FSIS is the public health regulatory agency in the USDA that is responsible for ensuring that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and accurately labeled and packaged. ANet is a management control and performance monitoring system that gathers information from electronic and paper-based sources to enable FSIS to track, measure, and monitor the performance of its and its state partners' critical public health functions and to alert FSIS management to areas of vulnerability or concern. ANet tracks, measures, and monitors the performance of the key public health functions of inspection, verification, surveillance, enforcement, and sampling by FSIS and state meat and poultry inspection program employees. The data and tools of ANet are used to analyze the effectiveness of policies and procedures in meeting public health goals and objectives and to help ensure that methods, evaluations, and enforcement are standardized and traceable nationwide. The Agency also uses data analysis in and through ANet to discern trends; to develop objectives for regulatory food safety functions; to identify and focus on areas of high-risk; and to help determine strategies to combat threats to food safety and defense.

FSIS is proposing to exempt investigatory material, compiled and maintained by ANet for law enforcement purposes, from certain provisions of the Privacy Act.

The Privacy Act of 1974, 5 U.S.C. 552a, governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in a system of records. A system of records is a group of records under the control of an agency from which information is retrieved by the individual's name or some other personal identifier assigned to that individual. The Privacy Act requires agencies to publish a system of records notice (SORN) for every system of records that it maintains. A SORN informs the public of the existence of a system of records and describes the type of information collected, why it is being collected, what it may be used for, when it may be disclosed to third parties, how it will be safeguarded, and how and when it will be destroyed. A notice of system of records for USDA/FSIS-0005, AssuranceNet (ANet) is also published in this issue of the Federal Register . A Privacy Impact Assessment is posted on https://www.usda.gov/home/privacy-policy/privacy-impact-assessments.

An Agency that wants to exempt portions of some systems of records from certain provisions of the Privacy Act must promulgate regulations to notify the public and explain the reasons why a particular exemption is claimed. FSIS is proposing to exempt certain investigatory records maintained by the ANet system of records from the notification and access provisions of the Privacy Act under 5 U.S.C. 552a(c)(3), (d)(1)-(4), (e)(1) (e)(4)(G)-(I), and (f). Specifically, ANet includes investigatory material compiled for law enforcement, which fall under the Privacy Act exemptions 5 U.S.C. 552a(k). FSIS is proposing these exemptions because the information contained in the SORN is directly associated with investigations conducted by FSIS for law enforcement purposes. The proposed exemptions would protect the information on the methods used in law enforcement activities from those individuals who are subjects to the investigation and the identities and physical safety of witnesses and others who aid in investigations. In addition, the exemptions ensure FSIS's ability to obtain information from third parties and safeguards those investigatory records that are needed for litigation.

E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety benefits, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866. FSIS anticipates no costs or benefits accruing from this proposal.

This proposed rule will have no implications for Indian Tribal governments. More Specifically, it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Therefore, the consultation requirements of Executive Order 13175 do not apply.

There are no new paperwork or recordkeeping requirements associated with this final rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: https://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Constituent Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: https://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

For the reasons stated in the preamble, FSIS is proposing to amend 9 CFR part 390 as follows:

EXIM is proposing revisions to its regulations under the FOIA, 5 U.S.C. 552. The revisions incorporate changes in law under the FOIA Improvement Act of 2016, developments in case law, and changes in Federal and EXIM policies. While incorporating these changes, EXIM has also sought to simplify and clarify its regulations. Due to the scope of the proposed revisions, the proposed rule would replace EXIM's current FOIA regulations in their entirety (12 CFR 404.1 through 404.11).

The numbered paragraphs immediately below provide an overview of the proposed changes to the regulations. At the conclusion of this preamble, the new proposed regulations are set forth in their entirety.

The authority citation for part 404 would be amended to include additional cites to EXIM's statutory charter (12 U.S.C. 635(a)(1)) and the rulemaking provisions of the Administrative Procedures Act (5 U.S.C. 553). Citations to Executive orders imposing administrative requirements on EXIM would be removed. The amended general authority would be 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5 U.S.C. 553.

This section would be amended to clarify the purpose and scope of the FOIA regulations and to remove the current paragraph (b) setting forth EXIM policy. EXIM policies comply with the FOIA and related guidance, as set forth in the remainder of the regulations, and the current (un-amended) paragraph (b) is either duplicative or could cause confusion.

Current paragraphs (d) and (e) describe EXIM's proactive disclosures and provide EXIM's internet address and mailing address. This information would be amended and moved to proposed §§ 404.2, Proactive disclosures, and 404.3, Request requirements.

This section would be eliminated, with most of the definitions relocated to the sections in which the defined terms are used. The majority of the relocated definitions pertain to current § 404.16, Schedule of fees. The definitions of “Confidential business information” and “Submitter” would be relocated to the section currently labelled “Confidential business information.” The proposed regulations would change the phrase “confidential business information” to “confidential commercial information” for greater consistency with the statutory language, related case law, and applicable guidance. “Working days” was relocated to the section addressing time for processing, previously at § 404.5.

Several other definitions would be eliminated as unnecessary due to their being common usage, duplicative of information contained elsewhere, or otherwise sufficiently clear in meaning from the context in which they are used. These terms would be eliminated for purposes of brevity and clarity. This includes the definitions of appeal, final determination, initial determination, person, redaction, request, and requester.

The current definition of “trade secrets” would be eliminated as legally incorrect.

This section would be renumbered from current § 404.3 to § 404.2 and renamed “Proactive disclosures.” The current wording describes procedures for accessing a physical reading room at EXIM's headquarters, while the proposed revision would include the online reading room now required by the FOIA. The amended section would also state that EXIM's FOIA Liaison is available to help requesters locate information online. In addition, the amended section would newly describe the data that EXIM posts at data.exim.gov on EXIM's transactions.

This section would be renumbered from current § 404.4 to § 404.3. This section would encourage potential requesters to review the information publicly available on the EXIM website before submitting a request. EXIM believes it is in requesters' best interest to review the significant amount of information available online before submitting a request.

This section also would newly state the electronic means for submitting a request, including by email to foia@exim.gov and through the online portal at www.exim.gov/about/foia. The current requirement that requesters sign their request would be eliminated as inconsistent with the FOIA and EXIM's past practice of accepting unsigned electronic submissions. Requesters would instead need to provide contact information.

In the proposed regulations, the current statement that a general request to pay applicable fees is deemed a request to pay up to $50.00 would be eliminated. This statement is viewed as potentially inconsistent with the Office of Management and Budget's (OMB's) FOIA Fee Guidelines, which requires agencies to notify requesters of fees exceeding $25.00.

This section would also clarify and update the language that sets forth the process for obtaining records by the requester him or herself (or a third party), and the need for a request to provide an adequate description of the records. The section would also provide for FOIA Public Liaison assistance in reformulating a request.

This newly added section would provide the Freedom of Information and Privacy Office the authority to respond to requests, establish a “cut off” date for searches at the time the search is conducted, address classified information, and describe EXIM's procedures for working with other agencies in the processing of requests—including through consultations, referrals, and other types of coordination.

This section would be renumbered from current § 404.5 to § 404.6. It would newly incorporate the statutory definition of “unusual circumstances” and “working days.” This section would also newly provide for multitrack processing, with the following tracks: Expedited, simple, and complex. This section would also seek to clarify the current language and add additional detail to the expedited processing provisions.

This section would be renumbered from current § 404.6 to § 404.7 and renamed. It would newly include the foreseeable harm requirement for discretionary exemptions, added by the FOIA Improvement Act of 2016.

The current paragraph (a), addressing the “creation of records,” would be eliminated as both inconsistent with the FOIA and unnecessary. Even if this subsection is eliminated, EXIM would retain the authority to create appropriate records.

As indicated above, the current paragraph (d) addressing the “cut off” date for searches would be amended and relocated to § 404.5.

Section 404.8, Initial determination, would be renamed for purposes of clarity and greater consistency with other agency FOIA regulations. The section would also newly provide for communication with requesters by email and EXIM's online portal, newly provide for the acknowledgement of requests, and more fully describe EXIM obligations when there is either a full grant of the requested records or an adverse determination of some kind. This section would also newly address FOIA exclusions under 5 U.S.C. 552(c).

As required by the FOIA Improvement Act of 2016, this section would also require EXIM to notify requesters of the services provided by the Office of Government Information Services (OGIS).

This section would be renumbered from current § 404.7, Confidential business information, to § 404.9 and renamed. The title “confidential business information” would be changed to “confidential commercial information” to better match the wording of the requirements in Exemption 4, case law, related guidance, and other agency FOIA regulations. The protections and procedures would remain the same and are in accordance with Executive Order 12600, but the proposed amendments here seek to provide additional detail and clarity for requesters based on the legal standards applicable under Exemption 4.

This section would be renumbered from current § 404.9 to § 404.10. As referenced above, this section would newly incorporate amended versions of the definitions that are currently located in a general definitions section at § 404.2. The amended language would also update and provide additional detail on EXIM's fee practices, consistent with OMB's Fee Guidelines.

The rate for clerical search and review time would be increased from $16.00/hour to $33.00/hour. The rate for professional search and review time would be increased from $32.00/hour to $57.00/hour. This proposal reflects increased labor rates since the regulations were last updated in 1999.

Notice of anticipated fees would generally be provided when the estimated fees exceed $25.00, unless a requester has already agreed to pay more or has received a waiver. This is lowered from the current $50.00 to better match OMB's Fee Guidelines.

This section would be renumbered from current § 404.10 to § 404.11. As with the prior two sections addressed above, this section would be expanded to provide additional guidance and clarity for requesters. The substantive standards for seeking fee waivers are governed by the FOIA and related case law, however, and would remain unchanged. Current paragraph (e), Employee Requests, would be removed because the FOIA is generally not needed for employees or applicants to obtain information related to a complaint of discrimination. Discrimination complaints are governed by procedures established by the Equal Employment Opportunity Commission and, regardless, EXIM would retain the authority to grant discretionary fee waivers and reductions.

This section would be renumbered from current § 404.11 to § 404.12. The proposed changes would provide for the electronic submission of appeals and notify appellants of the ability to seek assistance from OGIS.

This newly added section would provide for the preservation of all correspondence associated with a request, as well as all requested records, under appropriate records schedules. It would also prohibit the destruction or modification of records while they are subject to a pending request, administrative appeal, or lawsuit.

Cross references in subparts B and C are updated to reflect section redesignations in the subparts.

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

The proposed changes to EXIM's FOIA regulations are predominantly procedural in nature and many incorporate already binding law and policy. While the proposed changes also increase the rates that EXIM uses to charge certain FOIA requesters the direct costs of responding to a request, this updated fee schedule reflects current EXIM costs and EXIM remains only able to charge its direct costs of searching for, reviewing, and duplicating the records processed for requesters. There are a number of possible exceptions and waivers that reduce the number of requesters and small entities that may be affected by the proposed fee changes and, even when charged, these fees are typically small. When needed, EXIM is able to work with requesters to modify their request to reduce the chargeable fees while still obtaining the core information they seek.

As a result, the proposed changes are unlikely to have an economic impact on requesters regardless of their size and resources. Accordingly, EXIM hereby certifies that these proposed amendments to the FOIA regulations, if adopted, would not have a significant economic impact on a substantial number of small entities. EXIM requests comment from members of the public regarding the appropriateness and accuracy of this analysis and certification.

This proposed rule is not a “significant regulatory action” for purposes of Executive Order 12866.

This proposed rule is not a regulatory action under Section 2 of Executive Order 13771 because it is not significant under Executive Order 12866 and does not constitute a significant guidance document.

This regulation does not contain a “collection of information” as defined by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, EXIM proposes to amend 12 CFR part 404 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0285; Project Identifier MCAI-2021-01448-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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 https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

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 Doug Rudolph, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom, has issued CAA AD G-2021-0017, dated December 21, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on all BAE Systems (Operations) Limited Model Jetstream Series 3100 and Series 3200 airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0285.

The FAA reviewed British Aerospace Jetstream Series 3100 & 3200 Service Bulletin 27-JA181040, Original Issue, dated January 17, 2019. This service information specifies procedures for repetitively inspecting all threaded turnbuckle type control cable end terminals on certain part-numbered rudder and elevator primary flight control circuits for signs of corrosion, pitting, and cracking on the terminal fitting, and specifies replacing an affected cable assembly when the inspection results require it. 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 ADDRESSES .

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information already described.

The MCAI and service information apply to Model Jetstream Series 3100 and Jetstream Series 3200 airplanes, which are identified on the FAA type certificates as Jetstream Model 3101 and Jetstream Model 3201 airplanes, respectively.

Although the service information specifies reporting inspection results to the manufacturer, this proposed AD would not require that action.

The FAA estimates that this AD, if adopted as proposed, would affect 18 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to replace a cable assembly based on the results of the proposed inspection. The FAA has no way of determining the number of airplanes that might need this action:

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.

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0281; Project Identifier MCAI-2021-01315-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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 https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

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 andrea.jimenez@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0255, dated November 15, 2021, and corrected November 24, 2021 (EASA AD 2021-0255), to correct an unsafe condition for Leonardo S.p.A. Helicopters Model A109S helicopters, serial number (S/N) 22735, 22736, and 22737, and equipped with Trekker Kit; and Model AW109SP helicopters, S/N 22407, 22408, 22409, 22412, 22414 to 22427 inclusive, and 22429.

This proposed AD was prompted by a report of a protective sheath, installed around a fixed flight control rod, which should have been removed during assembly. The FAA is proposing this AD to detect any foreign object contamination, which if not addressed, could affect the free movement of the flight controls and result in subsequent reduced control of the helicopter. See EASA AD 2021-0255 for additional background information.

EASA AD 2021-0255 specifies procedures for borescope inspecting certain part-numbered parts installed on the control rods and levers of the rotors flight controls, and removing any foreign object if detected.

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 ADDRESSES section.

The FAA reviewed Leonardo Helicopters Alert Service Bulletin No. 109SP-148, dated October 26, 2021 (ASB 109SP-148). This service information specifies instructions for borescope inspecting certain part-numbered parts installed on the control rods and levers of the rotors flight controls of the left-hand and right-hand forward struts and removing foreign objects.

The FAA also reviewed Leonardo Helicopters Alert Service Bulletin No.109S-104, dated October 26, 2021, which specifies the same instructions as ASB 109SP-148 but only applies to Model A109S helicopters with certain Trekker Kits installed.

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 2021-0255, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed 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 2021-0255 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0255 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 2021-0255 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 2021-0255. Service information referenced in EASA AD 2021-0255 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0281 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 1 helicopter 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.

Borescope inspecting the control rods and levers of the rotor flight controls for any foreign object would take about 4 work-hours for an estimated cost of $340 per inspection and $340 for the U.S. fleet.

The FAA estimates the following costs to do any necessary on-condition corrective actions that would be required based on the results of the inspection:

If required, removing any foreign object would take a minimal amount of time with a minimal parts cost.

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.

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2022-0284; Project Identifier MCAI-2021-01369-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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 https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

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 Elizabeth Dowling, Aviation Safety Engineer, New York ACO Branch, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2021-42, dated November 26, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on certain serial-numbered Viking Air Limited Model DHC-6 series 1, DHC-6 series 100, DHC-6 series 110, DHC-6 series 200, DHC-6 series 210, DHC-6 series 300, DHC-6 series 310, DHC-6 series 320, and DHC-6 series 400 airplanes with certain part-numbered FCU push rod assemblies installed. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0284.

The FAA reviewed the following:

• Viking DHC-6 Twin Otter Service Bulletin (SB) No. V6/0063, Revision A, dated February 1, 2021 (Viking SB V6/0063, Revision A), which specifies procedures for performing tests, inspections, and lubrication of the FCU push rod assemblies; and

• Viking DHC-6 Twin Otter Technical Bulletin No. V6/00155, Revision NC, dated September 14, 2020, which specifies procedures for replacing the FCU push rod assemblies with improved parts.

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

The FAA also reviewed Viking DHC-6 Twin Otter SB No. V6/0063, Revision NC, dated June 7, 2019 (Viking SB V6/0063, Revision NC), which specifies procedures for performing tests, inspections, and lubrication of the FCU push rod assemblies. Viking revised this service information and issued Viking SB V6/0063 Revision A to extend the lubrication requirement of Mod 6/2347 rod ends to all operating environments, add repeat inspections, and introduce a test and lubrication for airplanes that have not been in operation after a period of time before re-entry into service.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously.

The MCAI applies to Viking Air Limited Model DHC-6 series 110, DHC-6 series 210, DHC-6 series 310, and DHC-6 series 320, and this proposed AD would not because these models do not have an FAA type certificate. Transport Canada Model DHC-6 series 1, DHC-6 series 100, DHC-6 series 200, DHC-6 series 300, and DHC-6 series 400 airplanes correspond to FAA Model DHC-6-1, DHC-6-100, DHC-6-200, DHC-6-300, and DHC-6-400 airplanes, respectively.

The MCAI requires reporting information to the manufacturer, and this proposed AD would not.

The FAA estimates that this AD, if adopted as proposed, would affect 34 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to replace the FCU push rod assemblies. The agency has no way of determining the number of airplanes that might need these replacements:

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) Will not affect intrastate aviation in Alaska, and

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

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

In 2011, the Coast Guard received requests to formally establish anchorages in the Atlantic Ocean offshore from the Delaware coast in response to the Atlantic Coast Port Access Route Study (ACPARS), a multiyear study that included public participation and identified the navigation routes customarily followed by ships engaged in commerce between international and domestic U.S. ports. The ACPARS is available at https://navcen.uscg.gov/?pageName=PARSReports. To preserve areas traditionally used for anchoring from offshore development, the Federal Pilots and the Mariners' Advisory Committee for the Bay and River Delaware requested formal anchorage grounds be established to the east and the west of the southeastern approach traffic separation scheme. While these requests were noted in the ACPARS, the Coast Guard took no action in the pursuing years, and the areas to the east and the west of the southeastern approach traffic separation scheme continued to be used as traditional and unregulated anchorage grounds.

On July 12, 2018, and August 21, 2018, the Coast Guard held meetings with maritime stakeholders and waterway users to discuss the impacts to vessel traffic and navigation safety on the Delaware Bay and River due to the expansion of the Panama Canal and the planned deepening of the Delaware River from 40 to 45 feet. Meeting attendees included the Pilots' Association for the Bay and River Delaware, the Mariners' Advisory Committee for the Bay and River Delaware, Interport Pilots Association, and port and terminal representatives. The attendees concluded the increased volume of vessel traffic and the size of vessels calling on the Delaware Bay and River, and planned and potential offshore development, heightened the need to formally establish three new anchorage grounds: Two offshore in the Atlantic Ocean and an additional inshore anchorage located in the Delaware Bay near the Cape Henlopen breakwaters. The participants suggested the anchorages would preserve areas traditionally used for anchoring and provide for the ongoing and future growth of the marine transportation system on the Delaware Bay and River.

On November 29, 2019, the Coast Guard published a Notice of Inquiry (NOI) in the Federal Register (81 FR 25854) to formally seek feedback on whether the Coast Guard should consider a proposed rulemaking to establish the three new anchorages. Following the naming convention in 33 CFR 110.157, the anchorages were referred to as Anchorage B—Breakwater, Anchorage C—Cape Henlopen, and Anchorage D—Indian River. We received 42 comments in response to the NOI. Five comments were supportive; twenty eight were opposed to the proposed inshore anchorage, Anchorage B; and fourteen were opposed to the proposed offshore anchorages, Anchorages C and D.

On May 5, 2020, the Coast Guard published a Notice of Study; request for comments entitled “Port Access Route Study (PARS) for the Seacoast of New Jersey Including Offshore Approaches to the Delaware Bay, Delaware” in the Federal Register (85 FR 26695). The initial comment period closed on July 5, 2020. The Coast Guard conducted two virtual public meetings on October 28, 2020, and November 4, 2020, and the initial comment period was re-opened through November 10, 2020. The study included an in-depth analysis of historical anchoring patterns in the approaches to the Delaware Bay and River. Anchorage related comments received during the study are discussed in Section III, and a full list of comments can be found in the Port Access Route Study “PARS,” docket number USCG-2020-0172. 1

Based on feedback received to date, primary objections to the proposed inshore anchorage are environmental in nature and concern potential impacts on Atlantic Sturgeon, an endangered species under the Endangered Species Act. Primary objections to the proposed offshore anchorages concern potential conflicts between the siting of the anchorage grounds and the need to route electricity transmission export cables to the proposed or future offshore wind developments. Based on the differences and nature of concerns between the anchorages located inshore, in the Delaware River estuary, and the anchorages located offshore in the Atlantic Ocean, the Coast Guard intends to move forward with two separate rulemakings, one for the inshore anchorage, and another for the offshore anchorages. With this rulemaking, the Coast Guard proposes the establishment of the anchorages located offshore in the Atlantic Ocean, Anchorage C—Cape Henlopen, and Anchorage D—Indian River.

The purpose of this proposed rule is to improve navigation safety by accommodating recent and anticipated future growth in cargo vessel size and volume of vessel traffic entering the Delaware Bay and River, and to preserve areas traditionally used or needed for anchoring. We invite your comments on this proposed rulemaking.

The legal basis and authorities for this notice of proposed rulemaking are found in 46 U.S.C. 70006, 33 CFR 1.05-1, DHS Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory anchorage grounds.

This section provides a detailed discussion of the public comments on the proposed Delaware Bay Anchorages received during the NOI comment period and during the two virtual public meetings held for the New Jersey PARS study. Also contributing to this rulemaking through the PARS study process, the Coast Guard Navigation Center collected and analyzed vessel historical Automatic Information System (AIS) track line data from all vessels between 2017 and 2019 and created AIS “heat maps.” These heat maps show a concentration of vessels and their voyage routes and give insight into their operations and use of the waterways and, most pertinent to this NPRM, the location of vessels when at anchor. A copy of this AIS Anchorage report can be found in the docket. 2

On the NOI, the Coast Guard received a total of 19 comments concerning proposed Anchorage C—Cape Henlopen and Anchorage D—Indian River, five supportive and 14 opposed. Comments submitted to the online docket aligned into four categories: Environmental concerns, electricity transmission export cable routing safety and security, view shed concerns, and supporters. Copies of the public comments received are available for viewing in the public docket for this rulemaking under docket number USCG-2019-0822. Commenters represented a wide range of individuals and entities, including State and local government officials, port authorities, representatives of affected industries, such as maritime, port, and other facilities, and private citizens. The comments received from these parties helped to inform the proposal in this NPRM.

We received eight comments opposing the anchorage locations due to concerns that the presence of anchored ships could disrupt or pollute marine life habitats and behaviors. The Coast Guard has prepared a preliminary Record of Environmental Consideration (REC) for this NPRM, which is available in the NPRMs docket folder, and has made a preliminary determination that the proposed anchorages do not cumulatively or individually have significant effect on the natural or human environment.

We also note there are existing laws and regulations in place to govern behavior of mariners and vessels related to concerns about the release of pollutants. In terms of the discharge of pollutants, our regulations in 33 CFR part 151 and the Act to Prevent Pollution from Ships implement provisions of the International Convention for Prevention of Pollution from Ships and subject violators to penalties. 3 In addition, the Ports and Waterways Safety Act (PWSA) of 1972 (33 U.S.C. 1221, 1223, 1228, 1232 et seq. ) and PWSA-implementing regulations help us ensure vessel compliance with all applicable standards, operating requirements, conditions for entry into port, and enforcement provisions.

The Coast Guard also notes that this rulemaking will not significantly change the current and historical anchoring habits of vessels in these areas. This is demonstrated in the AIS heat maps for anchored vessels showing a concentration of vessels in or very near to the proposed anchorage areas. The formal regulation of these anchorages would not change the number of vessels that are anchoring and would provide greater oversight and predictability to vessel navigation in the area, which would ultimately lessen the potential for marine accidents and environmental impacts.

There were three comments submitted that pertained to concerns regarding the new anchorages coexisting with potential undersea cable routes to adjacent wind farm leases. Commenters requested mitigating measures and further discussion with wind farm stakeholders to avoid anchors striking or fouling undersea cables. Conversations between the Coast Guard and offshore wind developers have continued, both during and subsequent to the NOI and New Jersey PARS comment periods and virtual meetings. These conversations, among other things, have resulted in the developers choosing to pursue alternate cable routing measures that will avoid the proposed anchorage grounds.

Four comments submitted were opposed to the new anchorages stating that anchored vessels would obscure the ocean views from the coast and reduce the tourism appeal of the local areas and harm the local economies. In considering these comments, we note that the approval of the proposed anchorages will not directly change the status quo for vessels anchoring in these areas. AIS tracking data from 2017 to 2019 show vessels consistently anchoring in the same general area as the proposed areas, and that anchoring would continue in these areas regardless of the outcome of this rulemaking. By officially designating these anchorages, the Coast Guard can formally regulate the vessels that anchor in these offshore areas and limit vessels from anchoring elsewhere in the future, further affecting the human environment and local traffic.

There were five comments that stated the anchorages were necessary to preserve areas traditionally used for anchoring from offshore wind development and to provide adequate safe anchorage for vessels calling on the growing ports of the Delaware Bay and River. These comments were supported by AIS vessel data collected by the Coast Guard showing consistent anchorage in the proposed areas between 2017-2019.

Of the comments received during the New Jersey PARS virtual public meetings, six pertained to the proposed anchorages. One commenter specifically requested that this NPRM be available for at least 60 days for public comment. The remaining comments supported the anchorage proposal but stated concern for conflicts between vessel anchors and electricity transmission export cables. Conversations between the Coast Guard and offshore wind developers have continued, both during and subsequent to the NOI and New Jersey PARS comment periods and virtual meetings. These conversations, among other things, have resulted in the developers choosing to pursue alternate cable routing measures that will avoid the proposed anchorage grounds.

The Coast Guard is proposing to establish new anchorage grounds Anchorage C—Cape Henlopen and Anchorage D—Indian River. This proposal reflects our consideration of comments received at public meetings and in the docket, the preliminary Record of Environmental Consideration, and data analysis collected during the New Jersey PARS study.

We believe this proposal will establish new deep-water anchorage grounds for commercial vessels that will support the new and projected growth in maritime commerce vessel traffic throughout the Delaware Bay and River. These anchorages will create predictable navigation patterns greatly improving safety of navigation at sea and limit the impact of anchoring to the sea floor to specific determined areas.

Anchorage C—Cape Henlopen would be located in the Atlantic Ocean approximately 9.4 miles east of the Delaware coast. The proposed Anchorage C would be located in naturally deep water with charted depths between 41 and 85 feet. The boundaries of Anchorage C—Cape Henlopen are presented in § 110.157(a)(19) of the proposed regulatory text at the end of this document.

Anchorage D—Indian River would be located in the Atlantic Ocean beginning approximately 6 miles east of the Delaware coast. The proposed Anchorage D—Indian River will be located in naturally deep water with charted depths between 40 and 85 feet. The proposed location of Anchorage D has historically been used as an unregulated anchorage by vessels entering and exiting the port. The boundaries of Anchorage D—Indian River are presented in § 110.157(a)(20) of the proposed regulatory text at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the location and size of the proposed anchorage grounds, as well as the vessel traffic and anchoring data provided by the Coast Guard Navigation Center. The regulation would ensure approximately 27 square miles of anchorage grounds are designated to provide necessary commercial deep draft anchorages and enhance the navigational safety of commercial vessels transiting to, from, and within the Delaware Bay and River. The impacts on routine navigation are expected to be minimal because the proposed anchorage areas are located outside of the established traffic separation zones and are consistent with current anchorage habits. When not occupied, vessels would be able to maneuver in, around, and through the anchorages.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

The number of small entities impacted and the extent of the impact, if any, is expected to be minimal. Proposed Anchorage C—Cape Henlopen and Anchorage D—Indian River are located in an area of the Atlantic Ocean which is not a popular or productive fishing location. Further, the location is not in an area routinely transited by vessels heading to, or returning from, known fishing grounds. Finally, the anchorage is located in an area that is not currently used by small entities, including small vessels, for anchoring due to the depth of water naturally present in the area.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for Federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental Federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for Federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves amending the regulations for Delaware Bay and River anchorage grounds by establishing two new anchorage regulations; Anchorage C —Cape Henlopen and Anchorage D—Indian River. Normally such actions are categorically excluded from further review under paragraph L59(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2019-0822 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 110 as follows:

On March 9, 2022, the principal of Sturgeon Bay High School notified the Coast Guard that it will be conducting a boat parade for graduates of the Class of 2022 on May 28, 2022 from 11:00 a.m. through 2:00 p.m. The boat parade will begin at Madelyn Marine, NW of Highway 42 bridge, proceed NW to the Michigan Street Bridge, cross the channel towards the Maritime Museum, then proceed SE, crossing back across the channel and ending at Madelyn Marine. The Captain of the Port Sector Lake Michigan (COTP) has determined that potential hazards associated with the boat parade would be a safety concern for anyone within the safety zone that is not participating in the boat parade.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters of Sturgeon Bay between the Highway 42 Bridge and Michigan Street Bridge during the event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a safety zone from 11:00 a.m. through 2:00 p.m. on May 28, 2022. The safety zone would cover all navigable waters of Sturgeon Bay between the Highway 42 Bridge and Michigan Street Bridge. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the boat parade event. No vessels or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the characteristics of the safety zone. The safety zone created by this proposed rule will relatively small and is designed to minimize its impact on navigable waters. This proposed rule will prohibit entry into certain navigable waters of Sturgeon Bay, WI, and it is not anticipated to exceed 2.5 hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP Lake Michigan.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 2.5 hours that would prohibit entry within a relatively small portion of Sturgeon Bay. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document, the use of “we” and “us” is intended to refer to the EPA.

Section 110 of the Clean Air Act specifies the general requirements for states to submit SIPs to attain and maintain the NAAQS and the EPA's actions on such submissions. To efficiently adopt and implement the NAAQS and related requirements, Idaho incorporates certain Federal regulations by reference into the Idaho air rules (IDAPA 58.01.01) at IDAPA 58.01.01.107.03 Incorporation by Reference. Idaho then submits some of those provisions to the EPA for approval and codification into the Code of Federal Regulations (CFR) at 40 CFR part 52, subpart N (Idaho SIP). When Federal regulations are revised, Idaho updates the date by which the regulations are incorporated by reference and submits the updates to the EPA for approval.

The current Idaho SIP incorporates the following regulations by reference, as of July 1, 2019, at IDAPA 58.01.01.107.03, paragraphs a through e:

• National Primary and Secondary Ambient Air Quality Standards, 40 CFR part 50;

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, 40 CFR part 51, with the exception of certain visibility-related provisions;

• Approval and Promulgation of Implementation Plans, 40 CFR part 52, subparts A and N, and appendices D and E;

• Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR part 53; and

• Ambient Air Quality Surveillance, 40 CFR part 58.

On October 12, 2021, Idaho submitted updates to the SIP to incorporate these regulations by reference as of July 1, 2020. Between July 1, 2019 and July 1, 2020, most of these incorporated Federal regulations did not change. However, the EPA did revise 40 CFR part 52 subpart N to approve three Idaho SIP revisions. See 84 FR 45918, September 3, 2019; 84 FR 67189, December 9, 2019; and 85 FR 9664, February 20, 2020. In addition, the EPA revised 40 CFR part 58 to delay the implement of revised photochemical assessment monitoring systems. See 85 FR 834, January 8, 2020.

After reviewing the submitted updates, we have made the preliminary determination that the updates are consistent with Clean Air Act requirements.

The EPA proposes to approve and incorporate by reference the updates to the Idaho SIP submitted on October 12, 2021. Upon final approval, the Idaho SIP will include IDAPA 58.01.01.107.03, paragraphs a through e, State effective June 17, 2021, which, as discussed in section II of this preamble, incorporate by reference the specified Federal regulations as of July 1, 2020.

In this document, the EPA is proposing to include in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the provisions described in section III of this preamble. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed 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 et seq. );

• 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 et seq. );

• 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 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of the requirements would be inconsistent with the Clean Air Act; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rulemaking would not apply on any Indian reservation land or in any other area in Idaho where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule would not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), summaries of the petitions that are the subject of this document, prepared by the petitioners, are included in dockets EPA has created for these rulemakings. The dockets for these petitions are available at https://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

PP IN-11661. (EPA-HQ-OPP-2022-0189). The United States Department of Agriculture, Animal and Plant Health Inspection Service (4700 River Road, Unit 149, Riverdale, MD 20737), requests to amend 40 CFR part 180.930 to add iron oxide (Fe 3 O 4 ) (CAS No. 1317-61-9) as an inert ingredient (colorant) in pesticide formulations at no more than 2,000 parts per million (ppm) (0.2% by weight) in the final formulation when applied to animals. No analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

1. PP 1F8929. (EPA-HQ-OPP-2021-0555). Gowan Company, LLC 370 S Main St., Yuma, AZ 85366, requests to amend the tolerance(s) in 40 CFR 180.416 for residues of the herbicide ethalfluralin in or on 3-07A. Onion, bulb subgroup at 0.01 ppm. The capillary gas chromatography with mass selective detection (GC/MSD) is used to measure and evaluate the chemical ethalfluralin. Contact: RD.

2. PP 1F8940. (EPA-HQ-OPP-2021-0787). SePRO Corporation, 11550 North Meridian Street, Suite 600, Carmel, IN 46032, requests to amend the tolerances in 40 CFR 180.420(d) by removing the existing tolerances for indirect or inadvertent residues of the herbicide fluridone, including its metabolites and degradates, in or on berry, group 13; fruit, citrus, group 10; fruit, pome, group 11; hop, dried cones; and nut, tree, group 14 at 0.1 ppm and animal feed, nongrass, group 18 and grass, forage at 0.15 ppm. Contact: RD.

1. PP IN-11599. (EPA-HQ-OPP-2021-0645). Valent BioSciences LLC (1910 Innovation Way, Suite 100, Libertyville, Il. 60048) requests to establish an exemption from the requirement of a tolerance for residues of arbuscular mychorrhizae ( funnelformis mosseae, rhizophagus irregularis, rhizophagus etunicatum, claroideoglomus clarus, claroideoglomus luteum, claroideoglomus claroideum, septoglomus deserticola, gigaspora margarita, paraglomus brasiliensis ) for use as an inert ingredient (biostimulant) in pesticide formulations applied to growing crops pre-harvest under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

2. PP IN-11669. (EPA-HQ-OPP-2022-0188). Spring Regulatory Sciences (6620 Cypresswood Dr., Suite 250, Spring, TX 77379), on behalf Nouryon Chemicals LLC USA (131 S Dearborn, Suite 1000, Chicago, IL 60603-5566), requests to establish an exemption from the requirement of a tolerance for cellulose, ethyl 2-hydroxyethyl ether (CAS Number: 9004-58-4), with a minimum number average molecular weight of 165,000 daltons, when used as a pesticide inert ingredient (thickener carrier) in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD

PP IF8923. (EPA-HQ-OPP-2021 -0781). Vestaron Corporation 600 Park Offices, Suite 117, Research Triangle, NC 27709, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the insecticide U1-AGTX-Ta1b-QA in or on all food commodities. The petitioner believes no analytical method is needed because an exemption from tolerance without numerical limitations is requested and analytical methods that are normally utilized for detection of compounds in crop plants are incapable of quantifying the negligible levels of U1-AGTX-Ta1b-QA that are predicted to be present in raw or processed agricultural commodities. Contact: BPPD.

PP 1E8948. (EPA-HQ-OPP-2022-0205). State University of New York (SUNY) College of Environmental Science and Forestry, 1 Forestry Dr., Syracuse, NY 13210, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 174 for residues of the plant-incorporated protectant (PIP) oxalate oxidase enzyme and the genetic material necessary for its production in or on American Chestnut ( Castanea spp. and their hybrids). The petitioner believes no analytical method is needed because an analytical method for residues is not applicable as an exemption from the requirement of a tolerance is proposed. Contact: BPPD.

1. PP 1F8934. (EPA-HQ-OPP-2021-0641). Syngenta Crop Protection, LLC, 410 Swing Road, P.O. Box 18300, Greensboro, NC 27419-8300, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide isocycloseram in or on almond, hulls at 6 ppm; almond, oil at 1 ppm; almond, roasted at 0.5 ppm; apple, wet pomace at 1 ppm; barley, grain at 0.01 ppm; barley, hay at 0.01 ppm; barley, straw at 0.01 ppm; buckwheat, grain at 0.01 ppm; buckwheat, forage at 0.01 ppm; buckwheat, hay at 0.01 ppm; buckwheat, straw at 0.01 ppm; corn, field, grain at 0.01 ppm; corn, field, forage at 2 ppm; corn, field, stover at 1.5 ppm; corn, pop, grain at 0.01 ppm; corn, pop, stover at 1.5 ppm; cotton, gin byproducts at 10 ppm; cottonseed, subgroup 20C at 0.5 ppm; fruit, citrus, group 10-10 at 0.4 ppm; fruit, pome, group 11-10 at 0.4 ppm; fruit, stone, group 12-12 at 1 ppm; grain, cereal, forage, fodder and straw, group 16 at 0.01 ppm; nut, tree, group 14-12 at 0.15 ppm; oat, grain at 0.01 ppm; oat, forage at 0.01 ppm; oat, hay at 0.01 ppm; oat, straw at 0.01 ppm; onion, bulb, subgroup 3-07A at 0.01 ppm; onion, green, subgroup 3-07B at 0.9 ppm; orange, citrus oil at 190 ppm; orange, dried pulp at 9 ppm; orange, peel at 5 ppm; orange, wet pulp at 3 ppm; peas and bean, dried shelled, except soybean, subgroup 6C at 0.01 ppm; peanut, nutmeat at 0.01 ppm; pearl millet, grain at 0.01 ppm; pearl millet, forage at 0.01 ppm; pearl millet, hay at 0.01 ppm; pearl millet, straw at 0.01 ppm; peas, hay at 0.01 ppm; peas, vine at 0.01 ppm; plum, prunes at 4 ppm; proso millet, grain at 0.01 ppm; proso millet, forage at 0.01 ppm; proso millet, hay at 0.01 ppm; proso millet, straw at 0.01 ppm; rapeseed, subgroup 20A at 0.01 ppm; rye, grain at 0.01 ppm; rye, forage at 0.01 ppm; rye, hay at 0.01 ppm; rye, straw at 0.01 ppm; soybean, seed at 0.15 ppm; soybean, hulls at 0.5 ppm; teosinte, grain at 0.01 ppm; teosinte, forage at 0.01 ppm; teosinte, hay at 0.01 ppm; teosinte, straw at 0.01 ppm; tomato, dried pomace at 35 ppm; tomato, sun-dried at 3 ppm; tomato, wet pomace at 10 ppm; triticale, grain at 0.01 ppm; triticale, forage at 0.01 ppm; triticale, straw at 0.01 ppm; vegetables, brassica, head and stem, group 5-16 at 4 ppm; vegetables, cucurbit, group 9 at 0.1 ppm; vegetables, fruiting, subgroup 8-10A at 0.5 ppm; vegetables, fruiting, subgroup 8-10B at 0.6 ppm; vegetables, leafy, group 4-16 at 9 ppm; vegetables, tuberous and corm, subgroup 1C at 0.01 ppm; wheat, grain at 0.01 ppm; wheat, forage at 0.01 ppm; wheat, hay at 0.01 ppm; wheat, straw at 0.01 ppm; cattle, fat at 0.03 ppm; cattle, kidney at 0.03 ppm; cattle, liver at 0.05 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts at 0.05 ppm; milk at 0.01 ppm; milk, cream at 0.01 ppm; goat, fat at 0.03 ppm; goat, kidney at 0.03 ppm; goat, liver at 0.05 ppm; goat, meat at 0.01 ppm; goat, meat byproducts at 0.05 ppm; horse, fat at 0.03 ppm; horse, kidney at 0.03 ppm; horse, liver at 0.05 ppm; horse, meat at 0.01 ppm; horse, meat byproducts at 0.05 ppm; sheep, fat at 0.03 ppm; sheep, kidney at 0.03 ppm; sheep, liver at 0.05 ppm; sheep, meat at 0.01 ppm; sheep, meat byproducts at 0.05 ppm; poultry (muscle, fat, offal) at 0.01 ppm; birds' egg at 0.01 ppm. For Analytical Method Food: QuEChERS multi-residue method has been validated and independently validated for post-registration monitoring of SYN547407 for compliance with MRLs and import tolerances in plant commodities at an LOQ of 0.01 mg/kg. For Analytical Method Livestock: QuEChERS multi-residue method (EN 15662:2008) has been validated and independently validated for post-registration monitoring of SYN547407 in all animal commodities (and SYN549436 and SYN549544 in ruminant liver and kidney) for compliance with MRLs and import tolerances for animal commodities at an LOQ of 0.01 mg/kg. Contact: RD.

2. PP 1E8910. (EPA-HQ-OPP-2022-0139). Dow AgroSciences LLC, 9330 Zionsville Rd., Indianapolis, IN 46268, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide methoxyfenozide in or on coffee at 0.15 ppm and sugarcane at 0.03 ppm. The Liquid Chromatography with Tandem Mass Spectrometry Detection (Method GRM 02.25) is used to measure and evaluate the methoxyfenozide residues. Contact: RD.

3. PP 1F8940. (EPA-HQ-OPP-2021-0787). SePRO Corporation, 11550 North Meridian Street, Suite 600, Carmel, IN 46032, requests to establish tolerances in 40 CFR 180.420(a)(2) for residues of the herbicide fluridone, 1-methyl-3-phenyl-5-[3-(trifluoromethyl)phenyl]-4(1H)-pyridinone, including its metabolites and degradates, in or on the raw agricultural commodities of berry and small fruit, group 13-07; fruit, citrus, group 10-10; fruit, pome, group 11-10; tropical and subtropical, small fruit, edible peel subgroup 23A; tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B; hop, dried cones; nut, tree, group 14-12; and rice, grain at 0.1 ppm and animal feed, nongrass, group 18 and grass, forage, fodder and hay, group 17 at 0.15 ppm. The enzyme-linked immunosorbant assay (ELISA), high performance liquid chromatography with ultraviolet detection (HLPC/UV), liquid chromatography with tandem mass spectroscopy (LC-MSMS) and QuEChERS are used to measure and evaluate the chemical residues. Contact: RD.

4. PP 1F8950. (EPA-HQ-OPP-2021-0788). Nippon Soda Co., Ltd., Shin-Ohtemachi Bldg., 2-1, 2-Chome Ohtemachi, Chiyoda-ku, Tokyo, 100-8165, Japan, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide, cyflufenamid, in or on sugar beets at 0.07 ppm. Solvent extraction and analysis by LC/MS/MS are used to measure and evaluate the chemical Cyflufenamid. Contact: RD.

5. PP 1F8972. (EPA-HQ-OPP-2022-0134). Tessenderlo Kerley, Inc./NovaSource, 2910 N 44th Street, Suite 100, Phoenix, AZ 85018 USA, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide linuron in or on alfalfa, forage at 1.0 ppm and alfalfa, hay at 3.0 ppm. The HPLC-MS/MS residue analytical method is used to measure and evaluate the chemical linuron. Contact: RD.

6. PP 1F8978. (EPA-HQ-OPP-2022-0257). Belchim Crop Protection US Corporation, 2751 Centreville Road, Suit 100, Wilmington, Delaware 19808, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide pyridate in or on dry peas and soybeans at 0.05 ppm. The HPLC-MS/MS residue analytical method is used to measure and evaluate the chemical pyridate and the herbicidal active principle, CL 9673. Contact: RD.

EPA is issuing a Notice of Intent to delete five sites and partially delete six sites from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the NCP, which EPA created under section 105 of the CERCLA statute of 1980, as amended. EPA maintains the NPL as those sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). These partial deletions are proposed in accordance with 40 CFR 300.425(e) and is consistent with the “Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List.” 60 FR 55466, (November 1, 1995). As described in 40 CFR 300.425(e)(3) of the NCP, a site or portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

EPA will accept comments on the proposal to delete or partially delete these sites for thirty (30) days after publication of this document in the Federal Register .

Section II of this document explains the criteria for deleting sites from the NPL. Section III of this document discusses procedures that EPA is using for this action. Section IV of this document discusses the site or portion of the site proposed for deletion and demonstrates how it meets the deletion criteria, including reference documents with the rationale and data principally relied upon by the EPA to determine that the Superfund response is complete.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion or partial deletion of the sites in this proposed rule:

(1) EPA consulted with the respective state before developing this Notice of Intent for deletion.

(2) EPA has provided the state 30 working days for review of site deletion documents prior to publication of this Notice of Intent to Delete in the Federal Register .

(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.

(4) The state, through their designated state agency, has concurred with the proposed deletion action.

(5) Concurrently, with the publication of this Notice of Intent for deletion in the Federal Register , a notice is being published in a major local newspaper of general circulation near the site. The newspaper announces the 30-day public comment period concerning the Notice of Intent for deletion.

(6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket, made these items available for public inspection, and copying at the Regional Records Center identified above.

If comments are received within the 30-day comment period on this document, EPA will evaluate and respond accordingly to the comments before making a final decision to delete or partially delete the site. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete or partially delete the site, the EPA will publish a final Notice of Deletion or Partial Deletion in the Federal Register . Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and included in the site information repositories listed above.

Deletion of a site or a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site or a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The site to be deleted or partially deleted from the NPL, the location of the site, and docket number with information including reference documents with the rationale and data principally relied upon by the EPA to determine that the Superfund response is complete are specified in Table 1. The NCP permits activities to occur at a deleted site or that media or parcel of a partially deleted site, including operation and maintenance of the remedy, monitoring, and five-year reviews. These activities for the site are entered in Table 1, if applicable, under Footnote such that; 1= site has continued operation and maintenance of the remedy, 2= site receives continued monitoring, and 3= site five-year reviews are conducted.

Table 2 includes information concerning whether the full site is proposed for deletion from the NPL or a description of the area, media or Operable Units (OUs) of the NPL site proposed for partial deletion from the NPL, and an email address to which public comments may be submitted if the commenter does not comment using https://www.regulations.gov.

EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of a site from the NPL does not affect responsible party liability in the unlikely event that future conditions warrant further actions.

OFCCP administers and enforces Executive Order 11246, as amended (E.O. 11246); Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (Section 503); and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA); and their implementing regulations, 41 CFR chapter 60. Collectively, these laws require Federal contractors and subcontractors  1 to take affirmative action to ensure equal employment opportunity, and not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Additionally, E.O. 11246 prohibits a contractor from discharging or otherwise discriminating against applicants or employees who inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.

In November 2020, OFCCP published a final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination” (the “2020 rule”), 2 amending its regulations to codify the required use of two notification procedures, the Predetermination Notice and the Notice of Violation. The 2020 rule requires OFCCP to issue a Predetermination Notice that provides contractors with an initial written notice of preliminary indicators of discrimination and requests that contractors respond. If after providing contractors an opportunity to respond, OFCCP finds a violation of an equal opportunity clause, 3 OFCCP will issue a Notice of Violation to the contractor requiring corrective action and inviting conciliation through a written agreement. The contractor then has an additional opportunity to respond and resolve the matter. Where OFCCP and the contractor have been unable to resolve these findings, and OFCCP has reasonable cause to believe that a contractor has violated an equal opportunity clause, the Director may issue a Show Cause Notice requiring the contractor to show cause for why monitoring, enforcement proceedings, or other appropriate action to ensure compliance should not be instituted. The 2020 rule also provided for an early conciliation option for contractors that wish to bypass these notice procedures and resolve preliminary indicators of discrimination directly through a conciliation agreement.

In addition to requiring the use of the Predetermination Notice and Notice of Violation, the 2020 rule established enforcement standards that, as explained in the preamble to the final rule, were not “compelled. . . by [Title VII of the Civil Rights Act of 1964] and OFCCP case law” but rather were promulgated “as an exercise of [OFCCP's] enforcement discretion to focus OFCCP's resources on those cases with the strongest evidence,” “increase the number of contractors the agency evaluates,” and to provide “guardrails on the agency's issuance of pre-enforcement notices.”  4

Upon further review and assessment of the impact of the 2020 rule on OFCCP enforcement, OFCCP believes that the 2020 rule's inflexible evidentiary requirements mandate overly particularized and confusing evidentiary definitions that impede OFCCP's ability to tailor the pre-enforcement process to the specific facts and circumstances of each case, delay information exchange with contractors, and create obstacles to remedying discrimination. The 2020 rule's rigid requirements for issuing a Predetermination Notice and Notice of Violation in some instances exceed what courts have required for proof at trial and run counter to the general principle that the evidentiary standard pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) is a flexible one dependent on the unique facts at issue. These heightened and overly formulaic evidentiary standards are particularly unsuitable at the Predetermination Notice stage of a compliance evaluation, where OFCCP provides contractors with preliminary notice of indicators of discrimination so that contractors may provide a response to clarify and resolve areas of dispute.

In addition, mandating the same heightened and inflexible evidentiary requirements for both the Predetermination Notice and the Notice of Violation creates inefficient and duplicative processes, which hinders OFCCP's ability to provide contractors with early notification of indicators of discrimination found by the agency. Moreover, the 2020 rule attempted to codify complex evidentiary issues, many of which are inherently open to debate, thus encouraging contractors to raise collateral challenges to OFCCP's pre-enforcement notice procedures, rather than providing a substantive response to the indicators and findings of discrimination.

Further, the 2020 rule requires that OFCCP disclose to the contractor at the pre-enforcement stage the quantitative and qualitative evidence relied upon by OFCCP to support indicators or findings of discriminatory intent “in sufficient detail to allow contractors to investigate allegations and meaningfully respond.”  5 While the 2020 rule provided that OFCCP may withhold personally identifiable information in certain circumstances, the disclosure of qualitative evidence creates a risk that an employer will uncover identities of those who experience or report discrimination at this investigatory stage of the proceeding, which may have a chilling effect on the willingness of victims and witnesses to participate in OFCCP's investigation and also potentially lead to retaliation against those who report discrimination. Upon careful consideration, OFCCP believes that the 2020 regulations negatively impact America's workers by delaying the resolution of discrimination findings and constraining OFCCP's ability to effectively enforce the full scope of the protections that the President and Congress have entrusted to the agency.

In this rulemaking, OFCCP proposes to modify the 2020 rule to rescind the rigid evidentiary standards and definitions, while retaining and refining the required pre-enforcement procedures for issuing the Predetermination Notice and the Notice of Violation. OFCCP's regulations have included use of the Show Cause Notice since the agency's inception. 6 This proposal will clarify OFCCP's use of the Predetermination Notice and the Notice of Violation as pre-enforcement procedures, similar to the Show Cause Notice regulation, which has never included the specific type of evidentiary standards the 2020 rule introduced. The proposed modifications would allow OFCCP to tailor the pre-enforcement process to the specific facts and circumstances of each case, consistent with judicial interpretations of the applicable legal authorities, which will in turn allow OFCCP to more effectively redress unlawful discrimination.

In addition, to promote greater efficiency in resolving cases, OFCCP proposes to modify the 2020 rule's provision that required a contractor to provide a response within 30 calendar days of receiving a Predetermination Notice. 7 The proposal returns the Predetermination Notice response period to the 15 calendar day period in effect prior to the 2020 rule (which OFCCP may extend for good cause). 8 In the proposal, OFCCP also clarifies this provision to state that any response must be received by OFCCP within 15 calendar days (absent a deadline extension).

OFCCP also proposes to retain the regulatory language regarding early resolution, which provides that contractors may waive these notice procedures if they enter directly into a conciliation agreement. Finally, the proposal would delete the severability clause that applied just to certain sections of OFCCP's regulations and replace it with severability clauses covering the entirety of each part of OFCCP's regulatory scheme.

The 2020 final rule was the first time OFCCP sought to codify the specific forms of evidence that the agency must rely upon during its pre-enforcement process. Through this proposal, OFCCP would promote consistency by codifying the required use of the Predetermination Notice and Notice of Violation when the agency identifies preliminary indicators or findings of discrimination, while allowing the agency the flexibility to issue appropriate guidance to field staff on the use of the procedures. OFCCP would continue to ensure transparency by sharing this guidance with the public.

This proposed rulemaking aims to create a streamlined, efficient, and flexible pre-enforcement and conciliation process to ensure OFCCP utilizes its resources strategically to advance the agency's mission through effective enforcement. OFCCP remains committed to providing contractors notice when the agency sees preliminary indicators of discrimination during a compliance evaluation, as such notice is mutually beneficial for OFCCP and the contractor under review because it provides the contractor an opportunity to respond and work to resolve the issues.

In its 2020 final rule, OFCCP stated an intent to increase clarity and transparency for Federal contractors, establish clear parameters for OFCCP enforcement proceedings, and enhance the efficient enforcement of the law. The 2020 rule identified two primary objectives: (1) Increase the number of contractors the agency evaluates and (2) focus on resolving stronger cases through the strategic allocation of limited agency resources. 9 As detailed further below in this proposed rulemaking, OFCCP reconsidered the 2020 rule and assessed its impact on OFCCP enforcement processes and has found that the 2020 rule's formulaic and inflexible evidentiary standards for pre-enforcement notices neither assist the agency in strategically allocating its limited resources nor enable the agency to evaluate more contractors. Instead, the 2020 rule's evidentiary mandates diminish OFCCP's ability to provide contractors with early notification of indicators of discrimination and unnecessarily divert agency and contractor resources away from addressing discrimination by spawning time-consuming collateral disputes about the implementation of these heightened evidentiary standards. This decreases rather than increases the number of contractors that OFCCP can evaluate for compliance with equal opportunity laws. OFCCP thus proposes to modify the 2020 rule to ensure that OFCCP utilizes its resources strategically to provide contractors with an early opportunity to understand and resolve indicators or findings of discrimination and to enable the agency to protect America's workers by enforcing the full scope of the equal opportunity authorities with which it has been entrusted.

Historically, OFCCP has issued pre-enforcement notices in compliance evaluations ( i.e., the Predetermination Notice, Notice of Violation, and Show Cause Notice) when the agency is seeking to remedy findings of discrimination. 10 Prior to 2018, the use of the Predetermination Notice varied by region and by the type of case. In 2018, OFCCP issued a directive, requiring the consistent issuance of Predetermination Notices for preliminary discrimination findings identified during the course of compliance evaluations. 11

A stated goal of the 2020 rule was to provide contractors with greater certainty by codifying the historical, then-existing procedures for issuing the Predetermination Notice and the Notice of Violation. 12 The preamble to the 2020 rule stated that the Predetermination Notice is intended to encourage communication with contractors and provide them an opportunity to respond to preliminary indicators of discrimination prior to OFCCP deciding to issue a Notice of Violation. As set forth in the 2020 rule, if the contractor did not respond to the Predetermination Notice or sufficiently rebut the preliminary indicators in the Predetermination Notice, OFCCP would issue the Notice of Violation to inform the contractor that the agency found violations of one or more of the laws it enforces. The Notice of Violation also informed the contractor that corrective action would be required and invited conciliation through a written agreement. 13

Rather than simply codify OFCCP's then-existing procedures for issuing the Predetermination Notice and Notice of Violation, the 2020 rule instead exercised the agency's enforcement discretion to adopt rigid standards that the agency had not historically followed for issuing these two notices, necessitating that OFCCP alter the content of the Predetermination Notice and Notice of Violation from what had previously been included in the notices. As detailed further below, this rulemaking proposes to retain the agency's consistent use of the two pre-enforcement notices while rescinding the 2020 rule's rigid evidentiary mandates.

Prior to the issuance of the 2020 final rule, OFCCP had issued subregulatory guidance and internal procedures on the use of the Predetermination Notice, as well as the Notice of Violation, through the Federal Contract Compliance Manual (FCCM) and agency directives. The agency has utilized this guidance to promote transparency and consistency, while ensuring the agency has the flexibility to update these guidance documents to improve procedures and align with OFCCP's strategic enforcement measures. The 2020 rule also codified a new pre-enforcement procedure available for OFCCP and contractors to expedite conciliation by bypassing the Predetermination Notice and Notice of Violation procedures and entering directly into a conciliation agreement. In this rulemaking, OFCCP retains this expedited conciliation process and only proposes changes to that subsection of the 2020 rule to clarify the agency's role in pursuing the expedited conciliation option.

The 2020 rule codified evidentiary standards that OFCCP must meet in order to issue a Predetermination Notice and a Notice of Violation. Under the 2020 rule, OFCCP's authority to issue a Predetermination Notice or Notice of Violation for discrimination cases is limited to those situations where OFCCP demonstrates that it has specific forms of evidence conforming to the regulatory thresholds requiring quantitative ( i.e., statistical or other numerical) evidence, practical significance, and qualitative evidence of discrimination. 14 The 2020 rule differentiates the procedures followed for disparate treatment and disparate impact theories of discrimination and provides the evidentiary standards OFCCP must meet to issue pre-enforcement notices under each legal theory. 15 The 2020 rule mandates that, upon the contractor's request, OFCCP must provide the model and variables used in the agency's statistical analysis and an explanation for any variable that was excluded from the statistical analysis. The 2020 rule also requires OFCCP to explain in detail the basis for its findings in pre-enforcement notices. 16 For the reasons discussed below, this rulemaking proposes to rescind these formal evidentiary standards and disclosure requirements in the 2020 rule.

Finally, the 2020 rule added definitions for “quantitative evidence” and “qualitative evidence” to OFCCP's regulations purporting to add greater clarity and certainty as to the types of evidence the agency uses to support the issuance of pre-enforcement notices. 17 The term “qualitative evidence” is defined to include the various types of documents, testimony, and interview statements that OFCCP collects during its compliance evaluations relevant to a finding of discrimination, and clarified the purposes for which it will be used. The term “quantitative evidence” establishes the support needed for OFCCP to determine that there is a statistically significant disparity in a contractor's employment selection or compensation outcomes affecting a group protected under OFCCP's laws. The definition sets a standard for what OFCCP considers statistically significant. 18 The definition also includes quantitative analyses, such as cohort analyses, which are comparisons of similarly situated individuals or small groups of applicants or employees that are numerical in nature but do not use hypothesis testing techniques. Pursuant to the 2020 rule, the term “qualitative evidence” gives an affirmative, descriptive label to the types of evidence that fall into that category while the term “quantitative evidence” better encapsulates OFCCP's analytical evidence given the agency's use of descriptive statistics and non-parametric and cohort analyses, in addition to a variety of statistical tests based on hypothesis testing. 19 OFCCP declined to add a specific definition for practical significance in the 2020 rule because it concluded there is not a settled definition in relevant academic literature and a variety of measures may be appropriate to use in any given case, instead describing the common types of practical significance measures and explaining the metrics the agency would customarily use. 20 In this proposed rulemaking, OFCCP proposes to eliminate the definitions for the reasons discussed below.

The 2020 rule codifies specific evidentiary standards that OFCCP must meet in order to issue a Predetermination Notice and a Notice of Violation. The preamble to the 2020 rule concedes, however, that these standards, applicable to both the Predetermination Notice and the Notice of Violation, are not compelled by Title VII or OFCCP case law. Indeed, as discussed below, the 2020 rule places certain obligations on OFCCP that go beyond what is required by E.O. 11246 to state or prove a claim of discrimination or by Title VII for proof of discrimination after the completion of the discovery process upon a full evidentiary record in litigation.

The pre-enforcement notice process is intended to place the employer on notice of OFCCP's concerns of discrimination. The information available to OFCCP during the pre-enforcement notice stage of a compliance evaluation is necessarily limited compared to a full evidentiary record available to support proof of a violation at trial. Thus, imposing proof standards for the agency's initial pre-enforcement proceedings that essentially require the agency to be trial ready—and, as discussed in more detail below, are even more onerous than are required in court to prove a violation under Title VII—is incompatible with the investigatory stage of a compliance evaluation. 21 As set forth in OFCCP's longstanding regulations in effect since OFCCP's inception, the agency will issue a Show Cause Notice to proceed with an enforcement action where it has reasonable cause to believe discrimination occurred based on the information available through its investigation. 22 This means that, based upon the evidence obtained in the investigation, the agency believes discrimination did occur. 23 This does not require developing a full evidentiary record to support proof at trial, but rather providing notice of the agency's findings supporting its belief that violations occurred and giving the contractor the opportunity to show why agency action to ensure compliance should not be instituted. 24 Thus, even this final stage in the pre-enforcement process does not impose specific evidentiary regulations or trial-level proof prior to the institution of an enforcement action.

The Predetermination Notice is the initial written notice in a multi-stage notification and information exchange process provided to contractors to promote a mutual understanding of the issues and facilitate voluntary resolution. Prior to the 2020 regulation, the Predetermination Notice served to foster communication with contractors about preliminary indicators of discrimination, providing the contractor with an early opportunity to understand and respond to OFCCP's preliminary findings. This process enables the sharing of additional information that may assist OFCCP in resolving the preliminary findings or conducting a more refined analysis of the data before determining whether to issue a Notice of Violation.

In order to issue a Predetermination Notice under the 2020 rule, OFCCP must meet the same evidentiary standards as required to issue a Notice of Violation. As a result, the 2020 rule has created inefficiencies and delay in OFCCP's pre-enforcement process. In addition, the 2020 rule has in certain respects created higher evidentiary requirements for E.O. 11246 matters than Title VII matters, which unduly circumscribes OFCCP's ability to prosecute discriminatory practices and is contrary to the approach generally followed by OFCCP and recognized in relevant case law. 25

While the 2020 rule purported to “focus OFCCP's resources on those cases with the strongest evidence,”  26 upon further reconsideration OFCCP believes the rule hindered the agency's ability to focus on those cases with the strongest evidence by adopting a formulaic approach to evidentiary standards rather than viewing the strength of the evidence in light of the particular facts and circumstances at issue in each case. OFCCP has concluded that rigid evidentiary standards are unnecessary and unduly constrain the agency's broad enforcement discretion as to the cases it decides to litigate and those it does not. 27 OFCCP has been diligent in managing its limited resources for decades to focus on the strongest cases without the need for blanket evidentiary standards. To promote more effective enforcement, OFCCP proposes to return to its long-standing practice of focusing agency resources without imposing blanket evidentiary standards, pursuing those cases supported by strong evidence tailored to the facts of each case. Further, OFCCP believes that the 2020 rule has failed to meet its objectives of providing clarity and promoting efficiency. As described in more detail below, these strict evidentiary standards have instead led to delays in resolutions by increasing disagreements between OFCCP and contractors about the requirements for Predetermination Notices.

With this proposal, OFCCP would apply Title VII standards to the facts and circumstances of each compliance evaluation to provide contractors with notice of the nature of OFCCP's concerns. 28 OFCCP proposes to adopt this approach to advance a policy of promoting consistency between Title VII and E.O. 11246 and to remove unnecessary constraints on the agency's ability to pursue meritorious cases. Taking this approach will help OFCCP advance the overriding policy goal of promoting nondiscrimination by strengthening the enforcement of federal protections under E.O. 11246. OFCCP also would promote transparency and consistency by continuing to codify the required use of the Predetermination Notice when the agency identifies preliminary indicators of discrimination.

The 2020 rule requires that OFCCP, with only narrow exceptions, provide both “quantitative” and “qualitative” evidence before issuing a Predetermination Notice or a Notice of Violation, and provides definitions for what constitutes “quantitative” and “qualitative” evidence. 29 These provisions of the 2020 rule depart from traditional Title VII standards in two respects. First, Title VII does not prescribe the different and specific forms of evidence described in the 2020 rule in order to establish a prima facie case of discrimination, much less investigatory findings of violation. 30 Interpretive Title VII case law demonstrates that there are multiple ways to establish a prima facie case of discrimination, including through statistical evidence alone, as long as the plaintiff ultimately satisfies its burden of proof. 31

As the U.S. Supreme Court and lower courts have long recognized, Title VII requires a case-by-case evaluation of the facts and circumstances. 32 There is no one-size-fits-all blanket formula for establishing discrimination. Yet, the 2020 rule circumscribes OFCCP's authority to pursue only those cases that meet bright line statistical thresholds or rely on specific types of evidence. To be sure, OFCCP recognizes the utility of anecdotal evidence in support of discrimination cases generally and will continue to make efforts to gather such evidence during its compliance evaluations. 33 However, to require as a baseline rule that the agency proffer evidence falling within multiple and different categories regardless of the factual circumstances of a case—especially at the investigative stage—goes beyond well-established Title VII principles. In addition, a number of the regulatory requirements impose a standard that is inherently fact specific, open to dispute, and ultimately unnecessary to adjudicate at this initial stage of the proceeding, including the requirement that OFCCP provide “qualitative evidence supporting a finding of discriminatory intent for all cases proceeding under a disparate treatment theory” (emphasis added), subject to certain enumerated exceptions. Such disputes created protracted delays in remedying violations of the law. Moreover, the 2020 rule requires that OFCCP disclose to the contractor at this preliminary stage the quantitative and qualitative evidence relied upon by OFCCP to support findings of discriminatory intent “in sufficient detail to allow contractors to investigate allegations and meaningfully respond.”  34 Mandating the disclosure of anecdotal evidence at this pre-determination stage may have a chilling effect on the willingness of victims and witnesses to participate in OFCCP's investigation due to concerns that an employer may uncover their identities, which could lead to retaliation. The preamble to the 2020 rule acknowledges that OFCCP may withhold “personal identifying information from the description of the qualitative evidence if the information is protected from disclosure under recognized governmental privileges, or if providing that information would otherwise violate confidentiality or privacy protections afforded by law;” yet, even in those circumstances where OFCCP may withhold an individual's identity, witnesses may remain concerned about the employer's ability to ascertain their identity from the anecdotal information provided at this pre-determination stage.

As such, OFCCP proposes to rescind the 2020 rule requirement to provide both “quantitative” and “qualitative” evidence before issuing a Predetermination Notice or Notice of Violation. As described above, disputes over this requirement resulted in protracted delays for remedying violations. Eliminating this unnecessary, rigid requirement allows the agency more flexibility, better ensures prompt resolutions, and strengthens its ability to protect workers and enforce the law. Eliminating this requirement also allows OFCCP to better align its enforcement with Title VII evidentiary standards.

Because OFCCP is proposing to rescind this requirement, the definitions of “quantitative evidence” and “qualitative evidence” included in the 2020 rule to support the evidentiary scheme would no longer be necessary. Even when evaluated outside of the 2020 rule's evidentiary framework, upon further consideration, OFCCP now believes these definitions, and particularly the definition for “qualitative evidence,” to be confusing, overly particularized, and inconsistent with the general principle that the Title VII evidentiary standard is a flexible one dependent on the unique facts at issue. 35 First, the 2020 rule's definition of “qualitative evidence” begins with a series of lengthy, highly specific examples that may not be present in many systemic discrimination cases. Although the 2020 rule stated that qualitative evidence “includes but is not limited to” these examples, some contractors now assert that OFCCP must present evidence of these highly specific examples in its cases, creating delays to OFCCP's pre-enforcement conciliation procedures. However, the 2020 rule's first example—“biased statements, remarks, attitudes, or acts based upon membership in a protected class, particularly when made by a decision maker involved in the action under investigation”—includes the sort of direct, “smoking gun” evidence that, while certainly probative of discrimination, is “rarely found in today's sophisticated employment world.”  36 The next example—evidence about “misleading or contradictory information” given by an employer to an employee or applicant “in circumstances suggesting discriminatory treatment”—also describes narrow factual scenarios that may not be present in many cases, substantially limiting the utility of the definition. The “qualitative evidence” definition is also overly focused on evidence of discriminatory intent in disparate treatment cases. Even though it includes one example related to disparate impact cases—evidence related to “the business necessity (or lack thereof) of a challenged policy or practice”—that example is problematic because it is: (1) A category of evidence that is the employer's burden to demonstrate, after the agency establishes a prima facie case;  37 and (2) not the only sort of “qualitative” evidence that plaintiffs typically introduce or rely upon in the course of a disparate impact case. 38 Finally, the definition includes “whether the contractor has otherwise complied with its non-discrimination obligations” as a type of permissible qualitative evidence. Upon reconsideration, OFCCP has concerns that this provision could easily be misinterpreted to mean that when a contractor complies with some of its nondiscrimination obligations, it somehow lessens the weight of evidence of noncompliance with other nondiscrimination obligations. Accordingly, OFCCP proposes to remove the two definitions added in the 2020 rule. OFCCP will continue to evaluate its cases in line with well-established Title VII evidentiary standards and will continue to provide compliance assistance and other guidance materials on these standards as appropriate. 39

Practical significance refers to whether an observed disparity in employment opportunities or outcomes reflects meaningful harm to the disfavored group, focusing on the contextual impact or importance of the disparity rather than its likelihood of occurring by chance. 40 For allegations included in a Predetermination Notice and Notice of Violation, the 2020 rule requires that OFCCP demonstrate practical significance, and the preamble includes quantitative ranges for various measures indicating whether it is “likely” or “unlikely” that practical significance is present. 41

Whether Title VII specifically requires a finding of practical significance is an unsettled question. The text of Title VII contains no specific requirement that practical significance must be demonstrated. 42 Of the circuit courts that have expressly addressed the issue, three have concluded that Title VII does not require a showing of practical significance. 43 For example, in Jones v. City of Boston, the First Circuit explicitly held that a plaintiff's failure to demonstrate practical significance could not preclude that plaintiff from relying on evidence of statistical significance to establish a prima facie case of disparate impact. 44 In doing so, the Court noted that the requirements a plaintiff must otherwise meet under Title VII “secure most of the advantages that might be gained” from a test of practical significance. 45 First, the “need to show statistical significance will eliminate small impacts as fodder for litigation . . . because proving that a small impact is statistically significant generally requires large samples sizes, which are often unavailable.”  46 Second, the subsequent steps required for a plaintiff to successfully recover under Title VII provide an additional safeguard in that the employer may rebut the prima facie case. 47 Similarly, in Stagi v. National Railroad Passenger Corp., the Third Circuit explicitly declined to require a showing of practical significance, and instead required only that the plaintiffs meet the well-established thresholds for statistical significance in order to meet their prima facie case. 48

Other circuit courts have considered measures of practical significance in determining whether a plaintiff in a disparate impact case has satisfied a prima facie case. 49 These cases have generally adopted a holistic approach to the evidence required in a given case depending on the facts at issue. 50 However, unlike with statistical significance, courts have not similarly coalesced around uniform quantitative measures for what constitutes sufficient practical significance. Consequently, the 2020 rule did not specify which measure of many available options OFCCP should utilize as a threshold for practical significance during its compliance evaluations of selection and compensation procedures. As OFCCP has stated in its Frequently Asked Questions published even prior to the 2020 rule, the agency utilizes a variety of measures for evaluating practical significance as appropriate to the employment issue under review and the specific facts of each case. 51

As part of its enforcement discretion, OFCCP has historically utilized practical significance measures where appropriate in compliance evaluations based on the specific facts of the case without the need for regulations. In addition, the particular ranges that were discussed in the preamble of the 2020 rule may not be appropriate in all cases depending on the other evidence that exists. It also remains unsettled whether Title VII requires a finding of practical significance, and, if so, what level of practical significance is sufficient and appropriate to the process under review. Accordingly, OFCCP believes it is not advisable to attempt to regulate the standards for practical significance, and proposes to remove the requirement to demonstrate practical significance before issuing a Predetermination Notice or Notice of Violation. Moving forward, however, OFCCP would still consider practical significance measures where appropriate as part of a holistic evaluation of the cases it investigates along with statistical significance and all other evidence gathered in the course of the investigation.

OFCCP believes that rescinding the inflexible evidentiary standards would also advance OFCCP's policy goal of alleviating duplicative and inefficient processes created by the 2020 rule that undermine effective enforcement of equal employment opportunity laws. For instance, the Predetermination Notice originally served to foster communication with contractors about preliminary indicators of discrimination. However, at the preliminary stage, these rigid evidentiary standards also invite additional delay by engendering disputes about the scope of evidence contractors must provide and whether OFCCP has satisfied the rule's heightened requirements. The 2020 rule's regulatory standards thus serve to prevent OFCCP from providing early communication of preliminary indicators of discrimination and delays the prompt resolution of these preliminary indicators and the exchange of more information to perform additional analysis. Pursuant to the 2020 rule, to issue the Predetermination Notice, OFCCP must meet the same evidentiary standards that the agency must meet to issue a Notice of Violation. As a result, the 2020 rule conflates a notice that is intended to convey preliminary indicators of discrimination (the Predetermination Notice) with a notice intended to inform the contractor that corrective action is required and to invite conciliation through a written agreement (the Notice of Violation). OFCCP believes that conflating these two notices by requiring duplicative evidentiary standards unnecessarily consumes resources and delays OFCCP's ability to timely raise preliminary indicators of discrimination. As the two notices were originally meant to serve separate, unique purposes, this rulemaking proposes to restore the function of the Predetermination Notice to convey preliminary indicators of discrimination and foster the exchange of information and communication toward efficient resolution.

To retain the Predetermination Notice and distinguish it from the Notice of Violation, OFCCP proposes to modify the 2020 rule to enable the agency to streamline the compliance evaluation process and issue the Predetermination Notice earlier where appropriate. OFCCP will issue a Predetermination Notice describing the preliminary indicators of discrimination and any other potential violations OFCCP has identified, asking the contractor to respond. In some circumstances, this may be after the agency has completed the desk audit and prior to the on-site review, 52 while in other cases, depending on the facts and circumstances, the agency will issue the Predetermination Notice after OFCCP has begun an on-site review and obtained the information necessary to identify preliminary indicators of discrimination.

To promote greater efficiency in resolving cases, OFCCP proposes to modify the 2020 rule's provision which required a contractor to provide a response within 30 calendar days of receiving a Predetermination Notice. The proposal will return the Predetermination Notice response period to the 15-calendar-day period in effect prior to the 2020 rule (which OFCCP may extend for good cause). 53 In the proposal, OFCCP also clarifies this provision to state that any response must be received by OFCCP within 15 calendar days (absent a deadline extension).

After OFCCP issues a Predetermination Notice, where the contractor does not sufficiently rebut the preliminary indicators of discrimination, and OFCCP finds a violation of one or more of its equal opportunity clauses, 54 OFCCP will issue a Notice of Violation to the contractor identifying the violations, describing the recommended corrective actions, and inviting conciliation through a written agreement. OFCCP proposes changes to the Notice of Violation regulation similar to the changes proposed for the Predetermination Notice, to remove barriers to resolution. For the Notice of Violation regulatory provision, the proposed changes make clear that OFCCP can include additional violations in a subsequent Show Cause Notice without amendment to the Notice of Violation to prevent enforcement delays. The proposed changes to the Notice of Violation regulation also clearly state that OFCCP will provide contractors an opportunity to conciliate additional violations identified in the Show Cause Notice. The proposal contains similar changes in the Predetermination Notice provision, allowing OFCCP to add additional violations in a subsequent Notice of Violation or Show Cause Notice without amending the Predetermination Notice. The proposed changes provide that OFCCP may issue a Show Cause Notice where OFCCP has reasonable cause to believe that a contractor has violated the equal opportunity clause. The proposed changes also clarify that the agency may issue a Show Cause Notice without first issuing a Predetermination Notice or Notice of Violation when the contractor has failed to provide access to its premises for an on-site review, or refuses to provide access to witnesses, records, or other information.

These proposed changes stem from OFCCP's experience implementing the 2020 rule as well as its policy judgment on how OFCCP can strengthen enforcement of its requirements and promote consistency with Title VII. The 2020 rule stated that key objectives included promoting more effective enforcement, increasing the number of contractors that the agency evaluates, and increasing fairness for contractors by providing more transparency and certainty on the agency's resolution procedures. 55 However, the 2020 rule has not met these objectives. The 2020 rule instead resulted in time-consuming disputes with contractors over the application of the new requirements. For example, upon receipt of the Predetermination Notice, contractors have disputed the application of the 2020 rule's evidentiary requirements, causing additional delay that diverts resources from the central issue of resolving indicators and findings of discrimination. Additionally, several contractors have argued that the anecdotal evidence that OFCCP shared to support its case failed to meet the “qualitative evidence” definition included in the 2020 rule. Other contractors have argued that the qualitative evidence that OFCCP provided was insufficient because the agency failed to disclose the identity of the interviewees who provided relevant statements at the Predetermination Notice stage. Contractors have also disputed whether OFCCP met the required threshold for practical significance under the 2020 rule, arguing that the agency has failed to meet the threshold or even disagreeing with the 2020 rule's standard altogether. In each of these cases, the disputes raised by contractors have delayed OFCCP's completion of compliance evaluations. These delays would not have occurred but for the 2020 rule and its rigid evidentiary requirements for a Predetermination Notice that are prone to dispute and in some respects go beyond what is required for proof of discrimination under Title VII. OFCCP proposes modifications to these pre-enforcement notice and conciliation procedures to streamline the issuance of these notices by removing inefficiency and delay caused by the 2020 rule.

This proposed rulemaking also seeks to restore flexibility to OFCCP's pre-enforcement notice and conciliation procedures. OFCCP needs flexibility in its investigatory and conciliation procedures to effectively resolve employment discrimination. In January of 2021, the Equal Employment Opportunity Commission (EEOC) published a final rule concerning its conciliation procedures. 56 The U.S. Congress subsequently passed a law  57 to disapprove and annul the EEOC rule, based on concerns similar to those underlying this proposed rulemaking, such as the increase in employer litigation about the process, the delay of resolution of discrimination claims, and mandated disclosures unfairly weighting the process in favor of employers and subjecting workers to heightened risk of retaliation, as reflected in the Congressional Record. 58 The Congressional Record also includes a statement from President Biden's administration  59 and a letter submitted by the Leadership Conference on Civil and Human Rights signed by 24 civil rights organizations. 60 The supportive statements and letter all cited to a unanimous decision by the Supreme Court in Mach Mining, LLC v. EEOC that described the wide latitude that Title VII gives EEOC to conciliate in pursuit of voluntary compliance with the law. 61 EEOC's experience with the conciliation process is instructive. Before the Court's decision in Mach Mining, employers routinely raised time-consuming challenges to whether EEOC satisfied its discretionary conciliation requirements. For example, the workers in Mach Mining —women alleged to have been excluded from coal mining jobs on the basis of sex—were forced to wait nine years after the first charge was filed for relief after years of litigation over procedural challenges to the conciliation process. EEOC's now-rescinded January 2021 conciliation rulemaking sought to codify rigid standards that would enable employers to shift the focus away from the core issue of whether discrimination occurred and instead attempt to avoid liability by pursuing resource intensive satellite proceedings over whether discretionary conciliation processes had been satisfied. As stated by Representative Scott in support of overturning this EEOC rule, EEOC “must have discretion to use whatever informal means of settlement are appropriate” instead of applying a rigid conciliation process “across the board, one-size-fits-all, in every case of workplace discrimination.”  62 This authority to have administrative discretion in conciliation was directly granted to EEOC by Congress, 63 confirmed by a unanimous opinion from the U.S. Supreme Court, 64 re-affirmed by Congress through the annulment of EEOC's conciliation procedures rule, 65 and recognized by the current President of the United States. 66

OFCCP has similar discretion to conciliate compliance under E.O. 11246, Section 503, and VEVRAA  67 —to right the wrong of employment discrimination. When OFCCP determines that a Federal contractor is deficient in its compliance with E.O. 11246, Section 503, or VEVRAA, OFCCP must make “reasonable efforts” to secure compliance through conciliation and persuasion, 68 under the procedures set forth in Chapter 60 of the U.S. Code of Federal Regulations, 69 the FCCM, 70 and subregulatory guidance. 71 OFCCP views the Title VII flexibility principle cited by Congress as similarly vital to OFCCP's work in securing compliance with E.O. 11246, Section 503, and VEVRAA. As such, OFCCP proposes to clarify that the “reasonable efforts” standard it must satisfy when attempting to secure compliance with its laws should be interpreted consistently with the Title VII language requiring EEOC to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” to ensure OFCCP has the same flexibility in the administration of its laws as that recognized under Title VII by Congress and the U.S. Supreme Court for EEOC.

The 2020 rule's codification of OFCCP's resolution procedures  72 imposes hurdles to the effective exercise of OFCCP's enforcement discretion. With this proposed rule, OFCCP seeks to restore the flexibility it had prior to December 10, 2020, applying Title VII standards to the facts and circumstances of each compliance evaluation, while preserving certainty and transparency for Federal contractors by requiring the use of a Predetermination Notice and Notice of Violation. 73

Issued in 1965, and amended several times in the intervening years, E.O. 11246 has two principal purposes. First, it prohibits covered Federal contractors and subcontractors from discriminating against employees and applicants because of race, color, religion, sex, sexual orientation, gender identity, national origin, or because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations. Second, it requires covered Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity.

The requirements in E.O. 11246 generally apply to any business or organization that (1) holds a single Federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts that combined total in excess of $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount. Supply and service contractors with 50 or more employees and a single Federal contract or subcontract of $50,000 or more also must develop and maintain an affirmative action program that complies with 41 CFR part 60-2. Construction contractors have different affirmative action requirements under E.O. 11246 at 41 CFR part 60-4.

Enacted in 1973, and amended since, the purpose of Section 503 of the Rehabilitation Act of 1973 is twofold. First, Section 503 prohibits employment discrimination on the basis of disability by Federal contractors. Second, it requires each covered Federal contractor to take affirmative action to employ and advance in employment qualified individuals with disabilities. The requirements in Section 503 generally apply to any business or organization that holds a single Federal contract or subcontract in excess of $15,000. 74 Contractors with 50 or more employees and a single Federal contract or subcontract of $50,000 or more also must develop and maintain an affirmative action program that complies with 41 CFR part 60-741, subpart C.

Enacted in 1974 and amended in the intervening years, VEVRAA prohibits Federal contractors and subcontractors from discriminating against employees and applicants because of status as a protected veteran (defined by the statute to include disabled veterans, recently separated veterans, Armed Forces Service Medal Veterans, and active duty wartime or campaign badge veterans). It also requires each covered Federal contractor and subcontractor to take affirmative action to employ and advance in employment these veterans. The requirements in VEVRAA generally apply to any business or organization that holds a single Federal contract or subcontract in excess of $150,000. 75 Contractors with 50 or more employees and a single Federal contract or subcontract of $150,000 or more also must develop and maintain an affirmative action program that complies with 41 CFR part 60-300, subpart C.

Pursuant to these laws, receiving a Federal contract comes with a number of responsibilities. Contractors are required to comply with all provisions of these laws as well as the rules, regulations, and relevant orders of the Secretary of Labor. Where OFCCP finds noncompliance under any of the three laws or their implementing regulations, it utilizes established procedures to either facilitate resolution or proceed to administrative enforcement as necessary to secure compliance. A contractor found in violation who fails to correct violations of OFCCP's regulations may, after the opportunity for a hearing, have its contracts canceled, terminated, or suspended and/or may be subject to debarment.

This rulemaking proposes to amend 41 CFR parts 60-1, 60-300, and 60-741 by removing unnecessary and confusing evidentiary standards and definitions that the 2020 rule requires, while retaining and refining the pre-enforcement procedures for issuing the Predetermination Notice and the Notice of Violation. The proposed revisions would enable OFCCP to apply Title VII standards to the facts and circumstances of each compliance evaluation and clarify that OFCCP's conciliation standards align with the flexibility and enforcement discretion afforded under Title VII for endeavoring to secure compliance through conciliation. The rulemaking would also amend each part's regulatory provision on Show Cause Notices, relocating the provision to the same section as the other codified pre-enforcement notices and codifying when OFCCP will amend the Show Cause Notice consistent with current practice.

The rulemaking further proposes to amend 41 CFR parts 60-1, 60-2, 60-4, 60-20, 60-30, 60-40, 60-50, 60-300, and 60-741. The 2020 rule added the first severability clause to OFCCP's regulations, but it only applies to the resolution procedures sections for each of OFCCP's legal authorities ( i.e., 41 CFR 60-1.33, 60-300.62, and 60-741.42). 76 OFCCP has determined that, if there is a severability clause in any part of its regulations, it should apply to all of its regulations, rather than just certain specific sections. Thus, OFCCP proposes to include a severability clause in each part of its regulations, such that if a court of competent jurisdiction found any provision(s) of the part to be invalid, it would not affect any other provision of the part or chapter. The severability clauses currently only applicable to 41 CFR 60-1.33, 60-300.62, and 60-741.42 would be removed.

The NPRM proposes to amend §  60-1.3 by removing the definitions for “Qualitative evidence” and “Quantitative evidence.” These definitions operate in tandem with the evidentiary standards that are currently creating hurdles to the effective enforcement of OFCCP laws and would be rendered unnecessary by other proposed changes to this part.

The NPRM proposes to clarify the “reasonable efforts” standard in § 60-1.20(b) that OFCCP must satisfy when attempting to secure compliance through conciliation, to make clear that OFCCP's conciliation standards align with Title VII.

The NPRM proposes to remove and reserve §  60-1.28, to relocate “Show cause notices” to §  60-1.33 with the other pre-enforcement notices in this part.

The NPRM proposes to revise §  60-1.33 by changing the title to “Pre-enforcement notice and conciliation procedures”; removing unnecessary regulatory standards impeding OFCCP's ability to resolve preliminary indicators and findings of discrimination; incorporating a relocated subsection on Show Cause Notices to improve regulatory organization; clarifying OFCCP's use of the Show Cause Notice including when a contractor denies access to its premises, to witnesses, or to records; making general clarifying edits to improve procedural efficacy including OFCCP's role in the early conciliation option; and removing the severability clause specific to this section.

The NPRM proposes to add § 60-1.48, a severability clause.

The NPRM proposes to add § 60-2.36, a severability clause.

The NPRM proposes to add § 60-4.10, a severability clause.

The NPRM proposes to add § 60-20.9, a severability clause.

The NPRM proposes to add § 60-30.38, a severability clause.

The NPRM proposes to add § 60-40.9, a severability clause.

The NPRM proposes to add § 60-50.6, a severability clause.

The NPRM proposes to amend §  60-300.2 by removing the definitions for “Qualitative evidence” and “Quantitative evidence.” These definitions would be rendered unnecessary by other proposed changes to this part.

The NPRM proposes to clarify the “reasonable efforts” standard in § 60-300.60 (b) that OFCCP must satisfy when attempting to secure compliance through conciliation, to make clear that OFCCP's conciliation standards align with Title VII.

The NPRM proposes to revise §  60-300.62 by changing the title to “Pre-enforcement notice and conciliation procedures”; removing unnecessary regulatory standards impeding OFCCP's ability to resolve preliminary indicators and findings of discrimination; incorporating a relocated subsection on Show Cause Notices to improve regulatory organization; clarifying OFCCP's use of the Show Cause Notice including when a contractor denies access to its premises, to witnesses, or to records; making general clarifying edits to improve procedural efficacy including OFCCP's role in the early conciliation option; and removing the severability clause specific to this section.

The NPRM proposes to remove and reserve §  60-300.64, to relocate “Show cause notices” to §  60-300.62 with the other pre-enforcement notices in this part.

The NPRM proposes to add § 60-300.85, a severability clause.

The NPRM proposes to amend §  60-741.2 by removing the definitions for “Qualitative evidence” and “Quantitative evidence.” These definitions would be rendered unnecessary by other proposed changes to this part.

The NPRM proposes to clarify the “reasonable efforts” standard in § 60-741.60 (b) that OFCCP must satisfy when attempting to secure compliance through conciliation, to make clear that OFCCP's conciliation standards align with Title VII.

The NPRM proposes to revise §  60-741.62 by changing the title to “Pre-enforcement notice and conciliation procedures”; removing unnecessary regulatory standards impeding OFCCP's ability to resolve preliminary indicators and findings of discrimination; incorporating a relocated subsection on Show Cause Notices to improve regulatory organization; clarifying OFCCP's use of the Show Cause Notice including when a contractor denies access to its premises, to witnesses, or to records; making general clarifying edits to improve procedural efficacy including OFCCP's role in the early conciliation option; and removing the severability clause specific to this section.

The NPRM proposes to remove and reserve §  60-741.64, to relocate “Show cause notices” to §  60-741.62 with the other pre-enforcement notices in this part.

The NPRM proposes to add § 60-741.84, a severability clause.

Under Executive Order 12866 (E.O. 12866), the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of E.O. 12866 and OMB review. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866. This proposed rulemaking has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of E.O. 12866. OMB has reviewed this proposal.

Executive Order 13563 (E.O. 13563) directs agencies to adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

OFCCP believes that the 2020 rule created rigid constraints that are not required by Title VII and/or impede the agency's effective enforcement of E.O. 11246, Section 503, and VEVRAA. This has delayed information exchange with contractors and created obstacles to a timely resolution of preliminary indicators and findings of discrimination and greater compliance. The 2020 rule has also resulted in time-consuming collateral disputes over the implementation of the rule's regulatory standards—diverting limited agency and contractor resources away from resolving concerns of discrimination. This diversion of resources and delay in the pre-enforcement process will reduce rather than increase the number of contractors that OFCCP is able to evaluate for compliance.

This NPRM aims to create a streamlined, efficient, and flexible process to ensure OFCCP utilizes its limited resources as strategically as possible to advance the agency's mission. In a return to prior agency policy, OFCCP will apply Title VII standards to the facts and circumstances of each compliance evaluation, including during the pre-enforcement notice and conciliation stages. Doing so will remove unnecessary constraints that impede effective enforcement by limiting the agency's enforcement discretion, and prevent delays in case resolutions due to the 2020 rule. Removing the blanket regulatory requirements will also allow OFCCP to pursue enforcement in cases that, albeit actionable under Title VII, are more difficult to pursue under the 2020 rule. OFCCP remains committed to providing contractors early notice when the agency identifies preliminary indicators of systemic discrimination during a compliance evaluation. Such notice is mutually beneficial for OFCCP and the contractor under review because it provides the contractor with an earlier opportunity to respond to potential issues before OFCCP makes a determination on violations. Providing earlier notice to contractors can result in the prompt and mutually satisfactory resolution of cases, which minimizes unnecessary burdens on contractors and agency staff. Going forward, OFCCP would provide updated guidance to its compliance officers on the pre-enforcement procedures. This guidance would reflect current case law, provide OFCCP needed flexibility, and be available to the public to promote transparency.

In this section, OFCCP presents a summary of the costs associated with the modifications in this proposed rulemaking. OFCCP utilizes the Employment Information Report (EEO-1) data, which identifies the number of supply and service contractors that could be scheduled for a compliance evaluation and thus impacted by the proposed modification. The EEO-1 Report must be filed by covered Federal contractors who: (1) Have 50 or more employees; (2) are prime contractors or first-tier subcontractors; and (3) have a contract, subcontract, or purchase order amounting to $50,000 or more. OFCCP schedules only contractors who meet those thresholds for compliance evaluations. The number of supply and service contractors possibly impacted by the proposed modification is 24,251. 77

OFCCP also utilizes USASpending data, which identifies the number of construction contractors that could be scheduled for a compliance evaluation and thus impacted by the proposed modification. The USASpending data accounts for all construction contractors with contracts greater than $10,000 who meet the thresholds for compliance evaluations. The number of construction contractors possibly impacted by the proposed modification is 12,362. 78

While OFCCP acknowledges that all Federal contractors may learn their EEO requirements in order to comply with the laws that OFCCP enforces, only those contractors scheduled for a compliance evaluation are directly impacted by the proposed modification. Scheduled contractors are likely to have a need to know the pre-enforcement procedures because they may need to interact with OFCCP. The total number of contractors possibly impacted by the proposed modification is 36,613. 79

OFCCP has determined that either a Human Resources Manager (SOC 11-3121) or a Lawyer (SOC 23-1011) would review the proposed modification. OFCCP estimates that 50 percent of the reviewers would be human resources managers and 50 percent would be in-house counsel. Thus, the mean hourly wage rate reflects a 50/50 split between human resources managers and lawyers. The mean hourly wage of a human resources manager is $64.70 and the mean hourly wage of a lawyer is $71.59. 80 Therefore, the average hourly wage rate is $68.15 (($64.70 + $71.59)/2). OFCCP adjusted this wage rate to reflect fringe benefits such as health insurance and retirement benefits, as well as overhead costs such as rent, utilities, and office equipment. OFCCP uses a fringe benefits rate of 46 percent  81 and an overhead rate of 17 percent, 82 resulting in a fully loaded hourly compensation rate of $111.08 ($68.15 + ($68.15 × 46 percent) + ($68.15 × 17 percent)). The estimated labor cost to contractors is reflected in Table 1, below.

OFCCP acknowledges that 5 CFR 1320.3(b)(1)(i) requires agencies to include in the burden analysis for a proposed rulemaking the estimated time it takes for contractors to review and understand the instructions for compliance. To minimize the burden, OFCCP will publish compliance assistance materials regarding the proposed rule, once final.

OFCCP believes that a human resources manager or lawyer will take a minimum of 30 minutes ( 1/2 hour) to read the proposed rule or read the compliance assistance materials provided by OFCCP. Consequently, the estimated burden for rule familiarization is 18,307 hours (36,613 contractor firms × 1/2 hour). OFCCP calculates the total estimated cost of rule familiarization as $2,033,542 (18,307 hours × $111.08/hour) in the first year, which amounts to a 10-year annualized cost of $231,450 at a discount rate of 3 percent (which is $6.32 per contractor firm) or $270,589 at a discount rate of 7 percent (which is $7.39 per contractor firm). Table 2, below, reflects the estimated regulatory familiarization costs for the proposed rule.

E.O. 13563 recognizes that some rules have benefits that are difficult to quantify or monetize but are nevertheless important and states that agencies may consider such benefits. This proposed rule has equity and fairness benefits, which are explicitly recognized in E.O. 13563. The proposal is designed to achieve these benefits by:

• Supporting more effective enforcement of OFCCP's equal opportunity laws by eliminating procedural inefficiencies and heightened evidentiary standards created by the 2020 rule;

• Facilitating earlier and more efficient resolutions;

• Ensuring greater certainty and consistency in case resolutions by maintaining adherence to Title VII and OFCCP case law standards;

• Promoting transparency by codifying the required use of the Predetermination Notice when the agency identifies preliminary indicators of discrimination;

• Allowing OFCCP to tailor the pre-enforcement process to the specific facts and circumstances of each case, consistent with judicial interpretations of the applicable legal authorities, which will in turn allow OFCCP to more effectively redress unlawful discrimination;

• Advancing a policy of promoting consistency between Title VII and E.O. 11246 and removing unnecessary constraints on the agency's ability to pursue meritorious cases. This approach will help OFCCP advance the overriding policy goal of promoting nondiscrimination by strengthening the enforcement of federal protections under E.O. 11246;

• Reducing time-consuming disputes over unnecessary standards; and

• Furthering the strategic allocation of agency resources.

In addition to the approach proposed, OFCCP also considered alternative approaches. OFCCP considered modifying the 2020 rule to rescind the entirety of the rule except the correction to OFCCP's agency head title. OFCCP also considered modifying the 2020 rule by eliminating the Predetermination Notice entirely since it currently functions as a procedural redundancy. However, OFCCP determined that retaining both pre-enforcement notices in the regulatory text while rescinding the inflexible evidentiary requirements for the Predetermination Notice and Notice of Violation allows the contractor and OFCCP to engage in earlier discussions that can lead to more efficient resolutions.

OFCCP also considered maintaining the current regulations established in the 2020 rule. However, as discussed earlier in this preamble, OFCCP determined that creating a rigid regulatory process to govern its pre-enforcement compliance evaluation process is incompatible with the flexibility needed for effective enforcement. Moreover, the 2020 rule places certain obligations on OFCCP at this preliminary stage that go beyond the substantive legal requirements that E.O. 11246, Title VII, and interpretive case law require to state a claim and prove discrimination at a much later stage, upon a full evidentiary record. OFCCP has determined that imposing such rigid and heightened standards early in its pre-enforcement proceedings unduly constrains its ability to pursue claims of discrimination. The 2020 rule also created an inefficient process where OFCCP's Predetermination Notice (intended to convey preliminary indicators of discrimination) and the Notice of Violation (intended to inform the contractor that corrective action is required and to invite conciliation through a written agreement) were largely duplicative. Further, the mandating of regulatory requirements for making inherently fact specific determinations, invites time-consuming disputes over the application of the rule's requirements. Modifying the 2020 regulations would help restore the enforcement discretion and flexibility OFCCP needs to facilitate compliance through conciliation by providing pre-enforcement notice of preliminary discrimination indicators and findings, and applying Title VII to the facts and circumstances of each compliance evaluation. OFCCP is proposing modification of the regulatory text to create a more streamlined and effective process for the agency to communicate preliminary indicators to contractors, provide contractors an opportunity to respond, notify contractors of violations, and ultimately facilitate greater understanding to obtain resolution through conciliation.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” Public Law 96-354, 2(b). The RFA requires agencies to consider the impact of a regulatory action on a wide range of small entities, including small businesses, nonprofit organizations, and small governmental jurisdictions.

Agencies must review whether a regulatory action would have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603. If the regulatory action would, then the agency must prepare a regulatory flexibility analysis as described in the RFA. See id. However, if the agency determines that the regulatory action would not be expected to have a significant economic impact on a substantial number of small entities, then the head of the agency may so certify and the RFA does not require a regulatory flexibility analysis. See 5 U.S.C. 605. The certification must provide the factual basis for this determination.

The proposed rule will not have a significant economic impact on a substantial number of small entities. The first year cost for small entities at a discount rate of 7 percent for rule familiarization is $51.91 per entity which is far less than 1 percent of the annual revenue of the smallest of the small entities affected by the proposal. Accordingly, OFCCP certifies that the proposed modification will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 requires that OFCCP consider the impact of paperwork and other information collection burdens imposed on the public. See 44 U.S.C. 3507(d). An agency may not collect or sponsor the collection of information or impose an information collection requirement unless the information collection instrument displays a currently valid OMB control number. See 5 CFR 1320.5(b)(1).

OFCCP has determined that there would be no new requirement for information collection associated with this proposed rulemaking. The information collections contained in the existing E.O. 11246, Section 503, and VEVRAA regulations are currently approved under OMB Control Number 1250-0001 (Construction Recordkeeping and Reporting Requirements), OMB Control Number 1250-0003 (Recordkeeping and Reporting Requirements—Supply and Service), OMB Control Number 1250-0004 (Office of Federal Contract Compliance Programs Recordkeeping and Reporting Requirements Under the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as Amended), and OMB Control Number 1250-0005 (Office of Federal Contract Compliance Programs Recordkeeping and Reporting Requirements Under Rehabilitation Act of 1973, as Amended Section 503). Consequently, this proposal does not require review by OMB under the authority of the Paperwork Reduction Act.

For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this proposed rule would not include any federal mandate that may result in excess of $100 million in expenditures by state, local, and tribal governments in the aggregate or by the private sector.

OFCCP has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism and has determined that it would not have “federalism implications.” The proposed regulatory action would 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 proposed rule would not have tribal implications under Executive Order 13175 that would require a tribal summary impact statement. The proposal would not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.”

For the reasons stated in the preamble, the OFCCP proposes to amend 41 CFR parts 60-1, 60-2, 60-4, 60-20, 60-30, 60-40, 60-50, 60-300, and 60-741 as follows:

In support, the Petitioner states the proposed channel substitution serves the public interest because it will resolve significant over-the-air reception problems in WDTV's existing service area. The Petitioner further states that the Commission has recognized the deleterious effects manmade noise has on the reception of digital VHF signals, and that the propagation characteristics of these channels allow undesired signals and noise to be receivable at relatively farther distances compared to UHF channels and nearby electrical devices can cause interference. A total of 388,223 persons are predicted to lose service using a contour analysis if the Bureau grants the channel 33 proposal. In evaluating the loss areas, Gray first considered to what extent the loss areas were served by other CBS affiliates, and concluded that all but 4,142 persons would continue to receive CBS service from other stations in the region, as well as continue to be well served by five or more television services.

According to the Petitioner, a terrain-limited analysis using the Commission's TVStudy software demonstrates that only 498 persons would no longer receive CBS network programming, or receive service from five or more full power television services. Gray also took into account its licensed sister station WVFX, which is co-located with WDTV and carries CBS network programing on a multicast channel. In addition, Gray relies on CBS programming carried on commonly owned and operated station WIYE-LD, Parkersburg, West Virginia. We note that while low power television stations are secondary and can be displaced by full power television stations, we believe it is unlikely that WIYE-LD will be displaced, and determined that there are multiple displacement channels available if it was displaced.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-112; RM-11919; DA 22-240, adopted March 9, 2022, and released March 9, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In support, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 7. The Engineering Statement provided with the Petition confirms that the proposed channel 25 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Missoula. An analysis using the Commission's TVStudy software tool indicates that KPAX-TV's move from channel 7 to channel 25 is predicted to create a small area where 444 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contour of Scripps' owned television station KXLF-TV, Butte, Montana, which is a CBS network affiliate, and reduces the number who are predicted to lose CBS network service to 121 persons.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-116; RM-11922; DA 22-250, adopted March 10, 2022, and released March 10, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a). See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In support, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 7. The Engineering Statement provided with the Petition confirms that the proposed channel 22 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Great Falls. An analysis using the Commission's TVStudy software tool indicates that KRTV's move from channel 7 to channel 22 is predicted to create a small area where 554 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contour of other CBS affiliated stations and reduces the number who are predicted to lose CBS network service to 255 persons. Taking these other stations into account, less than 500 persons would lose CBS service if KRTV moves to channel 22, which Petitioner argues is de minimis. We note that in its calculation of viewer loss, Scripps relies on the CBS network service provided by full power television station KXLF-TV, Butte, Montana, as well as three Scripps-owned translator stations that retransmit CBS network programming. While the translator stations are secondary and can be displaced, we believe given the rural nature of Montana and neighboring states it is unlikely that these stations would be displaced, and if they were, Scripps would easily be able to find displacement channels for them. In addition, the loss area is also partially overlapped by the noise limited contours of television stations KFBB-TV (ABC/FOX), Great Falls, Montana; KTVM (NBC), Butte, Montana; and KTVH (NBC) and KUHM-TV (PBS), Helena, Montana.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-117; RM-11923; DA 22-251, adopted March 10, 2022, and released March 10, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In support, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 5. The Engineering Statement confirms that the proposed channel 15 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Butte. An analysis using the Commission's TVStudy software tool indicates that KXLF-TV's move from channel 5 to channel 15 is predicted to create an area where approximately 3,000 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contours of Scripps' owned CBS network affiliates KPAX-TV, Missoula, Montana; KBZK, Bozeman, Montana; and KRTV, Great Falls, Montana. Taking these other stations into account, less than 500 persons would lose CBS service if KXLF-TV moves to channel 15, which Petitioner argues is de minimis.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-115; RM-11921; DA 22-249, adopted March 10, 2022, and released March 10, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In support, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 13. The Engineering Statement provided with the Petition confirms that the proposed channel 27 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Bozeman. An analysis using the Commission's TVStudy software tool indicates that KBZK's move from channel 13 to channel 27 is predicted to create a small area where 675 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contour of Scripps' owned television station KXLF-TV, Butte, Montana, which is also a CBS network affiliate, and reduces the number who are predicted to lose CBS network service to less than 500 persons, which Petitioner argues is de minimis.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-114; RM-11920; DA 22-248, adopted March 10, 2022, and released March 10, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a). See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-118; RM-11924; DA 22-252, adopted on March 10, 2022, and released on March 10, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

In support, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 12. The proposed channel 31 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Helena. An analysis using the Commission's TVStudy software tool indicates that KTVH-DT's move from channel 12 to channel 31 is predicted to create an area where 2,168 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contours of other NBC affiliated stations and reduces the number of people who are predicted to lose NBC network service to 226 persons. Taking these other stations into account, less than 500 persons would lose NBC service if KTVH moves to channel 31, which Petitioner argues is de minimis . We note that in its calculation of viewer loss, Scripps relies on the NBC network service provided by Class A television station KDBZ-CD, Bozeman, Montana, as well as low power television (LPTV) station KTGF-LD, Great Falls, Montana, which is the NBC network affiliate in Great Falls. While the LPTV station is secondary and can be displaced, we believe given the rural nature of Montana and neighboring states it is unlikely the LPTV station would be displaced, and if it was, Scripps would easily be able to find a displacement channel for it.

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

Pursuant to §§ 1.415 and 1.420 of the Commission's rules, 47 CFR 1.415, 1.420, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

On February 28, 2022, at 87 FR 11156, DOT published in the Federal Register a notice of proposed rulemaking proposing to amend its transportation industry drug testing program procedures regulations, 49 CFR part 40, to include oral fluid testing. The proposal includes other provisions to update the Department's regulation, and to harmonize, as needed, with the new Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid established by the U.S. Department of Health and Human Services. In addition to adding oral fluid as a drug testing method and harmonizing with pertinent OFMG sections, we also propose to clarify certain part 40 provisions that cover urine drug testing procedures; to remove provisions that no longer are necessary; to add clarifying language to other provisions such as updated definitions and web links, as appropriate; and to update provisions to reflect issues that have arisen in recent practice.

All members of the public, including DOT-regulated employers and employees, urine collectors, HHS-NLCP certified laboratories, Medical Review Officers, Substance Abuse Professionals, and Consortium/Third Party Administrations, Transportation trade organizations, and labor organizations are invited to submit comments.

The original comment period for the proposal would have closed March 30, 2022. However, DOT stakeholders have expressed concern that this closing date does not provide sufficient time to coordinate with their respective members to develop comments to the NPRM and/or to submit comments to the docket. To allow time for interested parties to submit comments, the closing date is changed from March 30, 2022 to April 29, 2022.