Following its receipt and consideration of a Petition for Rulemaking (“Petition”)  1 from Ms. Nabilah Islam, a former candidate for the United States House of Representatives in Georgia, and public comments on the Petition, the Commission now proposes to amend its regulations regarding the use of campaign funds to pay candidates' compensation, including salaries, health insurance premiums, and dependent care costs. The Commission invites public comments on these regulatory proposals.

The Federal Election Campaign Act (the “Act”)  2 prohibits a candidate's authorized committee from converting campaign funds to “personal use.”  3 “Personal use” is defined as the use of campaign funds “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign or individual's duties as a holder of Federal office.”  4 The Act and Commission regulations provide a non-exhaustive list of expenses that, when paid using campaign funds, constitute per se conversion of those funds to personal use. 5 The Commission determines on a case-by-case basis whether the use of campaign funds to pay expenses other than those listed would be a prohibited conversion of the funds to personal use. 6

The Act does not identify the use of campaign funds to pay candidate salaries as per se personal use. In Advisory Opinion 1999-01 (Greene), however, the Commission concluded that the Act would prohibit a federal candidate from using campaign funds to pay himself a salary because the candidate would indirectly use the funds to pay his mortgage, utilities, groceries, and clothing—all of which are per se personal use. 7

In 2002, the Commission proposed to codify this conclusion in a regulation. 8 The proposed regulation would have prohibited candidates “from using campaign funds to pay themselves salaries or otherwise compensate themselves in any way for income lost as a result of campaigning for Federal office.”  9 The Commission received several public comments opposing this proposal, and no public comments supporting it. As the Commission explained in the explanation and justification accompanying the final rules, the commenters argued that the proposed rule would favor incumbents who do not face a reduction in compensation for time spent campaigning, and wealthy challengers who can afford to forego compensation. 10 The commenters also argued that the use of campaign funds to pay candidates' salaries would not fulfill a commitment, obligation, or expense that would exist irrespective of the campaign, and therefore satisfies the Act's “irrespective” test because, “were it not for their campaign responsibilities, candidates would not have to leave their jobs and give up their salaries.”  11

The Commission “agree[d] with the commenters that the payment of a salary to a candidate is not a prohibited personal use as defined under Commission regulations.”  12 The Commission explained that this use of campaign funds satisfied the “irrespective” test because, “but for the candidacy, the candidate would be paid a salary in exchange for services rendered to an employer.”  13 Moreover, the Commission stated, a “salary paid to a candidate would be in return for the candidate's services provided to the campaign and the necessity of that salary would not exist irrespective of the candidacy.”  14

The Commission included in the final regulation various safeguards against abuse. To be a permissible use of campaign funds, the salary paid to a candidate must not exceed the lesser of the minimum salary paid to a “Federal officeholder holding the Federal office that the candidate seeks” or the earned income received by the candidate the year before becoming a candidate. 15 Further, any earned income that a candidate receives from salary or wages from any source other than campaign funds counts against the minimum salary paid to a federal officeholder as described in the regulation. 16 These limitations were designed, in part, to “help ensure that campaign salaries are not used to enrich candidates, but instead used to compensate candidates for lost income that is forgone due to becoming a candidate.”  17 The regulation also provides that campaign funds cannot be used to pay a candidate's salary before the filing deadline for access to the primary election ballot for the federal office that the candidate seeks, as determined by state law, or January 1 of each even-numbered year in states that do not conduct primaries. 18 Finally, the regulation requires salary payments to be computed on a pro-rata basis and prohibits candidates who are also federal officeholders from receiving salary payments from campaign funds. 19

The Act and Commission regulations do not include the use of campaign funds to pay candidates' childcare expenses as a per se personal use. The Commission has addressed this use of campaign funds in several advisory opinions, and has approved the use of campaign funds to pay candidates' overnight childcare expenses incurred when the candidates travel for their own campaigns, 20 and to pay caregiver expenses and full-time daycare when candidates' campaign responsibilities and activities prevented them from caring for their children themselves. 21 In each of these advisory opinions, the Commission concluded that the candidate could use campaign funds to pay the candidate's childcare expenses to the extent that the expenses were a “direct result of campaign activity,” because such expenses would not have existed irrespective of the candidate's campaign. 22

The Act and Commission regulations do not include the use of campaign funds to pay candidates' medical insurance premiums as a per se personal use, and the Commission has not addressed this issue in advisory opinions. 23 The Commission has, however, addressed the use of campaign funds to pay health insurance premiums in an enforcement matter. In MUR 7068 (Mowrer for Iowa), the Commission found reason to believe that a congressional candidate and his campaign committee had improperly converted campaign funds to personal use by using funds from the candidate's principal campaign committee to reimburse the candidate for payment of his health insurance premiums.

On March 23, 2021, the Commission received the Petition, asking the Commission to amend Section 113.1(g) of its regulations to expand the category of candidates eligible to receive compensation from their authorized committees and the duration of their eligibility, and to authorize the use of campaign funds to pay candidates' health insurance premiums. 24

The Petition asserts that ballot access deadlines for state primaries, which “vary wildly based on state law,”  25 leave many candidates with short periods for receiving a salary under the Commission's regulation. 26 Moreover, the Petition alleges that the current maximum salary limitation “leaves candidates who are full time caretakers or who have had gaps in employment out in the cold,”  27 and that rising health insurance costs act as a barrier to the prospective candidacies of “working class people.”  28

The Petition asks the Commission to “lower the barriers for working Americans to run for Federal office” by amending its personal use regulations at 11 CFR 113.1(g) to:

(1) Extend the date on which a candidate may begin drawing a campaign salary to at least 180 days before the primary election;  29

(2) Establish a minimum candidate salary of no less than the annualized salary of $15 per hour;  30 and

(3) Expressly permit a candidate to use campaign funds to pay the costs of any health benefit plan already provided to other campaign employees beginning on the date the candidate is eligible to receive a campaign salary. 31

On May 23, 2021, the Commission published a Notification of Availability (“NOA”) seeking public comment on the Petition. 32 The Commission received 22 comments in response, 6 from organizations and 16 from individuals. 33 Fourteen commenters, including the organizations, generally supported initiating a rulemaking. They agreed that some version of the Petition's proposals would make it easier for individuals of modest means who are not already federal officeholders to run for federal office. Several commenters noted that the current candidate salary regulation offers little assistance to full-time caregivers or those who have experienced a recent financial hardship because candidate salaries cannot currently exceed the amount of income earned in the year before their candidacy. Thus, a candidate who worked full time caring for the candidate's children or other family members without remuneration the year prior to becoming a candidate could not receive a campaign salary. Similarly, a candidate who was unemployed during any portion of the year prior to becoming a candidate would be able to receive only a reduced amount of salary from campaign funds, and potentially none at all. 34 Commenters also suggested that the period during which a candidate is eligible to receive a salary is too short and does not reflect the financial costs and other demands of campaigning today. 35

These commenters also generally agreed that a candidate's campaign committee should be able to use campaign funds to pay the candidate's health insurance premiums. One commenter cited statistics showing that most Americans obtain health insurance coverage through their employment  36 and argued that health insurance is, thus, inextricably linked to employment. Another commenter further urged the Commission to reconsider its conclusion in MUR 7068 (Mowrer for Iowa) that the use of campaign funds to pay a candidate's health insurance premiums is a prohibited personal use, “in light of current societal conditions that pose challenges for working Americans” who want to run for office. 37

Five individual commenters opposed initiating a rulemaking. Two of them opposed using campaign funds to pay candidate salaries in any circumstance; the others opposed the proposed minimum salary because it exceeded the federal minimum wage or could encourage “professional candidates.”  38 Three commenters did not address issues raised in the NOA.

The Commission proposes to amend its regulations as described below to address issues raised in the Petition and public comments on the Petition. A general overview of the proposed amendments is followed by specific details of each proposal. The Commission seeks comments on its proposed amendments and emphasizes that it has not made any final decisions on whether or how to amend its regulations.

The Commission's current regulations at 11 CFR 113.1(g)(1) through (8) address personal use, and the candidate salary regulation is at 11 CFR 113.1(g)(1)(i)(I). The Commission proposes to remove and reserve 11 CFR 113.1(g)(1)(i)(I), redesignate current paragraphs (g)(6), (g)(7), and (g)(8) as (g)(7), (g)(8), and (g)(9), respectively, and add new paragraph (g)(6) to address candidate compensation.

New paragraph (g)(6) addressing candidate compensation would have several subparagraphs as follows.

Proposed 11 CFR 113.1(g)(6)(i) would prohibit federal officeholders from receiving compensation as candidates from campaign funds. This prohibition already appears in the Commission's regulation. 39

Proposed 11 CFR 113.1(g)(6)(ii) would cap the amount of compensation that a candidate could receive from campaign funds. A compensation cap already appears in the Commission's regulation. 40 As explained further below, the Commission proposes six alternative caps.

Proposed 11 CFR 113.1(g)(6)(iii) would define “compensation” for purposes of the candidate salary regulation. This definition does not currently appear in the candidate salary regulation. As explained further below, the Commission proposes three alternative definitions.

Proposed 11 CFR 113.1(g)(6)(iv) would require a candidate's committee to reduce the maximum amount of compensation that the candidate could receive from campaign funds by the amount of any earned income the candidate receives from any other source while the candidate receives compensation from campaign funds. As explained further below, this amendment would expand a requirement in the Commission's current regulation. 41

Proposed 11 CFR 113.1(g)(6)(v) would establish the period during which a candidate would be eligible to receive compensation from campaign funds. An eligibility period already appears in the Commission's regulation. 42 As explained further below, the Commission proposes to lengthen the eligibility period.

Proposed 11 CFR 113.1(g)(6)(vi) would prohibit a candidate's principal campaign committee that seeks to settle debts for less than their full value from paying compensation to the candidate or satisfying a debt to the candidate for compensation. It would also prohibit any debt settlement plan created under 11 CFR 116.7 from providing for the payment of compensation to the candidate before all other creditors are paid. This requirement does not currently appear in the Commission's regulations.

Last, proposed 11 CFR 113.1(g)(6)(vii) would require a candidate to provide evidence of earned income from prior years upon the request of the Commission in certain circumstances. This requirement currently appears in the Commission's regulation. The new regulation would also require a candidate to maintain or preserve such evidence for three years, pursuant to the Commission's regulations on the preservation of records.

The Commission's current regulations prohibit a federal officeholder who is also a candidate for federal office from receiving salary payments from campaign funds. 43 Proposed 11 CFR 113.1(g)(6)(i) would maintain this prohibition and would also apply it to any other form of compensation that a candidate could receive from campaign funds.

Under the current regulation, salary payments from campaign funds to a candidate are limited to the lesser of the minimum salary paid to a federal officeholder holding the federal office that the candidate seeks, or the earned income that the candidate received during the year prior to becoming a candidate. 44 Accordingly, candidates may receive salary payments from campaign funds only if they earned income the year prior to becoming a candidate. The Commission intended this limitation to provide an “additional safeguard [to] help ensure that campaign salaries are not used to enrich candidates, but instead used to compensate candidates for lost income that is forgone due to becoming a candidate.”  45

The Petitioner and several commenters, however, suggest that this limitation necessarily excludes any candidate who did not earn income in the previous year from receiving compensation from campaign funds, even though that individual also forgoes income by becoming a candidate. They noted that the current regulation does not cover “candidates who are full time caretakers or who have had gaps in employment,” or who have otherwise gone through a recent period of “minimal or low income.”  46 Moreover, as one commenter noted, the Commission has explained that the use of campaign funds to pay a candidate's salary is not personal use because the “salary paid to a candidate would be in return for the candidate's services provided to the campaign and the necessity of that salary would not exist irrespective of that candidacy.”  47 According to the commenter, the Commission “chose to cap salaries at the rate a candidate earned in the previous year, but there is nothing inherent to the Commission's approach to personal use that requires doing so, provided the salary and other benefits paid to the candidate are fair compensation for services rendered to, or otherwise necessary for, their campaign.”  48

Because the current regulation might not adequately cover individuals who had a gap in employment or an unusually low level of income the year before becoming a candidate, the Commission is proposing six alternative ways to cap the amount of compensation that a candidate could receive from campaign funds. The Commission has not decided on any approach and invites comment on these proposals, detailed below. Should the Commission's approach to candidate salaries be directed toward compensating candidates for services rendered, or instead be based upon the opportunity cost incurred by a candidate running for office or other considerations? Which proposal would most accurately reflect fair compensation for services rendered by a candidate to the candidate's campaign committee? Which proposal would most accurately reflect the income lost or foregone by becoming a candidate? For each alternative, are the calculations clear and workable? Are there other alternatives for capping candidate compensation that the Commission should consider? Should the Commission combine certain aspects of various alternatives?

Moreover, several of the alternatives would cap a candidate's compensation at “the minimum salary paid to a Federal officeholder holding the Federal office that the candidate seeks,” which is the current regulatory language. 49 The Commission has explained that the “minimum salary” as used in the current regulation does not refer to the salary actually paid to the current incumbent of the office sought by the candidate, but the “lowest salary for the . . . office.”  50 For example, if a candidate seeks a seat held by a member of the House of Representatives who holds a leadership position and is thus paid more than the minimum salary payable to a member of the House of Representatives, the candidate's salary is capped at the lowest salary for that office, not the salary of the incumbent. Should the Commission consider revising the language in the regulation to clarify that the cap refers to the minimum annual salary for the office, rather than the minimum salary paid to the individual currently holding the office?

Compensation Cap Alternative A (50% officeholder salary minimum approach) would provide that the use of campaign funds by a candidate's principal campaign committee to pay compensation to the candidate is not personal use, provided that the amount of compensation paid to the candidate does not exceed 50% of the minimum salary for the federal office sought by the candidate (“Minimum Officeholder Salary”). This cap would apply to all candidates for the same office, regardless of the amount of income earned by any candidate the year before becoming a candidate.

As proposed, the amount that a candidate could receive must be calculated at the “daily rate.” The daily rate is determined by taking 50% of the Minimum Officeholder Salary and dividing that amount by 365 days per year. For example, if 50% of the Minimum Officeholder Salary is $87,000, the daily rate is $238.00 ($87,000/365, rounded to the nearest dollar). Under this scenario, a candidate who is eligible to receive compensation from campaign funds for 100 days in a particular year, for example, could receive up to $23,800 ($238.00 per day × 100 days) in compensation from campaign funds in that year.

This alternative is intended to measure the value of a candidate's services to a campaign, based on 50% of the minimum salary the candidate could receive as an officeholder should the candidate win the election. Is basing candidate compensation on 50% of the officeholder's salary an accurate reflection of a candidate's duties, when compared to that of an officeholder's in the position the candidate is seeking? Would the 50% figure accurately reflect the candidates' opportunity cost of running for office, or the value of the services provided to the campaign? Would a different percentage provide a more accurate reflection?

Compensation Cap Alternative B (hourly minimum wage approach) would cap a candidate's compensation from campaign funds at the daily rate of the annualized hourly minimum wage. Annualized hourly minimum wage would mean the amount an individual receiving the federal minimum wage would earn by working 40 hours a week for 52 weeks, except that an individual residing in a state with a higher minimum wage than the federal minimum wage could use the higher state minimum wage. Alternative B is intended to measure the opportunity cost to the candidate of running for office, not to provide the actual hourly minimum wage to the candidate. Therefore, under Alternative B, the amount that a candidate could receive from campaign funds would be capped at the amount that the candidate would have earned working 40 hours per week at the minimum wage in another job, even if the candidate spends more than 40 hours per week campaigning.

For example, if a candidate lives in a state whose hourly minimum wage is the same as or less than the current federal minimum wage of $7.25 per hour, 51 the annualized minimum wage would be $15,080 ($7.25 per hour × 40 hours per week × 52 weeks per year), and the daily rate would be $41.00 ($15,080/365 days per year, rounded to the nearest dollar). Therefore, under this example, a candidate who is eligible to receive compensation from campaign funds for 100 days in a particular year may receive no more than $4,100 in compensation from campaign funds in that year. But if the state's hourly minimum wage is higher than the federal minimum wage—for example, $10 per hour instead of $7.25—then the candidate's principal campaign committee could use the higher state minimum wage to determine the maximum amount of compensation that the candidate could receive from campaign funds. At $10 per hour, the annualized hourly minimum wage would be $20,800 ($10 per hour × 40 hours per week × 52 weeks per year), the daily rate would be $57.00 ($20,800/365 days per year, rounded to the nearest dollar), and the candidate could receive up to $5,700 that year as compensation from campaign funds ($57.00 per day × 100 days).

Is the minimum wage a reasonable estimate of the opportunity cost of campaigning instead of obtaining a minimum wage job on the open market? Does the minimum wage accurately reflect the value of services provided by the candidate to the campaign committee?

Compensation Cap Alternative C ($15 per hour approach) would cap candidate compensation based on the amount an individual receiving $15 per hour would earn by working 40 hours per week for 52 weeks—calculated at the daily rate—rather than the federal or state minimum wage. At $15 per hour, the daily rate would be $85.00 ($15 per hour × 40 hours per week × 52 weeks per year = $31,200; $31,200/365 days per year = $85.00 per day, rounded to the nearest dollar). Therefore, if a candidate is eligible to receive compensation for 100 days in a calendar year, the candidate could receive up to $8,500 that year as compensation from campaign funds. Compensation Cap Alternative C would also require this amount ($15) to be adjusted for inflation in odd-numbered years.

The Petitioner and several commenters suggested using $15 per hour as the base rate, indexed for inflation. 52 As one commenter noted, although $15 per hour is more than double the federal minimum wage of $7.25 per hour, 53 it “equates to less than one and a half times the federal poverty limit for a family of three” in 2021. 54 Would $15 per hour more accurately reflect the value of a candidate's services to the candidate's campaign committee or the candidate's opportunity costs than would the minimum wage? Should the Commission index this rate for inflation? Are the federal poverty limits relevant to determining candidate compensation from campaign funds?

Compensation Cap Alternatives A, B, and C, unlike the alternatives described below, do not consider any of the candidate's prior earned income. In sum, as shown by the examples above and represented in this table, a candidate who has no income in the 12-month period prior to becoming a candidate could receive up to the following amounts in compensation in a calendar year from campaign funds under the current regulation and Compensation Cap Alternatives A, B, and C, assuming the Minimum Officeholder Salary is $174,000 and the candidate is eligible to receive compensation from campaign funds during the entire year:

Compensation Cap Alternative D (prior 12-month income approach) would cap a candidate's compensation from campaign funds at the candidate's earned income in the 12-month period before becoming a candidate or the annualized hourly minimum wage, whichever is greater, but not to exceed the Minimum Officeholder Salary. The compensation, earned income, annualized hourly minimum wage, and Minimum Officeholder Salary would all be calculated at the daily rate, with annualized hourly minimum wage having the same definition as in Alternative B.

For example, under Alternative D, if a candidate earned $35,000 in the 12 months before becoming a candidate, and this amount was greater than the annualized hourly minimum wage and less than the Minimum Officeholder Salary, the maximum daily rate for which the candidate could be compensated from campaign funds would be $96.00 ($35,000/365 days per year, rounded to the nearest dollar), and the total maximum amount of compensation in a particular year would be $96.00 multiplied by the number of days that year that the candidate was eligible to receive compensation from campaign funds.

Would this alternative provide a workable way for a candidate who earned income in the previous 12 months to receive compensation from campaign funds that exceeds the minimum wage? To what extent does the previous year's income reflect the opportunity cost of becoming a candidate, or the value of the candidate's services to the campaign?

The final two alternatives would similarly permit a candidate to look back at previous income in calculating the limit on compensation from campaign funds but would extend the period to include three years.

Compensation Cap Alternative E (three-year income approach) would enable the candidate to receive compensation from campaign funds up to the average annual income that the candidate earned during the most recent three calendar years in which the candidate earned income prior to becoming a candidate, capped by the Minimum Officeholder Salary, when both are calculated at the daily rate.

Compensation Cap Alternative F (three-year income with minimum wage approach) would provide the same limits as under Alternative E, except that a candidate under Alternative F would have the additional option of using the minimum wage instead of earned income ( see Alternatives B and D) if the minimum wage is greater than the candidate's average income in the most recent three calendar years in which the candidate received earned income before becoming a candidate.

For example, under both Compensation Cap Alternatives E and F, if an individual who earned income averaging $60,000 per year in 2020, 2018, and 2017, but who did not earn any income in 2021 or 2019, became a candidate in 2022, that candidate would be entitled to receive up to $60,000 in compensation from campaign funds in 2022, when calculated at the daily rate. But if the same individual earned an average of only $5,000 per year in 2020, 2018, and 2017—the most recent three years that the individual earned income before becoming a candidate—under Alternative E the individual would be limited as a candidate to receiving a maximum of $5,000 per year from campaign funds calculated at the daily rate, even if $5,000 is less than the federal minimum wage (or the state minimum wage, if greater). Under Alternative F, by contrast, the candidate would have the option of receiving up to the federal minimum wage or state minimum wage, whichever amount is greater, calculated at the daily rate.

Does the three-year lookback period provide a reasonable estimate of the amount the candidate could expect to earn in the marketplace, or the value of the candidate's services to the campaign? Should the Commission consider a different, multi-year lookback period? Would the proposed multi-year lookback provisions be overly complicated to administer? If so, how could the Commission institute a multi-year lookback provision that would be less complicated to administer, while still providing a reasonable estimate of a candidate's opportunity cost or value of the candidate's services to the campaign?

The Commission has addressed the use of campaign funds to pay non-salary compensation to candidates on a case-by-case basis in advisory opinions and enforcement matters, using the “irrespective” test. Several have involved health insurance premiums and childcare costs.

In MUR 7068 (Mowrer for Iowa), the Commission found reason to believe that a congressional candidate and his principal campaign committee had improperly converted campaign funds to personal use by using them to reimburse the candidate for paying over $7,000 for his health insurance premiums. The Commission reasoned that “health insurance premiums are of a character of those fringe benefit payments to the candidate that the Commission [and Congress] has determined are [ per se ] personal use,” such as funeral, cremation, or burial expenses, tuition payments, sporting event, concert, theater, or other entertainment tickets, 55 country or health club dues or fees, and vacations—all of which, according to the Act and the Commission regulations, would exist irrespective of the candidate's campaign.

On childcare, the Commission has concluded that using campaign funds to pay a candidate's childcare expenses does not convert the funds to personal use to the extent that the expenses are a “direct result of campaign activity,” because such expenses would not have existed irrespective of the candidate's campaign. 56 Applying this standard, the Commission has concluded that a federal candidate could use campaign funds to pay overnight childcare expenses that he incurs when he travels for his own campaign and his spouse is not available to care for their children, 57 and that a federal candidate who had given up her in-home consulting work in order to campaign and hired a caregiver for her children could use campaign funds to pay her childcare expenses when her campaign responsibilities prevented her from caring for the children herself. 58 The Commission has also concluded that a federal candidate who left her job to work full-time on her campaign could use campaign funds to pay for full-time daycare for her children, because she would be spending the “vast majority” of her time away from her family on campaign activities and would reimburse the campaign for childcare costs incurred at times she is not campaigning. 59

The Petitioner and several commenters asked the Commission to reconsider its conclusion in MUR 7068 (Mowrer for Iowa) that using campaign funds to reimburse the candidate's payment of his health insurance premiums converted the campaign funds to personal use. The Petitioner noted that the average annual premiums for health insurance for single coverage in 2019 were over $7,000, which made the cost of running for office prohibitive for many people, and urged the Commission to allow a candidate to join any health benefit plan already provided by the campaign to its employees when the candidate becomes eligible to receive compensation. 60 Several commenters pointed out that health insurance premiums are so intertwined with employment that they cannot be considered separately from salary. 61 As one commenter argued, the Commission “has failed to consider the simple fact that a majority of American adults obtain their health insurance through work.”  62

In addition to healthcare costs, one commenter argued that other non-salary benefits are also “often connected to employment, and therefore the Commission should allow candidates to receive compensation for other fringe benefits offered to full-time campaign employees, including retirement contributions, life insurance, and reimbursement for childcare expenses incurred to permit work outside of normal business hours.”  63 That same commenter argued that the Commission's rulemaking should ensure that candidates who do not opt to pay themselves a salary can still use campaign funds to cover certain essential life expenses necessitated by a run for office, including payments for child and eldercare services. 64

In light of these comments, the Commission is proposing three alternative definitions of candidate compensation at proposed 11 CFR 113.1(g)(6)(iii). Each alternative definition would include direct payments to the candidate and payments for at least some other employment-related benefits.

Compensation Definition Alternative A and Compensation Definition Alternative B would both define “compensation” for purposes of 11 CFR 113.1(g)(6) as direct payments to the candidate and payments for any employment-related benefit that the campaign also provides to its staff, including, but not limited to, health insurance premiums and dependent care costs. For example, if a campaign provides a $200 per month credit to employees to use for full-time day care costs, this benefit would also be available to candidates as compensation from campaign funds.

Compensation Definition Alternative B also would provide that a principal campaign committee may pay a candidate's dependent care expenses as part of the candidate's compensation from campaign funds when the same benefit is not made available to staff, to the extent the expenses are incurred as a direct result of the candidate's campaign activities. For example, under Alternative B, if a campaign provides a $200 per month credit to employees to use for full-time daycare costs, the candidate would be eligible to receive the same credit as compensation from campaign funds. In addition, the campaign could pay for any other dependent care costs incurred by the candidate as a direct result of the candidate's campaign activities; the use of campaign funds to pay any incremental dependent care expenses that result from non-campaign activities would be personal use, unless the candidate reimburses the campaign account for the incremental expenses within 30 days.

Compensation Definition Alternative C would define compensation as direct payments to the candidate and payments for any employment-related benefit, regardless of whether that same benefit is provided to campaign staff, including, but not limited to, health insurance premiums and dependent care costs. Like Alternative B, Compensation Definition Alternative C also would provide that, if a committee uses campaign funds to pay dependent care expenses that are incurred from both campaign and non-campaign activities, the incremental expenses that result from the non-campaign activities would be personal use, unless the candidate reimburses the campaign account for the incremental expenses within 30 days.

These alternatives are not intended to permit candidate committees to pay for expenses that are listed in the Act or Commission regulations as a per se personal use. 65 Is this clear from the text of the proposals?

The use of campaign funds to pay any expense defined as “compensation” would be subject to the compensation cap. Therefore, should the definition of “compensation” include the use of campaign funds to pay a candidate's dependent care costs and health insurance premiums, as in the proposed alternatives, or should these expenses be separately provided for in the regulation? If the latter, should the use of campaign funds to pay these expenses be subject to a separate cap? If so, what should that cap be? Or should a candidate's principal campaign committee continue to be able to pay an unlimited amount of the candidate's dependent care costs if the costs directly result from campaign activity?  66 In Advisory Opinion 2022-07 (Swalwell) and Advisory Opinion 1995-42 (McCrery), the Commission concluded that a federal officeholder and candidate could use campaign funds to pay for certain childcare expenses directly resulting from campaign activity. If childcare expenses were included in the definition of “compensation,” then proposed 11 CFR 113.1(g)(6)(i) would supersede these advisory opinions to the extent that a candidate is also a sitting federal officeholder. Should the Commission distinguish between federal officeholders and candidates who are not federal officeholders for the purpose of determining whether childcare expenses exist irrespective of the candidate's candidacy?

One commenter suggested that the use of campaign funds to pay a candidate's health insurance premiums would generally be personal use, but there might be certain situations where a candidate would not incur healthcare costs irrespective of candidacy. 67 The commenter offered, as an example, a candidate who left full-time employment to campaign and thereby lost the employer-sponsored health insurance that the candidate otherwise would have received. The commenter suggested that the personal use prohibition would not apply to campaign funds used to pay the difference between the amount paid by the candidate for health insurance as a full-time employee, and the amount paid by the candidate for health insurance obtained under the Affordable Care Act or the Consolidated Omnibus Budget Reconciliation Act (COBRA).

The Commission invites comments on this example. Should the Commission issue regulations allowing campaign funds to be used to pay only the additional expense incurred by candidates who previously had health insurance but lost their coverage to campaign? Under what other circumstances would a candidate incur health insurance costs that would not exist irrespective of the candidacy?

The Help America Run Act, 68 introduced in Congress in 2019, would have authorized the use of campaign funds to pay for childcare, eldercare, and similar services “which are provided on behalf of any dependent who is a qualifying relative under section 152 of the Internal Revenue Code of 1986,” as long as “the services are necessary to enable the participation of the candidate in campaign-connected activities.”  69 Should the Commission consider identifying in a regulation impermissible or permissible dependent care expenses, as either an exhaustive or non-exhaustive list? If so, which expenses should be included on the list?

As noted above, the Commission's current regulation caps the amount of campaign funds that a candidate may receive in salary from the candidate's principal campaign committee at either (1) the amount of income earned by the candidate in the 12-month period immediately preceding candidacy, or (2) the Minimum Officeholder Salary, whichever amount is lower. For purposes of this calculation, the current regulation further requires the minimum salary of the office that the candidate seeks—but not the candidate's earned income from the prior year—to be reduced by the amount of any earned income that the candidate receives from salaries or wages from any source other than the candidate's principal campaign committee. 70

For example, if Candidate A earned $60,000 in the 12-month period immediately preceding candidacy and Candidate B earned $600,000, Candidate A would be capped at receiving $60,000 from campaign funds as salary, while Candidate B would be capped at $174,000 (the Minimum Officeholder Salary) because the Minimum Officeholder Salary is less than Candidate B's earned income in the year preceding candidacy. Under the current regulation, if both candidates earned income from outside sources of $30,000 while receiving a salary from campaign funds, the maximum amount of salary that Candidate A would be eligible to receive from campaign funds would not be affected, but Candidate B would be eligible to receive only up to $147,000 ($174,000 Minimum Officeholder Salary—$30,000 earned income from outside sources) as salary from campaign funds.

Proposed 11 CFR 113.1(g)(6)(iv) would rectify this apparent imbalance in the salary cap reduction by requiring the amount earned by a candidate from other sources to count against the maximum amount of compensation that a candidate can receive from campaign funds, rather than counting against only the minimum officeholder salary.

Should the Commission exclude health insurance premiums, dependent care costs, or any other non-salary benefits from the reduction requirement? Should the Commission continue to apply the reduction requirement only to Minimum Officeholder Salary, as under the current regulation?

The current regulation prohibits the use of campaign funds to pay a candidate's salary before the filing deadline for access to the primary election ballot for the federal office that the candidate seeks, as determined by state law, or January 1 of each even-numbered year in states that do not conduct primaries. 71 The current regulation also prohibits the use of campaign funds to pay a candidate's salary after the date the candidate loses the primary election, withdraws from the race, or otherwise ceases to be a candidate or, if the candidate wins the primary, after the date of the general election or general election runoff. 72 For special elections occurring in odd-numbered years, the current regulation authorizes a candidate's principal campaign committee to pay the candidate a salary from campaign funds starting on the date the special election is set and ending on the day of the special election, the date on which the candidate withdraws from the race, or the date on which the candidate otherwise ceases to be a candidate.

The Petitioner and several commenters asked the Commission to standardize the date that a candidate first becomes eligible to receive a salary from campaign funds and to extend the period of time that a candidate could draw a salary from campaign funds. 73 The Petitioner asserts that the ballot access deadlines for state primaries “vary wildly based on state law.”  74 According to the petition, during the 2018 election cycle, the date on which a candidate could begin drawing a campaign salary under Commission regulations “ranged from December 4, 2017 in Illinois to July 10, 2018 in Delaware, a difference of 218 days.”  75 The Petitioner also said that she, herself, could have received a campaign salary for only 2 of the 16 months she campaigned as a candidate for the United States House of Representatives from Georgia. 76

Several commenters confirmed this disparity in the eligibility starting date. 77 One commenter alleged that this “disparity has real consequences for candidates, who face grueling schedules—juggling full-time jobs, families, and campaigning—while they wait to become eligible to collect salaries.”  78 Another commenter argued that “[t]here is no clear relationship between state primary ballot access dates and whether candidate salary costs would pass the `irrespective' test,” given that “[s]alary costs are no less irrespective of one's candidacy whether one is campaigning in Illinois or Delaware.”  79 The Petitioner and commenters suggested that the Commission permit a candidate to draw a salary from campaign funds for at least 180 days before the primary election. 80

Proposed 113.1(g)(6)(v)(A) would make it possible for candidates to start receiving compensation from campaign funds as early as the first day of their campaigns, rather than requiring them to wait until their respective state's primary election ballot access deadline or January 1 in states that do not conduct primaries. Specifically, the proposed regulation would prohibit compensation from accruing or being paid to a candidate only before the date the candidate's principal campaign committee files a Statement of Organization with the Commission. The Commission invites comments on this proposal.

Moreover, proposed 11 CFR 113.1(g)(6)(v)(B) would enable candidates who win the general election, general election runoff, or a special election or special election runoff to continue to receive compensation from campaign funds up to the date they are sworn into office. This proposal would allow winning candidates, who have duties in winding down a campaign, to continue receiving compensation from campaign funds while they are unable to seek other employment as they await their term in office. For candidates who win the general election or general election runoff, or a special election or special election runoff, this proposal would significantly extend the period that they remain eligible to receive compensation from their principal campaign committees. Does a candidate continue to lose or forego income between the time the candidate wins the election and is sworn in? Is there any reason why a candidate who wins a special election or special election runoff should not be eligible to receive compensation from campaign funds up to the date of the swearing in? Does a candidate who wins a general or special election or runoff continue to provide services to the candidate's campaign committee after the election, such that the use of campaign funds to compensate the candidate would not exist irrespective of the candidacy?

Proposed 11 CFR 113.1(g)(6)(v)(B) also would prohibit compensation from being paid beyond the date an individual ceases to be a candidate in all other cases, such as when the candidate loses a primary election or withdraws from the race. This proposal would continue the approach taken in the current regulation for candidates who do not win the office sought. 81

Finally, proposed 11 CFR 113.1(g)(6)(v)(C) would address the eligibility period for candidates running in special elections. It would authorize a candidate's principal campaign committee to pay the candidate compensation from campaign funds starting on the date the special election is set and ending on the day of the special election, the date on which the candidate withdraws from the race, or the date on which the candidate otherwise ceases to be a candidate. This proposal would continue the current regulation's approach to special elections, except that the proposed regulation would apply to all special elections, not just those in odd-numbered years. 82 The Commission invites comments on this proposal.

Any political committee that seeks to terminate and to settle its debts for less than the full value is required to file a debt settlement plan for Commission review. 83 To prevent candidates from enriching themselves at the expense of other campaign creditors, proposed 11 CFR 113.1(g)(6)(vi) would prohibit any principal campaign committee seeking to settle its debts for less than their full value from paying compensation to the candidate or satisfying a debt to the candidate for compensation. Is the proposed regulation clear that a principal campaign committee would not be prohibited from settling its debts for less than the full value because it paid its candidate compensation prior to seeking to terminate? The proposed rule would also prohibit a principal campaign committee from filing a debt settlement plan that provides for the payment of compensation to the candidate before all other creditors are paid. The Commission invites comment on this proposal.

Currently, any candidate receiving a salary from campaign funds must provide income tax records and other evidence of earned income upon request of the Commission. 84 Proposed 11 CFR 113.1(g)(6)(vii) would maintain this requirement under Compensation Cap Alternatives D, E, and F—the alternatives that permit a candidate to receive compensation from campaign funds as limited by the candidate's prior earned income—and additionally require such evidence of earned income to be maintained and preserved for three years after the report disclosing the disbursement has been filed, pursuant to 11 CFR 102.9 and 104.14(b). 85 This record preservation requirement would not apply under Compensation Cap Alternatives A, B, or C, because they are not based on a candidate's prior earned income. Should the Commission require principal campaign committees to maintain and produce the information they use to calculate candidate compensation for all alternatives? Should a principal campaign committee be required to provide evidence demonstrating a candidate's lack of earned income for the purpose of complying with proposed 11 CFR 113.1(g)(6)(iv) (requiring reduction of a candidate's compensation by the amount of other income earned by the candidate)?

The Commission certifies that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rules would provide flexibility to principal campaign committees that choose to use campaign funds to pay their candidates a salary. Any proposed rule that could be construed as placing an obligation on a principal campaign committee would apply only to campaigns that choose to pay their candidates compensation. The proposed rules would not impose any new recordkeeping, reporting, or financial obligations on principal campaign committees that do not choose to pay their candidates compensation, and any such new obligations that may be imposed on principal campaign committees that do choose to pay compensation to their candidates would be minimal. Thus, to the extent that any entities affected by these proposed rules might fall within the definition of “small businesses” or “small organizations,” the economic impact of complying with these rules would not be significant.

For the reasons set out in the preamble, the Federal Election Commission proposes to amend 11 CFR part 113 as follows:

This rulemaking proposes several amendments to parts 61, 63, and 65 of Title 14 of the Code of Federal Regulations (14 CFR) by incorporating by reference (IBR) the Airman Certification Standards (ACS) and Practical Test Standards (PTS). The ACSs and PTSs are currently utilized as the practical test testing standard for airman certificates and ratings. The FAA notes that there are no major substantive changes proposed to the testing standards that are already in use or the process by which the practical test is conducted. Rather, the FAA proposes this rulemaking to bring the ACSs and PTSs into the FAA regulations through the proper notice and comment process required by the Administrative Procedure Act (APA), 1 as discussed in section III.A. of this preamble.

As explained in section III.B. of this preamble, the FAA proposes to IBR thirty (30) pilot and flight instructor ACSs and PTSs in part 61 by adding a centralized IBR section in new § 61.14. The FAA proposes to direct compliance on the respective practical tests and proficiency checks with the appropriate ACSs and PTSs through proposed revisions in §§ 61.43, 61.57, 61.58, 61.321, and 61.419. Additionally, the FAA proposes to add an appendix to part 61, which will concisely set forth which ACS or PTS is applicable to the certificate and/or rating sought or proficiency check to be conducted. The FAA is also proposing a nonsubstantive conforming amendment to § 61.157 to align the Airline Transport Pilot (ATP) airplane and powered-lift flight proficiency areas of operation with the areas of operation contained in the ATP and Type Rating for Airplane Category ACS and ATP and Type Rating for Powered-Lift Category ACS, respectively.

As explained in section III.C. of this preamble, the FAA proposes to revise part 63 to IBR the Flight Engineer PTS by revising § 63.39. Additionally, the FAA proposes minor editorial revisions to remove gender references.

As explained in section III.D. of this preamble, the FAA proposes to revise part 65 to IBR the Aircraft Dispatcher and Parachute Rigger PTSs. Specifically, the FAA proposes to add both PTSs to the existing centralized IBR section, § 65.23. The FAA proposes to revise the appropriate sections in subpart C and subpart F of part 65 ( i.e., §§ 65.59, 65.115, 65.119, 65.123) to require compliance with the respective PTS.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator to promulgate regulations and rules. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This proposed rulemaking is promulgated under the authority granted to the Administrator in 49 U.S.C. Subtitle VII, Part A, Subpart iii, Chapter 401, Section 40113 (prescribing general authority of the Administrator of the FAA with respect to aviation safety duties and powers to prescribe regulations) and Subpart III, Chapter 447, Sections 44701 (general authority of the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security), 44702 (general authority of the Administrator to issue airman certificates), and 44703 (general authority of the Administrator to prescribe regulations for the issuance of airman certificates when the Administrator finds, after investigation, that an individual is qualified for and physically able to perform the duties related to the position authorized by the certificate). This rulemaking proposal is within the scope of that authority.

Under 49 U.S.C. 44703, the Administrator of the FAA possesses the authority to issue airman certificates when the Administrator finds, after investigation, that an individual is qualified for and able to perform the duties related to the position authorized by the certificate. 2 The Administrator carries out this investigative authority through 14 CFR parts 61, 63, and 65, which prescribe the requirements for airmen to obtain a certificate and a rating. 3 Each respective part contains the general requirements for eligibility, which include aeronautical knowledge, flight proficiency, and aeronautical experience, as applicable, for each certificate and/or rating sought. This generally includes the requirement to pass a practical test  4 specific to the certificate or rating sought. 5

Prior to 1997, the FAA set forth certain items to be included on the practical test  6 directly in the regulations of part 61 through flight proficiency requirements. Specifically, § 61.43 set forth broad areas required to be included in practical tests, 7 and the individual subparts applicable to the certificate sought required the practical test to include procedures and maneuvers selected by an FAA inspector or evaluator from the flight proficiency provisions of that subpart. This resulted in an unclear, broad, and discretionary testing framework. In 1995, 8 the FAA proposed to replace the flight proficiency requirements for flight training and practical tests with approved areas of operation, more general in character than the flight proficiency procedures and maneuvers, and simplify the practical test general procedures regulations to require performance of the areas of operation. The FAA also proposed to remove appendix A and appendix B from part 61, which contained the practical test requirements for airplane ATP certificates and associated class and type ratings and rotorcraft ATP certificates and associated class and type ratings, respectively. The FAA stated that the specific tasks for training and practical tests within the new areas of operation would then be established through the appropriate practical test standard, with the purpose of permitting greater flexibility in updating the training and testing maneuvers and procedures required of pilot and flight instructor applicants. Commenters generally opposed this change, stating that the FAA would be able to revise the requirements for certificates and ratings through the practical test standards without issuing an NPRM and soliciting public comments. Commenters also questioned the compliance of the proposal with the APA. 9 Nevertheless, the FAA adopted the proposal and assured the public that the FAA would actively seek public comments on future revisions of the PTSs. 10

In the implementation of the areas of operation, the FAA established the Practical Test Standards (PTS) to define acceptable performance of the flight proficiency required to obtain a certificate and/or rating. The PTSs were specific to certain certificates and/or ratings sought and incorporated the areas of operation set forth in the applicable regulations. 11 Within the PTS, the areas of operation were designated as phases of the practical test, which were further extrapolated into tasks comprised of knowledge areas, flight procedures, or maneuvers appropriate to the overarching area of operation. An evaluator  12 is responsible for determining whether the applicant meets the standards outlined in the objective of each required task evaluated in accordance with the respective PTS. While developed primarily in response to part 61 revisions, PTSs were also published and utilized for testing under parts 63 and 65. 13

In collaboration with the aviation industry and the FAA's routine review processes, the FAA identified the need for a new, systematic approach to testing that would (1) provide clearer standards, (2) consolidate redundant tasks, and (3) connect the standards for knowledge, risk management, and skills to the knowledge and practical tests. Therefore, the FAA began to establish the ACSs in 2011 to enhance the testing standard for the knowledge and practical tests. The goal in creating the ACS was to drive a systematic approach to the airman certification process, including knowledge test question development and the conduct of the practical test. In cooperation with the ACS Working Group, established through the Aviation Rulemaking Advisory Committee (ARAC), 14 the FAA integrated “aeronautical knowledge” and “risk management” elements into the existing areas of operations and tasks set forth in the PTS. Therefore, the ACS is a comprehensive presentation integrating the standards for what an applicant must know, consider, and do to demonstrate proficiency to pass the tests required for issuance of the applicable airman certificate or rating. The FAA notes that some PTSs have fully transitioned to ACSs, rendering those corresponding PTSs obsolete. While FAA continues to actively convert the remaining PTSs to ACSs in collaboration with the ACS Working Group, FAA will continue to use the PTS for some certificates and ratings until the corresponding ACS is completed.

In 2018, 15 the FAA removed the reference to the practical test standards in § 61.43 and broadened the regulatory language to encompass the standards set forth in the airman certification standards, where applicable ( i.e., where ACSs were developed and actively utilized for practical tests of certain certificates). The regulatory language adopted in 2018 that requires applicants to perform the tasks specified in the areas of operation for the airman certificate or rating sought is how the regulation is situated today.

While FAA did not consider the content of the PTSs and ACSs regulatory requirements, as stated in the 2018 final rule, 16 the PTS and the ACS are purposed to impose requirements on all persons seeking an airman certificate or rating in parts 61, 63, and 65. As previously discussed, the PTS and ACS require an applicant seeking a certificate or rating to complete specific tasks and maneuvers to a minimum prescribed standard to obtain the applicable certificate or rating. 17 As such, if an applicant does not perform a task to the standard in the applicable ACS or PTS, the applicant cannot obtain the applicable certificate and rating. Unsatisfactory performance results in a notice of disapproval and/or denial of the certificate or rating.

Because of the regulatory nature that the PTSs and ACSs are purposed for, through this proposed rulemaking, the FAA is proposing to IBR the ACSs and PTSs into parts 61, 63, and 65 so that the standards carry the full force and effect of regulation. Due to the unique nature of the PTS and ACS documents, which are lengthy and contain complex and technical tables, the FAA proposes to IBR these standards rather than reproduce the documents in their entirety into the Code of Federal Regulations (CFR), as is subsequently discussed.

IBR is a mechanism that allows Federal agencies to comply with the requirements of the APA to publish rules in the Federal Register and the CFR by referring to material published elsewhere. 18 Material that is incorporated by reference has the same legal status as if it were published in full in the Federal Register .

In accordance with 5 U.S.C. 552(a) and 1 CFR part 51, 19 the FAA makes the ACSs and PTSs reasonably available to interested parties by providing free online public access to view on the FAA Training and Testing website at www.faa.gov/training_testing. The ACSs and PTSs are available for download, free of charge, at the provided web address. The FAA will continue to provide the ACSs and PTSs to interested parties in this manner. In addition to the free online material on the FAA's website, hard copies and printable versions are available from the FAA. Additionally, all ACSs and PTSs proposed to be incorporated by reference are contained in the docket for this NPRM for inspection.

The FAA emphasizes that, in practice, practical tests and proficiency checks are already conducted in accordance with the applicable ACS or PTS, and there are no changes proposed to current testing processes or procedures. Additional information regarding each PTS and ACS (including summaries of each publication), revisions to the PTSs, transition of PTSs to ACSs, and ACSs introduced in this proposed rule may be found in section III.B.1 of this preamble.

The FAA proposes to IBR thirty (30) PTSs and ACSs into part 61. Rather than listing the standard, publishing information, and approval language in each affected section of part 61, the FAA proposes the creation of a centralized IBR section in new § 61.14 to streamline the regulatory text and avoid repetitive information in the regulations. The centralized IBR section would contain the IBR approval language and the standards' publishing information. 20 Section 61.14(a) would set forth the list of ACSs and PTSs to be incorporated by reference.

The centralized IBR section in new § 61.14 would not contain instructions for using the standards; rather, § 61.43, as subsequently discussed, would set forth the compliance requirements with the standards as they pertain to the practical test and §§ 61.57, 61.58, 61.321, and 61.419 would set forth the compliance requirements with the standards as they pertain to certain proficiency checks. The sections promulgating compliance would cross-reference to the centralized IBR section, § 61.14.

The standards contained in the centralized IBR section include 15 ACSs and 15 PTSs, as follows:  21

• Airline Transport Pilot and Type Rating for Airplane Category Airman Certification Standards; FAA-S-ACS-11A.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for airline transport pilot and type rating certification in the airplane category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Takeoffs and Landings; In-flight Maneuvers; Stall Prevention; Instrument Procedures; Emergency Operations; and Postflight Procedures.

• Airline Transport Pilot and Type Rating Practical Test Standards for Rotorcraft Category Helicopter Rating; FAA-S-8081-20A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the airline transport pilot and type rating practical tests for helicopters.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Takeoff and Departure Phase; Inflight Maneuvers; Instrument Procedures; Landings and Approaches to Landings; Normal and Abnormal Procedures; Emergency Procedures; and Postflight Procedures.

• Airline Transport Pilot and Type Rating for Powered-Lift Category Airman Certification Standards; FAA-S-ACS-17.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for airline transport pilot and type rating certification in the powered-lift category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Takeoffs and Departure Phase; In-flight Maneuvers; Instrument Procedures; Landings and Approaches to Landings; Emergency Operations; and Postflight Procedures.

• Commercial Pilot for Airplane Category Airman Certification Standards; FAA-S-ACS-7B.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the commercial rating in the airplane category, single-engine land and sea; and multiengine land and sea classes.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers and Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; High-Altitude Operations; Emergency Operations; Multiengine Operations; and Postflight Procedures.

• Commercial Pilot for Rotorcraft Category Helicopter Rating Airman Certification Standards; FAA-S-ACS-16.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for a commercial pilot certification in the rotorcraft category helicopter rating.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Heliport Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers; Navigation; Emergency Operations; Special Operations; and Postflight Procedures.

• Commercial Pilot Practical Test Standards for Rotorcraft Category Gyroplane Rating; FAA-S-8081-16C.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the commercial pilot practical test for the rotorcraft category gyroplane class.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers, Navigation; Flight at Slow Airspeeds; Emergency Procedures; and Postflight Procedures.

• Commercial Pilot for Powered-Lift Category Airman Certification Standards; FAA-S-ACS-2.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for commercial pilot certification in the powered-lift category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Heliport Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; High-Altitude Operations; Special Operations; and Postflight Procedures.

• Commercial Pilot Practical Test Standards for Glider Category; FAA-S-8081-23B.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the commercial pilot certification practical test for the glider category.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Gliderport Operations; Launches and Landings; Performance Maneuvers; Soaring Techniques; Performance Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; and Postflight Procedures.

• Commercial Pilot Practical Test Standards for Lighter-Than-Air Category; FAA-S-8081-18A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the commercial pilot certification practical tests for the lighter-than-air category, balloon and airship classes.

○ This PTS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subjects; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport Operations; Launches and Landings; Performance Maneuvers; Navigation; Emergency Operations; and Postflight Procedures.

• Private Pilot for Airplane Category Airman Certification Standards; FAA-S-ACS-6C.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the private pilot certification in airplane category, single-engine land and sea; and multiengine land and sea classes.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers and Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; Basic Instrument Maneuvers; Emergency Operations; Multiengine Operations; Night Operations; and Postflight Procedures.

• Private Pilot for Rotorcraft Category Helicopter Rating Airman Certification Standards; FAA-S-ACS-15.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for private pilot certification in the Rotorcraft category helicopter rating.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Heliport Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers; Navigation; Emergency Operations; Night Operations; and Postflight Procedures.

• Private Pilot Practical Test Standards for Rotorcraft Category Gyroplane Rating; FAA-S-8081-15B.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the private pilot practical test for the rotorcraft category, gyroplane class.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuver, Ground Reference Maneuvers; Navigation; Flight at Slow Airspeeds; Emergency Operations; and Postflight Procedures.

• Private Pilot for Powered-Lift Category Airman Certification Standards; FAA-S-ACS-13.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for private pilot certification in the powered-lift category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Heliport Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Performance Maneuvers; Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; Basic Instrument Maneuvers; Emergency Operations; Night Operations; and Postflight Procedures.

• Private Pilot Practical Test Standards for Glider Category; FAA-S-8081-22A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the private pilot certification practical test for the glider category.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Gliderport Operations; Launches and Landings; Performance Airspeeds; Soaring Techniques; Performance Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; and Postflight Procedures.

• Private Pilot Practical Test Standards for Lighter-Than-Air Category; FAA-S-8081-17A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the private pilot certification practical tests for the lighter-than-air category, balloon and airship classes.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport Operations; Launches and Landings; Performance Maneuvers; Navigation; Emergency Operations; and Postflight Procedures.

• Private Pilot Practical Test Standards for Powered Parachute Category and Weight-Shift-Control Category; FAA-S-8081-32A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the private pilot practical tests for powered parachute and weight shift control.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuver; Ground Reference Maneuvers; Navigation; Emergency Operations; Night Operations; and Postflight Procedures.

• Recreational Pilot Practical Test Standards for Airplane Category and Rotorcraft Category; FAA-S-8081-3B.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the recreational pilot practical tests for airplane, rotorcraft/helicopter, and rotorcraft/gyroplane.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landing, and Go-Arounds; Performance Maneuvers; Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; and Postflight Procedures.

• Sport Pilot and Sport Pilot Flight Instructor Practical Test Standards for Airplane Category, Rotorcraft Category, and Glider Category; FAA-S-8081-29A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the sport pilot practical tests and proficiency checks for the airplane, gyroplane, glider, and flight instructor.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuver; Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; and Postflight Procedures.

• Sport Pilot and Sport Pilot Flight Instructor Practical Test Standards for Lighter-Than-Air Category; FAA-S-8081-30A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the sport pilot practical tests and proficiency checks for the airship, balloon, flight instructor.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuver; Ground Reference Maneuvers; Navigation; Emergency Operations; and Postflight Procedures.

• Sport Pilot and Sport Pilot Flight Instructor Practical Test Standards for Powered Parachute Category and Weight-Shift Control Category; FAA-S-8081-31A.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the sport pilot practical tests and proficiency checks for the weight-shift control, powered parachute, and flight instructor.

○ This PTS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Performance Maneuver; Ground Reference Maneuvers; Navigation; Slow Flight and Stalls; Emergency Operations; and Postflight Procedures.

• Instrument Rating—Airplane Airman Certification Standards; FAA-S-ACS-8C.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for private pilot certification in the instrument rating in the airplane category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Air Traffic Control Clearances and Procedures; Flight by Reference to Instruments; Navigation Systems; Instrument Approach Procedures; Emergency Operations; and Postflight Procedures.

• Instrument Rating—Helicopter Airman Certification Standards; FAA-S-ACS-14.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the instrument rating helicopter.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Air Traffic Control Clearances and Procedures; Flight by Reference to Instruments; Navigation Systems; Instrument Approach Procedures; Emergency Operations; and Postflight Procedures.

• Instrument Rating—Powered-Lift Airman Certification Standards; FAA-S-ACS-3.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for private pilot certification in the instrument rating in the powered-lift category.

○ This ACS contains the following Areas of Operation: Preflight Preparation; Preflight Procedures; Air Traffic Control Clearances and Procedures; Flight by Reference to Instruments; Navigation Systems; Instrument Approach Procedures; Emergency Operations; and Postflight Procedures.

• Flight Instructor for Airplane Category Airman Certification Standards; FAA-S-ACS-25.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the flight instructor certificate in the airplane category.

○ This ACS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport and Seaplane Base Operations; Takeoffs, Landings, and Go-Arounds; Fundamentals of Flight; Performance and Ground Maneuvers, Slow Flight, Stalls, and Spins; Basic Instrument Maneuvers; Emergency Operations; Multiengine Operations; and Postflight Procedures.

• Flight Instructor for Rotorcraft Category Helicopter Rating Airman Certification Standards; FAA-S-ACS-29.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the flight instructor certificate in the rotorcraft category helicopter rating.

○ This ACS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport and Helicopter Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Fundamentals of Flight; Performance Maneuvers, Emergency Operations; Special Operations; and Postflight Procedures.

• Flight Instructor Practical Test Standards for Rotorcraft Category Gyroplane Rating; FAA-S-8081-7C.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the flight instructor certification practical tests for the rotorcraft category, gyroplane class.

○ This PTS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subjects; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport Operations; Takeoffs, Landings, and Go-Arounds; Fundamentals of Flight; Performance Maneuvers; Flight at Slow Airspeeds; Ground Reference Maneuvers; Emergency Operations; and Postflight Procedures.

• Flight Instructor for Powered-Lift Category Airman Certification Standards; FAA-S-ACS-27.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the flight instructor certificate in the powered-lift category.

○ This ACS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport and Heliport Operations; Hovering Maneuvers; Takeoffs, Landings, and Go-Arounds; Fundamentals of Flight; Performance Maneuvers; Ground Reference Maneuvers; Slow Flight and Stalls; Basic Instrument Maneuvers; Emergency Operations; Special Operations; and Postflight Procedures.

• Flight Instructor Practical Test Standards for Glider Category; FAA-S-8081-8C.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the flight instructor certification practical tests for the glider category.

○ This PTS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Preflight Procedures; Airport and Gliderport Operations; Launches and Landings; Fundamentals of Flight; Performance Airspeeds; Soaring Techniques; Performance Maneuvers; Slow Flight, Stalls, and Spins; Emergency Operations; and Postflight Procedures.

• Flight Instructor Instrument Practical Test Standards for Airplane Rating and Helicopter Rating; FAA-S-8081-9E.

○ This PTS establishes the aeronautical knowledge, special emphasis areas considered critical to flight safety, and proficiency standards for the flight instructor certification practical tests for airplane and helicopter ratings.

○ This PTS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Air Traffic Control Clearances and Procedures; Flight by Reference to Instruments; Navigation Aids; Instrument Approach Procedures; Emergency Operations; and Postflight Procedures.

• Flight Instructor Instrument Powered-Lift Airman Certification Standards; FAA-S-ACS-28.

○ This ACS communicates the aeronautical knowledge, risk management, and flight proficiency standards for the flight instructor instrument rating in the powered-lift category.

○ This ACS contains the following Areas of Operation: Fundamentals of Instructing; Technical Subject Areas; Preflight Preparation; Preflight Lesson on a Maneuver to be Performed in Flight; Air Traffic Control Clearances and Procedures; Flight by Reference to Instruments; Navigation Aids; Instrument Approach procedures; Emergency Operations; and Postflight Procedure.

The FAA notes that the ACSs and PTSs that the agency proposes to IBR may be categorized into three groups, described herein. First, for the majority of the ACSs and PTSs, the FAA has updated version numbers from the versions that are currently in use by the regulated community ( e.g., applicants and examiners). The ACSs and PTSs with updated version numbers reflect minor updates, including grammatical or clerical corrections, updated regulatory citations, and organizational revisions. 22 However, there are no major substantive revisions or additional requirements in the updated ACSs and PTSs incorporated by reference that the regulated community must resort to with this proposed rulemaking. Additionally, the FAA has updated the titles to certain ACSs and PTSs to more consistently reflect the precise category and/or rating that the ACS and PTS applies to. The FAA has also drafted an ACS companion guide providing guidance on certain nonregulatory and technical information removed from the ACSs during the update, which may be found in the docket to this rulemaking.

Second, as discussed in section III.A., the FAA is actively converting the PTSs to ACSs across all airman certificates and ratings. Therefore, several ACSs proposed to be incorporated by reference as part of this rulemaking are currently not used as the FAA testing standard. The FAA is proposing that these ACSs would replace the existing PTSs as part of the final rule.

In the interest of transparency, the FAA does note four ACSs that added tasks during the transition from PTS to ACS. Specifically, the four ACSs affected are: (1) the Commercial Pilot for Airplane Category ACS, which adds the Forward Slip to the Landing task in accordance with the Private Pilot for Airplane Category ACS, Area of Operation IV, Task M for applicants who do not hold an airman certificate with an airman certificate with an airplane category rating and a single-engine class rating and are applying for a commercial certificate in the airplane category with a single engine rating (land or sea); (2) the Private Pilot for Rotorcraft Category Helicopter Rating ACS, which adds the Approach and Landing with One Engine Inoperative task, Area of Operation VII, Task C; (3) the Commercial Pilot for Rotorcraft Category Helicopter Rating ACS, which adds three tasks: first, the Anti-Torque System Failure (Oral Only) task, Area of Operation VIII, Task G; second, the Recovery from Unusual Flight Attitudes task, Area of Operation VIII, Task L; and, third, Night Operations task, Area of Operation IX, Task C; and (4) Flight Instructor for Rotorcraft Category Helicopter Rating ACS, which adds the Recovery from Unusual Flight Attitudes task, Area of Operation XI, Task D. The FAA has evaluated these tasks in terms of substantive additions to the practical test, and has determined these additions are of minimal impact. In other words, these added tasks, which have been determined as crucial to evaluation in the interest of safety, may be completed concurrently with tasks already required on the transitioned ACSs and, therefore, only add a negligible amount of time to the requisite practical test.

Notwithstanding these minimal additions, the conversion of PTS to ACS does not markedly change the substantive material to be tested on the practical test. The ACS is intended to more concisely capture the testing elements contained in the PTS, and the coding structure of the ACS provides greater detailed information for instructors and evaluators, particularly in areas missed on a knowledge test or not satisfactorily completed on a practical test. In sum, while the specific elements of the ACS and PTS may not precisely align ( e.g., broad topics of managing risk and situational awareness in the PTS have been put in context of risk management elements on the ACS), the performance of tasks required, as well as the standard for satisfactory completion, remains generally unchanged, unless otherwise noted in the ACS.

Third, the FAA notes that there are six (6) new powered-lift ACSs proposed to be incorporated by reference, including: (1) ATP and Type Rating for Powered-Lift Category, (2) Commercial Pilot for Powered-Lift Category, (3) Private Pilot for Powered-Lift Category, (4) Instrument Rating—Powered-Lift, (5) Flight Instructor for Powered-Lift Category, and (6) Flight Instructor Instrument Powered-Lift. As with the other ACSs, most of the Powered-Lift ACSs were drafted based on input from industry and the ACS Working Group, 23 and align with the areas of operation promulgated by the regulations for the respective certificates and/or ratings. 24 Because these ACSs are newly drafted, the FAA invites comments in particular on the six powered-lift ACSs.

Section 61.43 contains the general procedures for the practical test, including the parameters for the successful completion of a practical test. 25 As discussed in section III.A., completion of the practical test for a certificate or rating consists of performing the tasks specified in the areas of operation for the airman certificate or rating sought, 26 among other requirements. The FAA proposes to revise the language in § 61.43(a)(1) to direct compliance with the applicable PTS or ACS. 27 Specifically, completion of the practical test for a certificate or rating would consist of performing the tasks specified in the areas of operation contained in the applicable ACS or PTS for the airman certificate or rating sought. Additionally, the FAA proposes to revise § 61.43(a)(2) and (3) to clarify that the tasks and standards referred to in each respective subparagraph are those delineated in § 61.43(a)(1).

Additionally, in order to clearly define which ACS or PTS an applicant is subject to, the FAA proposes to add an appendix (Appendix A) to part 61. The appendix will function to aid applicants and evaluators in identifying which ACS or PTS must be utilized for the certificate and/or rating the applicant seeks. Therefore, proposed appendix A to part 61 provides a table containing an list of all part 61 certificates, ratings, and proficiency checks, and directs which PTS or ACS is applicable. The proposed revision to § 61.43(a)(1) contains both a reference to the centralized IBR section in § 61.14 and a reference to appendix A for PTS/ACS applicability.

Proficiency checks are a type of review of a pilot's proficiency that is generally required to maintain existing privileges, but also required to add privileges in the case of sport pilot certificates. Although a proficiency check differs from an initial test for certification ( i.e., a practical test), which determines a pilot's qualification to hold a certificate or rating, pilots completing proficiency checks are similarly evaluated against ACSs and PTSs; therefore, the FAA finds that conforming amendments are necessary to proficiency checks as well. Specifically, the FAA proposes to require that instrument proficiency checks (IPC) under § 61.57(d), pilot-in-command proficiency checks (PIC PC) under § 61.58, and sport pilot proficiency checks under §§ 61.321 and 61.419 be conducted according to the appropriate ACS or PTS, respectively, through minor revisions to the applicable section and cross-references to the centralized IBR section.

Section 61.57 sets forth the requirements of recent flight experience to act as pilot in command of an aircraft. To act as PIC under Instrument Flight Rules (IFR) or weather conditions less than the minimums prescribed for Visual Flight Rules (VFR), a PIC must complete certain instrument experience within a specified time. 28 A person who has failed to meet these instrument experience requirements for more than six calendar months  29 may only reestablish currency by completing an IPC, pursuant to § 61.57(d). 30 Prior to 1997, an IPC  31 was broadly referred to in the regulations and did not require any specific checking areas, tasks, or operational characteristics. In 1997, the FAA clarified the tasks and maneuvers upon which IPC were to be conducted. Specifically, the FAA revised § 61.57(d) to require that the IPC include a representative number of the tasks required by the instrument rating practical test. The reference to “tasks required by the instrument rating practical test” was understood to embody the tasks that were referred to in § 61.43(a)(1), which referred to those tasks contained in the practical test standards. 32

As discussed in section III.A. of this preamble, in 2018, the FAA removed references to the practical test standards in the regulations. 33 Likewise, the FAA found that, for consistency, it was inappropriate to reference the areas of operation and instrument tasks in the instrument rating PTS. Therefore, in the 2018 rulemaking, the FAA revised § 61.57(d) to list the areas of operation for an IPC  34 and noted that the proficiency check would still be driven by the standards for the initial issuance of an instrument rating. 35

In practice, the person administering an IPC  36 utilizes the appropriate instrument PTS or ACS. 37 Currently, there is both an active PTS and ACS for instrument rating practical tests. Airplane Instrument Rating practical tests are conducted via the Instrument Rating—Airplane ACS (FAA-S-ACS-8B), while Helicopter Instrument Rating and Powered-Lift Instrument Rating practical tests are conducted via the Instrument Rating Practical Test Standards for Airplane, Helicopter, and Powered-Lift (FAA-S-8081-4E with Changes 1, 2, 3, 4 & 5). The FAA notes that the current PTS still contains the Airplane portion; however, this portion has been superseded by the ACS. While previously stated that the IPC in practice currently utilizes the PTS or ACS dependent on the rating held, as part of this rulemaking, the FAA proposes to transition to an Instrument Rating—Helicopter ACS and Instrument Rating—Powered-Lift ACS; therefore, all IPCs would use an ACS. The instrument ACSs contain a table that sets forth the minimum number of tasks that must be selected during a check to ensure the instrument proficiency of the pilot to operate under IFR or in weather conditions less than the minimums for VFR. 38

Therefore, the FAA proposes to revise § 61.57(d)(1) to precisely reflect the standards that an IPC must consist of by stating that the IPC must consist of the areas of operation contained in the applicable ACS as appropriate to the rating held. The authorized instructor will utilize the aforementioned tables within the appropriate ACS to check the pilot, and the pilot will have notice and understanding of which tasks the pilot is expected to perform. The proposed revision to § 61.57(d)(1) contains both a cross-reference to the centralized IBR section in § 61.14 and a cross-reference to appendix A for ACS applicability. The FAA emphasizes that there are no major substantive changes to the proficiency check process or tasks required to be conducted during an IPC as a result of this proposal.

Section 61.58 sets forth the requirements for a PIC PC for the operation of an aircraft that requires more than one pilot flight crewmember or is turbojet-powered. With certain exceptions, 39 to serve as PIC of these aircraft, a person must complete a PIC PC in the aircraft within the preceding 12 calendar months and also complete a PIC PC in the particular type of aircraft in which the person will serve as PIC within the preceding 24 calendar months. 40 One manner by which the PIC PC may be accomplished is through satisfactory completion of a PIC PC consisting of the aeronautical knowledge areas, areas of operations, and tasks required for a type rating in an aircraft that is type certificated for more than one pilot flight crewmember or is turbojet powered. 41

The FAA has required proficiency checks for PICs operating aircraft that require more than one pilot since 1973. 42 At that time, the PIC PCs were required to include the maneuvers, procedures, and standards required for the original issuance of a type rating for the aircraft used in the check. 43 In 2011, the FAA revised § 61.58 to also require a PIC of a turbojet-powered aircraft to receive an annual pilot proficiency check and revised the proficiency check parameters to consist of the aeronautical knowledge areas, areas of operation, and tasks required for a type rating. 44 Today, in practice, a person authorized by the Administrator conducts the PIC PC under § 61.58(d)(1) by checking the pilot's performance of specified maneuvers and procedures in the applicable ACS or PTS, based on the pilot's certificates and ratings held ( i.e., because the ACS or PTS is used to delineate the tasks required for a type rating on a practical test, the ACS or PTS is also used for the proficiency check). 45

Because the FAA conducts the PIC PC in accordance with the ACS or PTS the FAA proposes a corresponding revision to § 61.58(d)(1). Rather than broadly refer to the proficiency check requirements as aeronautical knowledge areas, areas of operation, and tasks required for a type rating, the FAA proposes to require that the PIC PC specifically consist of the areas of operation contained in the applicable ACS or PTS. The FAA emphasizes that there are no substantive changes to the maneuvers and procedures on the PIC PC in this proposal. The proposed revision contains both a cross-reference to the centralized IBR section in § 61.14 and a cross-reference to appendix A to determine ACS or PTS applicability.

The final group of proficiency checks in part 61 are those for certificated sport pilots seeking to operate an additional category or class of light-sport aircraft, and certificated flight instructors with a sport pilot rating seeking to provide training in an additional category or class of light-sport aircraft. A certificated sport pilot must, among other requirements, 46 successfully complete a proficiency check on the aeronautical knowledge areas and areas of operation specified in §§ 61.309 and 61.311  47 for the additional light-sport aircraft privilege sought. A certificated flight instructor must, among other requirements, 48 successfully complete a proficiency check on the areas of operation specified in § 61.409 for the additional category and class of flight instructor privilege sought. The FAA stated that these areas of operation were consistent with and based upon the existing flight proficiency requirements established for higher certificate levels under part 61  49 and drafted the Sport Pilot PTSs to align with these areas of operation. For the aforementioned certificated sport pilots and certificated flight instructors, in practice, the proficiency checks are conducted in accordance with the respective Sport Pilot PTS, 50 which incorporate the aeronautical knowledge areas and areas of operation provided in §§ 61.309, 61.311, and 61.409, applicable to the additional privileges sought.

Therefore, the FAA proposes to revise § 61.321(b) to precisely reflect the standards that the proficiency check aligns with by stating that the proficiency check must consist of the appropriate areas of operation contained in the applicable PTS for the additional light-sport aircraft privilege sought. Likewise, the FAA proposes to revise § 61.419(b) to require the flight instructor to successfully complete a proficiency check consisting of the appropriate areas of operation contained in the applicable PTS for the additional category and class flight instructor privilege sought. The proposed revisions to both §§ 61.321 and 61.419 contain a cross-reference to the centralized IBR section in § 61.14 and a cross-reference to appendix A to determine PTS  51 applicability. The FAA emphasizes that there are no substantive changes to the tasks required to be conducted in the proficiency check to add additional sport pilot privileges in this proposal.

As part of the FAA's routine review of the testing standards, the FAA noticed that the areas of operation in the ATP and Type Rating for Airplane Category ACS  52 do not precisely align with the flight proficiency areas of operation set forth in § 61.157(e)(1) and (2). 53 Similarly, while reviewing the ATP and Type Rating for Powered-Lift Category ACS, the FAA noted similar discrepancies between the draft ACS and the requirements of § 61.157(e)(3). Specifically, § 61.157(e)(1), airplane category with single engine class rating, § 61.157(e)(2), airplane category with multiengine class rating, and § 61.157(e)(3), powered-lift category rating, each list Normal and abnormal procedures, which is not an independent area of operation in the ACS. Further, the ACS appears to combine the regulatory independent areas of operation Takeoff and departure phase and Landings and approaches to landings in a single area of operation, Takeoffs and landings, in § 61.157(e)(1) and (2). Additionally, the ACS contains Stall prevention as an area of operation, which is not delineated as an area of operation in § 61.157(e)(1) and (2). Finally, a terminology discrepancy exists in one area of operation where Emergency procedures is stated in the regulations but referred to as Emergency operations in the ACS.

Therefore, the FAA proposes to revise the areas of operation in § 61.157(e)(1) and (2) to align with the areas of operation in the ACS, as subsequently explained, and similarly proposes two minor revisions to § 61.157(e)(3).

First, the FAA proposes to add Stall prevention as an area of operation in § 61.157(e)(1) and (2). The FAA notes that because practical tests are conducted in accordance with the ACS, the addition of Stall prevention in § 61.157(e)(1) and (2) does not add tasks that an applicant is expected to demonstrate, as Stall prevention was already an area of operation within the ACS  54 and, therefore, is currently evaluated on the practical test. The FAA also proposes to revise § 61.57(e)(1) and (2) to combine Takeoff and departure phase with Landings and approaches to landings to become Takeoffs and landings, which encompasses the former two areas of operation.

Additionally, the FAA proposes to remove Normal and abnormal procedures as an area of operation within the airplane category and powered-lift category areas of operation from § 61.157(e)(1), (2), and (3). Instead, the FAA proposes to add language to the introductory text of § 61.157(e) to specify that normal and abnormal procedures by characteristic are inherently integrated in the tasks and maneuvers in the ACSs for airplane category single engine class rating, airplane category multiengine class rating, and powered-lift category rating ( i.e., § 61.157(e)(1), (2), and (3)). Because the two ACSs ( i.e., ATP and Type Rating for Airplane Category ACS and ATP and Type Rating for Powered-Lift ACS) integrate the demonstration of normal and abnormal procedures within their fundamental task structures, there is no need for a separate area of operation addressing normal and abnormal procedures in isolation in the ACS. For example, in the ATP and Type Rating for Airplane Category ACS, Area of Operation II. Preflight Procedures, Task B. Powerplant Start requires an applicant to demonstrate understanding of normal and abnormal powerplant start procedures and limitations, including the use of an auxiliary power unit or external power source, if applicable. 55

Finally, as previously noted, the regulations ( i.e., §§ 61.157(e)(1)(viii), (e)(2)(viii), and (e)(3)(viii)) utilize the phrase Emergency procedures, while the ATP and Type Rating for Airplane Category ACS and ATP and Type Rating for Powered-Lift Category ACS use the phrase Emergency operations. Therefore, for standardization purposes, FAA proposes a minor nomenclature change to §§ 61.157(e)(1)(viii), (e)(2)(viii), and (e)(3)(viii), which are proposed as §§ 61.157(e)(1)(vii), (e)(2)(vii), and (e)(3)(vii), to the area of operation Emergency operations.

The FAA again emphasizes that there are no substantive changes being made to the tasks and maneuvers that an applicant for an ATP certificate must demonstrate in these changes. These proposed revisions are simply editorial and organizational changes to align the regulations and ACSs for ease in functional application. As a result of the organizational changes, some areas of operation have been renumbered. Table 1 summarizes these changes as follows:

The FAA notes that part 141 sets forth certain areas of operation for ATP certification courses in appendix E. 56 Specifically, appendix E prescribes the minimum training curriculum for an ATP certification course for an airplane category single-engine rating, airplane category multiengine rating, rotorcraft category helicopter rating, and powered-lift category rating. Section 4.(c) requires that an approved course must include flight training on the areas of operation listed in that section. These areas of operation align with the areas of operation set forth by § 61.157(e) as currently situated.

While the FAA proposes revisions to the areas of operation listed in § 61.157(e)(1), (2), and (3), as previously described, the FAA is not proposing to revise the areas of operation set forth in part 141, appendix E, section 4.(c). Thus, the FAA acknowledges that these areas of operation for training courses in part 141 will not precisely align with the proposed areas of operation set forth by § 61.157(e)(1), (2), and (3). However, the areas of operation for testing, whether under part 61 or part 141 will be governed by areas of operation in the ATP ACS or PTS, which align to the areas of operation in proposed § 61.157(e). 57

Part 63 contains the certification requirements for flight crewmembers other than pilots, specifically, flight engineers and flight navigators. Both flight engineers and flight navigators are required to pass a practical test to obtain a certificate. Currently, the flight engineer practical test utilizes the Flight Engineer Practical Test Standards, whereas the flight navigator practical test is based on part 63, appendix A, which sets forth the prescribed subjects to be tested on the flight navigator practical test. 58 In light of the prescribed subjects contained in appendix A, there is no developed PTS or ACS for flight navigators at this time. 59 Therefore, the FAA proposes to only IBR one PTS ( i.e., the Flight Engineer PTS) into part 63.

The requirements to obtain a flight engineer certificate have remained largely unchanged since the establishment of the flight engineer certificate in 1947. 60 Since the inception of the certificate, the regulations have set forth the delineated subjects the practical test would cover with little revision of subject areas. 61 Unlike parts 61 and 65, which were revised in tandem to make general references to the PTS in 1997, 62 part 63 did not follow suit and retained the specific subject areas in the regulations. These subject areas are fashioned as areas of operation in the Flight Engineer PTS, 63 which are further expanded into tasks that list the required knowledge and skills appropriate to the area of operation. Each task lists an objective, which consist of the important elements that must be satisfactorily performed to demonstrate competency. Specifically, the objective includes what the applicant must be able to do, the conditions under which the task is to be performed, and the minimum acceptable standards of performance. The Flight Engineer PTS is to be used for the initial issuance of a Flight Engineer Certificate and for the addition of class ratings to that certificate.

Because the flight engineer practical test is conducted in accordance with the Flight Engineer PTS, the FAA proposes to revise § 63.39 to IBR the Flight Engineer PTS. Section 63.39(a) would be revised to conform to current practice and specify that, in order to pass the practical test for a flight engineer certificate, an applicant must satisfactorily demonstrate the objectives in the areas of operation contained in the Flight Engineer PTS. Accordingly, § 63.39(c) would be added to IBR the Flight Engineer PTS. The FAA is also proposing minor editorial revisions in § 63.39(b) to remove gender references.

Part 65 contains the certification requirements for airmen other than flight crewmembers, including aircraft dispatchers and parachute riggers. Both aircraft dispatchers and parachute riggers are required to pass a practical test  64 to obtain a certificate and/or rating. The FAA proposes to incorporate the applicable PTSs for aircraft dispatchers and parachute riggers by reference, as discussed in sections III.D.2. and III.D.3 of this preamble. Part 65 currently contains a centralized IBR section in § 65.23, which houses the Aviation Mechanic General, Airframe, and Powerplant Practical Test Standards and the Aviation Mechanic General, Airframe, and Powerplant Airman Certification Standards. 65 The FAA proposes to revise the centralized IBR section in part 65 to include the Aircraft Dispatcher Practical Test Standards and Parachute Rigger Practical Test Standards. Specifically, to organize the PTSs and ACSs in alphanumeric order by version number, the FAA proposes to redesignate current § 65.23(a)(1) and (2) as § 65.23(a)(3) and (4). The Aircraft Dispatcher PTS, which is summarized in section III.D.2. of this preamble, would be contained in revised § 65.23(a)(1); the Parachute Rigger PTS, which is summarized in section III.D.3. of this preamble, would be contained in revised § 65.23(a)(2). . The centralized IBR section does not contain instructions for compliance with the standards. Rather, part 65 sections, as subsequently discussed, require compliance with these respective standards ( i.e., §§ 65.59, 65.115, 65.119, and 65.123) and refer to § 65.23 for identification information and the IBR language required by 1 CFR part 51.

Subpart C of part 65 promulgates the requirements to obtain an aircraft dispatcher certificate. Currently, § 65.59 requires an applicant for an aircraft dispatcher certificate to pass a practical test by demonstrating skill in applying the areas of knowledge and topics in appendix A of part 65 to preflight and all phases of flight, including abnormal and emergency procedures. Appendix A contains the areas of knowledge necessary to perform dispatcher functions, and indicates the minimum set of topics that must be covered in a training course for aircraft dispatcher certification required by § 65.61, Aircraft dispatcher certification courses: Content and minimum hours.

Similar to part 61, the FAA set forth the specific topics to be tested on the aircraft dispatcher practical test directly in the regulations governing such crewmembers in part 65 until 1999. 66 In 1999, 67 the FAA amended the eligibility and certification requirements for aircraft dispatchers, to include removal of the specific topics in § 65.59 to be tested on the practical test. Instead, the FAA tethered the practical test to the aircraft dispatcher practical test standards, as published by the FAA, on the items specified in appendix A of part 65. 68 This aligned with the FAA's general disposition in part 61 to remove specific topics and instead broadly reference the practical test standards. In 2018, the FAA removed the reference to the aircraft dispatcher PTS to be consistent with editorial changes made to other parts  69 pertaining to the certification of airman. In its place, the FAA required an applicant to demonstrate skill in applying the areas of knowledge and topics provided in appendix A of part 65 in the regulations, but explained in the final rule preamble that the practical test would continue to be based on the aircraft dispatcher PTS. 70

Currently, FAA inspectors and designated examiners conduct aircraft dispatcher tests in accordance with the Aircraft Dispatcher PTS; however, the Aircraft Dispatcher PTS is not a regulatory standard for the practical test. The Aircraft Dispatcher PTS contains knowledge and skill tasks that an applicant must demonstrate to pass the practical test for an Aircraft Dispatcher certificate. Specifically, the Aircraft Dispatcher PTS contains areas of operation, which are divided into tasks ( e.g., navigation and aircraft navigation systems, practical dispatch applications). Each task lists an objective, which consists of the elements that must be satisfactorily performed to demonstrate competency. Specifically, the objective includes what the applicant must be able to do, the conditions under which the task is to be performed, and the minimum acceptable standards of performance. The FAA notes that the Aircraft Dispatcher PTS objectives within the Tasks of the areas of operation generally align to the topics set forth in appendix A. This proposed revision to require compliance with the PTS rather than appendix A would not add topics or substantive changes to what is currently contained on the practical test. 71

Therefore, the FAA proposes to revise § 65.59 to direct compliance with the Aircraft Dispatcher PTS in practical testing. Specifically, proposed § 65.59 will require an aircraft dispatcher to satisfactorily demonstrate the objectives in the areas of operation specified in the Aircraft Dispatcher PTS. Proposed § 65.59 would cross reference the centralized IBR section, § 65.23, for publication information on the PTS.

Subpart F of part 65 governs the requirements to obtain a senior parachute rigger and master parachute rigger certificate. Both a senior parachute rigger and a master parachute rigger require the passage of an oral and practical test for the issuance of a certificate. 72 Likewise, the addition of a type rating to a parachute rigger certificate ( i.e., seat, back, chest, and/or lap type rating) requires the certificated parachute rigger to pass a practical test. 73 Due to the unique nature of the job duties of a parachute rigger, the regulations have broadly required that the oral and practical test must examine the applicant's ability to pack and maintain a parachute. 74 In practice, the Parachute Rigger PTS is utilized to conduct the oral and practical test for obtaining a senior parachute rigger certificate and master parachute rigger certificate and is also utilized for the practical test for obtaining type ratings for seat, back, chest, and lap. Specifically, the Parachute Rigger PTS contains areas of operation ( e.g., packing parachutes, parachute operation and care), which are divided into tasks that are specified as applicable to the certificate and/or rating sought. For example, a task that is only involved in a seat type rating is delineated as such ( i.e., Task A: Packing Seat Type Parachute (Seat Type Rating)). Each task lists an objective, which consists of the elements that must be satisfactorily performed to demonstrate competency. Specifically, the objective includes what the applicant must be able to do, the conditions under which the task is to be performed, and the minimum acceptable standards of performance.

The FAA proposes to revise §§ 65.115 and 65.119 to require the applicant to pass the oral and practical test by satisfactorily demonstrating the objectives in the areas of operation in the Parachute Rigger PTS applicable as appropriate to the respective certificate ( i.e., senior parachute rigger, master parachute rigger) and type rating sought. Further, should a certificated parachute rigger apply for an additional type rating ( i.e., seat, back, chest, lap), that applicant must pass a practical test appropriate to the type rating sought, pursuant to § 65.123. Because the testing standards for each type rating are contained and specified in the Parachute Rigger PTS, the FAA proposes to revise § 65.123(b) to require that, in order to pass a practical test for an additional type rating, an applicant must satisfactorily demonstrate the objectives in the area of operation applicable to the type rating sought, which are specified in the Parachute Rigger PTS. Sections 65.115, 65.119, and 65.123 will each cross reference the centralized IBR section, § 65.23, for publication information on the Parachute Rigger PTS.

The FAA is also proposing minor editorial revisions in §§ 65.115, 65.119, and 65.123 to remove gender references.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $164,000,000, using the most current (2021) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA has determined that this rule: will result in benefits that justify costs; is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

Through this rulemaking, the FAA is proposing to incorporate by reference (IBR) certain PTSs and ACSs into parts 61, 63, and 65 so the standards carry the full force and effect of regulation. Because of the unique nature of the PTS and ACS documents, which are lengthy and contain complex and technical tables, the FAA proposes the mechanism of IBR. IBR allows Federal agencies to comply with the requirements of the APA to publish rules in the Federal Register and the Code of Federal Regulations by referring to material published elsewhere. Material that is incorporated by reference has the same legal status as if it were published in full in the Federal Register .

Title 14 Code of Federal Regulations (14 CFR) parts 61, 63, and 65 prescribe the requirements for airmen to obtain a certificate and/or rating. Each part contains the general requirements for eligibility, aeronautical knowledge, flight proficiency, and aeronautical experience requirements, as applicable, for each certificate and/or rating sought. This generally includes the requirement to pass a practical test specific to the certificate or rating sought.

The PTS and the ACS impose requirements on all persons seeking an airman certificate or rating. The PTS and ACS require an applicant seeking a certificate or rating to complete specific tasks and maneuvers to a minimum given standard in order to obtain the applicable certificate or rating. As such, if an applicant does not perform a task to the prescribed standard, found in the applicable ACS or PTS, the applicant cannot obtain the applicable certificate and rating. Unsatisfactory performance results in a notice of disapproval and/or denial of the certificate or rating. The PTSs and the ACSs, which are proposed by this rule to be incorporated by reference, are the testing standards that are already in use or the process by which the practical test is conducted.

The mechanism of IBR allows Federal Agencies to comply with the requirement to publish rules in the Federal Register and the CFR by referring to material already published elsewhere. 75 IBR functions to substantially reduce the size of the 14 CFR part 61, 63 and 65, which would otherwise require the PTSs and ACSs to be replicated in their entirety into the regulations, resulting in hundreds of additional pages including complex and technical tables that would be unsuitable for the CFR. The FAA would continue to draw on the expertise and resources of the aviation industry to develop and update the testing standards and strengthen private-public collaboration and transparency. IBR would maintain public and private industry collaboration. Additionally, while the practical tests are currently conducted in accordance with the PTSs and ACSs, applicants for a certificate and/or rating, and pilots completing proficiency checks, would be better informed about the exact tasks and objectives required to successfully complete each area of operation because evaluators would be required to test on the exact tasks contained in the applicable PTS and/or ACS. Further, instructors are encouraged to utilize the applicable ACS and/or PTS during training to ensure applicants are equipped with the knowledge and proficiency to successfully complete a practical test or proficiency check. Applicants and instructors are, therefore, benefitted by transparency and specificity in test preparation.

The FAA has evaluated the cost impacts to the stakeholders involved in this proposed rulemaking, which includes airmen and the FAA. As discussed in the preceding preamble section, the FAA noted the addition of tasks within four ACSs (Commercial Pilot for Airplane Category ACS, Private Pilot for Rotorcraft Category Helicopter Rating ACS, Commercial Pilot for Rotorcraft Category Helicopter Rating ACS, and Flight Instructor for Rotorcraft Category Helicopter Rating ACS) and determined these additions would have minimal impact. These added tasks may be completed concurrently with tasks already required on the transitioned ACSs and add a negligible amount of time to the requisite practical test. In sum, the FAA anticipates this proposed rule would result in minimal additional cost impacts to airmen and the FAA.

The FAA does not anticipate new costs to applicants for an initial certificate and/or rating and existing airmen ( e.g., pilots completing proficiency checks, pilots seeking additional certificates and/or ratings) because there are no substantive changes proposed to the testing processes, areas of operation, or elements upon which airmen are currently tested in order to obtain a certificate, as the practical tests are already conducted in accordance with the applicable PTS/ACS. Rather, the FAA is simply incorporating the documents by reference into the regulations to ensure compliance with the APA and provide the public with requisite notice and an opportunity to comment. Therefore, applicants seeking a certificate and/or rating and currently certificated pilots performing proficiency checks will not incur additional costs.

The FAA does not anticipate new costs to the agency because the FAA is not changing the process by which testing is conducted or the manner in which PTSs and ACSs are currently implemented.

The FAA did not consider regulatory alternatives for this proposed rulemaking as there are no legally supportable alternatives to mandating the requirements for airman certification and ensuring consistent standards for airman certificates and ratings.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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 FAA has not identified any small entities that would be affected by the proposed rule because this rule does not affect the content of the practical test or how the practical test is currently conducted. While there are many small entities that employ persons who conduct practical tests on behalf of the Administrator and administer proficiency checks for airmen, there are no changes proposed to these existing procedures and exams, in practice ( i.e., evaluators already utilize the applicable ACS and/or PTS). Therefore, for the reasons provided, the FAA certifies that the rule will not have a significant economic impact on a substantial number of small entities. The FAA welcomes comments on the basis for this certification.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effects of this proposed rule and finds it does not create an unnecessary obstacle to foreign commerce.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $164.0 million in lieu of $100 million. The FAA has determined that the proposed rulemaking would not result in the expenditure of $164.0 million or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no substantive differences with these proposed regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.

The FAA analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of E.O. 13609, and has determined that this action would have no effect on international regulatory cooperation.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

Confidential Business Information: Confidential Business Information (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 the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

A copy of the notice of proposed rulemaking (NPRM), all comments received, any final rule, and all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:

(a) Registration: To attend the meeting, the public can register here: https://us06web.zoom.us/webinar/register/WN_dX3NizSvQV-ab1vzFbxn-Q.

(b) The meeting will be open to all persons on a space-available basis. There is no admission fee or other charge to attend and participate. The meeting will be informal in nature and will be conducted by one or more representatives of the FAA Eastern Service Area.

(c) Each participant will be given an opportunity to deliver comments or make a presentation, although a time limit may be imposed. Only comments concerning the plan to modify the San Juan Class C airspace area will be accepted.

(d) Each person wishing to make a presentation will be asked to note their intent when registering for the meeting so those time frames can be established. This meeting will not be adjourned until everyone registered to speak has had an opportunity to address the panel. This meeting may be adjourned at any time if all persons present have had an opportunity to speak.

(e) Position papers or other handout material relating to the substance of the meeting will be accepted. Participants submitting papers or handout materials should send them to the mail or email address noted in the COMMENTS section, above.

(f) The meeting will be available on the FAA YouTube channel. A summary of the comments made at the meeting will be filed in the rulemaking docket.

Information gathered through this meeting will assist the FAA in drafting a notice of proposed rulemaking (NPRM) that would be published in the Federal Register . The public will be afforded the opportunity to comment on any NPRM published on this matter.

A graphic depiction of the proposed airspace modifications may be viewed at the following URL: www.faa.gov/air_traffic/community_engagement/sju.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2022-1586; Airspace Docket No. 22-AGL-19) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-1586; Airspace Docket No. 22-AGL-19.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX, 76177.

This document proposes to amend FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning to decommission the VOR portion of the Roseau, MN, VOR/DME in August, 2023. The Roseau VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

Although the VOR portion of the Roseau VOR/DME NAVAID is planned for decommissioning, the co-located DME portion of the NAVAID is being retained to support NextGen PBN flight procedure requirements.

The VOR Federal airway affected by the Roseau VOR decommissioning is V-171. With the planned decommissioning of the Roseau VOR, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airway. As such, the proposed modification to V-171 would result in the airway being shortened due to the Roseau VOR/DME end point being removed

To overcome the proposed modification, instrument flight rules (IFR) traffic could use the adjacent VOR Federal airway V-430 for conventional navigation or Area Navigation (RNAV) routes T-383 and T-407 for GPS navigation by properly equipped aircraft. Additionally, pilots equipped with RNAV capabilities could also navigate point to point using the existing fixes that would remain in place to support continued operations though the affected area. IFR aircraft may also receive air traffic control (ATC) radar vectors to fly around or through the affected area. Visual flight rules (VFR) pilots who elect to navigate via the affected VOR Federal airways could also take advantage of the adjacent ATS routes or ATC services listed previously.

The FAA is proposing an amendment to 14 CFR part 71 to amend VOR Federal airway V-171 due to the planned decommissioning of the VOR portion of the Roseau, MN, VOR/DME. The proposed airway action is described below.

V-171: V-171 currently extends between the Lexington, KY, VOR/DME and the Joliet, IL, VOR/DME; and between the Nodine, MN, VOR/Tactical Air Navigation (VORTAC) and the Roseau, MN, VOR/DME. The FAA proposes to remove the airway segment between the Grand Forks, ND, VOR/DME and the Roseau, MN, VOR/DME. As amended, the airway would be changed to extend between the Lexington VOR/DME and the Joliet VOR/DME; and between the Nodine VORTAC and the Grand Forks VOR/DME.

The NAVAID radials contained in the airway description below are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

As described more fully in the Proposing Release, the Commission proposed changes to the requirements for disclosure of purchases of equity securities made by or on behalf of an issuer or any affiliated purchaser. 1 The proposed amendments were intended to improve the quality, relevance, and timeliness of information related to issuer share repurchases. The proposed amendments would modernize and improve the disclosure required about repurchases of an issuer's equity securities by:

• Requiring daily repurchase disclosure on a new Form SR, which would be furnished to the Commission one business day after execution of an issuer's share repurchase order;

• Amending Item 703  2 of Regulation S-K, 3 with corresponding changes to Item 16E of Form 20-F  4 for foreign private issuers and Item 9 of Form N-CSR for certain registered-closed end investment management companies, 5 to require additional detail regarding the structure of an issuer's repurchase program and its share repurchases; and

• Requiring information disclosed pursuant to Item 703, Item 16E of Form 20-F, Item 9 of Form N-CSR, and new Form SR to be reported using a structured data language (specifically, Inline eXtensible Business Reporting Language).

After the proposed amendments were published for public comment, The Inflation Reduction Act of 2022 (“Act”) was signed into law on August 16, 2022. 6 Section 10201 of the Act adds new section 4501 of the Internal Revenue Code of 1986 (“Internal Revenue Code”), 7 which imposes upon “covered corporations” a non-deductible excise tax equal to one percent of the fair market value of any stock of the corporation which is repurchased by such corporation during the taxable year. Under the Act, a “covered corporation” is any domestic corporation  8 the stock of which is traded on an “established securities market” (within the meaning of section 7704(b)(1) of the Internal Revenue Code  9 ). The excise tax applies to share repurchases after December 31, 2022. 10

The staff of the Division of Economic and Risk Analysis has prepared a memorandum that discusses potential economic effects of the new excise tax on the incidence and level of share repurchases, 11 which are a part of the market baseline for the proposed amendments. We believe that the information presented in the Staff Memorandum has the potential to be informative for evaluating the proposed amendments in light of this recently enacted legislation. We are, therefore, reopening the comment period for an additional 30 days to permit interested parties to comment on the Staff Memorandum, which has been included in the comment file. In addition to the requests for comment included in the Proposing Release, the Commission specifically seeks comments on the following:

1. Would the Act's new excise tax affect the proposed amendments' potential economic effects?  12 If so, what would the specific impact (or impacts) of the new excise tax be? How would the new excise tax interact with the effects of the direct and indirect costs of the proposed amendments on issuers and investors?

2. The Staff Memorandum estimates that, 13 based on year 2020 (2021) data, of the approximately 3,300 (3,600) issuers engaged in repurchases and subject to the proposed amendments, approximately 2,000 (2,300) issuers would be affected by the excise tax. Do you agree with these estimates? If you do not agree with these estimates, please explain why. Please also provide alternative estimates and explain why you believe those alternatives would be more accurate.

3. Do you agree with the qualitative analysis in the Staff Memorandum of the likely directional effects of the new excise tax on share repurchases?  14 Is there other, additional research the staff should consider? If so, please discuss this research and why you believe it is relevant to the analysis.

4. What is the likelihood, if any, given the Act's new excise tax that issuers will replace share repurchases with dividends, including special dividends?  15 Is it administratively more costly to distribute a dividend, or special dividend, as a means to return cash to shareholders as compared to repurchases? If so, please discuss how the costs differ.

5. The Staff Memorandum states that issuers subject to the proposed amendments, but that are exempted from the new excise tax, would not be directly affected by the new excise tax (but they may incur indirect effects). 16 Are there any additional impacts that the staff should consider? Would these issuers incur any indirect effects? For example, the Staff Memorandum includes as possible indirect effects competitive spillovers of a decrease in repurchases among issuers subject to the excise tax, or changes in investor sentiment regarding repurchases in response to the decline in share repurchases among a considerable number of issuers. Would competitive spillovers or changes in investor sentiment affect share repurchase activity by issuers subject to the proposed amendments, but that are exempted from the new tax? If so, what would these impacts be? What other indirect effects would occur?

6. The Staff Memorandum states that the excise tax is not expected to change the direction of the expected economic effects of the proposed amendments with respect to any particular share repurchase that takes place, but that it may affect the total number of share repurchases that occur, and thus may affect the aggregate impact of the proposed amendments. 17 Do you agree? Please provide the reasoning for your response.

7. The Staff Memorandum states that the categories of costs and benefits described in the Proposing Release would likely remain the same, but the magnitude may change as a result of the excise tax. 18 Do you agree with this assessment? If not, what other costs or benefits should be considered in assessing the potential economic effects of the proposed amendments?

8. Do you agree with the conclusion in the Staff Memorandum that the general efficiency, competition, and capital formation considerations discussed in the Proposing Release are expected to continue to apply except for the potential competitive effects discussed in the Staff Memorandum?  19

We request and encourage any interested person to submit comments regarding the proposed amendments, specific issues discussed in this release, the Staff Memorandum, or the Proposing Release, and other matters that may have an effect on the proposed amendments. Commenters are urged to be as specific as possible; when commenting, it would be most helpful if you include the reasoning behind your position or recommendation. All comments received to date on the proposed amendments will be considered and need not be resubmitted.

We have statutory authority and responsibility for implementing and enforcing the MBTA (16 U.S.C. 703-712), the Fish and Wildlife Improvement Act of 1978 (Pub. L. 95-616; 16 U.S.C. 742l), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j, not including 742d-1). The MBTA implements Conventions between the United States and four neighboring countries for the protection of migratory birds, as follows:

(1) Canada: Convention between the United States and Great Britain [on behalf of Canada] for the Protection of Migratory Birds, August 16, 1916, 39 Stat. 1702 (T.S. No. 628), as amended by Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds, Sen. Treaty Doc. 104-28 (December 14, 1995);

(2) Mexico: Convention between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, February 7, 1936, 50 Stat. 1311 (T.S. No. 912), as amended March 10, 1972 (23 U.S.T. 260; T.I.A.S. 7302) and by Protocol with Mexico amending Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. 105-26 (May 5, 1997);

(3) Japan: Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, March 4, 1972, 25 U.S.T. 3329 (T.I.A.S. No. 7990); and

(4) Russia: Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment (Russia), November 19, 1976, 29 U.S.T. 4647 (T.I.A.S. No. 9073).

Our purpose is to inform the public of updates to the list of species protected by the MBTA and its implementing regulations. These regulations are found in title 50 of the Code of Federal Regulations (CFR) at parts 10, 20, 21, and 92. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of birds protected by the MBTA. An accurate and up-to-date list of species protected by the MBTA is essential for notifying the public and other federal, state, and tribal agencies of which species are subject to regulatory protections.

The amendments we are proposing are needed to:

(1) Add 11 species based on new distributional records documenting their natural occurrence in the United States or U.S. territories since 2019;

(2) Add five species newly recognized as a result of recent taxonomic changes;

(3) Remove three species not known to occur within the boundaries of the United States or U.S. territories as a result of recent taxonomic changes;

(4) Change the common (English) names of eight species to conform to accepted use; and

(5) Change the scientific names of 22 species to conform to accepted use.

The List of Birds Protected by the MBTA (50 CFR 10.13) was last revised on April 16, 2020 (85 FR 21282). The amendments proposed in this rule were necessitated by two published supplements and one published addendum to a supplement to the 7th (1998) edition of the American Ornithologists' Union (AOU, now recognized as the American Ornithological Society (AOS)) Checklist of North American Birds (AOS 2020a, 2020b, 2021 and 2022) and the 2019 and 2021 publications of the Clements Checklist of Birds of the World (Clements et al. 2019, 2021).

Although bird names (common and scientific) are relatively stable, staying current with standardized use is necessary to avoid confusion in communications. In making our determinations, we primarily relied on the AOS's Checklist of North American birds (AOU 1998), as amended annually (AOS 2020a, 2020b, 2021, and 2022), on matters of taxonomy, nomenclature, and the sequence of species and other higher taxonomic categories (Orders, Families, Subfamilies) for species that occur in North America. The AOU (now AOS) Checklist of North American Birds (Checklist), developed by the AOU Committee on Classification and Nomenclature, has been the recognized taxonomic authority for North American birds since publication of the first edition of the Checklist in 1886. The committee compiles the taxonomic foundation for ornithology in North America; they evaluate and publish the latest scientific developments in the systematics, classification, nomenclature, and distribution of North American birds. Thus, the AOS's Checklist represents the best scientific information available for developing the North American component of this List of Birds Protected by the MBTA. In keeping with the increasing numbers of study areas on which taxonomy relies, the committee incorporates expertise in phylogenetics, genomics, vocalizations, morphology, behavior, and geographical distribution, as well as general ornithological knowledge. The AOS Checklist contains all bird species that have occurred in North America from the Arctic through Panama, including the West Indies and the Hawaiian Islands, and includes distributional information for each species, which specifies whether the species is known to occur in the United States. The committee also keeps and updates a list of species known to occur in the United States.

For the species that occur in the U.S. territories outside the geographic area covered by the AOS Checklist, we relied primarily on the Clements Checklist of Birds of the World (Clements Checklist) (Clements et al. 2007), the Clements Checklist 2019 and 2021 installment of updates and corrections (Clements et al. 2019, 2021), and other peer-reviewed literature where appropriate. The Clements Checklist is a list of all known bird species in the world and is maintained and updated annually by the Cornell Laboratory of Ornithology (CLO). The CLO relies on different regional ornithological authorities to compile the Clements Checklist, using the AOS for the western hemisphere. Taxonomy and nomenclature are the primary focus of the Clements Checklist, but range descriptions are maintained and updated based on the best available information and do not include records of vagrancy. Although we primarily rely on the above sources, when informed taxonomic opinion is inconsistent or controversial, we evaluate available published and unpublished information and come to our own conclusion regarding the validity of taxa and whether to include taxonomic changes. We also evaluate available documentation for new species documented to occur naturally in the United States or U.S. territories and come to our own conclusion regarding addition to the List of Birds Protected by the MBTA.

For this update, we reviewed 13 species that were added to the AOS Checklist based on new natural distribution in the United States or U.S. territories (AOS 2020a, 2021, and 2022). Based on the available evidence and criteria to identify individual species that qualify for protection by the MBTA (see below), we propose to add 11 of the 13 species. We elected not to add two of the 13 species, Red-backed Shrike, Lanius collurio, and Graylag Goose, Anser anser. When we reviewed the evidence for the record of Red-backed Shrike that was accepted by AOS, along with an analysis from an AOS committee member, we learned the shrike in question was a juvenile. It is unknown how reliably juveniles of Red-backed Shrike can be distinguished from juvenile Red-tailed Shrikes, Lanius phoenicuroides, and the two species are known to commonly hybridize as well. While there are descriptions available in the literature of adult hybrids of these two shrike species, this is not the case for juvenile hybrids. Therefore, due to the challenges in identification, we decided not to include this record at this time. Regarding the Graylag Goose, we considered the regulatory implications of adding it to the list because the species intermixes with other goose species that may be hunted under the Service's and State hunting regulations. We decided not to add the species at this time while we consider those regulatory implications, similar to how we treated the split of Cackling Goose, Branta hutchinsii, from Canada Goose, Branta canadensis, in 2013 (78 FR 65844), later adding the species to the 10.13 list in 2020 (85 FR 21282). We may reconsider adding this species in a subsequent update to the list once the frequency of the species occurring in the U.S. is better understood and what the implications to hunting regulations in 50 CFR part 20 would be. We reserve the right to revisit these decisions if additional information becomes available.

As is customary with species subject to our hunting regulations at 50 CFR part 20, we consulted with the Pacific, Central, Mississippi, and Atlantic Flyway Councils in our review of the taxonomic split of Mexican Duck from Mallard. We also reviewed published scientific literature regarding the Mallard split (Bellrose 1976; Hubbard 1977; Brown 1985; Lavretsky et al. 2015, 2019; Chesser et al. 2020). Ultimately, we concluded to propose adding Mexican Duck to the list.

A species qualifies for protection under the MBTA by meeting one or more of the following criteria:

(1) It occurs in the United States or U.S. territories as the result of natural biological or ecological processes and is currently, or was previously listed as, a species or part of a family protected by one of the four international treaties or their amendments. A naturally occurring species is protected by the MBTA as a member of a protected family even if the species is ecologically nonmigratory, meaning it does not exhibit seasonal movements (also known as a resident species). For example, the Bushtit ( Psaltriparus minimus ) is a resident, non-migratory species and is included in 50 CFR 10.13 because it occurs in a family (Aegithalidae) that is protected by the bilateral treaty with Canada. Any species that occurs in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction does not qualify for the MBTA list, regardless of whether the family the species belongs to is listed in any of the treaties, unless:

• It was either native to the United States or its territories and extant in 1918; or

• It was extirpated after 1918 throughout its range in the United States and its territories, and, after such extirpation, it was reintroduced in the United States or its territories as part of a program carried out by a federal agency.

(2) Revised taxonomy results in it being newly split from a species that was previously on the list, and the new species occurs in the United States or U.S. territories as the result of natural biological or ecological processes. If a newly recognized native species is considered extinct (following the classification of the American Ornithological Society (AOS) or, for species not covered by the AOS, the Clements Checklist or peer-reviewed literature), that species will still be included if either of the following criteria apply:

• The species resembles extant species included in the list that may be affected by trade or other commercial activities if the species is not included; or

• Not including the species may create difficulties implementing the MBTA and its underlying Conventions.

(3) New evidence exists for its natural occurrence in the United States or U.S. territories resulting from new or natural distributional changes and the species belongs to a protected family. Records must be documented, accepted, and published by the AOS committee. For the U.S. Pacific territories that fall outside the geographic scope of the AOS and for which there is no identified ornithological authority, new evidence of a species' natural occurrence will be based on the Clements Checklist and then published peer-reviewed literature, in that order. Records and the evidence supporting their acceptance by the AOS, Clements Checklist, or peer-reviewed literature are reviewed independently by the Service before we proposed adding the species to the list.

In accordance with the Migratory Bird Treaty Reform Act of 2004 (MBTRA) (Pub. L. 108-447, December 8, 2004, 118 Stat. 2809, 3071-72), we only include migratory bird species that are native to the United States or U.S. territories. A native migratory bird species is one that is present as a result of natural biological or ecological processes. The list at 50 CFR 10.13 does not include nonnative species that occur in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction(s). An amended list of the nonnative bird species that have been introduced by humans into the United States or U.S. territories and to which the MBTA does not apply was published in the Federal Register on April 16, 2020 (85 FR 21262), with a correction published on May 3, 2021 (86 FR 23422).

The MBTA does not apply to:

(1) Nonnative species introduced into the United States or U.S. territories by means of intentional or unintentional human assistance that belong to families or groups covered by the Canadian, Mexican, or Russian Conventions. Note, though, that native species that are introduced into parts of the United States where they are not native are still protected under the MBTA regardless of where they occur in the United States or U.S. territories.

(2) Species native or nonnative to the United States or U.S. territories that either belong to families or groups not referred to in the Canada, Mexico, and Russia Conventions or are not included by species name in the Japan Convention. This includes the Tinamidae (tinamous), Megapodiidae (megapodes), Cracidae (chachalacas), Odontophoridae (New World quail), Phasianidae (grouse, ptarmigan, and turkeys), Pteroclidae (sandgrouse), Heliornithidae (finfoots), Burhinidae (thick-knees), Glareolidae (pratincoles), Todidae (todies), Psittacidae (parrots), Psittaculidae (Old World parrots), Meliphagidae (honeyeaters), Dicruridae (drongos), Monarchidae (monarchs), Pycnonotidae (bulbuls), Scotocercidae (bush warblers and allies), Zosteropidae (white-eyes), Sturnidae (starlings, except as listed in Japanese treaty), Ploceidae (weavers), Estrildidae (estrildid finches), and Passeridae (Old World sparrows, including house or English sparrow), as well as numerous other families not represented in the United States or U.S. territories.

The proposed amendments (16 additions, three removals, and 30 name changes) would affect a total of 47 species and would result in a net addition of 13 species to the List of Migratory Birds Protected by the MBTA, increasing the number of species on the list from 1,093 to 1,106. Five of the 16 species that we would add to the list are new species that have been recognized as a result of a taxonomic split and occur in the U.S. or U.S. territories and were previously covered under the MBTA as members of listed species (conspecific). These proposed amendments can be logically arranged in the following five categories:

(1) Add 11 species based on review and acceptance by the AOS (since 2019), or by other appropriate ornithological authorities, and the Service of new distributional records documenting their occurrence in the United States or U.S. territories. These species belong to families covered by at least one of the four international conventions, and all are considered to be of accidental or casual occurrence. For each species, we list the State or U.S. territory in which it has been recorded plus the relevant publication:

Chestnut-winged Cuckoo, Clamator coromandus —Guam (Kastner et al, 2018);

Dark-billed Cuckoo, Coccyzus melacoryphus —Texas and Florida (AOS 2020a);

Hooded Crane, Grus monacha —Alaska (AOS 2022);

Northern Giant-Petrel, Macronectes halli —Washington (AOS 2022);

Long-legged Buzzard, Buteo rufinus —Alaska (AOS 2020a);

Pallas's Gull, Ichthyaetus ichthyaetus —Alaska (AOS 2021);

Inca Tern, Larosterna inca —Hawaii (AOS 2022);

Small-billed Elaenia, Elaenia parvirostris —Illinois (AOS 2022);

Pallas's Grasshopper Warbler, Helopsaltes certhiola —Alaska (AOS 2021);

Blue-and-white Swallow, Pygochelidon cyanoleuca —Texas (AOS 2022); and

Naumann's Thrush, Turdus naumanni —Alaska (AOS 2022).

(2) Add five species because of recent taxonomic changes in which taxa formerly treated as conspecific have been determined to be distinct species ( i.e., a taxonomic split). Given that each of these species was formerly treated as conspecific with a listed species, these additions would not change the protective status of any of these taxa, only the names by which they are known. In each case, we reference the AOS or relevant publication supporting the change:

Mexican Duck, Anas diazi —formerly considered conspecific with Mallard, Anas platyrhynchos (AOS 2020a);

Short-billed Gull, Larus brachyrhynchus —formerly named Mew Gull and considered

conspecific with Larus canus, which now has the English name of Common Gull and

remains on the list based on prior occurrences of the Common Gull taxon in the United

States (AOS 2021);

Puerto Rican Mango, Anthracothorax aurulentus —formerly considered conspecific with

Antillean Mango, Anthracothorax dominicus (AOS 2022);

Asian Stonechat, Saxicola maurus —formerly considered conspecific with Stonechat, Saxicola

torquatus (AOS 2022); and

Chihuahuan Meadowlark, Sturnella lilianae —formerly considered conspecific with Eastern

Meadowlark, Sturnella manga (AOS 2022).

(3) Remove three species based on revised taxonomic treatments, either because a species is taxonomically merged with another species, either on or off the list; a species previously on the list is taxonomically split into multiple species and the new species is not known to occur within the United States or U.S. territories; or the species is considered extinct (following the classification of the AOS or, for species not covered by the AOS, the Clements Checklist or peer-reviewed literature) unless any of the following criteria apply: It is protected under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087); it resembles extant species included in the list that may be affected by its removal; or its removal would create difficulties implementing the MBTA and its underlying Conventions. In each case, we reference the publication supporting these changes:

Northwestern Crow, Corvus caurinus, is lumped with American Crow, Corvus brachyrhynchos (AOS 2020a);

Antillean Mango, Anthracothorax dominicus (AOS 2022); and

Stonechat, Saxicola torquatus (AOS 2022).

(4) Revise the common (English) names of eight species to conform to the most recent nomenclatural treatment as described in AOS publications 2020a, 2020b, and 2021 and Clements et al. 2011, 2019, and 2021. These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.

(5) Revise the scientific names of 22 species to conform to the most recent nomenclatural treatment as described in AOS publications 2020a and 2021 and Clements et al. 2016, 2021. These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.

The species are listed in two formats to suit the needs of different segments of the public: alphabetically in 50 CFR 10.13(c)(1) and taxonomically in 50 CFR 10.13(c)(2). In the alphabetical listing, species are listed by common (English) group names, with the scientific name of each species following the English group name. This format is most useful to members of the lay public. In the taxonomic listing, species are listed in phylogenetic sequence by scientific name, with the English name following the scientific name. To help clarify species relationships, we also list the higher-level taxonomic categories of Order, Family, and Subfamily. This format follows the sequence adopted by the AOS (1998, 2021) and is most useful to ornithologists and other scientists.

In this proposed rule, we present a new proposed table format for the alphabetical and taxonomic listings at 50 CFR 10.13(c)(1) and (c)(2), respectively. We propose this change in presentation of these listings to conform to Office of the Federal Register formatting standards and to make information on the lists clearer and easier to locate. For clarity, we also propose a new section heading for 50 CFR 10.13; rather than the current “List of Migratory Birds,” we propose to title this section of the regulations, “List of Birds Protected by the Migratory Bird Treaty Act.”

Because we propose to adopt the revised scientific name for the Double-crested Cormorant on the List of Birds Protected by the MBTA at 50 CFR 10.13, as described above, we also propose to reflect the revised scientific name for that species ( Nannopterum auritum ) in our special permit regulations related to that species at 50 CFR 21.123. This is purely an administrative action that does not amend the purpose of, eligibility for, application procedures for, conditions of, information-collection requirements associated with, or any other regulatory provisions associated with that permit.

We also propose to revise the corresponding entries on the List of Endangered and Threatened Wildlife of several migratory bird species that are also listed as endangered or threatened species under the ESA to reflect the currently accepted taxonomy and nomenclature. These revisions would ensure consistency in the use of common and scientific names across Service regulations. Some ESA-listed migratory bird species' names are not included in this proposed rule because they are being corrected in other documents that have published, or will publish, in the Federal Register concurrently with this rulemaking.

The List of Endangered and Threatened Wildlife and the List of Endangered and Threatened Plants (“the ESA Lists”), set forth in title 50 of the CFR at §§ 17.11 and 17.12, respectively, contain the names of endangered species and threatened species federally listed pursuant to the ESA.

The regulations at 50 CFR 17.11(c) and 17.12(b) direct us to use the most recently accepted scientific name of any wildlife or plant species, respectively, that we have determined to be an endangered or threatened species.

We propose to revise the ESA List at 50 CFR 17.11(h) to reflect the scientifically accepted taxonomy and nomenclature of nine bird species under section 4 of the ESA. These revisions reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c).

None of the taxonomic changes to migratory bird species listed as endangered or threatened species under the ESA are regulatory in nature; they are for accuracy and clarity. These revisions would not alter species' protections or status in any way. Any actions altering a species' protection or status would require a separate rulemaking action following the procedures of 50 CFR part 424.

The table below lists the taxonomic changes we propose here to reflect the revised taxonomy and nomenclature for nine bird species listed under section 4 of the ESA. These changes reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c).

Using the best available scientific information, this proposed rule would document taxonomic changes of the scientific names for nine birds in their entries on the ESA List. To the extent practicable, the Service relies on the Integrated Taxonomic Information System (ITIS) to determine a species' scientific name for inclusion on the List. ITIS incorporates the naming principles established by the International Code of Zoological Nomenclature, produced by the International Commission on Zoological Nomenclature, an organization that provides and regulates a uniform system of zoological nomenclature. While ITIS is a reliable database source of taxonomic information, in some of these instances, ITIS is incomplete and does not yet reflect the most recently accepted scientific names for some species. As noted above, the scientific names for the nine listed bird species are supported by AOS's Checklist of North American birds (AOU 1998), as amended annually (AOU 2006, 2010, 2012, 2014, 2016, AOS 2018, 2020a, 2020b, and 2021). The AOU (now AOS) Checklist of North American Birds (Checklist), developed by the AOU Committee on Classification and Nomenclature, has been the recognized taxonomic authority for North American birds since publication of the first edition of the Checklist in 1886. The Service finds that the scientific and common names should be recognized as presented in the table above. Accordingly, we propose to revise the scientific names of these species under section 4 of the ESA and in accordance with 50 CFR 17.11(c).

Of the nine species that are the subjects of the taxonomic revisions to the ESA List in this proposed rule, three have designated critical habitat. For clarity and consistency, we propose to revise the headings of the critical habitat designations at 50 CFR 17.95(b) to reflect the corrected scientific names for the following species: Mississippi sandhill crane, Cape Sable seaside sparrow, and Inyo California towhee.

These changes do not affect the range or endangered or threatened status for any of these nine listed migratory bird species, or any designated critical habitat.

Any final action resulting from this proposed rule must be based on the best scientific and commercial data available and be as accurate and as effective as possible. We request comments or information from other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule.

Please include sufficient information with your submission (such as electronic copies of scientific journal articles or other publications, preferably in English) to allow us to verify any scientific or commercial information you include.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Migratory Bird Program or Ecological Services (see FOR FURTHER INFORMATION CONTACT).

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

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 804(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule does not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that, if adopted as proposed, this action would not have a significant economic impact on a substantial number of small entities. This proposed rule is an administrative action to update the list of migratory bird species protected under the Conventions and make certain corresponding updates on the ESA List. Consequently, we certify that, if adopted as proposed, this rule would not have a significant economic impact on a substantial number of small entities; therefore, a regulatory flexibility analysis is not required.

This proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.

a. This proposed rule would not have an annual effect on the economy of $100 million or more.

b. This proposed rule would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

c. This proposed rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. This proposed rule is an administrative action to update the list of migratory bird species protected under the Conventions and make certain corresponding updates on the ESA List; it would not affect small government activities in any significant way.

b. This proposed rule would not produce a federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. This proposed rule does not contain a provision for taking of private property. Therefore, a takings implication assessment is not required.

This proposed rule does not have sufficient Federalism effects to warrant preparation of a federalism summary impact statement under Executive Order 13132. It does not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from the updating of the list of migratory bird species and certain entries on the ESA List.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Given that the proposed revisions in this document are strictly administrative in nature, this action is categorically excluded from further NEPA requirements (43 CFR 46.210(i)—applying to “policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature”).

Of the species on the List of Migratory Birds, 89 species, subspecies, or distinct population segments are also listed as endangered or threatened under section 4 of the ESA of 1973, as amended (16 U.S.C. 1531 et seq. ). No legal complications arise from the dual listing as the two lists are developed under separate authorities and for different purposes. Because this proposed rule is strictly administrative in nature, it has no effect on endangered or threatened species or their designated critical habitat. Thus, it does not require consultation under section 7 of the ESA.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian Tribes and have determined that there are no potential effects. The proposed revisions to existing regulations in this rule are purely administrative in nature and do not interfere with or affect the Tribes' ability to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.

On May 18, 2001, the President issued Executive Order 13211 addressing regulations that significantly affect energy supply, distribution, or use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this proposed rule is an administrative action to update the list of migratory bird species protected under the Conventions and make certain corresponding updates on the ESA List, it is not a significant regulatory action under Executive Order 12866, and it does not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

A complete list of all references cited is available on https://www.regulations.gov under Docket No. FWS-HQ-MB-2022-0036, and upon request (see FOR FURTHER INFORMATION CONTACT , above).

For the reasons discussed in the preamble, we propose to amend title 50, chapter I, subchapter B of the Code of Federal Regulations, as follows: