and promote the common defense and security. As part of our mission, we regulate the operation of nuclear power plants and fuel-cycle plants; the safeguarding of nuclear materials from theft and sabotage; the safe transport, storage, and disposal of radioactive materials and wastes; the decommissioning and safe release for other uses of licensed facilities that are no longer in operation; and the medical, industrial, and research applications of nuclear material. In addition, we license the import and export of radioactive materials.
As part of our regulatory process, we routinely conduct comprehensive regulatory analyses that examine the costs and benefits of contemplated regulations. We have developed internal procedures and programs to ensure that we impose only necessary requirements on our licensees and to review existing regulations to determine whether the requirements imposed are still necessary.
Our regulatory priorities for fiscal year (FY) 2022 reflect our safety and security mission and will enable us to achieve our two strategic goals described in NUREG-1614, Volume 7, “Strategic Plan: Fiscal Years 2018-2022” (
This section contains information on some of our most important and significant regulatory actions that we are considering issuing in proposed or final form during FY 2022. The NRC's high-priority rulemaking titled “Risk-Informed, Technology Inclusive Regulatory Framework for Advanced Reactors (RIN 3150-AK31; NRC-2019-0062)” is not included in this report due to the timeframe for reporting, as the agency will not be publishing it in proposed or final form during FY 2022. The proposed rule is expected to be published in FY 2023. For additional information on NRC rulemaking activities and on a broader spectrum of our upcoming regulatory actions, see our portion of the Unified Agenda of Regulatory and Deregulatory Actions. We also provide additional information on planned rulemaking and petition for rulemaking activities, including priority and schedule, on our website at
The following rulemaking activity meets the requirements of a significant regulatory action in Executive Order 12866, “Regulatory Planning and Review,” because it is likely to have an annual effect on the economy of $100 million or more.
The Nuclear Energy Innovation and Modernization Act (NEIMA) requires the NRC to assess and collect service fees and annual fees in a manner that ensures that, to the maximum extent practicable, the amount assessed and collected approximates the NRC's total budget authority for that fiscal year less the NRC's budget authority for excluded activities. NEIMA requires that the fees for FY 2022 be collected by September 30, 2022.
Office of the Secretary, USDA.
Semiannual Regulatory Agenda.
This agenda provides summary descriptions of significant and not significant regulations being developed in agencies of the U.S. Department of Agriculture (USDA) in conformance with Executive Orders 12866, “Regulatory Planning and Review,” and 13563, “Improving Regulation and Regulatory Review.” The agenda also describes regulations affecting small entities as required by section 602 of the Regulatory Flexibility Act, Public Law 96-354. This agenda also identifies regulatory actions that are being reviewed in compliance with section 610(c) of the Regulatory Flexibility Act. We invite public comment on those actions as well as any regulation consistent with Executive Order 13563.
USDA has attempted to list all regulations and regulatory reviews pending at the time of publication except for minor and routine or repetitive actions, but some may have been inadvertently missed. There is no legal significance to the omission of an item from this listing. Also, the dates shown for the steps of each action are estimated and are not commitments to act on or by the date shown.
USDA's complete regulatory agenda is available online at
(1) Rules that are likely to have a significant economic impact on a substantial number of small entities; and
(2) Rules identified for periodic review under section 610 of the Regulatory Flexibility Act.
For this edition of the USDA regulatory agenda, the most important regulatory actions are summarized in a Statement of Regulatory Priorities that is included in the Regulatory Plan, which appears in both the online regulatory agenda and in part II of the
For further information on any specific entry shown in this agenda, please contact the person listed for that action. For general comments or inquiries about the agenda, please contact Mr. Michael Poe, Office of Budget and Program Analysis, U.S. Department of Agriculture, Washington, DC 20250, (202) 720-3257.
• Limiting the types of operations in the organic supply chain that are not required to obtain organic certification;
• Imported organic products must be accompanied by an electronic import certificate to validate organic status;
• Import certificates will be submitted to the U.S. Customs and Border Protection's Automated Commercial Environment (ACE);
• Certifying agents must notify USDA within 90 days of the opening of any new office that conducts certification activities; and,
• Entities acting on behalf of certifying agents may be suspended when there is noncompliant activity.
Maureen Lydon, Department of Agriculture, Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314,
Maureen Lydon,
Maureen Lydon,
Maureen Lydon,
Maureen Lydon,
Maureen Lydon,
Maureen Lydon,
Agency Contact: Matthew Michael, Director, Regulations Development Staff, Department of Agriculture, Food Safety and Inspection Service, Office of Policy and Program Development, 1400 Independence Avenue SW, Washington, DC 20250-3700,
Office of the Secretary, Commerce.
Semiannual Regulatory Agenda.
In compliance with Executive Order 12866, entitled “Regulatory Planning and Review,” and the Regulatory Flexibility Act, as amended, the Department of Commerce (Commerce), in the spring and fall of each year, publishes in the
Commerce's fall 2021 regulatory agenda includes regulatory activities that are expected to be conducted during the period November 1, 2021, through October 31, 2022.
Commerce hereby publishes its fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions pursuant to Executive Order 12866 and the Regulatory Flexibility Act, 5 U.S.C. 601
The internet is the basic means for disseminating the Unified Agenda. The complete Unified Agenda is available online at
In this edition of Commerce's regulatory agenda, a list of the most important significant regulatory and deregulatory actions and a Statement of Regulatory Priorities are included in the Regulatory Plan, which appears in both the online Unified Agenda and in part II of the issue of the
Because publication in the
(1) Rules that are in the Agency's regulatory flexibility agenda, in accordance with the Regulatory Flexibility Act, because they are likely to have a significant economic impact on a substantial number of small entities; and
(2) Rules that the Agency has identified for periodic review under section 610 of the Regulatory Flexibility Act.
Printing of these entries is limited to fields that contain information required by the Regulatory Flexibility Act's Agenda requirements. Additional information on these entries is available in the Unified Agenda published on the internet. In addition, for fall editions of the Agenda, Commerce's entire Regulatory Plan will continue to be printed in the
Within Commerce, the Office of the Secretary and various operating units may issue regulations. Among these operating units, the National Oceanic and Atmospheric Administration (NOAA), the Bureau of Industry and Security, and the Patent and Trademark Office issue the greatest share of Commerce's regulations.
A large number of regulatory actions reported in the Agenda deal with fishery management programs of NOAA's National Marine Fisheries Service (NMFS). To avoid repetition of programs and definitions, as well as to provide some understanding of the technical and institutional elements of NMFS' programs, an “Explanation of Information Contained in NMFS Regulatory Entries” is provided below.
The Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Pursuant to the Magnuson-Stevens Act, the Councils also recommend actions to NMFS deemed necessary or appropriate to implement FMPs. The proposed regulations, FMPs, and FMP amendments are subject to review and approval by NMFS, based on consistency with the Magnuson-Stevens Act and other applicable law. The Council process for developing FMPs and amendments makes it difficult for NMFS to determine the significance and timing of some regulatory actions under consideration by the Councils at the time the semiannual regulatory agenda is published.
Commerce's fall 2021 regulatory agenda follows.
Jessica Kondel, Policy and Planning Division Chief, Department of Commerce, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Building SSMC4, Silver Spring, MD 20910,
Department of Defense (DoD).
Semiannual Regulatory Agenda.
This agenda announces the regulatory actions the Department of Defense (DoD) plans to take in the next 12 months and those regulatory actions completed since the publication of the spring 2021 Unified Agenda. It was developed under the guidelines of Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review.” This agenda includes regulatory actions that support or impact the Secretary of Defense's top priorities along with those of the National Defense Strategy to defend the Nation by taking care of our people, building a more lethal force, succeeding through teamwork, reforming business practices, and address the current worldwide pandemic. These include efforts to ensure TRICARE beneficiaries have access to the most up-to-date care required for the diagnosis and treatment of COVID-19. Members of the public may submit comments on individual proposed and interim final rulemakings at
This agenda updates the report published on July 30, 2021, and includes regulations expected to be issued and under review over the next 12 months. The next agenda will publish in the spring of 2022.
The complete Unified Agenda will be available online at
Because publication in the
(1) Rules that are in the Agency's regulatory flexibility agenda, in accordance with the Regulatory Flexibility Act, because they are likely to have a significant economic impact on a substantial number of small entities; and
(2) Any rules that the Agency has identified for periodic review under section 610 of the Regulatory Flexibility Act.
Printing of these entries is limited to fields that contain information required by the Regulatory Flexibility Act's agenda requirements. Additional information on these entries is in the Unified Agenda available online.
For information concerning the overall DoD regulatory program and for general semiannual agenda information, contact Ms. Patricia Toppings, telephone 571-372-0485, or write to Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, 1155 Defense Pentagon, Washington, DC 20301-1155, or email:
For questions of a legal nature concerning the agenda and its statutory requirements or obligations, write to Office of the General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600, telephone 703-693-9958, or email:
For general information on Office of the Secretary regulations, other than those which are procurement-related, contact Ms. Patricia Toppings, telephone 571-372-0485, or write to Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, 1155 Defense Pentagon, Washington, DC 20301-1155, or email:
For general information on Office of the Secretary regulations which are procurement-related, contact Ms. Jennifer Johnson, telephone 571-372-6100, or write to Office of the Under Secretary of Defense for Acquisition and Sustainment, Defense Pricing and Contracting, Defense Acquisition Regulations System, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060, or email:
For general information on Department of the Army regulations, contact Mr. James “Jay” Satterwhite, telephone 571-515-0304, or write to the U.S. Army Records Management and Declassification Agency, ATTN: AAHS-RDO, Building 1458, 9301 Chapek Road, Ft. Belvoir, VA 22060-5605, or email:
For general information on the U.S. Army Corps of Engineers regulations, contact Ms. Stacey Jensen, telephone 703-695-6791, or write to Office of the Assistant Secretary of the Army (Civil Works), 108 Army Pentagon, Room 3E441, Washington, DC 20310-0108, or email:
For general information on Department of the Navy regulations, contact LCDR Jenny Pike, telephone 703-614-7408, or write to Department of the Navy, Office of the Judge Advocate General, Administrative Law Division (Code 13), Washington Navy Yard, 1322 Patterson Avenue SE, Suite 3000, Washington, DC 20374-5066, or email:
For general information on Department of the Air Force regulations, contact Bao-Anh Trinh, telephone 703-614-8500, or write the Office of the Secretary of the Air Force, Chief, Information Dominance/Chief Information Officer (SAF CIO/A6), 1800 Air Force Pentagon, Washington, DC 20330-1800, or email:
For specific agenda items, contact the appropriate individual indicated for each regulatory action.
This edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions reports on actions planned by the Office of the Secretary of Defense, the Military Departments, the Office of the Under Secretary of Defense for Acquisition and Sustainment for procurement-related actions, and the U.S. Army Corps of Engineers.
This agenda also identifies rules impacted by the:
a. Regulatory Flexibility Act.
b. Paperwork Reduction Act of 1995.
c. Unfunded Mandates Reform Act of 1995.
Generally, rules discussed in this agenda will contain five sections: (1) Pre-rule stage; (2) proposed rule stage; (3) final rule stage; (4) completed actions; and (5) long-term actions. Where certain regulatory actions indicate that small entities are affected, the effect on these entities may not necessarily have significant economic impact on a substantial number of these entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601(6)).
The publishing of this agenda does not waive the applicability of the military affairs exemption in section 553 of title 5 U.S.C. and section 3 of Executive Order 12866.
DoD implemented a two-pronged approach to assess and verify the DIB's ability to protect FCI and CUI. This rule implements:
• The National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 DoD Assessment Methodology employed to assess contractor implementation of the cybersecurity requirements in NIST SP 800-171,
• The Cybersecurity Maturity Model Certification (CMMC) Framework. CMMC is a new DoD certification process to measure a DIB contractor's adherence to processes and implementation of cybersecurity practices to address and mitigate the threats posed by Advanced Persistent Threats—adversaries with sophisticated levels of expertise and significant resources.
This rule is related to DFARS clause 252.204-7021, Cybersecurity Maturity Model Certification Requirements, which specifies the requirement for assessing that DIB contractors meet CMMC requirements. This rule will specify the CMMC requirements for which the DIB contractors will be assessed.
•
•
This rule provides the Department with: (1) The ability to assess at a corporate level a contractor's implementation of NIST SP 800-171 security requirements, as required by DFARS clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting; and (2) assurances that a DIB contractor can adequately protect sensitive unclassified information at a level commensurate with the risk, accounting for information flow down to its subcontractors in a multi-tier supply chain.
Office of the Secretary, Department of Education.
Semiannual Regulatory Agenda.
The Secretary of Education publishes a semiannual agenda of Federal regulatory and deregulatory actions. The agenda is issued under the authority of section 4(b) of Executive Order 12866, “Regulatory Planning and Review.” The purpose of the agenda is to encourage more effective public participation in the regulatory process by providing the public with early information about the regulatory actions we plan to take.
Questions or comments related to specific regulations listed in this agenda should be directed to the agency contact listed for the regulations. Other questions or comments on this agenda should be directed to Jackie Collins, Program Specialist, Leslie Carter, Program Specialist, Levon Schlichter, Attorney, or Lynn Mahaffie, Assistant General Counsel, Division of Regulatory Services, Department of Education, Room 6E231, 400 Maryland Avenue SW, Washington, DC 20202-2241; telephone: Jackie Collins (202) 453-6688, Leslie Carter (202) 401-5939, Levon Schlichter (202) 453-6387, or Lynn Mahaffie (202) 453-7862. Individuals who use a telecommunications device for the deaf or a text telephone may call the Federal Relay Service at 1-800-877-8339.
Section 4(b) of Executive Order 12866, dated September 30, 1993, requires the Department of Education (ED) to publish, at a time and in a manner specified by the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, an agenda of all regulations under development or review. The Regulatory Flexibility Act, 5 U.S.C. 602(a), requires ED to publish, in the Spring and Fall of each year, a regulatory flexibility agenda.
The regulatory flexibility agenda may be combined with any other agenda that satisfies the statutory requirements (5 U.S.C. 605(a)). In compliance with the Executive order and the Regulatory Flexibility Act, the Secretary publishes this agenda.
For each set of regulations listed, the agenda provides the title of the document, the type of document, a citation to any rulemaking or other action taken since publication of the most recent agenda, and planned dates of future rulemaking. In addition, the agenda provides the following information:
• An abstract that includes a description of the problem to be addressed, any principal alternatives being considered, and potential costs and benefits of the action.
• An indication of whether the planned action is likely to have significant economic impact on a substantial number of small entities as defined by the Regulatory Flexibility Act (5 U.S.C. 601(6)).
• A reference to where a reader can find the current regulations in the Code of Federal Regulations.
• A citation of legal authority.
• The name, address, and telephone number of the contact person at ED from whom a reader can obtain additional information regarding the planned action.
In accordance with ED's Principles for Regulating listed in its regulatory plan (78 FR 1361, published January 8, 2013), ED is committed to regulations that improve the quality and equality of services it provides to its customers. ED will regulate only if absolutely necessary and then in the most flexible, most equitable, and least burdensome way possible.
Interested members of the public are invited to comment on any of the items listed in this agenda that they believe are not consistent with the Principles for Regulating. Members of the public are also invited to comment on any uncompleted actions in this agenda that ED plans to review under section 610 of the Regulatory Flexibility Act (5 U.S.C. 610) to determine their economic impact on small entities.
This publication does not impose any binding obligation on ED with regard to any specific item in the agenda. ED may elect not to pursue any of the regulatory actions listed here. Dates of future regulatory actions are subject to revision in subsequent agendas.
References in boldface appear in The Regulatory Plan in part II of this issue of the
Department of Energy.
Semiannual Regulatory Agenda.
The Department of Energy (DOE) has prepared and is making available its portion of the semiannual Unified Agenda of Federal Regulatory and Deregulatory Actions (Agenda), including its Regulatory Plan (Plan), pursuant to Executive Order 12866, “Regulatory Planning and Review,” and the Regulatory Flexibility Act.
The Agenda is a government-wide compilation of upcoming and ongoing regulatory activity, including a brief description of each rulemaking and a timetable for action. The Agenda also includes a list of regulatory actions completed since publication of the last Agenda. The Department of Energy's portion of the Agenda includes regulatory actions called for by the Energy Policy and Conservation Act of 1975, as amended, and programmatic needs of DOE offices.
The internet is the basic means for disseminating the Agenda and providing users the ability to obtain information from the Agenda database. DOE's entire Fall 2021 Regulatory Agenda can be accessed online by going to
Publication in the
Office of the Secretary, HHS.
Semiannual Regulatory Agenda.
The Regulatory Flexibility Act of 1980 and Executive Order (E.O.) 12866 require the semiannual issuance of an inventory of rulemaking actions under development throughout the Department, offering for public review summarized information about forthcoming regulatory actions.
Karuna Seshasai, Executive Secretary, Department of Health and Human Services, 200 Independence Avenue SW, Washington, DC 20201; (202) 690-5627.
The Department of Health and Human Services (HHS) is the Federal government's lead agency for protecting the health of all Americans and providing essential human services. HHS enhances the health and well-being of Americans by promoting effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services.
This Agenda presents the regulatory activities that the Department expects to undertake in the foreseeable future to advance this mission. The purpose of the Agenda is to encourage more effective public participation in the regulatory process. The regulatory actions forecasted in this Agenda reflect the priorities of HHS Secretary Xavier Becerra and the Biden-Harris Administration. Accordingly, this Agenda contains rulemakings aimed at tackling the coronavirus disease 2019 (COVID-19) pandemic, building and expanding access to affordable health care, addressing health disparities and promoting equity, and boosting the wellbeing of children and families, among other policy priorities.
The rulemaking abstracts included in this paper issue of the
Matthew Brenner, Senior Regulatory Counsel, Department of Health and Human Services, Food and Drug Administration, Center for Tobacco Products, 10903 New Hampshire Avenue, Document Control Center, Building 71, Room G335, Silver Spring, MD 20993,
Office of the Secretary, DHS.
Semiannual Regulatory Agenda.
This regulatory agenda is a semiannual summary of projected regulations, existing regulations, and completed actions of the Department of Homeland Security (DHS) and its components. This agenda provides the public with information about DHS's regulatory and deregulatory activity. DHS expects that this information will enable the public to be more aware of, and effectively participate in, the Department's regulatory and deregulatory activity. DHS invites the public to submit comments on any aspect of this agenda.
Please direct general comments and inquiries on the agenda to the Regulatory Affairs Law Division, Office of the General Counsel, U.S. Department of Homeland Security, 2707 Martin Luther King Jr. Avenue SE, Mail Stop 0485, Washington, DC 20528-0485.
Please direct specific comments and inquiries on individual actions identified in this agenda to the individual listed in the summary portion as the point of contact for that action.
DHS provides this notice pursuant to the requirements of the Regulatory Flexibility Act (Pub. L. 96-354, Sept. 19, 1980) and Executive Order 12866 “Regulatory Planning and Review” (Sept. 30, 1993) as incorporated in Executive Order 13563 “Improving Regulation and Regulatory Review” (Jan. 18, 2011), which require the Department to publish a semiannual agenda of regulations. The regulatory agenda is a summary of existing and projected regulations as well as actions completed since the publication of the last regulatory agenda for the Department. DHS's last semiannual regulatory agenda was published online on June 11, 2021, at
Beginning in fall 2007, the internet became the basic means for disseminating the Unified Agenda. The complete Unified Agenda is available online at
The Regulatory Flexibility Act (5 U.S.C. 602) requires Federal agencies to publish their regulatory flexibility agendas in the
The semiannual agenda of the Department conforms to the Unified Agenda format developed by the Regulatory Information Service Center.
Nancy Harvey, Policy Analyst, Department of Homeland Security, Office of the Chief Procurement Officer, Room 3636-15, 301 7th Street SW, Washington, DC 20528,
Nancy Harvey, Policy Analyst, Department of Homeland Security, Office of the Chief Procurement Officer, Room 3636-15, 301 7th Street SW, Washington, DC 20528,
Nancy Harvey, Policy Analyst, Department of Homeland Security, Office of the Chief Procurement Officer, Room 3636-15, 301 7th Street SW, Washington, DC 20528,
Alex Moscoso, Chief Economist, Economic Analysis Branch—Coordination & Analysis Division, Department of Homeland Security, Transportation Security Administration, Policy, Plans, and Engagement, 6595 Springfield Center Drive, Springfield, VA 20598-6028,
Traci Klemm, Assistant Chief Counsel, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Chief Counsel's Office, 6595 Springfield Center Drive, Springfield, VA 20598-6002,
Office of the Secretary, Interior.
Semiannual Regulatory Agenda.
This notice provides the semiannual agenda of Department of the Interior (Department) rules scheduled for review or development between Fall 2021 and Fall 2022. The Regulatory Flexibility Act and Executive Order 12866 require publication of the agenda.
Unless otherwise indicated, all agency contacts are located at the Department of the Interior, 1849 C Street NW, Washington, DC 20240.
Please direct all comments and inquiries about these rules to the appropriate agency contact. Please direct general comments relating to the agenda to the Office of Executive Secretariat and Regulatory Affairs, Department of the Interior, at the address above or at (202) 208-3181.
With this publication, the Department satisfies the requirement of Executive Order 12866 that the Department publish an agenda of rules that we have issued or expect to issue and of currently effective rules that we have scheduled for review.
Simultaneously, the Department meets the requirement of the Regulatory Flexibility Act (5 U.S.C. 601
This edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions includes The Regulatory Plan, which appears in both the online Unified Agenda and in part II of the
In some cases, the Department has withdrawn rules that were placed on previous agendas for which there has been no publication activity or for which a proposed or interim rule was published. There is no legal significance to the omission of an item from this agenda. Withdrawal of a rule does not necessarily mean that the Department will not proceed with the rulemaking. Withdrawal allows the Department to assess the action further and determine whether rulemaking is appropriate. Following such an assessment, the Department may determine that certain rules listed as withdrawn under this agenda are appropriate for promulgation.
Agency Contact: Kirk Malstrom, Chief, Regulations and Standards Branch, Department of the Interior, Bureau of Safety and Environmental Enforcement, 45600 Woodland Road, Sterling, VA 20166,
Agency Contact: Jerome Ford, Assistant Director--Migratory Bird Program, Department of the Interior, United States Fish and Wildlife Service, 5275 Leesburg Pike, MS-MB, Falls Church, VA 22041-3803,
Agency Contact: Peter Meffert, Regulatory Specialist, Department of the Interior, Bureau of Ocean Energy Management, 45600 Woodland Road, Sterling, VA 20166,
Office of the Secretary, Labor.
Semiannual Regulatory Agenda.
The internet has become the means for disseminating the entirety of the Department of Labor's semiannual regulatory agenda. However, the Regulatory Flexibility Act requires publication of a regulatory flexibility agenda in the
Laura M. Dawkins, Director, Office of Regulatory and Programmatic Policy, Office of the Assistant Secretary for Policy, U.S. Department of Labor, 200 Constitution Avenue NW, Room S-2312, Washington, DC 20210; (202) 693-5959.
Information pertaining to a specific regulation can be obtained from the agency contact listed for that particular regulation.
Executive Order 12866 requires the semiannual publication of an agenda of regulations that contains a listing of all the regulations the Department of Labor expects to have under active consideration for promulgation, proposal, or review during the coming one-year period. The entirety of the Department's semiannual agenda is available online at
The Regulatory Flexibility Act (5 U.S.C. 602) requires DOL to publish in the
All interested members of the public are invited and encouraged to let departmental officials know how our regulatory efforts can be improved and are invited to participate in and comment on the review or development of the regulations listed on the Department's agenda.
Office of the Secretary, DOT.
Unified Agenda of Federal Regulatory and Deregulatory Actions (Regulatory Agenda).
The Regulatory Agenda is a semiannual summary of all current and projected rulemakings, reviews of existing regulations, and completed actions of the Department of Transportation. The intent of the Agenda is to provide the public with information about the Department of Transportation's regulatory activity planned for the next 12 months. It is expected that this information will enable the public to participate more effectively in the Department's regulatory process. The public is also invited to submit comments on any aspect of this Agenda.
You should direct all comments and inquiries on the Agenda in general to Daniel Cohen, Assistant General Counsel for Regulation, Office of the General Counsel, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590; (202) 366-4702.
You should direct all comments and inquiries on items in the Agenda to the individual listed for the regulation or the general rulemaking contact person for the operating administration in appendix B.
The U.S. Department of Transportation (Department or DOT) issues regulations to ensure that the United States transportation system is the safest in the world and address other urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID-19) pandemic, job creation, equity, and climate change. These issues are addressed, in part, by encouraging innovation, thereby ensuring that the Department's regulations keep pace with the latest developments and reflect its top priorities.
To help the Department achieve its goals and in accordance with Executive Order (E.O.) 12866, “Regulatory Planning and Review,” (58 FR 51735; Oct. 4, 1993), the Department prepares a semiannual Agenda. The Agenda summarizes all current and projected rulemakings, reviews of existing regulations, and completed actions of the Department. These are matters on which action has begun or is projected to begin during the next 12 months or for which action has been completed since the publication of the last Agenda in July 2021.
The Department's actions are also governed by several recent executive orders issued by the President, which direct agencies to utilize all available regulatory tools to address current national challenges. On January 20, 2021, the President signed Executive Order 13992, Revocation of Certain Executive Orders Concerning Federal Regulation. This Executive Order directs Federal agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies that would hamper the agencies' flexibility to use robust regulatory action to address national priorities. On January 20, the President also issued Executive Order 13990, Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis. This Executive Order directs Federal agencies to review all regulatory actions issued in the previous Administration and revise or rescind any of those actions that do not adequately respond to climate change, protect the environment, advance environmental justice, or improve public health. Section 2(a)(ii) of Executive Order 13990 specifically requires the Department of Transportation to review “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 FR 51310 (September 27, 2019) (SAFE I Rule) and “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks,” 85 FR 24174 (April 30, 2020) (SAFE II Rule).
On July 9, 2021, the President signed Executive Order 14036, Promoting Competition in the American Economy. Among other things, this Executive Order requires the Department to enhance consumer access to airline flight information and ensure that consumers are not exposed or subject to advertising, marketing, pricing, and charging of ancillary fees that may constitute an unfair or deceptive practice or an unfair method of competition. This Executive Order also requires the Department to: (1) Publish a notice of proposed rulemaking (NPRM) requiring airlines to refund baggage fees when a passenger's luggage is substantially delayed and other ancillary fees when passengers pay for a service that is not provided; and (2) consider initiating a rulemaking to ensure that consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees,” at the time of ticket purchase.
On August 5, 2021, the President signed Executive Order 14037, Strengthening American Leadership in Clean Cars and Trucks. This Executive Order requires that the Department consider beginning work on a rulemaking to establish new fuel economy standards for passenger cars and light-duty trucks beginning with model year 2027 and extending through and including at least model year 2030. This Executive Order also requires the Department to consider beginning work on a rulemaking to establish new fuel efficiency standards for heavy-duty pickup trucks and vans beginning with model year 2028 and extending through and including at least model year 2030. Finally, this Executive Order requires the Department to consider beginning work on a rulemaking to establish new fuel efficiency standards for medium- and heavy-duty engines and vehicles to begin as soon as model year 2030.
In response to Executive Order 13992, in April 2021, the Department issued a final rule revising the regulations governing its regulatory process to ensure that it has the maximum flexibility necessary to quickly respond to the urgent challenges facing our Nation. Following implementation of the final rule, in June 2021, the
In response to Executive Order 13990, in May 2021, the Department issued a notice of proposed rulemaking (NPRM) proposing to repeal the SAFE I Rule and associated guidance documents. In August 2021, the Department issued a Supplemental Notice of Proposed Rulemaking inviting comments on the appropriate path forward regarding civil penalties imposed for violations of DOT's vehicle emissions rules. Finally, in September 2021, the Department issued an NPRM proposing more stringent vehicle emission limits than those set by the SAFE II Rule.
In response to Executive Orders 14036 and 14037, the Department is considering the following rulemakings: (1) Refunding Fees for Delayed Checked Bags and Ancillary Services That Are Not Provided; (2) Airline Ticket Refunds; (3) Amendments to Department's Procedures in Regulating Unfair and Deceptive Practices; and (4) fuel economy standards for passenger cars, light-duty trucks, heavy-duty pickup trucks, and vans.
The Department is also providing rapid response to, and emergency review of legal and operational challenges presented by COVID-19 within the transportation network. Since the beginning of this Administration, our efforts have focused on ensuring compliance with the mask requirements issued by the Centers for Disease Control and Prevention and the Transportation Security Administration. These requirements help reduce the spread of the COVID-19 disease within the transportation sector and among the traveling public. DOT is also addressing regulatory compliance made impracticable by the COVID-19 public health emergency due to office closures, personnel shortages, and other restrictions.
In addition to the pressing national concerns discussed above, the Department's regulatory activities are directed toward the fundamental priority of protecting public safety. Safety is our North Star; the Department remains focused on managing safety risks and ensuring that the United States has the safest transportation system in the world. Our planned regulatory actions reflect a careful balance that emphasizes the Department's robust response to the challenges facing our Nation while at the same time maintaining a safe, reliable, and sustainable transportation system that boosts our economic productivity and global competitiveness and enhances the quality of life for all Americans.
An Office of Management and Budget memorandum, dated August 16, 2021, establishes the format for this Agenda.
First, the Agenda is divided by initiating office. Then, the Agenda is divided into five categories: (1) Prerule stage; (2) proposed rule stage; (3) final rule stage; (4) long-term actions; and (5) completed actions. For each entry, the Agenda provides the following information: (1) Its “significance”; (2) a short, descriptive title; (3) its legal basis; (4) the related regulatory citation in the Code of Federal Regulations; (5) any legal deadline and, if so, for what action (
To keep the operational requirements, current for nonsignificant regulations issued routinely and frequently as a part of an established body of technical requirements (such as the Federal Aviation Administration's Airspace Rules), we only include the general category of the regulations, the identity of a contact office or official, and an indication of the expected number of regulations; we do not list individual regulations.
In the “Timetable” column, we use abbreviations to indicate the documents being considered. ANPRM stands for Advance Notice of Proposed Rulemaking, SNPRM for Supplemental Notice of Proposed Rulemaking, and NPRM for Notice of Proposed Rulemaking. Listing a future date in this column does not mean we have decided to issue a document; it is the earliest date on which a rulemaking document may publish. In addition, these dates are based on current schedules. Information received after the issuance of this Agenda could result in a decision not to take regulatory action or in changes to proposed publication dates. For example, the need for further evaluation could result in a later publication date; evidence of a greater need for the regulation could result in an earlier publication date.
Finally, a dot (•) preceding an entry indicates that the entry appears in the Agenda for the first time.
The internet is the basic means for disseminating the Unified Agenda. The complete Unified Agenda is available online at
Accordingly, DOT's printed Agenda entries include only:
1. The agency's Agenda preamble.
2. Rules that are in the agency's regulatory flexibility agenda, in accordance with the Regulatory Flexibility Act, because they are likely to have a significant economic impact on a substantial number of small entities; and
3. Any rules that the agency has identified for periodic review under section 610 of the Regulatory Flexibility Act.
Printing of these entries is limited to fields that contain information required by the Regulatory Flexibility Act's Agenda requirements. These elements are: Sequence Number; Title; Section 610 Review, if applicable; Legal Authority; Abstract; Timetable; Regulatory Flexibility Analysis Required; Agency Contact; and Regulation Identifier Number (RIN). Additional information (for detailed list, see section heading “Explanation of Information on the Agenda”) on these entries is available in the Unified Agenda published on the internet.
DOT's Agenda is intended primarily for the use of the public. Since its inception, the Department has made modifications and refinements that provide the public with more helpful information, as well as making the Agenda easier to use. We would like you, the public, to make suggestions or comments on how the Agenda could be further improved.
The Department is interested in obtaining information on requirements that have a “significant economic impact on a substantial number of small entities” and, therefore, must be reviewed under the Regulatory Flexibility Act. If you have any suggested regulations, please submit them to the Department, along with your explanation of why they should be reviewed.
In accordance with the Regulatory Flexibility Act, comments are specifically invited on regulations that we have targeted for review under section 610 of the Act. The phrase (sec. 610 Review) appears at the end of the title for these reviews. Please see appendix D for the Department's section 610 review plans.
Executive Orders 13132 and 13175 require the Department to develop a process to ensure “meaningful and timely input” by State, local, and tribal officials in the development of regulatory policies that have federalism or tribal implications. These policies are defined in the Executive orders to include regulations that have “substantial direct effects” on States or Indian tribes, on the relationship between the Federal Government and them, or on the distribution of power and responsibilities between the Federal Government and various levels of Government or Indian tribes. Therefore, we encourage State and local Governments or Indian tribes to provide us with information about how the Department's rulemakings impact them.
The Department is publishing this regulatory Agenda in the
To obtain a copy of a specific regulatory document in the Agenda, you should communicate directly with the contact person listed with the regulation at the address below. We note that most, if not all, such documents, including the Semiannual Regulatory Agenda, are available through the internet at
The following is a list of persons who can be contacted within the Department for general information concerning the rulemaking process within the various operating administrations.
FAA—Timothy R. Adams, Acting Executive Director, Office of Rulemaking, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-9677.
FHWA—Jennifer Outhouse, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-0761.
FMCSA—Steven J. LaFreniere, Regulatory Ombudsman, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-0596.
NHTSA—Dee Fujita, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-2992.
FRA—Amanda Maizel, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 493-8014.
FTA—Chaya Koffman, Office of Chief Counsel, 1200 New Jersey Avenue E, Washington, DC 20590; telephone (202) 366-3101.
GLS—Carrie Mann Lavigne, Chief Counsel, 180 Andrews Street, Massena, NY 13662; telephone (315) 764-3200.
PHMSA—Robert Ross, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 768-1365.
MARAD—Gabriel Chavez, Office of Chief Counsel, Maritime Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-2621.
OST—Daniel Cohen, Assistant General Counsel for Regulation, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-4723.
All comments submitted via the internet are submitted through the Federal Docket Management System (FDMS) at the following address:
The public also may review regulatory dockets at or deliver comments on proposed rulemakings to the Dockets Office at 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 20590, 1-800-647-5527. Working Hours: 9:00 a.m. to 5:00 p.m.
The Department of Transportation has long recognized the importance of regularly reviewing its existing regulations to determine whether they need to be revised or revoked. Our Regulatory Policies and Procedures require such reviews. DOT also has responsibilities under section 610 of the Regulatory Flexibility Act, Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (January 18, 2011) to conduct such reviews. We are committed to continuing our reviews of existing rules and, if it is needed, will initiate rulemaking actions based on these reviews. The Department began a new 10-year review cycle with the Fall 2018 Agenda.
Section 610 requires that we conduct reviews of rules that: (1) Have been published within the last 10 years; and (2) have a “significant economic impact on a substantial number of small entities” (SEISNOSE). It also requires that we publish in the
Some reviews may be conducted earlier than scheduled. For example, events, such as accidents, may result in the need to conduct earlier reviews of some rules. Other factors may also result in the need to make changes; for example, we may make changes in response to public comment on this plan or in response to a presidentially mandated review. If there is any change to the review plan, we will note the change in the following Agenda. For any section 610 review, we will provide the required notice prior to the review.
Generally, the agencies have divided their rules into 10 different groups and plan to analyze one group each year. For purposes of these reviews, a year will coincide with the fall-to-fall schedule for publication of the Agenda. Most agencies provide historical information about the reviews that have occurred over the past 10 years. Thus, Year 1 (2018) begins in the fall of 2018 and ends in the fall of 2019; Year 2 (2019) begins in the fall of 2019 and ends in the fall of 2020, and so on. The exception to this general rule is the FAA, which provides information about the reviews it completed for this year and prospective information about the reviews it intends to complete in the next 10 years. Thus, for FAA Year 1 (2017) begins in the fall of 2017 and ends in the fall of 2018; Year 2 (2018) begins in the fall of 2018 and ends in the fall of 2019, and so on. We request public comment on the timing of the reviews. For example, is there a reason for scheduling an analysis and review for a particular rule earlier than we have? Any comments concerning the plan or analyses should be submitted to the regulatory contacts listed in appendix B, General Rulemaking Contact Persons.
The agency will analyze each of the rules in each year's group to determine whether any rule has a SEISNOSE and, thus, requires review in accordance with section 610 of the Regulatory Flexibility Act. The level of analysis will, of course, depend on the nature of the rule and its applicability. Publication of agencies' section 610 analyses listed each fall in this Agenda provides the public with notice and an opportunity to comment consistent with the requirements of the Regulatory Flexibility Act. We request that public comments be submitted to the Department early in the analysis year concerning the small entity impact of the rules to help us in making our determinations.
In each Fall Agenda, the agency will publish the results of the analyses it has completed during the previous year. For rules that had a negative finding on SEISNOSE, we will give a short explanation (
The agency will also examine the specified rules to determine whether any other reasons exist for revising or revoking the rule or for rewriting the rule in plain language. In each Fall Agenda, the agency will also publish information on the results of the examinations completed during the previous year.
The Agenda identifies the pending DOT section 610 Reviews by inserting “(Section 610 Review)” after the title for the specific entry. For further information on the pending reviews, see the Agenda entries at
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden. OST's plain language review of these rules indicates no need for substantial revision.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden. OST's plain language review of these rules indicates no need for substantial revision.
• The U.S. Department of Transportation (DOT) Office of the Secretary (OST), with the assistance of its Operating Administrations, including the Federal Transit Administration (FTA), is in the process of issuing multiple rulemakings that call for changes to the regulatory language in 49 CFR part 37. Specifically, OST is administering a rulemaking titled: “Transportation for Individuals with Disabilities; Service Animals and Technical Corrections” (RIN 2105-AF08) which would propose changes to the definition of “service animal” in 49 CFR part 37.3, and several other technical corrections to outdated provisions, such as that referencing a make and model of a lift that has been out of production for three decades (49 CFR part 37.165(g)). In addition, OST is developing a rulemaking titled “Equitable Access to Transit Facilities” (RIN 2105-AF07) in which DOT would consider requirements for secondary elevators, induction loops, and improvements in wayfinding in transit stations. In conjunction with these pending rulemakings, DOT will need to conduct a section 610 review of this part, and, if appropriate, initiate additional rulemaking(s) to minimize the SEISNOSE, bring the regulation into compliance with statutory requirements,
• The U.S. Department of Transportation (DOT) Office of the Secretary (OST), with the assistance of its Operating Administrations, including the Federal Transit Administration (FTA), is in the process of issuing a rulemaking that calls for changes to the regulatory language in 49 CFR part 38. Specifically, OST is developing a rulemaking titled: “Transportation for Individuals with Disabilities; Adoption of Accessibility Standards for Buses and Vans” (RIN 2105-AF09) in order to consider new standards for accessible buses and vans based on updated accessibility guidelines issued by the U.S. Access Board (USAB) on December 14, 2016. In conjunction with this pending rulemaking, OST will need to conduct a Section 610 review of this part, and, if appropriate, initiate additional rulemaking(s) to minimize the SEISNOSE, bring the regulation into compliance with statutory requirements, and/or revise the regulation for plain language.
• Section 610: The U.S. Department of Transportation (DOT) Office of the Secretary (OST) conducted a Section 610 review of this part and found SEISNOSE. The regulation requires owners and operators of passenger vessels to (1) ensure their vessels and related facilities are accessible; and (2) take steps to accommodate passengers with disabilities. These requirements can entail significant investments from owners and operators of passenger vessels, many of whom qualify as small businesses as defined by the U.S. Small Business Administration. OST plans to explore whether it is appropriate to initiate a rulemaking to revise this regulation to minimize the SEISNOSE.
• General: The definition of “service animal” contained in 49 CFR 39.3 is inconsistent with the amendments made by the Department of Justice (DOJ) on July 23, 2010, (
In addition, 49 CFR 39.31 addresses the ability of passenger vessel owners or operators to limit access to or use of their vessels because a passenger has a communicable disease. The regulation permits owners or operators to limit access or use where: (1) A U.S. or international public health authority has determined that persons with a particular condition should not be permitted to travel or should travel only under specified conditions; or (2) an individual has a condition that is both readily transmissible by casual contact in the context of traveling on or using a passenger vessel and has serious health consequences. The regulation provides examples of conditions that passengers may have (
As a result, OST will need to conduct a rulemaking to bring this regulation into compliance with the statutory requirements and to bring consistency to the regulatory regime governing different modes of transportation. OST's plain language review of this regulation indicates no need for substantial revision.
It is also worth noting that the U.S. Access Board (USAB) is in the process of developing guidelines under the Americans with Disabilities Act (ADA) for access to ferries, cruise ships, excursion boats, and other large passenger vessels. Those guidelines have not been finalized yet, however, and OST proposes incorporating only final guidelines into DOT's regulations.
• Section 610: OST has reviewed these regulations and found no SEISNOSE.
• General: OST has reviewed these regulations and found that some nonsubstantive technical corrections are needed. OST is exploring initiating a rulemaking to make these corrections.
• Section 610: The U.S. Department of Transportation (DOT) Office of the Secretary (OST) conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden. OST's plain language review of these rules indicates no need for substantial revision.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: Since the rule was enacted, the DOT Operating Administrations have changed. As a result, the agencies listed at 49 CFR 92.5(g)—Definitions should be revised to:
(g)
(1) The Office of the Secretary.
(2) Federal Aviation Administration.
(3) Federal Highway Administration.
(4) Federal Railroad Administration.
(5) National Highway Traffic Safety Administration.
(6) Office of the Inspector General.
(7) St. Lawrence Seaway Development Corporation.
(8) Maritime Administration.
OST will be conducting a rulemaking to make these revisions. These regulations are cost effective and impose the least burden. OST's plain language review of these rules indicates no need for substantial revision.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: Since the rule was enacted, the U.S. Department of Transportation's organizational structure changed, and as a result the list of DOT Operating Administrations (OAs) listed in 49 CFR 98.2 must be updated to reflect the current listing of DOT OAs. The following changes are needed in 49 CFR 89.2(a): (1) References to the U.S. Coast Guard (at 49 CFR 98.2(a)(1)), Urban Mass Transportation Administration (at 49 CFR 98.2(a)(6), and Research and Special Programs Administration (at 49 CFR 98.2(a)(8) should be deleted; (2) reference to the Saint Lawrence Seaway Development Corporation at 49 CFR 98.2(a)(7) should be changed to the Great Lakes Saint Lawrence Seaway Development Corporation; and (3) references to the Federal Motor Carrier Safety Administration, Federal Transit Administration, and Pipeline and Hazardous Materials Safety Administration should be added. In addition, since the rule was enacted, the title of the Assistant General Counsel for Environmental, Civil Rights, and General Law has been updated to the Assistant General Counsel for General Law, so the following changes are needed in 49 CFR 98.3 and 98.4: References to the Assistant General Counsel for Environmental, Civil Rights, and General Law should be updated to the Assistant General Counsel for General Law. OST's plain language review of these rules indicates no need for substantial revision.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden. OST's plain language review of these rules indicates no need for substantial revision.
DOT has determined that updates need to be made to the regulations identified under Year 2. The regulations will be updated as part of RIN 2105-AE26 (Revisions to the Transportation Acquisition Regulations).
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: OST reviewed and has found that a non-substantive technical correction is necessary and will explore options to make this correction.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
• Section 610: OST conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed. These regulations are cost effective and impose the least burden.
The Federal Aviation Administration (FAA) has elected to use the two-step, two-year process used by most Department of Transportation (DOT) modes in past plans. As such, the FAA has divided its rules into 10 groups as displayed in the table below. During the first year (the “
The RFA does not define “significant economic impact.” Therefore, there is no clear rule or number to determine when a significant economic impact occurs. However, the Small Business Administration (SBA) states that significance should be determined by considering the size of the business, the size of the competitor's business and the impact the same regulation has on larger competitors.
Likewise, the RFA does not define “substantial number.” However, the legislative history of the RFA suggests that a substantial number must be at least one but does not need to be an overwhelming percentage such as more than half. The SBA states that the substantiality of the number of small businesses affected should be determined on an industry-specific basis.
This analysis consisted of the following three steps:
1. Review of the number of small entities affected by the amendments to parts 141 through 147 and parts 170 through 187.
2. Identification and analysis of all amendments to parts 141 through 147 and parts 170 through 187 since July 2010 to determine whether any still have or now have a SEISNOSE.
3. Review of the FAA's regulatory flexibility assessment of each amendment performed as required by the RFA.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no amendments to 14 CFR 185 since July 2010. Thus, no SEISNOSE exists in this part.
• General: No changes are needed.
• Section 610: The agency conducted a Section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
• Section 610: The agency conducted a section 610 review of this part and found no amendments to 14 CFR 185 since July 2010. Thus, no SEISNOSE exists in this part.
• General: No changes are needed.
• Section 610: The agency conducted a section 610 review of this part and found no SEISNOSE.
• General: No changes are needed.
The Federal Highway Administration (FHWA) has adopted regulations in title 23 of the CFR, chapter I, related to the Federal-Aid Highway Program. These regulations implement and carry out the provisions of Federal law relating to the administration of Federal aid for highways. The primary law authorizing Federal aid for highways is chapter I of title 23 of the U.S.C. 145, which expressly provides for a federally assisted State program. For this reason, the regulations adopted by the FHWA in title 23 of the CFR primarily relate to the requirements that States must meet to receive Federal funds for construction and other work related to highways. Because the regulations in title 23 primarily relate to States, which are not defined as small entities under the Regulatory Flexibility Act, the FHWA believes that its regulations in title 23 do not have a significant economic impact on a substantial number of small entities. The FHWA solicits public comment on this preliminary conclusion.
• Section 610: No SEISNOSE. No small entities are affected.
• General: No changes are needed for purposes of the Regulatory Flexibility Act. FHWA's plain language review of the regulations indicates no need for substantial revision.
• Section 610: No SEISNOSE. No small entities are affected.
• General: No changes are needed for purposes of the Regulatory Flexibility Act. FHWA is proposing to revise aspects of the Part 450 regulations under RIN 2125-AF98 and RIN 2125-AG09. FHWA's plain language review of the regulations indicates no need for substantial revision.
• Section 610: No SEISNOSE. No small entities are affected.
• General: No changes are needed for purposes of the Regulatory Flexibility Act. FHWA's plain language review of the regulations indicates no need for substantial revision.
• Section 610: No SEISNOSE. No small entities are affected.
• General: No changes are needed for purposes of the Regulatory Flexibility Act. FHWA's plain language review of the regulations indicates no need for substantial revision.
• Section 610: FMCSA analyzed 49 CFR part 386 and found no SEISNOSE. 49 CFR part 386 is a permissive set of rules that establish procedures for respondents, petitioners, and others seeking relief from a determination of non-compliance with Federal Motor Carrier Safety Regulations or Hazardous Materials Regulations. The rule also provides recourse for commercial drivers to report employer harassment or coercion to violate rules.
• General: There is no need for substantial revision. These regulations provide necessary/clear guidance to industry and drivers. The regulations are written consistent with plain language guidelines, are cost effective, and impose the least economic burden to industry.
• Section 610: FMCSA analyzed 49 CFR part 385 and found no SEISNOSE. 49 CFR part 385 provides guidance on safety fitness procedures including monitoring, new entrants, intermodal equipment, and hazardous materials safety permits. The rule addresses safety initiatives whose cost are required by 49 CFR parts 360, 367, 387, and 390. These rules do not result in a SEISNOSE, because they do not introduce new costs to small carriers.
• General: There is no need for substantial revision as these regulations provide necessary guidance to the industry. The regulations are written consistent with plain language guidelines and impose the least economic burden to industry.
• Section 610: FMCSA analyzed 49 CFR part 382 but found no SEIOSNOSE. 49 CFR part 382 requires carriers to establish a drug and alcohol program. Primary costs are fees to participate in a drug and alcohol consortium that facilitates drug and alcohol testing. Ancillary costs include a loss of productivity due to employees taking time away from their primary responsibilities to take periodic drug and alcohol tests and receive education on controlled substances. The rule also drives modest record keeping and drug and alcohol clearing house access costs.
• General: There is no need for substantial revision. These regulations provide necessary/clear guidance to industry employers and drivers. The regulations are written consistent with plain language guidelines, are cost effective, and impose the least economic burden to the industry.
• Section 610: FMCSA analyzed 49 CFR part 383 and found no SEISNOSE. 49 CFR part 383 establishes minimum standards for employers to comply with regulations that ensure drivers are qualified to operate a commercial motor vehicle (CMV) and retain only one CMV license. The rule also communicates the circumstances that disqualify a CMV driver. The rule presents minimal costs to small carriers. Most of these costs are beyond the Agency's discretion as they are predominately mandated by statute and represent sound business practices in support of driver safety.
• General: There is no need for substantial revision as these regulations provide necessary guidance to the industry. The regulations are written consistent with plain language guidelines and impose the least economic burden to carriers.
• Section 610: There is no SEISNOSE.
• General: Part 216 provides safety and security for railroad employees and the public through special notices for repairs of railroad freight car, locomotive, passenger equipment, and track class, as well as for the issuance and review of emergency orders for removing dangerously substandard track from service. FRA's plain language review of this rule indicates no need for substantial revision.
• Section 610: There is no SEISNOSE.
General: No changes are needed. These regulations are cost effective and impose the least burden. FRA's plain language review of this rule indicates no need for substantial revision.
Section 610: There is no SEIOSNOSE.
General: The rule prescribes minimum requirements for railroad operating rules and practices. No changes are needed. FRA's plain language review of this rule indicates no need for substantial revision.
Section 610: There is no SEISNOSE.
General: No changes are needed. This rule is cost effective and imposes the least burden. FRA's plain language review of this rule indicates no need for substantial revision.
Section 610: This rule has significant economic impacts on a substantial number of small entities. However, the actual burden on most of these railroads varies because of their different operating characteristics. Entities that are not subject to this rule include railroads that do not operate on the general railroad system of transportation. The communication requirements of this rule have been designed to minimize the impact on small railroads. For instance, while large railroads are required to have a working radio and wireless communication redundancy in every train, small railroads are only required to comply with this standard for trains used to transport passengers. As part of the rulemaking process, FRA conducted a review of the impact that this rulemaking could have on small businesses and whether any opportunities may exist to reduce the burdens on small railroads without compromising safety. FRA's plain language review of this rule indicates no need for substantial revision.
General: The rule prescribes minimum requirements governing the use of wireless communications in connection with railroad operations. Uniform standard communications procedures and requirements throughout the railroad industry are necessary to ensure the protection and safety of railroad employees and the public, and to minimize potential casualties.
The Regulatory Flexibility Act of 1980 (RFA), as amended (sections 601 through 612 of title 5, United States Code), requires Federal regulatory agencies to analyze all proposed and final rules to determine their economic impact on small entities, which include small businesses, organizations, and governmental jurisdictions. Section 610 requires government agencies to periodically review all regulations that will have a significant economic impact on a substantial number of small entities (SEISNOSE).
In complying with this section, the Federal Transit Administration (FTA) has elected to use the two-step, two-year process used by most Department of Transportation (DOT) modes. As such, FTA has divided its rules into 10 groups as displayed in the table below. During the analysis year, the listed rules will be analyzed to identify those with a SEISNOSE. During the review year, each
• Section 610: FTA conducted a Section 610 review of 49 CFR part 633 and determined that it would not result in a SEISNOSE within the meaning of the RFA. The regulation implements statutorily required procedures for project management oversight of major capital public transportation projects.
• General: No changes are needed. FTA amended the Project Management Oversight regulation in 2020 (85 FR 59672) to make it consistent with statutory changes and to modify the scope and applicability of project management oversight. FTA estimated the costs and projected benefits of the rule and determined that it would result in an overall burden reduction by reducing recipients' labor hours for oversight procedures.
• Section 610: There is no SEIOSNOSE.
• General: The purpose of this rule is to prescribe the requirements and procedures for administrative claims against the United States involving the Maritime Administration under the Federal Tort Claims Act. The agency has determined that the rule is cost-effective and imposes the least possible burden on small entities. MARAD's plain language review of this rule indicates no need of substantial revision.
• Section 610: There is no SEIOSNOSE.
• General: The purpose of this rule is to govern practice and procedure in regulating interest in or control of Documented Vessels owned by Citizens of the United States to Noncitizens and transactions involving certain maritime interests in time of war or national emergency. The agency has determined that the rule is cost-effective and imposes the least possible burden on small entities. MARAD's plain language review of this rule indicates no need of substantial revision.
• Section 610: There is no SEIOSNOSE.
• General: The purpose of this rule is to govern practice and procedure to all participants in financial assistance programs administered by the Maritime Administration. The agency has determined that the rule is cost-effective and imposes the least possible burden on small entities. MARAD's plain language review of this rule indicates no need of substantial revision.
• Section 610: PHMSA conducted a review of these parts and found no SEISNOSE.
• General: PHMSA has reviewed these parts and found that while these parts do not have SEISNOSE, they could be revised to reflect new technologies and updated to reflect current practices. Therefore, PHMSA has initiated rulemakings to revise portions of parts 172 and 175. Otherwise, PHMSA's plain language review of these parts indicates no need for substantial revision. Where confusing or ambiguous language has been identified, PHMSA plans to propose or finalize revisions by way of rulemakings.
As an example, the “Hazardous Materials: Advancing Safety of Modal Specific Provisions” (2137-AF41) rulemaking action is part of PHMSA's response to clarify current regulatory requirements and address public comments. This rulemaking also proposes to address a variety of petitions for rulemaking, specific to modal stakeholders, and other issues identified by PHMSA during its regulatory review. The impact that the 2137-AF41 rulemaking will have on small entities is not expected to be significant. The rulemaking is based on PHMSA's initiatives and correspondence with the regulated community, as well as PHMSA's consultation with its modal partners, including FMCSA, FRA, and the United States Coast Guard (USCG). The proposed amendments are expected to result in an overall net cost savings and ease the regulatory compliance burden for small entities, shippers, carriers, manufacturers, and requalifiers, specifically those modal-specific packaging and requalification requirements. This rulemaking is one example of PHMSA's review of rulemakings which ensures that our rules do not have a significant economic impact on a substantial number of small entities.
For a second example, the “Hazardous Materials: Harmonization With International Standards” (2137-AF46) rulemaking action is part of PHMSA's ongoing biennial process to harmonize the Hazardous Materials Regulations (HMR) with international regulations and standards. Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
Further, SDLAs must remove the CLP or CDL privilege from the driver's license of an individual subject to the CMV driving prohibition, which would result in a downgrade of the license until the driver complies with return-to-duty (RTD) requirements. This rule also requires States receiving Motor Carrier Safety Assistance Program (MCSAP) grant funds to adopt a compatible CMV driving prohibition applicable to CLP and CDL holders who violate FMCSA's drug and alcohol program requirements, and makes clarifying and conforming changes to current regulations. The final rule will help keep unsafe drivers off the road by increasing compliance with the CMV driving prohibition.
Department of the Treasury.
Semiannual Regulatory Agenda and annual regulatory plan.
This notice is given pursuant to the requirements of the Regulatory Flexibility Act and Executive Order (E.O.) 12866 (“Regulatory Planning and Review”), which require the publication by the Department of a semiannual agenda of regulations. E.O. 12866 also requires the publication by the Department of a regulatory plan for the upcoming fiscal year. The purpose of the agenda is to provide advance information about pending regulatory activities and encourage public participation in the regulatory process.
The Agency contact identified in the item relating to that regulation.
The semiannual regulatory agenda includes regulations that the Department has issued or expects to issue and rules currently in effect that are under departmental or bureau review. For this edition of the regulatory agenda, the most important significant regulatory actions and a Statement of Regulatory Priorities are included in the Regulatory Plan, which appears in both the online Unified Agenda and in part II of the
The complete Unified Agenda will be available online at
(1) Rules that are in the regulatory flexibility agenda, in accordance with the Regulatory Flexibility Act, because they are likely to have a significant economic impact on a substantial number of small entities; and
(2) Rules that have been identified for periodic review under section 610 of the Regulatory Flexibility Act.
Printing of these entries is limited to fields that contain information required by the Regulatory Flexibility Act's Agenda requirements. Additional information on these entries is available in the Unified Agenda published on the internet. In addition, for fall editions of the Agenda, the entire Regulatory Plan will continue to be printed in the
The Department has listed in this agenda all regulations and regulatory reviews pending at the time of publication, except for technical, minor, and routine actions. On occasion, a regulatory matter may be inadvertently left off of the agenda or an emergency may arise that requires the Department to initiate a regulatory action not yet on the agenda. There is no legal significance to the omission of an item from this agenda. For most entries, Treasury includes a projected date for the next rulemaking action; however, the date is an estimate and is not a commitment to publish on the projected date. In addition, some agenda entries are marked as “withdrawn” when there has been no publication activity. Withdrawal of a rule from the agenda does not necessarily mean that a rule will not be included in a future agenda but may mean that further consideration is warranted and that the regulatory action is unlikely in the next 12 months.
Public participation in the rulemaking process is the foundation of effective regulations. For this reason, the Department invites comments on all regulatory and deregulatory items included in the agenda and invites input on items that should be included in the semiannual agenda.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Semiannual Regulatory Agenda.
This agenda announces the proposed regulatory actions that the Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) plans for the next 12 months. This agenda is issued in accordance with Executive Order 12866, “Regulatory Planning and Review”, as amended, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs”, and E.O. 13563, “Improving Regulation and Regulatory Review”. The Committee's purpose for publishing this agenda is to allow interested persons an opportunity to participate in the rulemaking process. The Committee has attempted to list all regulations pending at the time of publication, except for minor and routine or repetitive actions, however, unanticipated requirements may result in the issuance of regulations not included in this agenda.
For further information on the agenda in general, contact Shelly Hammond, Director, Contracting and Policy, Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, VA, 22202; (703) 603-2127.
Environmental Protection Agency.
Semiannual Regulatory Agenda.
The Environmental Protection Agency (EPA) publishes the Semiannual Agenda of Regulatory and Deregulatory Actions online at
• Regulations in the Semiannual Agenda that are under development, completed, or canceled since the last agenda; and
• Reviews of regulations with small business impacts under Section 610 of the Regulatory Flexibility Act.
If you have questions or comments about a particular action, please get in touch with the agency contact listed in each agenda entry. If you have general questions about the Semiannual Agenda, please contact: Caryn Muellerleile (
EPA is committed to a regulatory strategy that effectively achieves the Agency's mission of protecting human health and the environment. EPA publishes the Semiannual Agenda of Regulatory and Deregulatory Actions to update the public about regulatory activity undertaken in support of this mission. In the Semiannual Agenda, EPA provides notice of our plans to review, propose, and issue regulations. EPA is committed to environmental protection that benefits all communities and encourages public participation and meaningful engagement in our regulatory activities and processes.
Additionally, EPA's Semiannual Agenda includes information about rules that may have a significant economic impact on a substantial number of small entities, and review of those regulations under the Regulatory Flexibility Act, as amended.
In this document, EPA explains in greater detail the types of actions and information available in the Semiannual Agenda and actions that are currently undergoing review specifically for impacts on small entities.
“E-Agenda,” “online regulatory agenda,” and “semiannual regulatory agenda” all refer to the same comprehensive collection of information that, until 2007, was published in the
“Regulatory Flexibility Agenda” refers to a document that contains information about regulations that may have a significant impact on a substantial number of small entities. We continue to publish this document in the
“Unified Regulatory Agenda” refers to the collection of all agencies' agendas with an introduction prepared by the Regulatory Information Service Center facilitated by the U.S. General Services Administration.
“Regulatory Agenda Preamble” refers to the document you are reading now. It appears as part of the Regulatory Flexibility Agenda and introduces both EPA's Regulatory Flexibility Agenda and the e-Agenda.
“Section 610 Review” as required by the Regulatory Flexibility Act means a periodic review within ten years of promulgating a final rule that has or may have a significant economic impact on a substantial number of small entities. EPA maintains a list of these actions at
Several environmental laws authorize EPA's actions, including but not limited to:
• Clean Air Act (CAA),
• Clean Water Act (CWA),
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund),
• Emergency Planning and Community Right-to-Know Act (EPCRA),
• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),
• Resource Conservation and Recovery Act (RCRA),
• Safe Drinking Water Act (SDWA), and
• Toxic Substances Control Act (TSCA).
Not only must EPA comply with environmental laws, but also administrative legal requirements that apply to the issuance of regulations, such as the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), the Unfunded Mandates Reform Act (UMRA), the Paperwork Reduction Act (PRA), the National Technology Transfer and Advancement Act (NTTAA), and the Congressional Review Act (CRA).
EPA also meets a number of requirements contained in numerous Executive Orders: 12866, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993), as supplemented by Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, Jan. 21, 2011); 12898, “Environmental Justice” (59 FR 7629, Feb. 16, 1994); 13045, “Children's Health Protection” (62 FR 19885, Apr. 23, 1997); 13132, “Federalism” (64 FR 43255, Aug. 10, 1999); 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, Nov. 9, 2000); 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
You can make your voice heard by getting in touch with the contact person provided in each agenda entry. EPA encourages you to participate as early in the process as possible. You may also participate by commenting on proposed
Instructions on how to submit your comments through
EPA believes its actions will be more cost effective and protective if the development process includes stakeholders working with us to help identify the most practical and effective solutions to environmental problems. EPA encourages you to become involved in its rule and policymaking process. For more information about EPA's efforts to increase transparency, participation and collaboration in EPA activities, please visit
EPA includes regulations in the e-Agenda. However, there is no legal significance to the omission of an item from the agenda, and EPA generally does not include the following categories of actions:
• Administrative actions such as delegations of authority, changes of address, or phone numbers.
• Under the CAA: Revisions to state implementation plans; equivalent methods for ambient air quality monitoring; deletions from the new source performance standards source categories list; delegations of authority to states; area designations for air quality planning purposes.
• Under FIFRA: Registration-related decisions, actions affecting the status of currently registered pesticides, and data call-ins.
• Under the Federal Food, Drug, and Cosmetic Act: Actions regarding pesticide tolerances and food additive regulations.
• Under TSCA: Licensing actions and new chemical actions.
• Under RCRA: Authorization of State solid waste management plans; hazardous waste delisting petitions.
• Under the CWA: State Water Quality Standards; deletions from the section 307(a) list of toxic pollutants; suspensions of toxic testing requirements under the National Pollutant Discharge Elimination System (NPDES); delegations of NPDES authority to States.
• Under SDWA: Actions on State underground injection control programs.
Meanwhile, the Regulatory Flexibility Agenda includes:
• Actions likely to have a significant economic impact on a substantial number of small entities.
• Rules the Agency has identified for periodic review under section 610 of the RFA.
EPA has one Section 610 review ongoing and is announcing the completion of one review in this Agenda.
Online, you can choose how to sort the agenda entries by specifying the characteristics of the entries of interest in the desired individual data fields of the e-Agenda at
Each entry in the Agenda is associated with one of five rulemaking stages. The rulemaking stages are:
1. Prerule Stage—EPA's prerule actions generally are intended to determine whether the agency should initiate rulemaking. Prerulemakings may include anything that influences or leads to rulemaking; this would include Advance Notices of Proposed Rulemaking (ANPRMs), studies or analyses of the possible need for regulatory action.
2. Proposed Rule Stage—Proposed rulemaking actions include EPA's Notice of Proposed Rulemakings (NPRMs); these proposals are scheduled to publish in the
3. Final Rule Stage—Final rulemaking actions are those actions that EPA is scheduled to finalize and publish in the
4. Long-Term Actions—This section includes rulemakings for which the next scheduled regulatory action (such as publication of a NPRM or final rule) is twelve or more months into the future. We urge you to explore becoming involved even if an action is listed in the Long-Term category.
5. Completed Actions—EPA's completed actions are those that have been promulgated and published in the
The Regulatory Flexibility Agenda entries include only the nine categories of information that are required by the Regulatory Flexibility Act of 1980 and by
E-Agenda entries include:
a. Economically Significant: Under Executive Order 12866, a rulemaking that may have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
b. Other Significant: A rulemaking that is not economically significant but is considered significant for other reasons. This category includes rules that may:
1. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
2. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients; or
3. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles in Executive Order 12866.
c. Substantive, Nonsignificant: A rulemaking that has substantive impacts but is not Significant, Routine and Frequent, or Informational/Administrative/Other.
d. Routine and Frequent: A rulemaking that is a specific case of a
e. Informational/Administrative/Other: An action that is primarily informational or pertains to an action outside the scope of Executive Order 12866.
The
Some actions listed in the Agenda include a URL for an EPA-maintained website that provides additional information about the action.
When EPA publishes either an Advance Notice of Proposed Rulemaking (ANPRM) or a Notice of Proposed Rulemaking (NPRM) in the
Section 610 of the RFA requires that an agency review, within 10 years of promulgation, each rule that has or will have a significant economic impact on a substantial number of small entities. Currently, EPA has one Section 610 review ongoing and is announcing the completion of one review.
EPA has established public dockets for these Section 610 reviews. While comments for these ongoing and completed reviews are no longer accepted, submitted comments can be viewed at
For each of EPA's rulemakings, consideration is given to whether there will be any adverse impact on any small entity. EPA attempts to fit the regulatory requirements, to the extent feasible, to the scale of the businesses, organizations, and governmental jurisdictions subject to the regulation.
Under the RFA as amended by SBREFA, the Agency must prepare a formal analysis of the potential negative impacts on small entities, convene a Small Business Advocacy Review Panel (proposed rule stage), and prepare a Small Entity Compliance Guide (final rule stage) unless the Agency certifies a rule will not have a significant economic impact on a substantial number of small entities. For more detailed information about the Agency's policy and practice with respect to implementing the RFA/SBREFA, please visit EPA's RFA/SBREFA website at
Finally, we would like to thank those of you who choose to join with us in making progress on the complex issues involved in protecting human health and the environment. Collaborative efforts such as EPA's open rulemaking process are a valuable tool for addressing the problems we face, and the regulatory agenda is an important part of that process.
Melanie King, Environmental Protection Agency, Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-01, Research Triangle Park, NC 27711,
Joel Wolf, Environmental Protection Agency, Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code 7405M, Washington, DC 20460,
General Services Administration (GSA).
Semiannual Regulatory Agenda.
This agenda provides summary descriptions of regulations being developed by GSA in accordance with Executive Order 12866 “Regulatory Planning and Review,” and Executive Order 13563 “Improving Regulation and Regulatory Review.” GSA's purpose in publishing this agenda is to allow interested persons an opportunity to participate in the rulemaking process. GSA also invites interested persons to recommend existing significant regulations for review to determine whether they should be modified or eliminated. Published proposed rules may be reviewed in their entirety at the Government's rulemaking website at
Additional information on these entries may be reviewed in their entirety at the Government's rulemaking website at
Lois Mandell, Division Director, Regulatory Secretariat Division, 1800 F Street NW, 2nd Floor, Washington, DC 20405-0001, 202-501-2735.
This rule will require contracting officers to incorporate applicable GSA cybersecurity requirements within the statement of work to ensure compliance with Federal cybersecurity requirements and implement best practices for preventing cyber incidents. Contract requirements for internal information systems, external contractor systems, cloud systems, and mobile systems will be covered by this rule. This rule will also update existing GSAR provision 552.239-70, Information Technology Security Plan and Security Authorization, and GSAR clause 552.239-71, Security Requirements for Unclassified Information Technology Resources, to only require the provision and clause when the contract will involve information or information systems connected to a GSA network.
Office of Management and Budget.
Semiannual Regulatory Agenda.
The Office of Management and Budget (OMB) is publishing its semiannual agenda of upcoming activities for Federal regulations, OMB Guidance, Office of Federal Procurement Policy (OFPP) Policy Letters, and Cost Accounting Standards (CAS) Board Cost Accounting Standards.
OMB Guidance and OFPP Policy Letters are published in accordance with OMB's internal procedures for implementing Executive Order 12866 (58 FR 51735 (Oct. 4, 1993)). OMB policy guidelines are issued under authority derived from several sources, including: Subtitles I, II, and V of title 31, U.S. Code; Executive Order 11541; and other specific authority as cited. OMB Guidance and OFPP Policy Letters communicate guidance and instructions of a continuing nature to Executive branch agencies. As such, most OMB Guidance and OFPP Policy Letters are not regulations. Nonetheless, because these issuances are typically of interest to the public, they are generally published in the
CASB Cost Accounting Standards are issued under authority derived from 41 U.S.C. 1501
For purposes of this agenda, we have excluded directives that outline procedures to be followed in connection with the President's budget and legislative programs, as well as directives that affect only the internal functions, management, or personnel of Federal agencies.
See the agency contact person listed for each entry in the agenda, c/o Office of Management and Budget, Washington, DC 20503.
Office of Personnel Management.
Semiannual Regulatory Agenda.
The following Office of Personnel Management (OPM) regulations are scheduled for development or review during the next year. This agenda carries out OPM's responsibilities to publish a semiannual agenda under Executive Order 12866, “Regulatory Planning and Review,” and the Regulatory Flexibility Act (5 U.S.C. chapter 6). This publication does not impose a binding obligation on OPM with regard to any specific item on the agenda. Regulatory action in addition to the items listed is not precluded.
Alexys Stanley, (202) 606-1000.
U.S. Small Business Administration (SBA).
Semiannual Regulatory Agenda.
This semiannual Regulatory Agenda (Agenda) is a summary of current and projected rulemakings and completed actions of the Small Business Administration (SBA). This summary information is intended to enable the public to be more aware of, and effectively participate in, SBA's regulatory activities. Accordingly, SBA invites the public to submit comments on any aspect of this Agenda.
Please direct general comments or inquiries to K. Bundy, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416; (202) 205-6585;
Please direct specific comments and inquiries on individual regulatory activities identified in this Agenda to the individual listed in the summary of the regulation as the point of contact for that regulation.
The Regulatory Flexibility Act (RFA) requires SBA to publish in the
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Semiannual Regulatory Agenda.
This agenda provides summary descriptions of regulations being developed by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in compliance with Executive Order 12866 “Regulatory Planning and Review.” This agenda is being published to allow interested persons an opportunity to participate in the rulemaking process. The Regulatory Secretariat Division has attempted to list all regulations pending at the time of publication, except for minor and routine or repetitive actions; however, unanticipated requirements may result in the issuance of regulations that are not included in this agenda. There is no legal significance to the omission of an item from this listing. Also, the dates shown for the steps of each action are estimated and are not commitments to act on or by the dates shown.
Published proposed rules may be reviewed in their entirety at the Government's rulemaking website at
Lois Mandell, Division Director, Regulatory Secretariat Division, 1800 F Street NW, 2nd Floor, Washington, DC 20405-0001, 202-501-4755.
DoD, GSA, and NASA, under their several statutory authorities, jointly issue and maintain the FAR through periodic issuance of changes published in the
The electronic version of the FAR, including changes, can be accessed on the FAR website at
The Government uses suspension and debarment procedures to exercise business judgment. These procedures give Federal officials a discretionary means to exclude parties from participation in certain transactions, while affording those parties due process.
In its final rule, SBA has clarified that, as a general matter, its small business contracting regulations apply regardless of the place of performance. In light of these changes, there is a need to amend the FAR, both to support the changes to SBA's regulation, and to give agencies the tools they need, especially the ability to use set-asides to maximize opportunities for small businesses overseas.
Bureau of Consumer Financial Protection.
Semiannual Regulatory Agenda.
The Bureau of Consumer Financial Protection (Bureau) is publishing this agenda as part of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions. The Bureau reasonably anticipates having the regulatory matters identified below under consideration during the period from November 1, 2021 to October 31, 2022. The next agenda will be published in Spring 2022 and will update this agenda through Spring 2023. Publication of this agenda is in accordance with the Regulatory Flexibility Act (5 U.S.C. 601
This information is current as of November 1, 2021.
Bureau of Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552.
A staff contact is included for each regulatory item listed herein. If you require this document in an alternative electronic format, please contact
The Bureau is publishing its Fall 2021 Agenda as part of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions, which is coordinated by the Office of Management and Budget under Executive Order 12866. The agenda lists the regulatory matters that the Bureau reasonably anticipates having under consideration during the period from November 1, 2021 to October 31, 2022, as described further below.
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (Dodd-Frank Act), the Bureau has rulemaking, supervisory, enforcement, consumer education, and other authorities relating to consumer financial products and services. These authorities include the authority to issue regulations under more than a dozen Federal consumer financial laws, which transferred to the Bureau from seven Federal agencies on July 21, 2011. The Bureau's general purpose, as specified in section 1021(a) of the Dodd-Frank Act, is to implement and enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.
In addition, section 1021 of the Dodd-Frank Act specifies the objectives of the Bureau, including ensuring that, with respect to consumer financial products and services, consumers are provided with timely and understandable information to make responsible decisions about financial transactions; consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination; outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens; that Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.
The Senate recently confirmed the Bureau's new permanent Director. In this regulatory agenda the Bureau is prioritizing the continuation of certain ongoing rulemakings that further the Bureau's consumer financial protection mission and help to advance the country's economic recovery from the financial crisis related to the COVID-19 pandemic. The Bureau also continues to prioritize work that promotes racial and economic equity and supports underserved, vulnerable and marginalized communities by, among other things, facilitating access to fair and affordable credit. The Bureau expects that its new Director, will assess what regulatory actions the Bureau should prioritize to best further its consumer protection mission and that the Spring 2022 Agenda will reflect his priorities.
The Bureau is continuing to work on a number of rulemakings to address important consumer protection issues in a wide variety of markets for consumer financial products and services, including mortgages, small business lending, and consumers' access to their own financial information, among others. The Bureau is mindful of how critically important these rulemakings are in light of the dire financial circumstances so many Americans continue to find themselves, particularly in light of the ongoing COVID-19 pandemic and the resulting financial crisis, which has affected the financial well-being of millions of consumers and small businesses. The Bureau is also mindful that the data show that these hardships fall disproportionately on individuals, families, and small businesses in communities of color.
For example, section 1071 of the Dodd-Frank Act amended the Equal Credit Opportunity Act to require, subject to rules prescribed by the Bureau, financial institutions to collect, report, and make public certain information concerning credit applications made by women-owned, minority-owned, and small businesses. Congress enacted section 1071 for the purpose of (1) Facilitating enforcement of fair lending laws and (2) enabling communities, governmental entities, and creditors to identify business and community development needs and opportunities for women-owned, minority-owned, and small businesses.
Bureau research shows that small businesses play a key role in fostering community development and fueling economic growth. It also shows that women-owned and minority-owned small businesses, in particular, play an important role in supporting their local communities. To contribute meaningfully to the U.S. economy and to their local community, small businesses—and especially women-owned and minority-owned small businesses—need access to credit to smooth business cash flows from current operations and to allow entrepreneurs to take advantage of opportunities for growth. This access to credit will be especially important as the nation works to rebuild the economy in light of the COVID-19 pandemic and resulting economic impacts. The Bureau's section 1071 rule, if finalized, would be critical to enabling the Bureau to protect small business owners, including from unlawful discrimination, in their access to and use of credit.
The Bureau has been working on this important and complex rulemaking for a number of years, including through research, supervisory work, policy development, and engagement seeking comment and information from the public, small business lenders, and small businesses themselves, including minority- and women-owned small businesses. The Bureau made significant progress on implementing section 1071
The Bureau is also working on a rulemaking to address the availability of consumer financial account data in electronic form, which has helped consumers understand their finances and make better-informed financial decisions in a variety of ways. Research has indicated that the availability of certain consumer financial account data may improve underwriting and expand access to credit. At the same time, the means by which these data are accessed, transmitted, stored, and used by financial institutions of all kinds can implicate significant privacy, security, racial equity, and other consumer financial protection concerns. Furthermore, consumer access to their own financial data can foster improved transparency in credit decisions that affect consumers, including small and very small businesses relying on consumer credit access, and provide some protection against poor credit ratings based on serious errors in credit reports. This ability of consumers to access this information is particularly important at a time when financial institutions are increasingly using “alternative data” in making credit decisions. The Bureau supports innovation and believes that appropriate implementation of section 1033 can lead to competitive, consumer-friendly markets, while recognizing the importance of ensuring the safety and security of consumer account data. Section 1033 of the Dodd-Frank Act provides that, subject to rules prescribed by the Bureau, covered persons must make available to consumers, upon request, transaction data and other information concerning a consumer financial product or service that the consumer obtains from a covered person. Section 1033 also states that the Bureau shall prescribe by rule standards to promote the development and use of standardized formats for information made available to consumers. The Bureau has taken a number of steps to gather information and perspectives from the public, financial institutions, consumer advocacy groups, and others concerning current practices with respect to financial data access and data sharing and to learn more about this complex and rapidly-changing market. Most recently, in November 2020, the Bureau published an Advance Notice of Proposed Rulemaking (ANPRM) concerning the implementation of section 1033, and accepted comments until February 2021. The Bureau is reviewing comments received in response to the ANPRM and is considering those comments, as well as ongoing market monitoring efforts, as it assesses potential next steps, including whether a Small Business Review Panel is required pursuant to the Regulatory Flexibility Act.
Next, the Bureau is continuing its work to implement section 307 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 (EGRRCPA), which amends the Truth in Lending Act (TILA) to mandate that the Bureau prescribe certain regulations relating to “Property Assessed Clean Energy” (PACE) financing. PACE financing is a tool for consumers to finance certain improvements to residential real property. It is authorized by State and local governments and is typically available for projects promoting energy and water conservation, among other public policy goals identified in state statute. PACE is a hybrid product, with characteristics of both home equity lending and real property taxes. Like home equity loans, PACE obligations arise through a voluntary contract and are secured by real property. But, under State law, they are billed and repaid as special property tax assessments and typically secured by a lien with equal priority to real property taxes. As defined by EGRRCPA section 307, PACE financing results in a tax assessment on a consumer's real property and covers the costs of home improvements. EGRRCPA section 307 states that the Bureau's PACE regulations shall carry out the purposes of TILA's ability-to-repay (ATR) requirements for residential mortgage loans and apply TILA's general civil liability provision for violations of the ATR requirements. The regulations must “account for the unique nature” of PACE financing. Section 307 of the EGRRCPA also specifically authorizes the collection of data and information necessary to support a PACE rulemaking. In March 2019, the Bureau released an ANPRM and is continuing to engage with stakeholders and collect information for the rulemaking, including by collecting quantitative data on the effect of PACE on consumers' financial outcomes.
The Bureau is also participating in interagency rulemaking processes with the Board of Governors of the Federal Reserve System (Board), the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Federal Housing Finance Agency to develop regulations to implement the amendments made by the Dodd-Frank Act to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) concerning automated valuation models. The FIRREA amendments require implementing regulations for quality control standards for automated valuation models (AVMs). These standards are designed to ensure a high level of confidence in the estimates produced by the valuation models, protect against the manipulation of data, seek to avoid conflicts of interest, require random sample testing and reviews, and account for any other such factor that the Agencies determine to be appropriate. The Agencies will continue to work to develop a proposed rule to implement the Dodd-Frank Act's AVM amendments to FIRREA.
The Bureau will be bringing to a close its rulemaking to address the anticipated expiration of the LIBOR index, which the UK Financial Conduct Authority has stated that it cannot guarantee publication beyond June 2023. This rulemaking is important for millions of consumers who have adjustable-rate mortgages, credit cards, student loans, reverse mortgages, home equity lines of credit (HELOCs), or other consumer products that are tied to the LIBOR index. When final, the rulemaking would help to ensure that any changes to an index underlying these loans as a result of the transition to a different index due to the discontinuation of LIBOR are done by industry in an orderly, transparent, and fair manner. The Bureau's work is designed to facilitate compliance by open-end and closed-end creditors and to lessen the financial impact to consumers by providing examples of replacement indices that meet Regulation Z requirements. For creditors for HELOCs, including reverse mortgages, and card issuers for credit card accounts, the rule would facilitate the transition of existing accounts to an alternative index, beginning around April 2022, well in advance of LIBOR's anticipated expiration. The rule also would address change-in-terms notice provisions for HELOCs and credit card accounts and how they apply to the
The Bureau is actively reviewing existing regulations. Section 1022(d) of the Dodd-Frank Act requires the Bureau to conduct an assessment of each significant rule or order adopted by the Bureau under Federal consumer financial law and publish a report of each assessment not later than five years after the effective date of the subject matter or order. The Bureau has decided to conduct an assessment of a rule implementing the Home Mortgage Disclosure Act, most of which became effective in January 2018.
The Regulatory Flexibility Act (RFA) also requires the Bureau to consider the effect on small entities of certain rules it promulgates. In May 2019, the Bureau published its plan for conducting reviews, consistent with section 610 of the RFA, of certain regulations which are believed to have a significant impact on a substantial number of small entities. Congress specified that the purpose of these reviews is to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of the applicable statutes, to minimize any significant economic impact of the rules upon a substantial number of such small entities. In August 2020, the Bureau commenced its RFA section 610 review of Regulation Z rules that implement the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act). Specifically, the Bureau reviewed an interim final rule and three final rules published by the Board from July 2009 to April 2011. After considering the statutory review factors and public comments, the Bureau determined that, within the context of this RFA section 610 review, the CARD Act rules should continue without change at this time. The Bureau found that there is a continued need for the CARD Act rules to protect consumers given Congress's purpose in adopting the CARD Act provisions, and these rules do not overlap with other Federal or State rules. The Bureau also found the CARD Act rules to be complex; however, this complexity likely results from the complexity of the CARD Act provisions themselves and pricing on credit card accounts generally. Additionally, while some commenters requested changes to the CARD Act rules, most of these changes would not reduce the significant economic impact upon a substantial number of small entities (SISNOSE) in a meaningful way. For the requested changes that would likely reduce the SISNOSE, the Bureau found these changes would be inconsistent with the purposes of the CARD Act.
Finally, as required by the Dodd-Frank Act, the Bureau is continuing to monitor markets for consumer financial products and services to identify risks to consumers and the proper functioning of such markets. As discussed in a recent report by the Government Accountability Office, the Bureau's Division of Research, Markets, and Regulations and specifically its Markets Office continuously monitor market developments and risks to consumers. The Bureau also has created a number of cross-Bureau working groups focused around specific markets to further advance the Bureau's market monitoring work. The Bureau's market monitoring work assists in identifying issues for potential future rulemaking work.
U.S. Consumer Product Safety Commission.
Semiannual Regulatory Agenda.
In this document, the Commission publishes its semiannual regulatory flexibility agenda. In addition, this document includes an agenda of regulatory actions that the Commission expects to be under development or review by the agency during the next year. This document meets the requirements of the Regulatory Flexibility Act and Executive Order 12866.
The Commission welcomes comments on the agenda and on the individual agenda entries. Submit comments to the Division of the Secretariat on or before March 2, 2022.
Caption comments on the regulatory agenda, “Regulatory Flexibility Agenda.” You can submit comments by email to:
For further information on the agenda, in general, contact Meridith L. Kelsch, Office of the General Counsel, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814-4408,
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) contains several provisions intended to reduce unnecessary and disproportionate regulatory requirements on small businesses, small governmental organizations, and other small entities. Section 602 of the RFA requires each agency to publish, twice a year, a regulatory flexibility agenda containing “a brief description of the subject area of any rule which the agency expects to propose or promulgate which is likely to have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 602. The agency must provide a summary of the nature of the rule, the objectives and legal basis for the rule, and an approximate schedule for acting on each rule for which the agency has issued a notice of proposed rulemaking. In addition, the regulatory flexibility agenda must contain the name and telephone number of an agency official who is knowledgeable about the items listed. Agencies must attempt to provide notice of their agendas to small entities and solicit their comments, by directly notifying them, or by including the agenda in publications that small entities are likely to obtain.
In addition, Executive Order 12866,
The agenda contains a brief description and summary of each regulatory activity, including the objectives and legal basis for each; an approximate schedule of target dates, subject to revision, for the development or completion of each activity; and the name and telephone number of an agency official who is knowledgeable about items in the agenda.
The internet is the primary means for disseminating the Unified Agenda. The complete Unified Agenda will be available online at:
Because agencies must publish in the
(1) Rules that are in the agency's regulatory flexibility agenda, in accordance with the RFA, because they are likely to have a significant economic impact on a substantial number of small entities; and
(2) Rules that the agency has identified for periodic review under section 610 of the RFA.
The entries in the Commission's printed agenda are limited to fields that contain information that the RFA requires in an agenda. Additional information on these entries is available in the Unified Agenda published on the internet.
The agenda reflects the Commission's assessment of the likelihood that the specified event will occur during the next year; the precise dates for each rulemaking are uncertain. New information, changes of circumstances, or changes in the law, may alter anticipated timing. In addition, you should not infer from this agenda a final determination by the Commission or its staff regarding the need for, or the substance of, any rule or regulation.
Federal Communications Commission.
Semiannual Regulatory Agenda.
Twice a year, in spring and fall, the Commission publishes in the
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Maura McGowan, Telecommunications Policy Specialist, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, (202) 418-0990.
The Commission encourages public participation in its rulemaking process. To help keep the public informed of significant rulemaking proceedings, the Commission has prepared a list of important proceedings now in progress. The General Services Administration publishes the Unified Agenda in the
The following terms may clarify the status of the proceedings included in this report:
Jerusha Burnett, Attorney Advisor, Federal Communications Commission, 45 L Street NE, Washington, DC 20554,
The Spectrum Act requires that the BIA consist of a reverse auction “to determine the amount of compensation that each broadcast television licensee would accept in return for voluntarily relinquishing some or all of its spectrum usage rights” and a forward auction of licenses in the reallocated spectrum for flexible-use services, including mobile broadband. Broadcast television licensees who elected to voluntarily participate in the auction had three bidding options: Go off-the-air, share spectrum with another broadcast television licensee, or move channels to the upper or lower VHS band in exchange for receiving part of the proceeds from auctioning that spectrum to wireless providers. The Spectrum Act also authorized the Commission to reorganize the 600 MHz band following the BIA including, as necessary, reassigning full power and Class A television stations to new channels in order to clear the spectrum sold in the BIA. That post-auction reorganization (known as the repack) is currently underway and all of the stations who were assigned new channels are scheduled to have vacated their pre-auction channels by July 3, 2020, pursuant to a 10-phase transition schedule adopted by the Commission.
In May 2014, the Commission adopted a Report and Order that laid out the general framework for the BIA. The auction started on March 29, 2016, with the submission of initial commitments by eligible broadcast licensees. The BIA ended on April 13, 2017, with the release of the Auction Closing and Channel Reassignment Public Notice that also marked the start of the 39-month transition period during which 987 of the full power and Class A television stations remaining on-the-air will transition their stations to their post-auction channel assignments in the reorganized television band. Pursuant to the Spectrum Act, the Commission will reimburse 957 of those full power and Class A stations for the reasonable costs associated with relocating to their post-auction channel assignments and will reimburse multichannel video programming distributors for their costs associated with continuing to carry the signals of those stations.
In March 2018, the Consolidated Appropriations Act (Pub. L. 115-141, at Div. E, Title V, 511, 132 Stat. 348 (2018), codified at 47 U.S.C. 1452(j)-(n)) (the Reimbursement Expansion Act or REA), extended the deadline for reimbursement of eligible entities from April 2020 to no later than July 3, 2023, and also expanded the universe of entities eligible for reimbursement to include low-power television stations and TV translator stations displaced by the BIA for their reasonably incurred costs to relocate to a new channel, and FM broadcast stations for their reasonably incurred costs for facilities necessary to reasonably minimize disruption of service as a result of the post-auction reorganization of the television band. On March 15, 2019, the Commission adopted a Report and Order setting rules for the reimbursement of eligible costs to those newly eligible entities.
In the Further Notice, the Commission addresses issues remaining to finalize the restructuring of the 5.9 GHz band. Specifically, the Commission addresses: The transition of ITS operations in the 5.895-5.925 GHz band from Dedicated Short Range Communications (DSRC) based technology to Cellular Vehicle-to-Everything (C-V2X) based technology; the codification of C-V2X technical parameters in the Commission's rules; other transition considerations; and the transmitter power and emissions limits, and other issues, related to full-power outdoor unlicensed operations across the entire 5.850-5.895 GHz portion of the 5.9 GHz band. The Commission modified the Further Notice released on November 20, 2020, with an Erratum released on December 11, 2020. The Commission released a Second Erratum on February 9, 2021. The corrections from these errata are included in this document.
Brian Butler, Attorney, Federal Communications Commission, 45 L Street NE, Washington, DC 20554,
The NPRM proposes changes to improve disclosure of debris mitigation plans. The NPRM also makes proposals and seeks comment related to satellite disposal reliability and methodology, appropriate deployment altitudes in low-Earth-orbit, and on-orbit lifetime, with a particular focus on large NGSO satellite constellations. Other aspects of the NPRM include new rule proposals for geostationary orbit satellite (GSO) license term extension requests, and consideration of disclosure requirements related to several emerging technologies and new types of commercial operations, including rendezvous and proximity operations.
The Report and Order adopts definitions and permissible use provisions for digital TV translator and LPTV stations. The Second Report and Order takes steps to resolve the remaining issues in order to complete the low-power television digital transition. The third Notice of Proposed Rulemaking seeks comment on a number of issues related to the potential impact of the incentive auction and the repacking process.
In the 2nd R&O, the Commission provided additional guidance to broadcasters deploying Next Gen TV.
In 2021, the Commission made a technical modification to the rules governing the use of a distribution transmission system by a television station to account for deployment of ATSC 3.0.
In March 2020, the Commission adopted a Second Further Notice of Proposed Rulemaking in PS Docket No. 15-80 that proposed a framework to provide state and federal agencies with access to outage information to improve their situational awareness while preserving the confidentiality of this data, including proposals to: Provide direct, read-only access to NORS and DIRS filings to qualified agencies of the 50 states, the District of Columbia, Tribal nations, territories, and federal government; allow these agencies to share NORS and DIRS information with other public safety officials that reasonably require NORS and DIRS information to prepare for and respond to disasters; allow participating agencies to publicly disclose NORS or DIRS filing information that is aggregated and anonymized across at least four service providers; condition a participating agency's direct access to NORS and DIRS filings on their agreement to treat the filings as confidential and not disclose them absent a finding by the Commission that allows them to do so; and establish an application process that would grant agencies access to NORS and DIRS after those agencies certify to certain requirements related to maintaining confidentiality of the data and the security of the databases. In March 2021, the Commission adopted the proposed information sharing framework with some modifications in a Second Report and Order. In April 2021, in a Notice of Proposed Rulemaking, the Commission proposed to codify a rule adopted in 2016 that exempts satellite and terrestrial wireless providers from reporting outages that potentially affect special offices and facilities, as defined in Commission rules.
In May 2016, the Commission released a Report and Order, FNPRM, and Order on Reconsideration (see Dockets 11-82 and 15-80). The Order on Reconsideration addressed outage reporting for events at airports, and the FNPRM sought comment on database sharing. The Commission received comments and replies in August and September 2016.
In the Second Report and Order, the Commission takes further steps to facilitate the deployment and viability of technological solutions used to combat contraband wireless devices in correctional facilities. The Second Report and Order adopts a framework requiring the disabling of contraband wireless devices detected in correctional
The Order on Reconsideration and Second Report and Order addressed several Petitions for Reconsideration submitted in response to the Report and Order and resolved the outstanding issues raised in the Second Further Notice of Proposed Rulemaking.
The 2017 NPRM sought comment on limited changes to the rules governing Priority Access Licenses in the band, adjacent channel emissions limits, and public release of base station registration information.
The 2018 Report and Order addressed the issues raised in the 2017 NPRM and implemented changes rules governing Priority Access Licenses in the band and public release of base station registration information.
On July 2020, the Commission commenced an auction of Priority Access Licenses in the band. “Winning bidders were announced on September 2, 2020”.
In 2016, the Commission issued a Report and Order extending the separations freeze for an additional 18 months until January 1, 2018. In 2017, the Joint Board issued a Recommended Decision recommending changes to the part 36 rules designed to harmonize them with the Commission's previous amendments to its part 32 accounting rules. In February 2018, the Commission issued a Notice of Proposed Rulemaking proposing amendments to part 36 consistent with the Joint Board's recommendations. In October 2018, the Commission issued a Report and Order adopting each of the Joint Board's recommendations and amending the Part 36 consistent with those recommendations. In July 2018, the Commission issued a Notice of Proposed Rulemaking proposing to extend the separations freeze for an additional 15 years and to provide rate-of-return carriers that had elected to freeze their category relationships a time limited opportunity to opt out of that freeze. In December 2018, the Commission issued a Report and Order extending the freeze for up to 6 years until December 31, 2024, and granting rate-of-return carriers that had elected to freeze their category relationships a one-time opportunity to opt out of that freeze.
On March 31, 2020, the United States Court of Appeals for the District of Columbia Circuit affirmed the Commission's December 2018 Report and Order.
The Fourth RCC Order completed the Commission's implementation of the RCC Act by adopting service quality standards for intermediate providers, as well as an exception to those standards for intermediate providers that qualify for the covered provider safe harbor in our existing rules. The Order also set forth procedures to enforce our intermediate provider requirements. Finally, the Fourth RCC Order adopted provisions to sunset the rural call completion data recording and retention requirements adopted in the First RCC Order one year after the effective date of the new intermediate provider service quality standards.
On June 13, 2017, the D.C. Circuit vacated the rate caps adopted in the Second Report and Order, as well as reporting requirements related to video visitation. The court held that the Commission lacked jurisdiction over intrastate ICS calls and that the rate caps the Commission adopted for interstate calls were arbitrary and capricious. The court also remanded the Commission's caps on ancillary fees. On September 26, 2017, the court denied a petition for rehearing en banc. On December 21, 2017, the court issued two separate orders: One vacating the 2016 Order on Reconsideration insofar as it purports to set rate caps on inmate calling services, and one dismissing as moot challenges to the Commission's First Report and Order on ICS.
On February 4, 2020, the Commission's Wireline Competition Bureau released a Public Notice seeking to refresh the record on ancillary service charges imposed in connection with inmate calling services.
On August 6, 2020, the Commission adopted a Report and Order on Remand and a Fourth Further Notice of Proposed Rulemaking responding to remands by the U.S. Court of Appeals for the District of Columbia Circuit and proposing to comprehensively reform rates and charges for the inmate calling services within the Commission's jurisdiction. The Report and Order on Remand found that the Commission's five permitted ancillary service charges (1) automated payment fees; (2) fees for single-call and related services; (3) live agent fees; (4) paper bill/statement fees; and (5) third-party financial transaction fees generally, cannot be practically segregated between interstate and intrastate inmate telephone calls, except in a limited number of cases. Accordingly, the Commission prohibited inmate calling services providers from imposing ancillary service fees higher than the Commission's caps,or imposing fees for additional ancillary services unless imposed in connection with purely intrastate inmate telephone service calls. The Order also reinstated a rule prohibiting providers from marking up third-party fees for single-call services; reinstated rule language that prohibits providers from marking up mandatory taxes or fees that they pass on to inmate telephone service consumers; and amended certain of the inmate calling services rules consistent with the D.C. Circuit's mandates to reflect that the Commission's rate and fee caps on inmate calling service apply only to interstate and international inmate calling. The Fourth FNPRM proposes to substantially reduce the interstate rate cap for inmate telephone calls from the current interim rate caps of $0.21 per minute for debit or prepaid calls and $0.25 per minute for collect calls for all types of correctional facilities, to permanent rate caps of $0.14 per minute for all interstate calls from prisons and $0.16 for all interstate calls from jails. The Fourth FNPRM also proposes to adopt rate caps for international inmate
On November 23, 2020, Global Tel*Link Corporation filed a petition for reconsideration of the August 6, 2020 Order on Remand. On December 3, 2020, the Commission established the opposition and reply comment dates for the petition.
On May 24, 2021 the Commission released the Third Report and Order, Order on Reconsideration and Fifth Further Notice of Proposed Rulemaking. In the Third Report and Order, the Commission: (1) Substantially reduced the interim rate caps for interstate inmate calling services from prisons and larger jails (those with 1,000 or more incarcerated people) from $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls to new uniform interim interstate caps of $0.12 per minute for prisons and $0.14 per minute for larger jails; (2) maintained the current interim interstate rate cap of $0.21 for jails with less than 1,000 incarcerated people because of insufficient record evidence to determine providers' costs of serving those facilities at this time; (3) eliminated separate treatment of collect calls, resulting in a uniform interim interstate rate cap for all types of calls at each facility, as proposed; (4) reformed the treatment of site commission payments by specifying that providers may pass through to consumers (without any markup) site commission payments that are mandated by federal, state, or local law and that providers may pass through to consumers no more than $ 0.02 per minute site commission payments resulting from contractual obligations negotiated between providers and correctional officials; (5) capped, for the first time, international calling rates at all facilities at the applicable facility's total interstate rate cap, plus the amount the inmate calling services provider pays to its underlying wholesale carriers for completing international calls; (6) reformed the ancillary service charge caps for third-party financial transaction fees, including those related to calls that are billed on a per-call basis; and (7) adopted a new mandatory data collection to obtain more uniform cost data based on consistent, prescribed allocation methodologies to determine fair, permanent cost-based rates for facilities of all sizes.
In the Order on Reconsideration, the Commission denied GTL's petition seeking reconsideration of a single sentence from the 2020 Remand Order, in which the Commission reminded providers that the jurisdictional nature of a call, that is whether it is interstate or intrastate, depends on the physical location of the endpoints of the call and not on whether the area code or NXX prefix of the telephone number associated with the account are associated with a particular state. The Commission determined that the end-to-end analysis has been, and remains, the generally applicable test for all telecommunications carriers in determining the jurisdiction of their calls and the Commission continues to use the traditional end-to-end jurisdictional analysis in setting rates for calls placed by inmate calling services consumers.
In the Fifth Further Notice, the Commission proposed to amend the Commission's rules to require calling service providers to provide access to all forms of Telecommunications Relay Services, including internet-based services, to facilitate greater accessibility for incarcerated people with hearing and speech disabilities. The Commission also sought comment on: (1) The methodology the Commission should use to set permanent per-minute rate caps for interstate and international inmate calling services; (2) site commission costs for facilities of all sizes and site commission reform generally; (3) the costs of providing services to jails with average daily populations of fewer than 1,000 incarcerated people; (4) whether and how the Commission should reform the ancillary service charge caps and how the Commission can curtail potentially abusive practices related to these charges; (5) whether to institute a recurring periodic data collection; and (6) whether some providers have market power in the bidding process, thereby impacting the competitiveness of the bidding process.
Irina Asoskov, Assistant Division Chief, Federal Communications Commission, Wireline Competition Bureau, 445 12th Street SW,
On February 23, 2017, the Commission adopted a Report and Order that revised the part 32 USOA to substantially reduce accounting burdens for both price cap and rate-of-return carriers. First, the Order streamlines the USOA for all carriers. In addition, the USOA will be aligned more closely with generally accepted accounting principles, or GAAP. Second, the Order allows price cap carriers to use GAAP for all regulatory accounting purposes as long as they comply with targeted accounting rules, which are designed to mitigate any impact on pole attachment rates. Alternatively, price cap carriers can elect to use GAAP accounting for all purposes other than those associated with pole attachment rates and continue to use the part 32 accounts for pole attachment rates for up to 12 years. Third, the Order addresses several miscellaneous issues, including referral to the Federal-State Joint Board on Separations the issue of examining jurisdictional separations rules in light of the reforms adopted to part 32.
On November 16, 2017, the Commission adopted a Report and Order (R&O), Declaratory Ruling, and Further Notice of Proposed Rulemaking (Wireline Infrastructure Order) that takes a number of actions and seeks comment on further actions designed to accelerate the deployment of next-generation networks and services through removing barriers to infrastructure investment.
The Wireline Infrastructure Order took a number of actions. First, the Report and Order revised the pole attachment rules to reduce costs for attachers, reforms the pole access complaint procedures to settle access disputes more swiftly, and increases access to infrastructure for certain types
On June 7, 2018, the Commission adopted a Second Report and Order (Wireline Infrastructure Second Report and Order) taking further actions designed to expedite the transition from legacy networks and services to next generation networks and advanced services that benefit the American public and to promote broadband deployment by further streamlining the section 214(a) discontinuance rules, network change disclosure processes, and part 68 customer notification process.
The Wireline Infrastructure NPRM, NOI, and RFC sought comment on additional issues not addressed in the November Wireline Infrastructure Order or the June Wireline Infrastructure Second Report and Order. It sought comment on changes to the Commission's pole attachment rules to: (1) Streamline the timeframe for gaining access to utility poles; (2) reduce charges paid by attachers for work done to make a pole ready for new attachments; and (3) establish a formula for computing the maximum pole attachment rate that may be imposed on an incumbent LEC.
The Wireline Infrastructure NPRM, NOI, and RFC also sought comment on whether the Commission should enact rules, consistent with its authority under section 253 of the Act, to promote the deployment of broadband infrastructure by preempting State and local laws that inhibit broadband deployment. It also sought comment on whether there are State laws governing the maintenance or retirement of copper facilities that serve as a barrier to deploying next-generation technologies and services that the Commission might seek to preempt.
Previously, in November 2014, the Commission adopted a Notice of Proposed Rulemaking and Declaratory Ruling that: (1) Proposed new backup power rules; (2) proposed new or revised rules for copper retirements and service discontinuances; and (3) adopted a functional test in determining what constitutes a service for purposes of section 214(a) discontinuance review. In August 2015, the Commission adopted a Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking that: (i) Lengthened and revised the copper retirement process; (ii) determined that a carrier must obtain Commission approval before discontinuing a service used as a wholesale input if the carrier's actions will discontinue service to a carrier-customer's retail end users; (iii) adopted an interim rule requiring incumbent LECs that seek to discontinue certain TDM-based wholesale services to commit to certain rates, terms, and conditions; (iv) proposed further revisions to the copper retirement discontinuance process; and (v) upheld the November 2014 Declaratory Ruling. In July 2016, the Commission adopted a Second Report and Order, Declaratory Ruling, and Order on Reconsideration that: (i) Adopted a new test for obtaining streamlined treatment when carriers seek Commission authorization to discontinue legacy services in favor of services based on newer technologies; (ii) set forth consumer education requirements for carriers seeking to discontinue legacy services in favor of services based on newer technologies; (iii) allowed notice to customers of discontinuance applications by email; (iv) required carriers to provide notice of discontinuance applications to Tribal entities; (v) made a technical rule change to create a new title for copper retirement notices and certifications; and (vi) harmonized the timeline for competitive LEC discontinuances caused by incumbent LEC network changes.
On August 2, 2018, the Commission adopted a Third Report and Order and Declaratory Ruling (Wireline Infrastructure Third Report and Order) establishing a new framework for the vast majority of pole attachments governed by Federal law by instituting a one-touch make-ready regime, in which a new attacher may elect to perform all simple work to prepare a pole for new wireline attachments in the communications space. This new framework includes safeguards to promote coordination among parties and ensures that new attachers perform work safely and reliably. The Commission retained its multi-party pole attachment process for attachments that are complex or above the communications space of a pole, but made significant modifications to speed deployment, promote accurate billing, expand the use of self-help for new attachers when attachment deadlines are missed, and reduce the likelihood of coordination failures that lead to unwarranted delays. The Commission also improved its pole attachment rules by codifying and redefining Commission precedent that requires utilities to allow attachers to overlash existing wires, thus maximizing the usable space on the pole; eliminating outdated disparities between the pole attachment rates that incumbent carriers must pay compared to other similarly-situated cable and telecommunications attachers; and clarifying that the Commission will preempt, on an expedited case-by-case basis, State and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster. The Commission also adopted a Declaratory Ruling that interpreted section 253(a) of the Communications Act to prohibit State and local express and
On August 8, 2018, Public Knowledge filed a Petition for Reconsideration of the Second Report and Order and Motion to Hold in Abeyance. On October 20, 2020, the Wireline Competition Bureau (Bureau) adopted a Declaratory Ruling, Order on Reconsideration, and Order. In the Declaratory Ruling, the Bureau clarified that any carrier seeking to discontinue legacy voice service to a community or
In September 2019, CTIA filed a Petition for Declaratory Ruling seeking clarification of certain issues raised in the 2018 Third Report and Order. On July 29, 2020, the Wireline Competition Bureau issued a Declaratory Ruling clarifying that (1) the imposition of a blanket ban” by a utility on attachments to any portion of a utility pole is inconsistent with the federal requirement that a denial of access . . . be specific” to a particular request; and (2) while utilities and attachers have the flexibility to negotiate terms in their pole attachment agreements that differ from the requirements in the Commission's rules, a utility cannot use its significant negotiating leverage to require an attacher to give up rights to which the attacher is entitled under the rules without the attacher obtaining a corresponding benefit.
On July 20, 2020, the Wireline Competition Bureau issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed on July 16, 2020 by NCTA The Internet & Television Association. NCTA asked the Commission to declare that: (1) Pole owners must share in the cost of pole replacements in unserved areas pursuant to section 224 of the Communications Act, section 1.1408(b) of the Commission's rules, and Commission precedent; (2) pole attachment complaints arising in unserved areas should be prioritized through placement on the Accelerated Docket under section 1.736 of the Commission's rules; and (3) section 1.1407(b) of the Commission's rules authorizes the Commission to order any pole owner to complete a pole replacement within a specified period of time or designate an authorized contractor to do so. Comments on the NCTA Petition were due by September 2, 2020, and reply comments by September 17, 2020.
On July 23, 2021, the Wireline Competition Bureau issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed by the Edison Electric Institute asking the Commission to declare that: (1) When the Commission determines that a pole attachment rate, term, or condition is unjust and unreasonable and orders a refund pursuant to section 1.1407(a)(3) of the Commission's rules, the applicable statute of limitations” is the same as the two-year period prescribed by section 415(b) of the Act; and (2) refunds in pole attachment complaint proceedings are not appropriate” for any period preceding good-faith notice of a dispute. Deadlines for filing comments and reply comments were set for August 23, 2021, and September 10, 2021, respectively.
The Order requires interconnected VoIP providers obtaining numbers to comply with the same requirements applicable to carriers seeking to obtain numbers. These requirements include any State requirements pursuant to numbering authority delegated to the States by the Commission, as well as industry guidelines and practices, among others. The Order also requires interconnected VoIP providers to comply with facilities readiness requirements adapted to this context, and with numbering utilization and optimization requirements. As conditions to requesting and obtaining numbers directly from the numbering administrators, interconnected VoIP providers are also required to: (1)
The Order also modifies Commission's rules in order to permit VoIP Positioning Center (VPC) providers to obtain pseudo-Automatic Number Identification (p-ANI) codes directly from the numbering administrators for purposes of providing E911 services.
Based on experiences and review of the direct access authorization process established by the 2015 Order, the Commission adopted a FNPRM which proposes clarifications and revisions to the Commission's rules to better ensure that interconnected VoIP providers that obtain direct access authorization fo not facilitate illegal robocalls, pose national security risks, or evade or abuse intercarrier compensation requirements. The FNPRM proposes to require additional certifications as part of the direct access authorization applications process, that would include certification of compliance with anti-robocalling obligations. The FNPRM also proposes to clarify that applicants disclose foreign ownership information on their direct access application. It would also propose to generally refer those applications with 10% or greater foreign ownership to the Executive Branch agencies for their review, consistent with the Commission's referral of other types of applications. The FNPRM also propose to clarify that holders of a direct access authorization must update the Commission and applicable states within 30 days of changes to ownership information submitted to the Commission. The FNPRM further proposes to clarify that Commission staff retain the authority to determine when to accept filings as complete and proposes to direct Commission staff to reject an application if an applicant has engaged in behavior contrary to the public interest or has been found to originate or transmit illegal robocalls. Finally, the FNPRM seeks comment on whether to expand the direct access authorization to one-way VoIP providers or other entities that use numbering resources.
The Universal Service Fund is paid for by contributions from telecommunications carriers, including wireline and wireless companies, and interconnected Voice over internet Protocol (VoIP) providers, including cable companies that provide voice service, based on an assessment on their interstate and international end-user revenues. The Universal Service Administrative Company, or USAC, administers the four programs and collects monies for the Universal Service Fund under the direction of the FCC.
On February 7, 2020, the Commission launched $20 Billion Rural Digital Opportunity Fund.
On April 2, 2020, the Commission fought COVID-19 with $200M; Adopts Long-Term Connected Care Study.
On July 17, 2020, the Commission integrated provisions of the recently enacted Secure and Trusted Communications Networks Acts of 2019 into the existing supply chain rulemaking.
On March 16, 2021, the Commission sought comments on Emergency Connectivity Fund for Educational Connections and Devices to address the homework gap during the pandemic.
On March 30, 2021, the Commission moved forward with Round 2 of the COVID-19 Telehealth Program.
On May 11, 2021, the Commission launched $7.17 Billion Emergency Connectivity Fund (ECF) Program.
On June 2, 2021, the Commission offered further guidance on the administration of the Connected Care Pilot Program, including guidance on eligible services, competitive bidding, invoicing, and data reporting for selected participants.
On July 22, 2021, the Commission established June 30, 2022, as the ECF service delivery date for equipment and other non-recurring services funding requests filed during the initial application filing window and modifies the certification language for section 54.1710(a)(1)(x).
By using an auction, the FCC will ensure that sought-after numbers are awarded to the parties that value them most. In addition, the FCC will reserve certain 833 numbers for distribution to government and non-profit entities that request them for public health and safety purposes. The FCC will study the results of the auction to determine how to best use the mechanism to distribute toll-free numbers equitably and efficiently in the future as well. Revenues from the auction will be used to defray the cost of toll-free numbering administration, reducing the cost of numbering for all users. The Order establishing the toll-free number auction will also authorize and accommodate the use of a secondary market for numbers awarded at auction to further distribute these numbers to the entities that value them most. The Order also adopted several definitional and technical updates to improve clarity and flexibility in toll-free number assignment.
The Commission sought comment and then adopted auctions procedures and deadlines on August 2, 2019. Bidding for the auction occurred on December 17, 2019, and Somos issued an announcement of the winning bidders on December 20, 2019. On December 16, 2019, to facilitate the preparation of its study of the auction, the Bureau charged the North American Numbering Council, via its Toll Free Access Modernization Working Group, to issue a report evaluating various aspects of the 833 Auction, and recommending improvements for any future toll free number auctions.
On January 16, 2020, Somos released all of the 833 Auction data for public review. On March 13, 2020, the Bureau invited public comment on the 833 Auction in preparation for issuing a report on the lessons learned from the Auction. Comments were due on April 13, 2020. On July 14, 2020, the North American Numbering Council approved the Toll Free Assignment Modernization Working Group's report, Perspectives on the December 2019 Auction of Numbers in the 833 Numbering Plan Area.
On January 15, 2021, the Bureau released a report that examined various aspects of this toll free number assignment experiment, including lessons learned, examination of auction outcomes, and recommendations for future toll free number assignment. The Bureau concluded that the 833 Auction was a successful experiment that provided invaluable experience and data that can facilitate further Commission efforts to continue to modernize toll free number allocation in the future.
The Digital Opportunity Data Collection will collect geospatial broadband coverage maps from fixed broadband internet service providers of areas where they make fixed service available. This geospatial data will facilitate development of granular, high-quality fixed broadband deployment maps, which should improve the FCC's ability to target support for broadband expansion through the agency's Universal Service Fund programs. The Report and Order also adopts a process to collect public input on the accuracy of service providers' broadband maps, facilitated by a crowd-sourcing portal that will gather input from consumers as well as from state, local, and Tribal governments.
The Second Further NPRM sought comment on additional technical standards for fixed broadband providers that could ensure greater precision for the Digital Opportunity Data Collection deployment reporting and on ways the Commission could incorporate crowdsourced and location-specific fixed broadband deployment data into this new data collection. The Second Further NPRM also sought comment on incorporating the collection of accurate, reliable mobile wireless voice and broadband coverage data into the Digital Opportunity Data Collection. In addition, the Second Further NPRM sought comment on sunsetting the Form 477 broadband deployment collection following the creation of the Digital Opportunity Data Collection.
The Second Report and Order established requirements for: (1) Collecting fixed broadband availability and quality of service data; (2) collecting mobile broadband deployment data, including the submission of standardized propagation maps, propagation model details, and infrastructure information; (3) establishing a common dataset of all locations in the United States where fixed broadband service can be installed; (4) verifying the accuracy of broadband availability data; (5) collecting crowdsourced data; (6) enforcing the requirements of the Broadband DATA Act; (7) creating coverage maps from the data submitted; and (8) ensuring the privacy, confidentiality, and security of information submitted by broadband providers.
The Third Further NPRM sought comment on a range of additional measures to implement the requirements of the Broadband DATA Act, including additional processes for verifying broadband availability data
The Third Report and Order specified which fixed and mobile broadband internet access service providers are required to report broadband availability data and expanded the reporting and certification requirements for certain fixed and mobile broadband filers in order to ensure that Commission staff have the necessary tools to assess the quality and accuracy of its broadband coverage maps. The Third Report and Order also adopted standards for collecting verified broadband data from State, local, and Tribal entities and certain third parties and adopted processes for submitting challenges to fixed and mobile coverage map data and data in the location Fabric, along with processes for providers to respond to such challenges. In addition, the Third Report and Order established standards for identifying locations that will be included in the broadband serviceable locations Fabric and for enforcement of the requirements associated with the Digital Opportunity Data Collection.
On July 16, 2021, the Wireless Telecommunications Bureau, Office of Economics and Analytics, and Office of Engineering and Technology released a Public Notice seeking comment on the technical requirements for the mobile challenge, verification, and crowdsourcing processes required under the Broadband DATA Act for the new Broadband Data Collection (formerly known as the Digital Opportunity Data Collection). Deadlines for filing comments and reply comments have been set for September 10, 2021, and September 27, 2021, respectively.
On December 30, 2019, Congress enacted the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act. Along with numerous other provisions directed at addressing robocalls, the TRACED Act directs the Commission to require all voice service providers to implement STIR/SHAKEN in the internet Protocol (IP) portions of their networks, and to implement an effective caller ID authentication framework in the non-IP portions of their networks. The TRACED Act further creates processes by which voice service providers may be exempt from this mandate if the Commission determines they have achieved certain implementation benchmarks, and by which voice service providers may be granted a delay in compliance based on a finding of undue hardship because of burdens or barriers to implementation or based on a delay in development of a caller ID authentication protocol for calls delivered over non-IP networks.
On March 31, 2020, the Commission adopted a Report and Order and Further Notice of Proposed Rulemaking (WC Docket Nos. 17-97, 20-67). The Report and Order mandated that all originating and terminating voice service providers implement the STIR/SHAKEN caller ID authentication framework in the IP portions of their networks by June 30, 2021. In the Further Notice the Commission sought comment on proposals to further promote caller ID authentication and implement the TRACED Act.
On September 29, 2020, the Commission adopted a Second Report and Order (WC Docket No. 17-97). The Second Report and Order implemented rules (1) granting extensions for compliance with the STIR/SHAKEN implementation mandate for small voice service providers, voice service providers that cannot obtain a SPC token from the Governance Authority, services scheduled for section 214 discontinuance, for those portions of a voice service provider's network that rely on non-IP technology, and establishing a process for individual voice service providers to seek provider specific extensions (2) requiring voice service providers using non-IP technology either to upgrade their networks to IP to enable STIR/SHAKEN implementation, or work to develop non-IP caller ID authentication technology and implement a robocall mitigation program in the interim; (3) establishing a process where by a voice service provider may be exempt from the STIR/SHAKEN implementation mandate if the provider has achieved certain implementation benchmarks; (4) prohibiting voice service providers from imposing line item charges on consumer and small business subscribers for caller ID authentication; and (5) requiring intermediate providers to implement STIR/SHAKEN. On May 20, 2021, the Commissioned released a Third Further Notice of Proposed Rulemaking proposing to shorten the small provider extension from two years to one for a subset of small voice service providers that are at a heightened risk of originating an especially large amount of robocall traffic.
On January 13, 2021, the Commission adopted a Second Further Notice of Proposed Rulemaking proposing and seeking comment on a limited role for the Commission to oversee certificate revocation decisions by the private STIR/SHAKEN Governance Authority that would have the effect of placing providers in noncompliance with the Commission's rules. On August 5, 2021, the Commission adopted a Third Report and Order which adopted rules creating this oversight role.
On August 14, 2019, the Wireline Competition Bureau and Office of Economics and Analytics submitted its report to Congress recommending that: (1) A 3-digit dialing code be used for a national suicide prevention and mental health crisis hotline system; and (2) the Commission should initiate a rulemaking proceeding to consider designating 988 as the 3-digit code.
On December 12, 2019, the Commission released a notice of proposed rulemaking (NPRM) proposing to designate 988 as a new, nationwide, 3-digit dialing code for a suicide prevention and mental health crisis hotline. WC Docket No. 18-336. The NPRM proposes that calls made to 988 be directed to the existing National Suicide Prevention Lifeline, which is made up of an expansive network of over 170 crisis centers located across the United States, and to the Veterans Crisis Line. The NPRM also proposes to require all telecommunications carriers and interconnected VoIP service providers to make, within 18 months, any changes necessary to ensure that users can dial 988 to reach the National Suicide Prevention Lifeline and Veterans Crisis Line.
On July 16, 2020, the Commission adopted an Order designating 988 as the 3-digit number to reach the Lifeline and Veterans Crisis Line (800-273-TALK or 800-273-8255) and requiring all telecommunications carriers, interconnected voice over internet Protocol (VoIP) providers, and one-way VoIP providers to make any network changes necessary to ensure that users can dial 988 to reach the Lifeline by July 16, 2022.
On October 16, 2020, the Communications Equality Advocates filed a petition for partial reconsideration of the FCC's July 16, 2020 Report and Order. In their petition, Communications Equality Advocates requested that the FCC revise the Order to mandate text-to-988 and direct video calling (DVC) requirements and to have such requirements be implemented on the same timeline as voice calls to 988, by July 16, 2022.
On October 17, 2020, Congress enacted the National Suicide Hotline Designation Act of 2020 (2020 Act). Public Law 116-172, 134 Stat. 832 (2020). The 2020 Act, among other things, designates 988 as the universal telephone number within the United States for the purpose of the national suicide prevention and mental health crisis hotline system operating through the National Suicide Prevention Lifeline,” with designation occurring one year after enactment.
On November 9, 2020, pursuant to 2020 Act's requirements that the Commission submit a report on the feasibility and cost of attaching an automatic dispatchable location with 988 calls, the Commission issued a Public Notice that sought comment on these issues.
On April 22, 2021 the Commission adopted a Further Notice of Proposed Rulemaking (FNPRM) that proposes to require text service providers support text messages to 988 by routing texts to the toll free number.
On October 27, 2020, the Commission adopted a Report and Order (1) eliminating unbundling requirements, subject to a reasonable transition period, for enterprise-grade DS1 and DS3 loops where there is evidence of actual and potential competition, for broadband-capable DS0 loops and associated subloops in the most densely populated areas, and for voice-grade narrowband loops nationwide, but preserving unbundling requirements for DS0 loops in less densely populated areas and DS1 and DS3 loops in areas without sufficient evidence of competition; (2) eliminating unbundling requirements for network interface devices and multiunit premises subloops; (3) eliminating unbundled dark fiber transport provisioned from wire centers within a half-mile of competitive fiber networks, but providing an eight-year transition period for existing circuits so as to avoid stranding investment and last-mile deployment by competitive LECs that may harm consumers; (4) eliminating unbundling requirements for operations support systems, except where carriers are continuing to manage UNEs and for purposes of local interconnection and local number portability; and (5) eliminating remaining avoided-cost resale requirements. The Report and Order ended unbundling and resale requirements where they stifle technology transitions and broadband deployment, but preserved unbundling requirements where they are still necessary to realize the 1996 Act's goal of robust intermodal competition benefiting all Americans.
Board of Governors of the Federal Reserve System.
Semiannual Regulatory Agenda.
The Board is issuing this agenda under the Regulatory Flexibility Act and the Board's Statement of Policy Regarding Expanded Rulemaking Procedures. The Board anticipates having under consideration regulatory matters as indicated below during the period November 1, 2021, through April 30, 2022. The next agenda will be published in spring 2022.
Comments about the form or content of the agenda may be submitted any time during the next 6 months.
Comments should be addressed to Ann E. Misback, Secretary of the Board, Board of Governors of the Federal Reserve System, Washington, DC 20551.
A staff contact for each item is indicated with the regulatory description below.
The Board is publishing its fall 2021 agenda as part of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions, which is coordinated by the Office of Management and Budget under Executive Order 12866. The agenda also identifies rules the Board has selected for review under section 610(c) of the Regulatory Flexibility Act, and public comment is invited on those entries. The complete Unified Agenda will be available to the public at the following website:
The Board's agenda is divided into four sections. The first, Proposed Rule Stage, reports on matters the Board may consider for public comment during the next 6 months. The second section, Final Rule Stage, reports on matters that have been proposed and are under Board consideration. The third section, Long-Term Actions, reports on matters where the next action is undetermined, 00/00/0000, or will occur more than 12 months after publication of the Agenda. And a fourth section, Completed Actions, reports on regulatory matters the Board has completed or is not expected to consider further. A dot (•) preceding an entry indicates a new matter that was not a part of the Board's previous agenda.
Jay Schwarz, Special Counsel, Federal Reserve System, Legal Division, Washington, DC 20551,
Claudia Von Pervieux, Senior Counsel, Federal Reserve System, Legal Division, Washington, DC 20551,
National Labor Relations Board.
Semiannual Regulatory Agenda.
The following agenda of the National Labor Relations Board is published in accordance with Executive Order 12866, “Regulatory Planning and Review,” and the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act.
The complete Unified Agenda is available online at
The Board's agenda refers to
For further information concerning the regulatory actions listed in the agenda, contact Farah Z. Qureshi, Deputy Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570;
Roxanne Rothschild, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570,
Nuclear Regulatory Commission.
Semiannual Regulatory Agenda.
We are publishing our semiannual regulatory agenda (the Agenda) in accordance with Public Law 96-354, “The Regulatory Flexibility Act,” and Executive Order 12866, “Regulatory Planning and Review.” The NRC's Agenda is a compilation of all rulemaking activities on which we have recently completed action or have proposed or are considering action. We have completed 7 rulemaking activities since our complete Agenda was issued online at the Office of Management and Budget's website at
Submit comments on rulemaking activities as identified in this Agenda by March 2, 2022.
Submit comments on any rulemaking activity in the Agenda by the date and methods specified in the
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Cindy K. Bladey, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3280; email:
Please refer to Docket ID NRC-2021-0053 when contacting the NRC about the availability of information for this document. You may obtain publicly available information related to this document by any of the following methods:
•
•
•
○ For completed rulemaking activities go to
○ For active rulemaking activities go to
○ For long-term rulemaking activities go to
Please include Docket ID NRC-2021-0053 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The Agenda is a compilation of all rulemaking activities on which an agency has recently completed action or has proposed or is considering action. The Agenda reports rulemaking activities in three major categories: Completed, active, and long-term. Completed rulemaking activities are those that were completed since publication of an agency's last Agenda; active rulemaking activities are those for which an agency currently plans to have an Advance Notice of Proposed Rulemaking, a Proposed Rule, or a Final Rule issued within the next 12 months; and long-term rulemaking activities are rulemaking activities under development but for which an agency does not expect to have a regulatory action within the 12 months after publication of the current edition of the Unified Agenda.
The NRC assigns a “Regulation Identifier Number” (RIN) to a rulemaking activity when the Commission initiates a rulemaking and approves a rulemaking plan, or when the NRC staff begins work on a Commission-delegated rulemaking that does not require a rulemaking plan. The Office of Management and Budget uses this number to track all relevant documents throughout the entire “lifecycle” of a particular rulemaking activity. The NRC reports all rulemaking activities in the Agenda that have been assigned a RIN and meet the definition for a completed, an active, or a long-term rulemaking activity.
The information contained in this Agenda is updated to reflect any action that has occurred on a rulemaking activity since publication of our last
The date for the next scheduled action under the heading “Timetable” is the date the next regulatory action for the rulemaking activity is scheduled to be published in the
Section 610 of the Regulatory Flexibility Act (RFA) requires agencies to conduct a review within 10 years of issuance of those regulations that have or will have a
The comment period on the NRC's last Agenda (published on July 30, 2021 (
For the Nuclear Regulatory Commission.
Securities and Exchange Commission.
Semiannual Regulatory Agenda.
The Securities and Exchange Commission is publishing the Chair's agenda of rulemaking actions pursuant to the Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 94 Stat. 1164) (Sep. 19, 1980). The items listed in the Regulatory Flexibility Agenda for Fall 2021 reflect only the priorities of the Chair of the U.S. Securities and Exchange Commission, and do not necessarily reflect the view and priorities of any individual Commissioner.
Information in the agenda was accurate on September 27, 2021, the date on which the Commission's staff completed compilation of the data. To the extent possible, rulemaking actions by the Commission since that date have been reflected in the agenda. The Commission invites questions and public comment on the agenda and on the individual agenda entries.
The Commission is now printing in the
The Commission's complete RFA agenda will be available online at
Comments should be received on or before March 2, 2022.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Sarit Klein, Office of the General Counsel, 202-551-5037.
The RFA requires each Federal agency, twice each year, to publish in the
The following abbreviations for the acts administered by the Commission are used in the agenda:
The Commission invites public comment on the agenda and on the individual agenda entries.
By the Commission.
Surface Transportation Board.
Semiannual Regulatory Agenda.
The Chairman of the Surface Transportation Board is publishing the Regulatory Flexibility Agenda for fall 2021.
A contact person is identified for each of the rules listed below.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
(1) A brief description of the subject area of any rule that the agency expects to propose or promulgate, which is likely to have a significant economic impact on a substantial number of small entities.
(2) A summary of the nature of any such rule under consideration for each subject area listed in the agenda pursuant to paragraph (1), the objectives and legal basis for the issuance of the rule, and an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking; and
(3) The name and telephone number of an agency official knowledgeable about the items listed in paragraph (1).
Accordingly, a list of proceedings appears below containing information about subject areas in which the Board is currently conducting rulemaking proceedings or may institute such proceedings soon. It also contains information about existing regulations being reviewed to determine whether to propose modifications through rulemaking.
The agenda represents the Chairman's best estimate of rules that may be considered over the next 12 months but does not necessarily reflect the views of any other individual Board Member. However, section 602(d) of the RFA, 5 U.S.C. 602(d), provides: “Nothing in [section 602] precludes an agency from considering or acting on any matter not included in a Regulatory Flexibility Agenda or requires an agency to consider or act on any matter listed in such agenda.”
The Chairman is publishing the agency's Regulatory Flexibility Agenda for fall 2021 as part of the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda is coordinated by the Office of Management and Budget (OMB), pursuant to Executive Orders 12866 and 13563. The Board is participating voluntarily in the program to assist OMB and has included rulemaking proceedings in the Unified Agenda beyond those required by the RFA.
By the Board, Martin J. Oberman.