The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

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 listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

An electronic copy of rulemaking documents may be obtained from the internet by—

1. Searching the Federal eRulemaking Portal at www.regulations.gov;

2. Visiting the FAA's Regulations and Policies web page at www.faa.gov/regulations_policies/; or

3. Accessing the Government Printing Office's web page at www.GovInfo.com.

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) 267-9680. 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 from the internet through the Federal eRulemaking Portal referenced in item (1) above.

On July 24, 2023, the FAA published an NPRM titled “Modernization of Special Airworthiness Certification” in the Federal Register (88 FR 47650; Notice No. 23-10). Commenters were instructed to provide comments on or before October 23, 2023 ( i.e., 90 days from the date of publication of the NPRM). However, based on numerous requests to extend the comment period, the FAA extended the comment period on October 4, 2023 (88 FR 68507) to January 22, 2024 ( i.e., an additional 90 days for a total of 180 days from the date of publication of the NPRM).

Throughout the comment period, the rulemaking team assigned to this rulemaking project met to discuss the comments received. At a recent meeting of the rulemaking team, the FAA became aware of a conversation that was held between one of the members of the team and members of ASTM International (“ASTM”) regarding the contents of the NPRM during the ASTM International Fall Committee Week at a meeting of the ASTM International, Committee F37 on Light-Sport Aircraft. At the time, that team member recommended that the members of ASTM Committee F37 submit their comments to the docket. In the interest of transparency, the FAA is taking two steps. First, a Memorandum to the Docket (the “Memorandum”) summarizing the conversation between ASTM Committee F37 and the FAA has been placed on the docket as of February 1, 2024. Second, the FAA is reopening the comment period for thirty (30) days to allow the public an opportunity to review the contents of the Memorandum and an opportunity to respond if desired. Commenters should limit comments during this extension to the contents of the Memorandum.

Under the above circumstances, the FAA finds that an additional thirty (30) days will provide sufficient opportunity for the public to comment on the Memorandum. Therefore, the comment period for Notice No. 23-10 is reopened until March 11, 2024.

The FAA will not extend the comment period for this rulemaking further.

Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC.

The FAA and other relevant stakeholders rely on complete and accurate information in safety-related records. Indeed, the FAA and regulated persons make critical safety-related decisions based on the information, such as in FAA-required records, and necessarily rely on the veracity of that information. When a person provides falsified information or omits material information from records, that person creates a threat to aviation safety by inhibiting the ability of the FAA and other stakeholders to make critical safety-related decisions. Falsification regulations promote the integrity of information necessary to ensure aviation safety. They also serve as a basis for appropriate action when a person engages in falsification-related conduct.

The proposed rule would affect applicable parts in 14 CFR chapters I and III. Falsification prohibitions are currently found in 14 CFR chapter I, parts 3, 21, 43, 60, 61, 63, 65, 67, 89, 107, 111, 120, 121, 139, 142, and 145. The FAA proposes to remove the existing falsification regulations from parts 21, 43, 60, 61, 63, 65, 67, 89, 107, 111, 120, 121, 139, 142, and 145, and consolidate them in a new subpart in part 3. The proposed rule in part 3 would also apply to those parts of 14 CFR chapter I that do not currently have falsification regulations but for which such regulations are clearly warranted, as explained in the “Discussion of the Proposal Section” in this NPRM. Those parts are 5, 23, 25, 26, 27, 29, 31, 33, 34, 35, 36, 45, 47, 48, 49, 68, 77, 91, 93, 99, 101, 103, 105, 117, 119, 125, 129, 133, 135, 136, 137, 141, 147, and 183. As a result, the proposed rule in part 3 would create standardized falsification proscriptions and apply them to 14 CFR parts 5, 21, 23, 25, 26, 27, 29, 31, 33, 34, 35, 36, 43, 45, 47, 48, 49, 60, 61, 63, 65, 67, 68, 77, 89, 91, 93, 99, 101, 103, 105, 107, 111, 117, 119, 120, 121, 125, 129, 133, 135, 136, 137, 139, 141, 142, 145, 147, and 183.

The proposed rule would also remove the existing falsification regulations located in 14 CFR 413.17(c) and create a new part—part 402—containing a falsification prohibition applicable to 14 CFR chapter III, subchapter C. Subchapter C consists of 14 CFR parts 413, 414, 415, 417, 420, 431, 433, 435, 437, 440, 450, and 460.

The proposed rules in part 3 and part 402 would proscribe: (1) intentionally false or fraudulent statements; (2) productions, reproductions, or alterations for fraudulent purpose; (3) knowingly omitting or causing to be omitted a material fact; and (4) incorrect statements. Each prohibition is described in the “Discussion of the Proposal” section of this NPRM. Also, the proposed rule would standardize sanctions for violations of the falsification regulations under 14 CFR, chapters I and III, cited in this NPRM.

The term “falsification regulations” as used in this NPRM generically refers to a variety of provisions in 14 CFR parts 1-199 implemented over decades that variously prohibit the following: (1) fraudulent or intentionally false statements or entries; (2) any reproduction for fraudulent purpose; (3) any alteration, including alterations for fraudulent purpose; (4) knowingly concealing or causing to be concealed a material fact by omission; (5) concealing or causing to be concealed a material fact; (6) known omissions; (7) misleading statements; and (8) incorrect statements or entries upon which the FAA relied or could have relied. The term also refers to willful false statements prohibited in 14 CFR 413.17(c). A violation of these standards is referenced in this NPRM as “falsification-related” conduct. The proposed rulemaking would consolidate these nine categories of proscribed conduct into the four categories identified above.

A false statement is distinct from an intentionally false or fraudulent one. A false statement or entry  1 is one that is incorrect. An incorrect statement or entry is made when a person unknowingly provides false ( i.e., incorrect) information upon which the agency relies. Incorrect statements or entries are prohibited by 14 CFR 60.33(c)(1)-(2) and 67.403. In contrast, an intentional false statement is comprised of three elements: a (1) false statement, (2) in reference to a material fact, 2 (3) that is made with knowledge of its falsity. 3 A fraudulent statement or entry consists of the preceding three elements plus two additional elements: (1) an intent to deceive and (2) with action taken in reliance upon the representation. 4 Intentionally false or fraudulent statements or entries are currently proscribed by 14 CFR 21.2(a)(1)-(2), 43.12(a)(1), 60.33(a)(1)-(2), 61.59(a)(1)-(2), 63.20(a)(1)-(2), 65.20(a)(1)-(2), 67.403(a)(1)-(2), 89.5(a)(1)-(2), 107.5(a)(1), 111.35(a)-(c), 120.103(e)(1)-(2), 121.9(a)(1)-(2), 139.115(a)(1)-(2), and 145.12(a)(1).

Reproductions for a fraudulent purpose and alterations, including alterations for a fraudulent purpose, are proscribed in falsification regulations. Most of the existing falsification regulations already prohibit reproductions and alterations. Such prohibitions are found at 14 CFR 21.2(a)(3)-(4), 43.12(a)(2)-(3), 60.33(a)(3), 61.59(a)(3)-(4), 63.20(a)(3)-(4), 65.20(a)(3)-(4), 67.403(a)(3)-(4), 89.5(a)(3), 107.5(a)(2), 120.103(e)(3), 139.115(a)(3)-(4), and 145.12(a)(2)-(3). While some of these regulations prohibit any alteration of the applicable document ( i.e., 14 CFR 21.2(a)(4), 61.59(a)(4), 65.20(a)(4), and 67.403(a)(4)), others prohibit only fraudulent alterations of the applicable document ( i.e., 14 CFR 43.12(a)(3), 60.33(a)(3), and 107.5(a)(2)).

Knowingly omitting or causing to be omitted a material fact results when a person knew that they failed to include the material fact in the document at issue. 5 The prohibition of known material omissions is currently found in (1) 14 CFR 89.5(b)(1)-(2) and 145.12(b)(1)-(2) (knowingly concealing or causing to be concealed, by omission, a material fact); (2) 14 CFR 60.33(a)(2) and 121.9(a)(2) (known omissions); and (3) 14 CFR 111.35(a)-(c) (concealing or causing to be concealed a material fact).

Misleading statements are prohibited by 14 CFR 21.2(a)(1)-(2). The agency previously stated that for purposes of that section, “a misleading statement requires a material representation or omission [ i.e., within the statement] that is likely to mislead a person when that person is acting with reasonable diligence under the circumstances.”  6

Willful false statements are referenced in 14 CFR 413.17(c). Generally, for a false statement to be “willful,” it must be made deliberately and with knowledge. 7 Section 413.17(c) adds that such statements are punishable under 18 U.S.C. 1001 and by administrative sanction in accordance with 14 CFR part 405.

As discussed in the section of this NPRM titled “Authority for this Rulemaking,” the FAA has statutory authority to take certificate action or civil penalty action for falsification regulation violations. In many parts of 14 CFR chapter I that contain falsification regulations, the FAA has elected to set forth sanction consequences for violating a falsification regulation ( i.e., 14 CFR 21.2(b); 43.12(b); 60.33(b)-(c); 61.59(b); 63.20(b); 65.20(b); 67.403(b)-(c); 89.5(c); 107.5(b); 121.9(b); 139.115(b); 142.11(e)(3); and 145.12(c)). Other falsification regulations contain no sanction provision ( i.e., 14 CFR 111.35, 120.103(e), and 120.213). The falsification regulations that contain sanction provisions lack consistency, as discussed in the “Statement of the Problem” section of this NPRM. Section 413.17(c) of title 14, chapter III, provides that willful false statements are punishable by fine and imprisonment and could result in “administrative sanctions.”  8

The FAA implemented the first of its falsification regulations in 1965. 9 Since then, the agency has implemented various falsification regulations, most recently in 2021. The piecemeal publication of falsification regulations has contributed to two issues that this proposal seeks to remedy: (1) the type of conduct proscribed by the falsification regulations and prescribed sanctions referenced in the various falsification regulations are not consistent across the existing falsification regulations; and (2) many 14 CFR parts lack a falsification prohibition but warrant one.

The type of activity proscribed as falsification-related conduct and sanction options for such conduct are not consistent across the existing falsification regulations. The agency issued the earliest falsification regulations in title 14 chapter I between 1965 and 1978. The FAA directed 14 CFR 61.48 (1965), 63.20 (1965), and 65.20 (1965) at the conduct of individuals. 10 These regulations generally prohibited individuals from making intentionally false or fraudulent statements or entries, reproductions for a fraudulent purpose, or alterations in applications or documents that are kept, made, or used to show compliance with a regulatory requirement specific to the part where the particular falsification regulation was published. The sanction provisions in §§ 61.48, 63.20, and 65.20 were consistent in the context of sanction: Each served as a basis for the suspension or revocation of “any” airman or ground instructor certificate or rating. 11

Section 67.20 (1965), amended and recodified at § 67.403, prohibited individuals from making intentional false or fraudulent statements, reproductions for a fraudulent purpose, or alterations in connection with applications for FAA medical certification. 12 Such violation conduct formed a basis for suspending or revoking “all” airman, ground instructor, and medical certificates and ratings held by that person. In addition, unlike the falsification regulations referenced in the preceding paragraph, § 67.403 provided for certificate denials (which, in the context of part 67, involved the denial of an application for a medical certificate). 13

The FAA issued 14 CFR 43.12 (1978) to proscribe individuals or entities from making fraudulent entries and reproductions and alterations for a fraudulent purpose in documents kept, made, or used to show compliance with a regulatory requirement specific to part 43. 14 In 1982, the FAA amended § 43.12(a)(1) to include intentionally false entries. 15 In contrast to §§ 61.59, 63.20, and 65.20, sanction in the context of a § 43.12 violation was limited to suspension or revocation of “the applicable” certificate ( i.e., the certificate used during the commission of the violation conduct, which most frequently is a mechanic certificate issued under part 65.)  16

In 1992, the FAA implemented 14 CFR 21.2 to address falsification-related conduct in the context of certification procedures for products and articles. 17 The agency explained that § 21.2 “was modeled after similar provisions found in [Federal Aviation Regulations] parts 43, 61, 63, 65, and 143 for certificates, authorizations, and ratings issued under those parts.”  18 Thus, § 21.2 was similar to the predecessor falsification regulations insofar as proscribing intentionally false and fraudulent statements, reproductions for a fraudulent purpose, and alterations. In 2009, the FAA amended § 21.2(a)(1)-(2) by proscribing misleading statements. 19 At that time, the FAA specified that § 21.2 applied to both entities and individuals. 20 Section 21.2 became inconsistent with the predecessor falsification regulations to the extent that it proscribed misleading statements while the predecessor falsification regulations did not.

Regarding sanction, § 21.2 was consistent with the predecessor regulations in that it provided for the suspension or revocation of certificates. In addition, § 21.2 also prescribed the suspension or revocation of approvals. The 2009 amendments to § 21.2 made it consistent with § 67.403 by including a provision specifying that falsification is a basis for denying issuance of any certificate or approval under part 21. 21 However, the sanction in § 21.2 limited the scope of affected certificates. While the sanction in the predecessor falsification regulations affected “any” airman or ground instructor certificate (§§ 61.59, 63.20, and 65.20), or airman, ground instructor, and medical certificates (§ 67.403), 14 CFR 21.2 limited the falsification sanction of suspension or revocation to certificates or approvals issued under “this part.”  22

Inconsistencies continued to emerge in falsification regulations issued or amended by the agency after § 21.2. For example, in 14 CFR 142.11(e)(3) (1996), the agency deviated from prior falsification regulations by proscribing “incomplete,” “inaccurate,” or “false information” (and not “intentionally false information”). 23 Consistent with the limited scope of affected certificates under §§ 21.2 and 43.12, but inconsistent with the broader scope under other predecessor falsification regulations, § 142.11(e)(3) affected certificates issued under “this part,” ( i.e., 14 CFR part 142).

Also, in 1996, the FAA amended the falsification regulations in 14 CFR part 67 to broaden the regulatory basis for action by proscribing the provision of incorrect statements or entries by an applicant or airman when applying for medical certification. 24 However, the agency did not amend other falsification regulations that existed prior to 1996 to add an incorrect statement or entry provision. In 2006, the FAA proscribed incorrect statements and entries in 14 CFR 60.33. 25 Following the publication of § 60.33, however, the FAA did not amend existing regulations to address incorrect statements and entries. It also did not add prohibitions against incorrect statements and entries in the subsequent falsification regulations in 14 CFR parts 89, 107, 111, 121, 139, and 145.

The FAA specified different sanctions in proscribing incorrect statements or entries in §§ 67.403(c) and 60.33 and incomplete, inaccurate, and false information in § 142.11(e)(3). The sanction in § 67.403(c) limits the scope of affected certificates to the medical certificate, authorization, or statement of demonstrated ability at issue rather than “all” certificates as under § 67.403(b) for other falsification-related conduct under part 67. Under 14 CFR 60.33, the sanction for an incorrect statement or entry on which the FAA relied is removal of Flight Simulation Training Device (FSTD) qualification, including the withdrawal of approval for use of an FSTD or denying an application for a qualification. 26 As to the provision of “incomplete,” “inaccurate,” or “false information” referenced in § 142.11(e)(3), the regulation authorizes the denial, suspension, revocation, or termination of a part 142 certificate.

In 2004, the FAA added falsification provisions to the industry drug and alcohol testing regulations, which, at that time, were located at 14 CFR part 121, appendices I and J. Effective July 13, 2009, the FAA's drug and alcohol testing regulations were recodified, without substantive change, at 14 CFR 120.103(e) and 120.213. 27 (These regulations will hereinafter be referred to as §§ 120.103(e) and 120.213.) Sections 120.103(e) and 120.213 are limited to proscribing intentional falsification and fraud, and reproductions and alterations for a fraudulent purpose, regarding applications for alcohol and drug testing programs, and reports or records required under those programs. These sections contain no sanction provisions.

The falsification proscriptions in the more recent falsification regulations ( i.e., 14 CFR 89.5 (2021), 107.5 (2016), 111.35 (2021), 121.9 (2013), 139.115 (2013), and 145.12 (2014)) similarly lack consistency in describing the scope of conduct. Sections 107.5 and 139.115 proscribe intentional falsification, fraud, reproductions for a fraudulent purpose, and alterations for a fraudulent purpose. Sections 89.5 and 145.12 contain those same proscriptions and also proscribe knowingly concealing or causing to be concealed, by omission, a material fact. Sections 111.35 and 121.9, while proscribing intentional falsification and fraud, do not proscribe reproductions and alterations. Section 111.35, similar to §§ 89.5 and 145.12, proscribes concealing or causing to be concealed a material fact. However, § 111.35 lacks the knowledge element and “omission” terminology that is present in §§ 89.5 and 145.12. Section 121.9 proscribes “known omissions.”

In the context of sanction provisions, 14 CFR 89.5, 107.5, 111.35, 121.9, 139.115, and 145.12 are largely inconsistent. Section 111.35 contains no sanction provision. The sanction provisions in §§ 89.5, 107.5, 121.9, 139.115, and 145.12 vary in consistency. Section 139.115 provides for suspension or revocation but does not provide for a civil penalty. Meanwhile, §§ 89.5, 107.5, 121.9, and 145.12 authorize suspension or revocation, civil penalty, and denial of an application. 28 Yet, the reach of suspensions, revocations, and denials vary among §§ 89.5, 107.5, 121.9, 139.115, and 145.12. Section 107.5(b) provides for suspension or revocation of “any certificate, waiver, or declaration of compliance issued or accepted by the Administrator under this part and held by that person . . . ” and the denial of any application for a remote pilot certificate or certificate of waiver and declaration of compliance. Section 121.9 applies the suspension or revocation to “any certificate held by that person that was issued under this chapter” ( i.e., 14 CFR parts 1-199) and the denial of an application for any approval under this part. Section 139.115(b) provides for suspension or revocation of “any certificate or approval under this part and held by that certificate holder and any other certificate issued under this title” ( i.e., 14 CFR) but does not provide for a denial of an application. Section 145.12 allows the FAA to suspend or revoke “the repair station certificate and any certificate, approval, or authorization issued by the FAA and held by that person” and the denial of an application under part 145.

In § 89.5, the FAA articulated a broader approach to sanction. Under § 89.5(c), falsification is a basis for “[d]enial, suspension, rescission, or revocation of any acceptance, application, approval, authorization, certificate, declaration, declaration of compliance, designation, document, filing, qualification, means of compliance, record, report, request for reconsideration, or similar instrument granted by the Administrator and held by that person” or a civil penalty.

Regarding 14 CFR chapter III, 14 CFR 413.17(c) is the sole falsification regulation. It references only willful false statements and thus is limited in its application. It cites criminal sanctions under 18 U.S.C. 1001. It also provides that willful false statements may result in “administrative sanctions in accordance with part 405 of this chapter.”  29 Although the removal of § 413.17(c) would remove the reference to 18 U.S.C. 1001, this does not imply that 18 U.S.C. 1001 is inapplicable to false statements submitted to the FAA, nor does it restrict the FAA's ability to refer possible criminal violations of 18 U.S.C. 1001 to the DOT Office of the Inspector General or the Department of Justice. Intentionally false statements currently covered by 14 CFR chapter I and the proposed 14 CFR 3.403 and 402.3 may still be subject to 18 U.S.C. 1001. However, FAA regulations do not generally refer to possible criminal consequences, and the FAA does not believe that the regulations should specifically mention 18 U.S.C. 1001.

Many parts of 14 CFR chapter I lack a falsification regulation but warrant one. In the absence of such falsification regulations, the FAA is precluded from taking enforcement action for falsification-related conduct under those parts. As a result, there is no general or specific deterrent for those who might engage in such conduct. For example, the falsification regulation in part 121 applying to domestic, flag, and supplemental operations currently has no counterpart in part 135 pertaining to commuter and on-demand operations despite that both parts authorize commercial operations. Similarly, the falsification regulation in part 142 applying to training centers has no counterpart in part 141 or part 147. Part 47, which relates to aircraft registration, also contains no falsification prohibition despite instances of falsified aircraft registration applications.

Similarly, most of 14 CFR chapter III lacks falsification regulations but warrants them. In 14 CFR chapter III, only a single falsification regulation ( i.e., § 413.17(c)) exists. It addresses only willful false statements in the context of applications and documents relating to applications, licenses, or permits. Although some regulations in 14 CFR chapter III require licensees to ensure the continuing accuracy of representations contained in their application ( i.e., §§ 413.7(c), 414.13(d), 414.21, 414.27, 417.11, 431.73(a), and 450.211(a)), those regulations do not provide a comprehensive falsification prohibition.

Table 1 sets forth a brief history of the falsification regulations, including prohibitions and sanction for the year each regulation was implemented. 30

Falsification regulations promote aviation and commercial space safety by incentivizing participants in the National Aerospace System to provide accurate and truthful information in safety-related records. Through the proposed rule, the FAA intends to enhance aviation safety by standardizing the scope of conduct that the FAA intends to deter, proscribed by falsification regulations, across the applicable sections of 14 CFR parts 1 through 199 and 14 CFR parts 413 through 460 and extending this scope of conduct to parts that currently do not have—but should have—falsification provisions. The proposed rule also intends to standardize sanction provisions for this conduct and allow for more consistent sanction determinations as appropriate. The FAA has evaluated the cost impacts to the stakeholders involved in this proposed rulemaking and does not anticipate any new cost impact to the industry or the FAA as a result of this proposed rule.

The FAA has also determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The FAA's authority to issue rules on 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.

With respect to 14 CFR chapter I, this rulemaking is issued under 49 U.S.C. 44701(a)(5), which establishes the authority of the Administrator to prescribe regulations and minimum standards for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security. It is also issued under 49 U.S.C. 44702-44709, which prescribe the FAA's authority to issue different types of certificates to various individuals and entities and to amend, modify, suspend, or revoke those certificates as appropriate. This NPRM is within the scope of these sections because it would establish new falsification regulations that consolidate all existing falsification regulations into a general rule that standardizes the existing falsification regulations and ensures that falsification-related conduct that is not, but should be, addressed by current regulations is covered under the general rule. This NPRM also falls within the scope of 49 U.S.C. 46301 since this section authorizes the assessment of civil penalties for noncompliance with the general falsification provision.

With respect to 14 CFR chapter III, this rulemaking is issued under the authority described in the Commercial Space Launch Act of 1984, as amended and recodified at 51 U.S.C. 50901-50923 (the Act). The Act authorizes DOT to oversee, investigate, license, and regulate commercial launch and reentry activities and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. See 51 U.S.C. 50904, 50905. The Act directs the DOT to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. See 51 U.S.C. 50901. This authority has been delegated to the FAA's Associate Administrator for Commercial Space Transportation. See 14 CFR 401.3.

The proposed regulations fall within the scope of 51 U.S.C. 50901-50923 because they would establish comprehensive falsification proscriptions that currently do not exist in 14 CFR chapter III. They would promote the integrity of the information that the FAA relies on and would serve as a basis for regulatory action as appropriate, which is essential to the FAA's statutory responsibility to promote continuous improvement of commercial space activities and ensure that such activities are consistent with public health and safety, safety of property, and national security and foreign policy interests. The proposed rulemaking is within the scope of 51 U.S.C. 50908, since this section authorizes the FAA, under delegated authority from the Secretary of Transportation, to modify, suspend, or revoke a license issued or transferred under 51 U.S.C. Subtitle V, chapter 509. It is within the scope of 51 U.S.C. 50917 since it authorizes the FAA, under delegated authority from the Secretary of Transportation, to assess a civil penalty for a violation of chapter 509, a regulation prescribed under chapter 509, or any term of a license issued or transferred under chapter 509.

The FAA proposes to amend and reorganize the current falsification regulations to create uniform and comprehensive falsification regulations for the applicable parts of 14 CFR chapter I and across 14 CFR chapter III, subchapter C. This proposed rulemaking would standardize the proscribed conduct and expand the proscription to the pertinent parts of 14 CFR chapters I and III as appropriate. It would also standardize sanction provisions.

The proposed rulemaking would address the lack of standardization in current falsification regulations across the applicable parts of 14 CFR chapter I. In addition, the proposed rule would ensure that the falsification prohibition applies to the particular parts of 14 CFR chapter I that should have such a prohibition but currently do not. Under proposed § 3.401, the proposed rule would apply to any person subject to the requirements in 14 CFR chapter I, subchapter A (except parts 1 and 3), subchapter C (except part 39), subchapter D, subchapter E (except parts 71 and 73), subchapter F (except parts 95 and 97), subchapter G (except part 110), subchapter H, and part 183 of subchapter K.

Subchapter A consists of 14 CFR parts 1, 3, and 5. The proposed rule would apply to 14 CFR part 5, which contains recordkeeping requirements regarding Safety Management Systems (SMS) that may be subject to falsification. 31 The proposed rule would not apply to 14 CFR parts 1 and 3. Part 1 contains definitions and abbreviations. Part 3 currently consists of subparts A and B. Subpart A contains an independent falsification regulation governing statements about products, parts, and appliances, and materials that may be used on a type-certificated product and would remain unaffected by the proposed rule. 32 Subpart B prescribes security threat disqualification by the FAA following receipt of a notification from the Transportation Security Administration. 33 The proposed rule would be located in a new subpart D of part 3.

Subchapter C consists of 14 CFR parts 21, 23, 25, 26, 27, 29, 31, 33, 34, 35, 36, 39, 43, 45, 47, 48, and 49. Existing falsification regulations are in 14 CFR 21.2 and 43.12. The proposed rulemaking would remove those sections and apply the proposed rule to parts 21 and 43. The proposed rule would also apply to 14 CFR parts 23, 25, 26, 27, 29, 31, 33, 34, 35, 36 ( i.e., “airworthiness requirements”) and 14 CFR parts 45, 47, 48, and 49 ( i.e., “registration requirements”).

Section 21.2 addresses falsification of information submitted under part 21 and the airworthiness requirements. A person seeking a certificate or approval, or a change thereto, under part 21 must first show compliance with the airworthiness requirements, as applicable. 34 The person shows such compliance by, among other things, submitting documentation relating to airworthiness requirements to the FAA. The FAA reviews the documentation and determines whether the person has met the applicable standards before issuing or amending a certificate or approval under part 21. Consequently, if a person falsifies a document and submits it to the FAA to show compliance with the airworthiness requirements in the process of seeking a certificate, approval, or change under 14 CFR part 21, the FAA addresses the falsification under 14 CFR 21.2. Under the proposed rulemaking, the falsification prohibition in subpart D of part 3 would apply directly to the airworthiness requirements in addition to 14 CFR part 21.

The proposed rule would also apply to the registration requirements in 14 CFR parts 45, 47, 48, and 49. Parts 45, 47, 48, and 49 contain record requirements that may be subject to falsification. Due to the absence of a falsification regulation in part 47, the FAA has lacked a direct approach to addressing registration falsifications under that part. Hence, the proposed rulemaking would appropriately apply to parts 45, 47, 48, and 49.

The proposed rule would not apply to 14 CFR part 39 since it provides a legal framework for the FAA's system of airworthiness directives. It does not contain requirements that are subject to falsification.

Subchapter D (“Airmen”) consists of 14 CFR parts 60, 61, 63, 65, 67, and 68. Existing falsification regulations are in 14 CFR 60.33, 61.59, 63.20, 65.20, and 67.403. The proposed rulemaking would remove those sections and apply to parts 60, 61, 63, 65, and 67. The proposed rule would also apply to part 68, which does not have an existing falsification regulation. 35 Part 68 requires an individual to make representations, provide them to the FAA, and retain required documents in their logbook. Since these record requirements could be subject to falsification, the proposed rule would apply to part 68.

Subchapter E (“Airspace”) consists of 14 CFR parts 71, 73, and 77, none of which contain existing falsification regulations. The proposed rulemaking would apply only to part 77 since that part requires an individual to submit documentation to the FAA that could be subject to falsification. 36 In contrast, parts 71 and 73 consist of FAA designations of airspace. Those parts are not subject to falsification.

Subchapter F (“Air Traffic and General Operating Rules”) consists of 14 CFR parts 89, 91, 93, 95, 97, 99, 101, 103, 105, and 107. Existing falsification regulations are in 14 CFR 89.5 and 107.5. The proposed rulemaking would remove these sections and apply the proposed rule to parts 89 and 107. The proposed rule would also apply to 14 CFR parts 91, 93, 99, 101, 103, and 105. These parts contain requirements for applying for certificates, waivers, and other issuances or grants or for keeping or making records. 37 Since these documentary requirements are subject to falsification, the proposed rule would apply. The proposed rule would not apply to 14 CFR parts 95 and 97 since they consist of FAA airspace and procedure designations. They do not contain documentation requirements subject to falsification.

Subchapter G (“Air Carriers and Operators for Compensation or Hire: Certification and Operations”) consists of 14 CFR parts 110, 111, 117, 119, 120, 121, 125, 129, 133, 135, 136, 137, and 139. Existing falsification regulations are contained in 14 CFR 111.35, 120.103(e), 120.213, 121.9, and 139.115. The proposed action would remove those sections and apply the proposed rule to parts 111, 120, 121, and 139.

The proposed rule would also apply to 14 CFR parts 117, 119, 125, 129, 133, 135, 136, and 137, none of which contain an existing falsification regulation. Part 117 contains reporting requirements that may be subject to falsification, prompting the necessity for the application of the proposed rulemaking. 38 Although parts 119, 121, 125, 129, 133, 135, 136, and 137 require documents that are subject to falsification, only part 121 contains a falsification regulation. Accordingly, the proposed rulemaking would apply to those sections. The proposed action would not apply to 14 CFR part 110, as this part provides definitions only.

Subchapter H (“Schools and Other Certificated Agencies”) consists of 14 CFR parts 141, 142, 145, and 147. Existing falsification regulations are in 14 CFR 142.11(e) and 145.12. The proposed action would remove those sections and apply the proposed rule to parts 142 and 145. The proposed rule would also apply to parts 141 and 147 since these parts have documentation requirements that may be subject to falsification. Part 142 contains operation and certification requirements and a falsification regulation, yet parts 141 and 147 do not proscribe falsification despite containing analogous operation and certification requirements in the context of aviation training.

Subchapter K (“Administrative Regulations”) consists of 14 CFR parts 183, 185, 187, 189, and 193. Subchapter K contains no existing falsification regulations. The proposed rulemaking would apply solely to 14 CFR part 183 as parts 185, 187, 189, and 193 do not contain provisions subject to falsification. 39 Generally, intentional falsification by a delegee under part 183 would likely result in the FAA rescinding the delegation under 49 U.S.C. 44702(d)(2). 40 Under the proposed rule, the FAA would have the option of initiating an action against a delegee for intentional falsification, and it would be “a basis for . . . rescinding . . . any . . . designation.”  41

The proposed rulemaking would not apply to 14 CFR chapter I, subchapters B (“Procedural Rules”); I (“Airports”); J (“Navigational Facilities”); and N (“War Risk Insurance”). The application of the proposed rule to these subchapters would constitute an unnecessary or unwarranted expansion of the falsification prohibition at this time.

The proposed rulemaking would address the lack of comprehensive falsification regulations across the applicable parts of 14 CFR chapter III by creating a new part 402, entitled “General Requirements and Falsification Prohibitions.” The proposed rule in part 402 would parallel the proposed rule in part 3, subpart D. It would apply to any person subject to the requirements in subchapter C of 14 CFR chapter III.

Subchapter C (“Licensing”) consists of 14 CFR parts 413, 414, 415, 417, 420, 431, 433, 435, 437, 440, 450, and 460. Subchapter C currently has one falsification regulation in subchapter C, which is located at 14 CFR 413.17(c) (“Continuing Accuracy of Application; Supplemental Information; Amendment”). The proposed rulemaking would remove that subparagraph and would apply the proposed rule in new part 402 to all parts of subchapter C. Subchapter C contains myriad requirements and procedures in connection with licenses, approvals, permits, and recordkeeping, and for demonstrating financial responsibility. The requirements involve submission of information to the FAA that could be subject to falsification. 42

Proposed §§ 3.403(a), 3.405(a), 402.3(a), and 402.5(a) apply to “statements.” Over the years, the falsification regulations have proscribed false statements and entries. 43 Regardless of whether one characterizes a particular representation as a “statement” or “entry,” when it is intentionally false or fraudulent, it is subject to the falsification proscription. The elimination of the word “entry” is intended to simplify the proposed rulemaking and is not intended to make a substantive change. The term “statement” references any information a person provides in a document. Accordingly, proposed §§ 3.403(a) and 402.3(a) would provide that “[n]o person may make or cause to be made any fraudulent or intentionally false statement” in any of the documents described in proposed §§ 3.403(a)(1)-(2) and 402.3(a)(1)-(2). Sections 3.405(a) and 402.5(a) would provide that “[n]o person may make or cause to be made a material incorrect statement” in any of the documents described in §§ 3.405(a)(1)-(2) and 402.5(a)(1)-(2).

The proposed rulemaking in relation to 14 CFR chapter I applies to “any document in any format.” Documents “in any format” include hard copy or other tangible format (like a data plate, stamped marks on parts, and bar codes) or electronic. The proposed rulemaking in relation to 14 CFR chapter I applies to two categories of documents. Proposed §§ 3.403(a)(1), 3.403(b)(1), 3.403(c)(1), and 3.405(a)(1) would consist of “[a]ny document in any format submitted under any provision referenced in § 3.401 of [proposed subpart D of part 3], consisting of or related to any acceptance, application, approval, authorization, certificate, rating, declaration, designation, qualification, record, report, request for reconsideration, or similar.” (“Category 1”). Table 2 contains examples of documents in Category 1.

Proposed §§ 3.403(a)(2), 3.403(b)(2), 3.403(c)(2), and 3.405(a)(2) would consist of, “[a]ny document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 3.401 of this subpart” (“Category 2”).

The Category 1 documents in proposed §§ 3.403(a)(1), 3.403(b)(1), 3.403(c)(1), and 3.405(a)(1) may consist of an application, declaration, record, report, request for reconsideration, or similar, that a person submits to the FAA or a designee. The Category 1 documents that a person submits to the FAA or a designee may also be related to an acceptance, approval, authorization, certificate, rating, designation, qualification, or similar. For example, the FAA may request an airman seeking a medical certificate under part 67 to submit additional medical records related to qualification requirements under § 67.413. The “related to” language in the proposed rule would cover falsifications of the additional medical records. In either case, the intent of the proposed rule is to ensure that information the FAA is authorized to receive under statute and regulation in connection with the listed items is covered.

The Category 2 documents in proposed §§ 3.403(a)(2), 3.403(b)(2), 3.403(c)(2), and 3.405(a)(2) are consistent with the familiar prescription, “made, kept, or used, to show compliance with any requirement,” that is nearly ubiquitous in the falsification regulations. 44 Category 2 documents may include, for example, pilot logbook records and aircraft maintenance records. Such records are kept, made, or used to show compliance with applicable regulatory requirements. In contrast to Category 1 documents, Category 2 documents are not necessarily submitted to the FAA. Proposed §§ 3.403(a)(2), 3.403(b)(2), 3.403(c)(2), and 3.405(a)(2) would not include the words “developed” or “provided,” which is terminology used in 14 CFR 89.5(a)(2) and (b)(2). These terms are redundant of the terms “made, kept, or used” in the proposed rulemaking. Their removal is not intended to narrow the scope of documents subject to the proposed rulemaking.

Consistent with many existing falsification regulations, Category 2 would not condition the applicability of the falsification prohibition on a requirement that the “document in any format” be kept, made, or used to show compliance. This approach reflects the FAA's position in the 2014 amendments to part 145. In that rule, the FAA eliminated the phrase “required to be” with regard to any record or report made, kept, or used to show compliance. The FAA did so “to forestall an argument a falsifier could make that, although the falsification occurred in a record or report that was made, kept, or used to show compliance, it was not a record or report that was required by a regulation to be made or kept.”  45 The NTSB had already rejected that argument in addressing a violation of 14 CFR 43.12, 46 noting that the phrase should not be restricted to mean “required” by the FAA Administrator because the term can also be broadly construed to mean required by the circumstances for which compliance is sought or necessary. 47 The elimination of the phrase “required to be” is consistent with the falsification regulations that do not contain that phrase. 48

The proposed rulemaking in relation to 14 CFR chapter III, applies to two categories of “any document in any format,” as that terminology is defined in Section C. Proposed §§ 402.3(a)(1), 402.3(b)(1), 402.3(c)(1), and 402.5(a)(1) would consist of “[a]ny document in any format submitted under any provision referenced in § 402.1 of [part 402], consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar,” (“Category 1”). Table 4 contains examples of documents in Category 1.

Proposed §§ 402.3(a)(2), 402.3(b)(2), 402.3(c)(2), and 402.5(a)(2) would consist of, “[a]ny document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1 of [part 402]” (“Category 2”).

Category 1 documents in proposed §§ 402.3(a)(1), 402.3(b)(1), 402.3(c)(1), and 402.5(a)(1) consist of the listed items ( i.e., “acceptance, application . . .”) or documents that are related to them. Listed items in these sections are specific to 14 CFR chapter III, subchapter C, and necessarily vary from the listed items in the proposed rulemaking as it applies to 14 CFR chapter I since these items are in the context of commercial space.

Category 2 documents in proposed §§ 402.3(a)(2), 402.3(b)(2), 402.3(c)(2), and 402.5(a)(2) are modeled upon, and consistent with, the terminology in Category 2 in the proposed rule as it applies to 14 CFR chapter I, albeit applicable to commercial space.

Proposed §§ 3.403(a) and 402.3(a) would prohibit fraudulent or intentionally false statements in the Category 1 and 2 documents described in Sections D and E of the “Discussion of the Proposal” section of this NPRM. Both fraud and intentional falsification have clear and long-standing definitions established in precedent. The elements of fraud and intentional falsification are defined in Section I. B. “Background” of this NPRM. The FAA would not deviate from these established definitions of fraud and intentional falsification in the proposed rule.

Proposed §§ 3.403(b) and 402.3(b) prohibit any production, reproduction, or alteration for a fraudulent purpose of the Category 1 and 2 documents described in Sections D and E of the “Discussion of the Proposal” section of this NPRM. Reproductions for a fraudulent purpose and alterations, including alterations for a fraudulent purpose, are proscribed in various falsification regulations. 49 While some of these regulations prohibit any alteration of the applicable document (i.e., 14 CFR 21.2(a)(4), 61.59(a)(4), 65.20(a)(4), and 67.403(a)(4)), others prohibit only fraudulent alterations of the applicable document ( i.e., 14 CFR 43.12(a)(3), 60.33(a)(3), 107.5(a)(2), and 145.12(a)(3)).

Proposed §§ 3.403(b) and 402.3(b) would standardize this prohibition to those reproductions and alterations that are for a fraudulent purpose. These proposed sections would also prohibit a “production” for a fraudulent purpose of the Category 1 or 2 documents. This provision is meant to capture those instances where an individual or entity creates a document, such as a certificate or authorization, rather than altering an authentic existing document. In that case, the false document would be neither a reproduction nor an alteration. In the context of 14 CFR chapter I, this provision would apply, for example, to persons that create a certificate ( e.g., an airman certificate or an airworthiness certificate) for a fraudulent purpose.

Proposed §§ 3.403(c) and 402.3(c) would prohibit a person from knowingly omitting, or causing to be omitted, a material fact in the Category 1 or 2 documents described in Sections D and E under the “Discussion of the Proposal” in this NPRM. These proposed sections would correct inconsistencies in the “omission” prohibitions in the falsification regulations.

The falsification regulations that address omissions do so inconsistently by prohibiting (1) “knowingly concealing or causing to be concealed, by omission, a material fact” (14 CFR 89.5(b)(1)-(2) and 145.12(b)(1)-(2)); (2) “concealing or causing to be concealed a material fact” (14 CFR 111.35(a)-(c)); and (3) “known omissions” (14 CFR 60.33(a)(2) and 121.9(a)(2)). The “concealment” terminology is unnecessary. When the FAA amended 14 CFR part 145 in 2014, it explained that a knowing concealment of a material fact is triggered when a person knew that they failed to include the material fact in the document at issue. 50 Whether a person knowingly conceals a material fact by an omission or knowingly omits a material fact, the result is the same: the person knew that they omitted a material fact. 51 The “known omission” prohibition in 14 CFR 60.33 and 121.9 lacks a materiality element. Regarding § 60.33, the FAA previously stated that it had “added the word `material' to the phrase `known omission' to clarify that only important, known omissions ( i.e., from a statement or writing) would constitute a violation” on par with a fraudulent or intentionally false statement or entry. 52 A knowing omission of a material fact can have a detrimental impact on aviation and public safety to the same degree as an affirmative falsification. Accordingly, the FAA would incorporate this prohibition into the proposed rulemaking for 14 CFR chapter I and chapter III.

Proposed §§ 3.403(d) and 402.3(d) would contain the sanction provision respectively applicable to violations of proposed §§ 3.403(a)-(c) and 402.3(a)-(c). It would provide for two categories of sanction: (1) FAA actions ( i.e., denial, suspension, modification, revocation, recension, removal, or withdrawal) involving any issuance or grant by the Administrator under 14 CFR chapter I or III; or (2) a civil penalty. Consistent with longstanding FAA sanction policy, the termination of an FAA issuance or grant of the type of item referenced in the proposed rule, such as a certificate revocation, remains the appropriate consequence for violating proposed §§ 3.403(a)-(c) and 402.3(a)-(c). 53 Such violations seriously impact the integrity of the records on which the FAA's safety oversight depends. If the reliability of these records is undermined, the FAA's ability to promote aviation and public safety is compromised.

Some of the current falsification regulations limit the scope of sanction to items issued under the part where the falsification regulation is located. For instance, § 21.2(a)(2) limits the suspension or revocation of any certificate or approval issued under part 21. Proposed §§ 3.403(d) and 402.3(d) would generally allow for the extension of those consequences to any issuance or grant by the FAA and held by the falsifier. This is consistent with FAA sanction guidance, which provides that violation of the falsification regulations is an offense that generally warrants the revocation of all certificates held by the certificate holder if allowed by the scope of the regulation. 54 This proposal ensures that such consequences are not limited to certificates and extend to any issuance or grant the falsifier holds.

Under proposed §§ 3.403(d)(2) and 402.3(d)(2), the proscribed conduct may in certain circumstances warrant imposition of a civil penalty against an individual or entity, either in addition to or in combination with an action against a certificate, license, or other issuance or grant. For example, a civil penalty may be appropriate for uncertificated persons that commit a falsification. The appropriate sanction or combination of sanctions is within the prosecutorial discretion of the FAA in accordance with agency sanction guidance policy in publicly available FAA Order 2150.3C, as amended.

Proposed §§ 3.405(a)(1)-(2) and 402.5(a)(1)-(2) would prohibit persons from making or causing to be made a material incorrect statement or omitting or causing to be omitted a material fact, in the Category 1 or 2 documents described in Sections D and E under the “Discussion of the Proposal” in this NPRM. Currently, incorrect statements or entries upon which the FAA relied may serve as a basis for an FAA action under 14 CFR 60.33(c)(1)-(2) ( e.g., removal of a qualification) and 67.403(c)(1)-(2) ( e.g., revocation of a medical certificate). Proposed §§ 3.405(a)(1)-(2) and 402.5(a)(1)-(2) would prohibit material incorrect statements or entries without prescribing reliance by the FAA. Material incorrect statements or entries, i.e., incorrect statements or entries that are capable of influencing an agency decision, may have an adverse impact on safety under 14 CFR chapters I and III. Proposed §§ 3.405(a)(1)-(2) and 402.5(a)(1)-(2) would provide a basis for appropriate action, as explained in Section K. below, when a person unknowingly provides material incorrect information, whether or not the FAA relied upon it.

Proposed §§ 3.405(a)(1)-(2) and 402.5(a)(1)-(2) would also prohibit omissions of material facts from the Category 1 or 2 documents described in Sections D and E under the “Discussion of the Proposal” in this NPRM. Those proposed sections would apply to unknowing omissions of material fact, in contrast to the proscription of knowing omissions of material fact in proposed §§ 3.403(c)(1)-(2) and 402.3(c)(1)-(2). An unknowing omission of a material fact can have a detrimental impact on aviation and public safety to the same degree as a knowing omission of material fact. Accordingly, the FAA would incorporate this prohibition into the proposed rulemaking for 14 CFR chapter I and chapter III.

Proposed § 3.405(a)(1)-(2) would ensure coverage of the scope of prohibited conduct in 14 CFR 142.11(e)(3) that deviated from prior falsification regulations ( i.e., “incomplete,” “inaccurate,” or “false information” (and not “intentionally false information”)).”  55 Proposed § 3.405(a)(1)-(2) would cover (1) “incomplete” information submitted under 14 CFR 142.11(e)(3) as an omission of a material fact (so long as the person unknowingly omitted it), and (2) “inaccurate” and unintentionally “false” information submitted under 14 CFR 142.11(e)(3) as a material incorrect statement or entry. 56

Proposed § 3.405(a)(1)-(2) would create consistency by expanding the prohibition to the parts of 14 CFR chapter I that contain falsification regulations but do not currently prohibit such conduct, and to the applicable parts of 14 CFR chapter I generally, which are referenced in proposed § 3.401. 57

Proposed §§ 3.405(b) and 402.5(b) would permit the agency to deny, suspend, modify, revoke, rescind, remove, or withdraw any issuance or grant by the Administrator under 14 CFR chapter I or III for conduct described in Section J of the “Discussion of the Proposal” in this NPRM. The intent behind proposed §§ 3.405(b) and 402.5(b) would not be punitive, but rather remedial and preventive in an effort to cure unintended defects in documents under proposed §§ 3.403, 3.405, 402.3, and 402.5. A material incorrect statement or entry, or omission of a material fact, generally warrants an action against the issuance or grant in response to the document(s) containing an incorrect statement, entry, or omission. For example, generally, the appropriate sanction for an incorrect statement on an application for an airman medical certificate is revocation of that certificate. The individual impacted would then be able to submit a new corrected application. Proposed §§ 3.405(b) and 402.5(b) do not require the FAA to take action against a person for an incorrect statement, entry, or omission of material fact. The FAA would use its prosecutorial discretion to determine whether such action was appropriate based on the totality of the circumstances of a particular case.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), 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 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $177 million using the most current (2022) 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 proposed rule: is not a “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.

Falsification regulations promote aviation and commercial space safety by incentivizing the provision of accurate and truthful information to the FAA. Through the proposed rule, the FAA intends to enhance aviation safety by standardizing the scope of conduct proscribed by falsification regulations that the FAA intends to deter across the applicable sections of 14 CFR parts 1 through 199 and 14 CFR parts 413 through 460 and extending this scope of conduct to the requirements of 14 CFR parts 1 through 199 and 14 CFR parts 413 through 460 that currently do not have—but should have—falsification provisions. The proposed rule would also standardize sanction provisions for this conduct and allow for more consistent sanction determinations as appropriate.

The proposed rulemaking would benefit the safety of the public by ensuring that information made, kept, or used to show compliance with regulatory requirements or provided to the FAA is accurate and complete. The proposed rulemaking also benefits private industry by standardizing sanction provisions and providing consistent sanction determinations. Additional benefits to private industry include a more reliable aviation system that contains less risk and requires less mitigation and corrective action to address situations where a person has falsified a document.

The FAA has evaluated the cost impacts to the stakeholders involved in this proposed rulemaking and does not anticipate any new cost impact to industry and the FAA as a result of this proposed rule.

The FAA considered no action as an alternative to this proposed rulemaking. However, taking no action would not achieve the needed harmonization and consolidation of the falsification regulations and standardization of the scope of conduct proscribed by falsification regulations.

The FAA has, therefore, determined that this proposed rule would have no new costs but positive benefits and does not warrant a full regulatory evaluation. The FAA has also determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act 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 businesses 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 proposed standardization of the scope of conduct proscribed by falsification regulations does not add any new costs to regulated entities. Therefore, the FAA certifies that the proposed rule will not have a significant economic impact on 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 determined that this proposed rule is not considered an unnecessary obstacle to trade.

The FAA has assessed the potential effect of this proposed rule and determined that it ensures the safety of the American public and does not exclude imports that meet this objective. As a result, the FAA does not consider this proposed rule as creating an unnecessary obstacle to foreign commerce.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that the proposed rule will not result in the expenditure of $177 million or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year.

This proposed rule does not contain such a mandate; therefore, the requirements of title II of the Act do not apply.

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 determined that there are no ICAO Standards and Recommended Practices that correspond to 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 5-6.6(f) 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 FAA 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.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this proposed rule.

The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA 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 proposed action under the policies and agency responsibilities of E.O. 13609 and has determined that this proposed 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 FAA 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 submit only one time if comments are filed electronically or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

Proprietary or Confidential Business Information: Do not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document and marked as proprietary or confidential. If submitting information on a disk or CD ROM, mark the outside of the disk or CD ROM, and identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under § 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.

An electronic copy of a rulemaking document may be obtained by using the internet—

1. Search the Federal eRulemaking Portal ( www.regulations.gov );

2. Visit the FAA's Regulations and Policies web page at www.faa.gov/regulations_policies/ ; or

3. Access the Government Printing Office's web page at www.GovInfo.gov.

Copies may also be obtained by sending a request (identified by notice or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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

Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC.

The Horseracing Integrity and Safety Act of 2020 (“HISA” or “the Act”), Public Law 116-260, Title XII, 134 Stat 1182, 3252 (2020) (codified as amended at 15 U.S.C. 3051-3060), recognizes the Authority as a self-regulatory nonprofit organization charged with developing and enforcing rules relating to racetrack safety, anti-doping, and medication control. See 15 U.S.C. 3052. The Act expressly provides for Commission oversight of several aspects of the Authority's operations. For example, the Commission must approve any proposed rule or rule modification by the Authority relating to the Authority's bylaws, racetrack safety standards, anti-doping and medication control, and the formula or methodology for determining assessments. See id. In December 2022, Congress amended HISA to expand the Commission's oversight role over the Authority. See Consolidated Appropriations Act, 2023, Public Law 117-328, Sec. 701, 136 Stat. 4459, 5231 (2022). As amended, the Act gives the Commission the power to issue rules under the procedures set forth in the Administrative Procedure Act, 5 U.S.C. 553, “as the Commission finds necessary or appropriate to ensure the fair administration of the Authority . . . or otherwise in furtherance of the purposes of this Act.” 15 U.S.C. 3053(e).

In light of the Commission's experience in overseeing the Authority's operations to date, the Commission is exercising its rulemaking authority to propose several new rule provisions to ensure effective Commission oversight over the Authority. The proposed new provisions are designed to ensure that the Authority is promoting transparency and integrity in its operations. For example, new rule sections would require the Authority to submit and publish annual and midyear reports about its performance and financial position. The proposed rules would also require the Authority to develop, maintain, and publish a multi-year strategic plan, after taking public comments on the draft plan. The proposed rules would require the Authority to effectively manage risk and take steps to prevent conflicts of interest, waste, fraud, embezzlement, and abuse. The proposed rules would also mandate other operational requirements and identify best practices for the Authority to follow, as explained in the section-by-section analysis below. The Commission would add the proposed new rules as 16 CFR 1.153 through 1.156 in Subpart U of part 1 of its Rules of Practice. Subpart U would be renamed “Oversight of the Horseracing Integrity and Safety Authority” to reflect more accurately the content of the amended subpart.

§ 1.153 Submission of the Authority's annual reports, midyear reports, and strategic plans. This proposed new section imposes certain requirements on the Authority to report on its finances for the preceding calendar year by May 15. This includes a complete accounting of the Authority's budget (as audited by a qualified, independent, registered public accounting firm and in accordance with Generally Accepted Accounting Principles), a discussion of budgetary line items, a summary of travel expenses, and a summary of any new or continuing risks or issues raised by audits or other reviews. The proposed section also imposes certain requirements on the Authority to report by March 31 on its performance for the prior calendar year, with such report to include efforts made to carry out the requirements of the Act, a description of the cooperation with the states as set forth in 15 U.S.C. 3060(b), a summary of final civil sanctions, an assessment of the Authority's progress in meeting or not meeting its performance measures contained in its strategic plan per § 1.153(d), a summary of Board of Directors committee recommendations and activities, information about any changes in the composition of the Authority's Board of Directors or standing committees, information about the relationship between the Authority and the anti-doping and medication control enforcement agency, a summary of all litigation to which the Authority is a party (including actions commenced by the Authority under 15 U.S.C. 3054(j)), a summary of all subpoenas issued by the Authority under 15 U.S.C. 3054(c), a description of any areas in which the Authority believes improvements to its operations are warranted, and the Authority's plans to achieve those improvements. The proposed section also requires the Authority to submit to the FTC by August 15 a same year midyear report covering January to June that describes spending and staffing levels and budgetary information. This midyear report would provide operational insight about the Authority's budget execution and risk management activities. Under the proposed section, the Authority also must develop and publish for public comment a multi-year strategic plan by June 30, 2024. The Authority must re-evaluate its strategic plan no less frequently than every five years. The strategic plan must align with the Authority's annual budget, discuss its priority initiatives, and set forth a set of performance measures. The Authority must publish its annual financial reports, annual performance reports, and strategic plans on its website.

§ 1.154 Enterprise risk management. This proposed new section imposes certain requirements on the Authority to ensure that it effectively manages risk to prevent conflicts of interest, waste, fraud, embezzlement, or abuse. Paragraph (a) sets forth guiding principles around separation of duties and corrective action plans, and notes that risk management activities must ensure compliance, the avoidance of conflicts of interest or the appearance thereof, and the appropriate handling of funds received and expended by the Authority. Given the confidential nature of much of the Authority's work and the data that it collects, paragraph (b) would require the Authority to ensure the privacy and security of its data in its systems, including those operated by third-party contractors, and require a complete annual evaluation of the status of its overall information technology program and practices as audited by a qualified, independent, third-party auditor. Given that the Authority leverages contractor resources in its operations, paragraph (c) would require the Authority to document its market research for any action estimated at over $10,000 to ensure the lowest cost or best value for goods and services to be provided, and to develop policies and procedures covering procurement activities. Given the FTC's need for regular communication and awareness of the Authority's activities, paragraph (d) would require the Authority to provide advance notice to Commission staff of all significant Authority-planned events ( e.g., press conferences, media events, summits, etc.) via a calendar, list, email, or other reasonable means, to summarize key aspects of all such events on its website, and to give Commission staff prompt notice after significant adverse events in the horseracing industry that might reasonably lead to sanctions or track closures.

§ 1.155 Other best practices. This proposed new section includes a set of best practices that the Authority is encouraged to adopt to promote accountability, transparency of operations, and effective resource stewardship. These proposals include holding regular monitoring meetings with the FTC; recommendations for how the Authority may maintain its records and information; recommendations for how the Authority should treat confidential information; a standing data request from the FTC for the Authority's Board of Directors minutes; recommendations about the Authority's personnel and compensation policies and practices; recommendations about the Authority's customer service program (and the development of associated metrics); and recommendations regarding the Authority's travel policies.

§ 1.156 Severability. This proposed new section notes that provisions of this subpart are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 8, 2024. Write “HISA Oversight Rulemaking, Matter No. P222100” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including the https://www.regulations.gov website.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we strongly encourage you to submit your comments online. To make sure the Commission considers your online comment, you must file it at https://www.regulations.gov, by following the instructions on the web-based form.

If you file your comment on paper, write “HISA Oversight Rulemaking, Matter No. P222100” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex H), Washington, DC 20580. If possible, submit your paper comment to the Commission by overnight service.

Because your comment will be placed on the publicly accessible website at https://www.regulations.gov, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “any trade secret or any commercial or financial information . . . which is privileged or confidential.” 15 U.S.C. 46(f); see FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, your comment should not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at https://www.regulations.gov, as legally required by FTC Rule 4.9(b), 16 CFR 4.9(b), we cannot redact or remove your comment, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), 16 CFR 4.9(c), and the General Counsel grants that request.

Visit the FTC website to read this document and the news release describing it and visit https://www.regulations.gov/docket/FTC-2024-0012 to read a plain-language summary of the proposed rule. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before April 8, 2024. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

The Paperwork Reduction Act (“PRA”), 44 U.S.C. chapter 35, requires federal agencies to seek and obtain Office of Management and Budget approval before undertaking a collection of information directed to ten or more persons. Under the PRA, a rule creates a “collection of information” when ten or more persons are asked to report, provide, disclose, or record information in response to “identical questions.”  1 The Commission concludes that the PRA does not apply to the proposed amendments because they only apply to one “person,” the Authority.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis with a proposed rule, or certify that the proposed rule will not have a significant impact on a substantial number of small entities. 2 The RFA defines a “small entity” as a small business, a small governmental jurisdiction, or a small not-for-profit organization. See 5 U.S.C. 601(6).

The proposed amendments would apply only to the Authority, and the Authority is not a small business or a small governmental jurisdiction. While the Authority is a nonprofit entity, it is not a small not-for-profit organization, defined in the RFA as “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Id. 601(5). The authority is not “independently owned and operated,” and it is dominant in its field. The Commission therefore certifies under the RFA that the proposed rule will not have a significant impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or a Commissioner's advisor, will be placed on the public record. See 16 CFR 1.26(b)(5).

For the reasons set forth in the preamble, the Federal Trade Commission proposes to amend title 16, chapter I, subchapter A of the Code of Federal Regulations as follows:

On November 1, 2023, the Commission published an SNPR in the Federal Register , proposing to issue a safety standard addressing blade-contact injuries on table saws under the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089), and seeking written comments. 88 FR 74909. To address the risk of blade-contact injuries on table saws, the Commission proposes a rule that would establish a performance standard that requires table saws to limit the depth of cut to no more than 3.5 millimeters when a test probe, acting as surrogate for a human finger or other body part, approaches the spinning blade at a rate of 1 meter per second (m/s). The SNPR is available at: 88 FR 74909—Safety Standard Addressing Blade-Contact Injuries on Table Saws—Content Details—2023-23898 ( govinfo.gov ), and CPSC staff's briefing package for the SNPR is available at: https://www.cpsc.gov/s3fs-public/Federal-Register-Notice-Safety-Standard-Addressing-Blade-Contact-Injuries-on-Table-Saws-SNPR.pdf?VersionId=Ce3FOVBmbG0_.8j.gd1h0k3VWHZZ.URw.

The Administrative Procedure Act (5 U.S.C. 551-562) and section 9 of the CPSA require the Commission to provide interested parties with an opportunity to submit “written data, views, or arguments” regarding a proposed rule. 5 U.S.C. 553(c); 15 U.S.C. 2058(d)(2). The SNPR invited such written comments. In addition, section 9 of the CPSA requires the Commission to provide interested parties “an opportunity for oral presentation of data, views, or arguments.” 15 U.S.C. 2058(d)(2). The Commission must keep a transcript of such oral presentations. Id. In accordance with this requirement, the Commission is providing a forum for oral presentations concerning the proposed standard.

To request the opportunity to make an oral presentation, see the information under the DATES and ADDRESSES sections of this notice. Participants should limit their presentations to approximately 10 minutes, excluding time for questioning by the Commissioners or CPSC staff. To avoid duplicate presentations, groups should designate a spokesperson, and the Commission reserves the right to limit presentation times or impose further restrictions, as necessary.

On October 25, 2023, the Commission published an NPR in the Federal Register , proposing to issue a safety standard for residential gas furnaces and boilers under the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089), and seeking written comments. 88 FR 73272. The proposed rule seeks to address the risk of injuries and death associated with residential gas fired central furnaces, boilers, wall furnaces, and floor furnaces (gas furnaces and boilers). To address this risk, the Commission has proposed a rule to detect and prevent dangerous levels of carbon monoxide (CO) production and leakage from residential gas furnaces and boilers.

The NPR is available at: https://www.federalregister.gov/documents/2023/10/25/2023-23302/safety-standard-for-residential-gas-furnaces-and-boilers, and CPSC staff's briefing package for the NPR is available at: https://www.cpsc.gov/s3fs-public/Notice-of-Proposed-Rulemaking-Safety-Standard-for-Residential-Gas-Furnaces-and-Boilers-COMBINED-PDFS.pdf?VersionId=7BJ3c6EeDF78nHorx2mCEr94XygwgeQV .

The Administrative Procedure Act (5 U.S.C. 551-559) and section 9 of the CPSA require the Commission to provide interested parties with an opportunity to submit “written data, views, or arguments” regarding a proposed rule. 5 U.S.C. 553(c); 15 U.S.C. 2058(d)(2). The NPR invited such written comments. In addition, section 9 of the CPSA requires the Commission to provide interested parties “an opportunity for oral presentation of data, views, or arguments.” 15 U.S.C. 2058(d)(2). The Commission must keep a transcript of such oral presentations. Id. In accordance with this requirement, the Commission is providing a forum for oral presentations concerning the proposed standard for residential gas furnaces and boilers.

To request the opportunity to make an oral presentation, see the information under the DATES and ADDRESSES sections of this notice. Participants should limit their presentations to approximately 10 minutes, excluding time for questions from the Commission or staff. To avoid duplicate presentations, groups should designate a spokesperson, and the Commission reserves the right to limit presentation times or impose further restrictions, as necessary.

Submit your comments on drinking water analytical methods for emerging contaminants, particularly those listed in this Federal Register notice, identified by Docket ID No. EPA-HQ-OW-2023-0469, at https://www.regulations.gov (preferred), or using one of the other options identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit any information to the EPA via https://www.regulations.gov that you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you want to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

All who want to attend the webinar, please refer to the SUMMARY section for instructions on webinar registration. For those who want to make remarks at the webinar, the EPA is scheduling speakers. To sign up to speak, please use the online registration form available at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials or contact the EPA's support contractor, Cadmus, at UCMRWebinar@cadmusgroup.com. The last day to pre-register to speak at the webinar is April 9, 2024. On April 16, (one day prior), the EPA will post an agenda that will identify scheduled speakers at: https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. If there is additional time for public speakers after scheduling those who pre-registered, EPA will take requests during the webinar via the chat box. The EPA will accommodate requests to speak (via pre-registration and during the webinar) in the order received and as time permits.

The agency's current plan is to provide each speaker with ten minutes. The EPA may adjust this time depending on the number of organizations that register to speak. The agency asks that only one person present on behalf of an organization. The EPA encourages commenters to provide the agency with an advance copy of their remarks by emailing them to UCMRWebinar@cadmusgroup.com . The EPA may ask and answer clarifying questions during the webinar but will generally not respond to the remarks made by speakers during the webinar.

Please note that any updates to the webinar plan will be posted to https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials and will be emailed to those who register to participate. The EPA does not intend to publish another document in the Federal Register announcing updates, if any. If you require the services of an interpreter or special accommodations, please identify your needs at least one week in advance as part of your registration.

This notice invites comments on drinking water analytical methods and is directed to those interested in or involved with developing analytical methods for unregulated contaminants in drinking water. It may also be of particular interest to laboratories that conduct chemical or microbiological testing for drinking water contaminants, including testing in support of the UCMR program.

This notice also announces a webinar to discuss potential approaches to developing UCMR 6. This notice does not impose any requirements.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table includes the types of entities that the EPA is now aware could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your entity is affected by this action, you should carefully examine the applicability criteria found in Title 40 in the Code of Federal Regulations (CFR) at 40 CFR 141.2 and 141.3, and the applicability criteria found in 40 CFR 141.40(a)(1) and (2). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

Under the 1996 amendments to the Safe Drinking Water Act (SDWA), Congress established a multi-step, risk-based approach for determining which contaminants could become subject to drinking water standards. The EPA is required to publish a Contaminant Candidate List (CCL) every five years that identifies contaminants that are not subject to any proposed or promulgated drinking water regulations, are known or anticipated to occur in Public Water Systems (PWSs), and may require future regulation under SDWA. The EPA must also determine whether or not to regulate at least five contaminants from the CCL in a separate process called Regulatory Determinations. Information on these processes can be found at: https://www.epa.gov/ccl.

Per SDWA, the EPA implements section 1445(a)(2), Monitoring Program for Unregulated Contaminants. The EPA requires that PWSs monitor for a new set of unregulated contaminants every five years to generate occurrence data in support of the agency's CCL and Regulatory Determination processes. The EPA must vary the frequency and schedule for monitoring based on the number of people served, the source water, and the contaminants likely to be found. The data collected through the UCMR program are made available to the public through the National Contaminant Occurrence Database (NCOD) for drinking water. UCMR results can be viewed by the public via NCOD ( https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod ) or via the UCMR web page at: https://www.epa.gov/dwucmr.

Analytical methods are essential to gathering occurrence data under the UCMR program. Robust analytical methods with sufficient sensitivity, accuracy, and precision are needed.

This notice provides the public with the EPA's assessment of published drinking water analytical methods and methods in development for emerging contaminants, particularly those focusing on the CCL 5. The EPA is seeking public comments on method development to reach a broader audience and provide an opportunity to improve public participation. Separate public meetings on method development have not been well attended in the past, and this Federal Register notice enables those who cannot participate in the meeting to provide input.

This notice also announces webinars in April 2024 that will allow for early engagement in the agency's development of UCMR 6.

Exhibits 1-5 list the contaminants on the final CCL 5 in the Federal Register published November 14, 2022 (87 FR 68060) (USEPA, 2022b). The current status of drinking water analytical methods from the EPA and voluntary consensus standards bodies (VCSBs) such as, ASTM International (ASTM), Standard Methods (SM), and International Organization for Standardization (ISO), are included in this notice. The ASTM, SM, and ISO methods listed in Exhibits 1-5 may or may not contain the standards and quality control (QC) requirements deemed necessary by the agency and may need to be adapted to support UCMR monitoring. Exhibits 6-10 list methods in development by the EPA for contaminants from CCL 5 that do not currently have drinking water analytical methods. The EPA recognizes that there may be other entities developing drinking water analytical methods and encourages commenters to make the agency aware of them. Please submit comments to the EPA following the process described in section III.D of this notice.

The CCL 5 includes cyanotoxins as a group, including but not limited to the contaminants in Exhibit 2. The EPA recognizes there are other contaminants in this group such as, nodularin-R (which is not a microcystin), as well as, derivatives and congeners of anatoxin-a, cylindrospermopsin, and saxitoxin ( e.g., homoanatoxin-a, deoxy-cylindrospermopsin, and other paralytic shellfish poisons).

The CCL 5 included PFAS as a group which includes thousands of PFAS chemicals per the CCL 5 structural definition (USEPA, 2022b). Exhibit 4 lists the PFAS that EPA has available drinking water analytical methods. The EPA recognizes that the PFAS in Exhibit 4 only captures a subset of the thousands of PFAS compounds encompassed in the CCL 5 structural definition (USEPA, 2023).

These regulations are promulgated under the authority of sections 2002(a), 3004(u) and (v), and 3008(h) of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6924(u) and (v), and 6928(h).

The 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA) expanded EPA's authority to address releases of hazardous waste and constituents at RCRA treatment, storage, and disposal facilities.

Sections 3004(u) and (v) of RCRA, added to the statute by HSWA, provided for corrective action requirements at permitted facilities. Section 3004(u) directed EPA to require corrective action for “all releases of hazardous waste or constituents from any solid waste management unit” at permitted hazardous waste treatment, storage, or disposal facilities regardless of the time at which waste was placed in the units. Section 3004(v) directed EPA to require that corrective action be taken beyond facility boundaries where necessary to protect human health and the environment unless facility owners/operators demonstrate to the Agency's satisfaction that, despite their best efforts, they were unable to obtain the necessary permission to undertake off-site corrective action.

Section 3008(h), also added by HSWA, provided EPA authority to require corrective action for “a release of hazardous waste into the environment from a facility” authorized to operate under interim status.

Prior to HSWA, regulatory requirements for corrective action to address releases of hazardous waste and constituents were limited in scope. The regulations in 40 CFR part 264 Subpart F imposed requirements on owners and operators of regulated units  1 to address releases to groundwater. These regulations included a corrective action requirement for releases to groundwater of those hazardous waste and hazardous constituents that are identified in the regulations. This corrective action requirement did not extend to releases to other media, or to other solid waste management units.

HSWA expanded EPA's corrective action authority to address not only releases to the groundwater from regulated units but all releases of hazardous waste and constituents from solid waste management units and authorized the Agency to issue regulations. On July 15, 1985, EPA issued a final rule that amended EPA's hazardous waste regulations to reflect certain of the new statutory provisions of HSWA (referred to as the 1985 Codification Rule because it codified a number of HSWA requirements). 2 That final rule added to the regulations in Part 264 a new § 264.101, which largely mirrored the language in section 3004(u) and required that permits require facility-wide corrective action to address releases of hazardous waste and constituents from solid waste management units. The Agency later amended § 264.101 to implement section 3004(v), which requires owners and operators to institute corrective action beyond the facility boundary where necessary to protect human health and the environment unless the owner or operator is denied access to adjacent lands despite their best efforts. 3

Section 260.10 provides definitions for terms used in 40 CFR parts 260 through 273. The definition of “hazardous waste” in § 260.10 refers to the definition in § 261.3, that is, it applies the regulatory definition to those parts. Under that definition, only solid wastes that are listed in the regulations or exhibit one of the four regulatory hazardous waste characteristics (ignitability, corrosivity, reactivity, and toxicity) are hazardous waste. When EPA codified section 3004(u) in the final 1985 Codification Rule, the Agency did not discuss the question of whether the regulatory definition of hazardous waste, generally applicable to 40 CFR part 264, should also apply to the new corrective action authority.

On July 1, 1990, 4 EPA proposed requirements for a new Subpart S in 40 CFR part 264 that would establish in detail the procedures and standards for implementing sections 3004(u) and (v) including requirements for conducting remedial investigations, evaluating potential remedies, and selecting and implementing remedies at RCRA facilities. 5 In that proposed rule, EPA addressed the question of what definition of hazardous waste applies to corrective action for releases from solid waste management units. 6 In the preamble, EPA stated its interpretation that “hazardous waste” in section 3004(u) denotes “hazardous waste” as defined in RCRA section 1004(5). 7 EPA explained that the term “hazardous waste” appearing in section 3004(u) is distinguished from the phrase “hazardous waste listed and identified,” which is used elsewhere in the statute to denote that subset of hazardous wastes specifically listed and identified by the Agency pursuant to section 3001 of RCRA. EPA stated that, under that interpretation, the remedial authority under section 3004(u) is not limited to releases of wastes identified as hazardous waste in 40 CFR part 261. Rather, it extends potentially to any substance meeting the statutory definition. EPA further stated that the use of the phrase “hazardous waste or constituents” in section 3004(u) indicated that Congress was particularly concerned that the Agency use the corrective action authority to address hazardous constituents. 8 EPA proposed to define hazardous constituents for purposes of Subpart S as those constituents listed on Appendix VIII of Part 261—Hazardous Constituents, or on Appendix IX of Part 264—Groundwater Monitoring List. EPA proposed moving § 264.101 to the new Subpart S and proposed a definition of hazardous waste that repeated the language in RCRA section 1004(5) and would be applicable to the new subpart. That proposed rule thus would have expressly applied the statutory definition of hazardous waste to corrective action for releases from solid waste management units required under EPA's regulations.

The Agency promulgated a few elements of the 1990 Subpart S proposed rule on February 16, 1993. 9 These elements included final provisions for Corrective Action Management Units (CAMUs) and Temporary Units, and a definition of “facility” for corrective action. The remainder of the 1990 Subpart S proposed rule was not made final. However, EPA and authorized States began using the proposed rule and preamble as the primary guidance for the corrective action program soon after it was published. 10

On May 1, 1996, EPA issued an Advance Notice of Proposed Rulemaking (“Subpart S ANPR”) that, among other things, solicited comment on whether to issue detailed regulations along the lines of the 1990 Subpart S proposal to implement the Corrective Action Program. In the 1996 Subpart S ANPR, EPA repeated its interpretation that the term “hazardous waste” in section 3004(u) includes all wastes that are hazardous within the statutory definition in RCRA section 1004(5), not just those that are identified by EPA in regulation. 11 EPA again stated its position regarding the importance of addressing hazardous constituents through corrective action in the 1996 Subpart S ANPR. 12 The 1996 Subpart S ANPR replaced the 1990 Subpart S proposed rule as the primary guidance for much of the Corrective Action Program. 13

On October 7, 1999, the Agency issued a Federal Register notice withdrawing the 1990 Subpart S proposed rule in part. 14 EPA explained that experience implementing the Corrective Action Program to date had demonstrated that more detailed regulations were not necessary to carry out the Agency's duties under RCRA 3004(u) and (v). 15 EPA did not withdraw the proposal with respect to two corrective action jurisdictional issues, because it concluded that those were issues about which the Agency had expressed concern regarding the status quo or raised questions that had not been definitively answered by the Agency. 16 The notice expressly contrasted those issues with the definition of hazardous waste or constituents, as to which EPA had not expressed concerns or raised questions that it had not definitively answered. 17

In December 2018, the New Mexico Environment Department issued a hazardous waste facility permit to Cannon Air Force Base under its RCRA-authorized hazardous waste authorities. 18 The permit, among other things, imposed corrective action requirements for perfluoroalkyl substances at the facility. Per- and polyfluoroalkyl substances (PFAS) are not listed or identified as hazardous wastes or hazardous constituents in EPA or New Mexico authorized regulations. In January 2019, the United States, on behalf of Air Force, challenged the permit in the Federal District Court for the District of New Mexico. In the complaint, the United States took the position that New Mexico's corrective action regulation—which mirrors the federal regulation—does not authorize corrective action for substances that are not listed or characteristic hazardous wastes under the State's regulations, even if they might be hazardous under the broader statutory definition. 19

The case caused EPA to take a fresh look at its regulations. 20 As further described below, EPA now recognizes that, as a result of EPA's decision not to make final the hazardous waste definition portion of the Subpart S proposal, EPA's corrective action regulation does not fully and clearly reflect the scope of corrective action as required by RCRA 3004(u) and (v)). This proposed regulation would better align the regulation with the statutory requirement.

On June 23, 2021, the Governor of New Mexico filed a petition with EPA requesting a timely listing of PFAS, as a class of chemicals, as hazardous wastes under the RCRA Subtitle C regulations, or in the alternative, a listing of individual PFAS chemicals as hazardous wastes under the regulations. 21 EPA acted upon the Governor of New Mexico's petition with an October 26, 2021, letter. EPA indicated in that letter that it would be initiating the rulemaking process for two rulemakings. 22 This proposal, along with EPA's proposal titled Listing of Specific PFAS as RCRA Hazardous Constituents, constitutes initiation of those rulemakings. While this proposed rule would not directly address PFAS, it would facilitate the use of RCRA corrective action authority to address emerging contaminants such as PFAS, as well as other non-regulatory hazardous waste, at RCRA permitted treatment, storage, and disposal facilities.

This proposed rule would amend the regulations applicable to RCRA treatment, storage, and disposal facilities in two related respects. First, it would amend the definition of hazardous waste applicable to corrective action. Specifically, it would amend the definition in § 260.10 to expressly apply the RCRA section 1004(5) statutory definition of hazardous waste to corrective action requirements under § 264.101 and 40 CFR part 264 Subpart S. Similarly, it would amend the identical definition in the hazardous waste facility permitting regulations, § 270.2, to expressly apply the statutory definition of hazardous waste to the requirements relating to corrective action in § 270.14(d). These proposed revisions would more clearly provide EPA authority to address, through corrective action for solid waste management units, releases of the full universe of substances that the statute intended—not only hazardous waste and hazardous constituents listed or identified in the regulations, but all substances that meet the definition of hazardous waste in RCRA section 1004(5) at a facility.

Second, this proposed rule would add RCRA sections 3004(u) and (v) and 3008(h) to the statutory authorities identified in § 261.1(b)(2). That section provides that the statutory definitions of solid and hazardous waste govern the scope of EPA's authority under certain sections of RCRA, not the more limited 40 CFR part 261 regulatory definitions. These revisions provide notice of and codify the Agency's interpretation of the statute—that it provides authority to address releases from solid waste management units of all substances that meet the definition of hazardous waste under the statute.

The definitions in 40 CFR 260.10 apply to 40 CFR parts 260 thru 273. The § 260.10 definition of hazardous waste refers to the definition in § 261.3 of the regulations, that is, the regulatory definition. Because the § 260.10 definition is the regulatory definition, when the Agency codified sections 3004(u) and (v) in § 264.101, the regulatory definition of hazardous waste became linked to solid waste management unit corrective action. That result is not consistent with EPA's longstanding interpretation of the scope of sections 3004(u) and (v).

That result also is not consistent with the direction EPA has provided to Corrective Action Program implementers, with EPA statements regarding its authority, or with implementation of the Corrective Action Program to date. As described above, the primary guidance for the Corrective Action Program—the 1990 Subpart S proposed rule and later the 1996 Subpart S ANPR—interpret EPA's authority under sections 3004(u) and (v) and 3008(h) as extending to releases of any substance that meets the statutory definition of hazardous waste. EPA has consistently maintained this interpretation. For example, in explaining a decision not to list used oil as hazardous waste, EPA observed that “[u]sed oils are subject to the corrective action requirements of RCRA subtitle C, including sections 3004(u) and (v) and 3008(h) . . .”  23 In addition, a July 24, 2002, final rule that, among other things, excluded hazardous secondary materials used to make zinc fertilizers from the regulatory definition of solid waste, again stated EPA's position that section 3004(u) uses the broader statutory definition of hazardous waste and is not limited by the regulatory definition. 24 More recently, the Agency PFAS Action Plan cited RCRA sections 3004(u) and (v) and section 3008(h) as potential authorities to use to address or prevent PFAS contamination. 25

EPA's model order developed for implementation of corrective action under section 3008(h) also relies on the statutory definition. 26 EPA and authorized States have included conditions in RCRA permits and section 3008(h) orders requiring corrective action to address substances that were not regulatory hazardous wastes or hazardous constituents. 27 Further, EPA has issued a limited number of RCRA permits that expressly apply the statutory hazardous waste definition to corrective action. 28

As discussed above, when the Agency issued the 1999 Federal Register notice withdrawing most provisions of the 1990 Subpart S proposed rule, EPA determined that those provisions were not necessary to carry out EPA's duties under RCRA sections 3004(u) and (v). EPA has now concluded, however, that the regulatory provision of the Subpart S proposal that would have expressly applied the statutory definition of hazardous waste to the regulatory corrective action requirements for solid waste management units is necessary to facilitate implementation of the Agency's full authority under the statute.

EPA has come to realize that despite clear statements regarding the Agency's interpretation of the term “hazardous waste” in section 3004(u), the 40 CFR part 264 regulations can cause difficulties for program implementers issuing permit conditions for corrective action. The applicability of the regulatory definition of hazardous waste to 40 CFR part 264 may create confusion and thereby invite challenges to corrective action permit conditions that address releases of substances not listed or identified in the regulations as hazardous waste or constituents. Moreover, as a matter of good government, EPA's regulation should accurately and clearly reflect the requirements of the implementing statute, as interpreted by EPA. Therefore, EPA is proposing  29 to modify the regulations in § 260.10 to make clear that the statutory definition of hazardous waste applies to corrective action for releases of hazardous waste from solid waste management units.

EPA also is proposing a conforming definitional amendment. Specifically, in § 270.2, EPA is proposing to expressly apply the statutory definition of hazardous waste to the permitting requirements in § 270.14(d), which support § 264.101. Section 270.14(d) sets forth the information that is required in permit applications for each solid waste management unit at a facility.

EPA's interpretation of RCRA sections 3004(u) and (v) implements the plain language of RCRA. “Hazardous waste” is a defined term, and RCRA section 3004(u) uses that term. This usage contrasts with other provisions of RCRA Subtitle C, whose scope is limited to hazardous waste identified or listed under Subtitle C. 30 While EPA has referred to its reading of RCRA section 3004(u) as an interpretation, it is arguably compelled by the language of the statute, since it simply applies the statutory definition to a term used in the provision. RCRA section 3004(v) does not expressly speak to the scope of corrective action required beyond the facility boundary, 31 but there is no textual or logical basis to believe that the phrase “corrective action” in that section means something other than the phrase as used in the preceding, simultaneously enacted section.

To the extent EPA's reading is not compelled, it is clearly the best reading of the statute. As used in RCRA, the phrase “hazardous waste” governs the scope of investigative and response authorities that are developed and applied on a case-by-case basis. In addition to section 3004(u), the phrase is used, among other places, in section 3008(h), to define the scope of EPA's authority to order corrective action at interim status facilities; section 3007, to define the scope of EPA's Subtitle C inspection and information gathering authorities; section 3013, to define the scope of EPA's Subtitle C authority to order monitoring, analysis, and testing; and section 7003, to define the scope of EPA's imminent hazard authority. As discussed briefly below, EPA codified its interpretation of “hazardous waste” as used in sections 3007, 3013, and 7003 decades ago. In contrast, the phrase “hazardous waste identified or listed” under Subtitle C is used to define the scope of the uniform regulatory requirements applicable to the generation, transportation, treatment, storage, and disposal of hazardous wastes that EPA has identified or listed by regulation, pursuant to RCRA section 3001.

In imposing corrective action requirements on a non-regulatory substance under the amended regulation, a permit writer would need to develop, and present for public comment, an administrative record supporting any conclusion that the substance meets or may meet the statutory hazardous waste definition, as briefly discussed below in Section IV.B of this preamble. Any final permit conditions would be subject to administrative and/or judicial challenge to the same extent as other permit conditions.

EPA solicits comment on its proposed revisions to the definition of hazardous waste in § 260.10 for purposes of corrective action.

Section 261.1(b)(2)  32 provides notice that the Agency's authority under sections 3007, 3013, and 7003 of RCRA is not limited to solid waste and hazardous waste identified in the regulations but extends to include solid and hazardous wastes under the definitions in the statute. This proposed rule would add RCRA sections 3004(u) and (v) and RCRA section 3008(h) to § 261.1(b)(2) to clarify that the statutory definitions of solid waste and hazardous waste apply to those RCRA sections as well.

EPA established § 261.1(b)(2), in a final rule issued in May 1980, 33 to avoid confusion on several points. The provision made clear that the scope of the Agency's authority under the statutory provisions identified in that section is determined by the statutory definitions of solid and hazardous waste, not by the 40 CFR part 261 definitions that govern the Subtitle C hazardous waste management program. With respect to the hazardous waste definition, EPA explained: “Unlike Sections 3002 through 3004 and Section 3010, Congress did not confine the operations of Sections 3007 and 7003  34 to “hazardous wastes ` identified or listed under this subtitle '. . . . To avoid future confusion on this point, EPA has stated it explicitly in § 261.1(b).”  35

Because § 261.1(b)(2)(i) identifies information-gathering authorities and § 261.1(b)(2)(ii) identifies remediation and other response authorities, and consequently a different level of finding is required under each of these sections, EPA is proposing to add sections 3004(u) and (v) and section 3008(h) to both sections.

Section 261.1(b)(2)(i) states that a material that is not a regulatory solid waste or a regulatory hazardous waste is still a solid waste and a hazardous waste for purposes of sections 3007 and 3013 if EPA has reason to believe that the material may be a solid waste within the meaning of 1004(27) or a hazardous waste within the meaning of section 1004(5). This provision describes EPA's authority to use the investigative and information gathering authorities provided in those statutory sections, which, among other things, enable EPA to gather information to determine if a substance is in fact a solid waste or a hazardous waste under the statute. Consistent with this regulatory text, EPA is proposing to add sections 3004(u) and (v) and section 3008(h) to the existing § 261.1(b)(2)(i) to explicitly state EPA's authority to impose requirements to implement the investigative stages of corrective action where the findings required by the provision are met. EPA would not rely solely on the findings described in this provision to require remediation activities.

Section 261.1(b)(2)(ii) states that a material is a solid waste and a hazardous waste for purposes of RCRA section 7003 if the statutory elements are established. This paragraph describes EPA's authority to require remediation activities or other response measures under this section where the statutory definition of solid waste or hazardous waste is established. EPA is proposing to add sections 3004(u) and (v) and section 3008(h) to existing § 261.1(b)(2)(ii) to explicitly state EPA's authority to require remediation activities beyond the investigative stages of corrective action where the findings required by that section are met.

EPA does not believe that the addition of sections 3004(u) and (v) and section 3008(h) to § 261.1(b) would impose additional requirements on facilities. As described above, these amendments to § 261.1(b) would provide clarity by expressly stating the Agency's statutory authority under the specific RCRA sections listed.

EPA solicits comment on the proposed revisions to § 261.1(b).

In developing this proposed rule, EPA anticipated how the rule might affect implementation of the Corrective Action Program, for example, whether it would increase the issuance of permit conditions to address releases of substances not identified or listed in the regulations, and/or whether it would redirect the program away from its current focus on releases of identified or listed substances. EPA does not expect these impacts.

EPA expects that the proposed rule would facilitate corrective action to address substances that meet the statutory definition of hazardous waste, but are not regulatory hazardous waste, by providing clear regulatory authority and would thereby minimize the likelihood of challenges to corrective action requirements. EPA does not, however, expect that an increase in permit conditions to address corrective action will be attributable to the regulatory authority proposed in this rule. EPA has long held the position that section 3004(u) provides authority to address statutory hazardous waste and, since 1990, has consistently instructed regional and State implementers that the corrective action authority reaches such waste. In addition, Corrective Action Program implementers have had authority to include corrective action conditions in permits either through State cleanup regulations or through the authority provided by § 270.32(b)(2), EPA's omnibus authority, and authorized State analogues. 36 In addition, as was discussed above, EPA has corrective action authority under section 3008(h) to address releases of statutory hazardous waste. Moreover, cleanup at RCRA treatment, storage, and disposal facilities also can be required or conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

In the process of developing this proposed rule, the Corrective Action Program gathered permits that impose corrective action requirements to address substances not listed or identified in the regulations as hazardous waste or constituents and found very few. EPA's understanding is that, although permit writers possess authority to require investigation and cleanup of substances that are not regulatory hazardous wastes or constituents, they have generally focused the Corrective Action Program on addressing releases of substances that are identified in the regulations. Given that the ability to address substances that are not regulatory hazardous waste has been available to program implementers in the past, EPA has no reason to expect that those substances, in general, would be addressed through corrective action more frequently in the future as a result of this proposed rule.

At the same time, EPA expects that the Agency's attention on addressing risks associated with PFAS  37 will likely result in additional corrective action to address releases of those substances. EPA also expects that such increased corrective action activity would be supported principally not by this rule, but by the companion rule that EPA is developing to list a set of those substances as hazardous constituents in 40 CFR part 261 Appendix VIII. 38

In the 1990 Subpart S proposed rule discussed above, EPA stated its belief that the use of the phrase “hazardous waste or constituents” in section 3004(u) indicates that Congress was particularly concerned that the Agency use its corrective action authority to address hazardous constituents and stated that the term “hazardous constituents” in section 3004(u) means those constituents found in 40 CFR part 261 Appendix VIII. 39 Thus, hazardous constituents listed on 40 CFR part 261 Appendix VIII are routinely assessed for and addressed as part of the corrective action process.

As a result of the PFAS Appendix VIII rulemaking, nine PFAS would be among the hazardous constituents expressly identified for consideration in RCRA facility assessments and investigations and, where necessary, cleanup through the corrective action process. EPA expects that this set of PFAS are those most likely to be addressed through corrective action, and that, if these specific PFAS are listed as hazardous constituents, corrective action to address those substances will be supported by their 40 CFR part 261 Appendix VIII listing, rather than the regulatory authority that would be provided by this proposed rule. EPA solicits comment on that expectation.

EPA also solicits comment on whether the potential impacts of this rulemaking may be affected by the availability of other authorities that program implementers might rely on to satisfy corrective action requirements to address PFAS at RCRA facilities including other RCRA authorities such as omnibus permitting authority and RCRA section 7003, and CERCLA.

As discussed above, EPA is proposing this rule to more clearly provide EPA authority to address, through RCRA corrective action for solid waste management units, releases of the full universe of substances that the statute intended. EPA believes that the regulations would, as a result of this rule, accurately reflect what the statute authorizes and requires, as interpreted by EPA. Finally, EPA believes that by providing clear regulatory authority, the proposed rule, if made final, would minimize the likelihood of challenges to corrective action requirements. EPA solicits comment on its understanding of the impact of this proposed rulemaking on its ability to effectively issue permit conditions to address statutory hazardous waste, and on whether there are possible alternatives that would achieve the benefits of this regulation, in light of the other actions and authorities described above.

EPA has presented this impacts discussion consistent with Executive Order 12866. The potential impacts of this rulemaking and the potential for associated benefits and costs do not form any part of the basis of EPA's decision to propose the amendments in this notice. As described above, the amendments proposed today implement the plain language of RCRA and reflect what EPA believes was Congress' intent as to the scope of RCRA sections 3004(u) and (v) and 3008(h). EPA believes its regulations should accurately reflect what the statute authorizes and requires, as interpreted by EPA. EPA's estimate as to the potential impact of the amendments is not relevant either to what Congress intended in enacting these provisions or to whether EPA's regulations should accurately reflect that intent. In any event, even if potential impacts were relevant to today's proposal, EPA would proceed with the proposed amendments because, as explained above, EPA does not expect that the rule would result in any impacts.

Under section 3006 of RCRA, EPA may authorize qualified States to administer their own hazardous waste programs in lieu of the federal program within the State. Following authorization, EPA retains enforcement authority under section 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found in 40 CFR part 271.

Prior to the enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA) and of the Hazardous Waste Electronic Manifest Establishment Act, 40 a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that State. The federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that State, since only the State was authorized to administer the program and issue RCRA permits. When new, more stringent federal requirements were promulgated, the State was obligated to adopt equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized State until the State adopted the federal requirements as State law.

In contrast, with the adoption of RCRA section 3006(g), which was added by HSWA, new requirements and prohibitions imposed under the HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed by section 3006(g) to implement HSWA based requirements and prohibitions in authorized States until the State is granted authorization to do so. While States must still adopt HSWA related provisions as State law to retain final authorization, EPA implements the HSWA provisions in authorized States until the States do so.

Authorized States are required to modify their programs when EPA promulgates federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the federal program (see also § 271.1). If EPA promulgates a federal requirement that is less stringent than an existing requirement, authorized States may, but are not required to, adopt the requirement regardless of whether it is a HSWA or a non-HSWA requirement.

The regulations proposed in this notice would be promulgated under the authority of HSWA. Thus, the standards would be applicable on the rule's effective date in all States and would be implemented by EPA until the States receive authorization.

Moreover, as stated in Section A above, authorized States are required to modify their programs when EPA promulgates federal regulations that are more stringent or broader in scope than the authorized State regulations. The revisions in this proposed rule are considered to be more stringent than the existing federal requirements. 41 Therefore, authorized States would be required to modify their programs to adopt regulations equivalent to the provisions contained in this proposed rule.

As discussed earlier in this preamble, although the regulatory provisions would be new, these proposed amendments are consistent with EPA's longstanding interpretation of the RCRA statute. States with authorized RCRA programs already may have regulations similar to those in this proposed rule. These State regulations have not been assessed against the Federal regulations proposed today to determine whether they meet the tests for authorization. Thus, even after promulgation of final rules, a State would not be authorized to implement these regulations as RCRA requirements until State program modifications are submitted to EPA and approved, pursuant to § 271.21. Of course, States with existing regulations that are more stringent than or broader in scope than existing Federal regulations may continue to administer and enforce their regulations as a matter of State law. In implementing the HSWA requirements, EPA will work with the States under agreements to avoid duplication of effort.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

Under section 3(f)(4) of Executive Order 12866, this action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to recommendations received as part of Executive Order 12866 review have been documented in the docket.

Additionally, EPA prepared an analysis of the potential costs and benefits associated with this action. This draft analysis, Economic Assessment for the Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units (Economic Assessment), is available in the docket for this action.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601, et seq. EPA projects zero direct costs to regulated entities associated with the proposed rule. As explained in Section V, EPA does not expect that the rule would result in any impacts. While this analysis finds that this rule would not change costs for the regulated community, any unexpected costs would be indirect costs. For a given facility, the specific corrective measures required to address any statutory hazardous waste would depend on several facility-specific factors to be considered by EPA or authorized State permitting authorities, including the extent and magnitude of contamination. Because cleanups associated with any statutory hazardous waste would be implemented by either EPA or an authorized State permitting authority under the general corrective action standard in § 264.101, which requires corrective action be instituted “as necessary to protect human health or the environment,” relevant corrective action cost impacts that may be incurred at certain TSDFs are considered indirect.

Because the proposed rule is not expected to result in any additional costs (including direct costs), it is also not expected to result in a significant economic impact for a substantial number of small entities. The number of small entities within the universe are estimated within the Economic Assessment for the Definition of Hazardous Waste Applicable to Corrective Action at Solid Waste Management Units. We have therefore concluded that this action will not have a significant regulatory burden for all directly regulated small entities. However, EPA solicits comment on its conclusion that the proposed rule would not result in any additional costs, including to small entities, along with any data bearing on that conclusion. Details of our economic analysis are presented in the Economic Assessment for the Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, available in the public docket for this action.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local or Tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications as specified in Executive Order 13175 because it does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. EPA does not expect that it would result in any adverse impacts on Tribal entities. Thus, Executive Order 13175 does not apply to this action.

Consistent with the EPA Policy on Consultation with Indian Tribes, EPA intends to coordinate with Tribal officials.

Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not deemed to be a significant regulatory action under section 3(f)(1) of Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Because the proposed rule is not expected to change the frequency, scale, or location of corrective action, EPA does not expect the proposed rule to result in, or reduce, disproportionate adverse impacts on children's health.

However, EPA's Policy on Children's Health applies to this action. Information on how the Policy was applied is available under “Children's Environmental Health” in the Economic Assessment, which is included in the docket for this rulemaking.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action proposes to amend the regulatory definition of hazardous waste applicable to corrective action to address releases from solid waste management units at RCRA-permitted treatment, storage, and disposal facilities and make related conforming amendments, and thus, does not involve the supply, distribution, or use of energy.

This rulemaking does not involve technical standards.

EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on communities with environmental justice concerns. 42 A screening analysis of six existing permitted facilities was conducted and revealed that two facilities appear to be sited such that EJ indices from EPA's EJScreen generally exceed the 70th percentile on both a State and national basis. This limited data and analysis indicate that conditions prior to a potential action could result in disproportionate and adverse human health or environmental effects to communities with environmental justice concerns.

EPA believes that this action is not likely to change existing disproportionate and adverse effects on people in communities with environmental justice concerns. As described in Chapter 3 of the Economic Assessment, EPA does not expect the proposed rule to change the frequency or scale of corrective action; further, EPA does not expect the proposed rule to alter the siting of RCRA treatment, storage, and disposal facilities in any way. Given that the ability to address substances that are not regulatory hazardous waste has been available to program implementers in the past, EPA has no reason to expect that those substances, in general, would be addressed through corrective action more frequently in the future as a result of this proposed rule.

For the reasons set out in the preamble, the Environmental Protection Agency proposes to amend 40 CFR parts 260, 261, and 270 as follows:

The following list is for reference only and is not exhaustive:

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2023-0278, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Proprietary Business Information (PBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about PBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

EPA continues to monitor information carefully and continuously from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

The purpose of this proposed rulemaking is to add nine PFAS, their salts, and their structural isomers, to the list of hazardous constituents in 40 CFR part 261 Appendix VIII (Appendix VIII). Entities potentially affected by this action include hazardous waste treatment, storage, and disposal facilities (TSDFs) with solid waste management units (SWMUs) that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents. EPA has identified 1,740 such facilities, which could be subject to additional corrective action requirements (pursuant to RCRA section 3004(u) and (v)) to address releases not already subject to corrective action pursuant to EPA's corrective action regulations.

The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide for readers to determine whether this action may affect them. For further details about the potentially affected universe of facilities, refer to Section 3.2 of the draft Economic Assessment of the Potential Costs, Benefits, and Other Impacts of the Proposed Rulemaking to List Specific PFAS as RCRA Hazardous Constituents (Ref. 41), which can be found in the public docket for this action. Potentially affected entities may include:

In the “Rules and Regulations” section of this Federal Register , the EPA is authorizing changes to the South Dakota program, in addition to codifying and incorporating by reference the State's hazardous waste program as a direct final rule. The EPA did not make a proposal prior to the direct final rule because we believe these actions are not controversial and do not expect comments that oppose them. We have explained the reasons for this authorization and incorporation by reference in the preamble to the direct final rule.

Unless EPA receives written comments that oppose the authorization and incorporation by reference during the comment period, the direct final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we get comments that oppose the authorization, we will withdraw the direct final rule and it will not take immediate effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time.

In the Federal Register of January 29, 2024, in FR Doc. 2024-01632, on page 5451, the following corrections are made:

1. In the first column, last paragraph, correct the Dates caption to read:

2. In the second column, second paragraph from the top, correct the For Further Information Contact caption to read:

The Commission is correcting the Preamble and Regulatory Flexibility Act sections of proposed rule FR Doc. 2024-01681 by correcting the docket number.

In FR Doc. 2024-01681 appearing on page 5440 in the Federal Register of Monday, January 29, 2024, the following corrections are made:

1. On page 5440, in the first column, in the Preamble, the Agency Docket Number is corrected to read as “[ET Docket No. 21-186; FCC 23-114; FR ID 198341]”.

2. On page 5440, in the third column, in SUPPLEMENTARY INFORMATION , the Regulatory Flexibility Act section is corrected to read as “The Commission seeks comment on potential rule and policy changes contained in the NPRM, and accordingly, has prepared an IRFA. The IRFA for this NPRM in ET Docket No. 21-186 is set forth below in this document and written public comments are requested. Comments must be filed by the deadlines for comments on the NPRM indicated under the DATES section of this document and must have a separate and distinct heading designating them as responses to the IRFA. The Commission reminds commenters to file in the appropriate docket: ET Docket No. 21-186.”

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ), in MB Docket No. 24-14; FCC 24-1, adopted on January 10, 2024 and released on January 17, 2024. The full text of this document is available for download at https://docs.fcc.gov/public/attachments/FCC-24-1A1.pdf .

To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

1. One of a broadcaster's fundamental public service obligations is to provide programming that is responsive to the needs and interests of its community of license. The Communications Act requires the Commission to determine, in the case of applications for licenses, “whether the public interest, convenience, and necessity will be served by granting such application.” The Commission has consistently interpreted this requirement to mean that licensees must air programming that serves their local community. The main studio and local program origination rules were originally adopted to ensure that broadcast stations fulfill their local service obligations. In furtherance of section 307(b) of the Communications Act of 1934, as amended (the Act), which requires the Commission to “make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide for a fair, efficient, and equitable distribution of radio service to each of the same,” each broadcast radio and television station is assigned to a community of license that it is obligated to serve. The main studio rule required stations to maintain the main studio in or near its community of license to facilitate interaction between the station and the local community it is licensed to serve. The Commission also required that the main studio have a “meaningful management and staff presence” to fulfill the main studio's function, and that the main studio be equipped with production and transmission facilities.

2. Locally originated programming was deemed an important element of a station's service obligations from the time location requirements for AM, FM, and TV broadcast stations were first adopted. As the main studio played a key role in the origination of a broadcast station's programming, its location in the community helped to ensure that the station could participate in community activities, that community members could participate in live programs, and that community residents could more easily present complaints or suggestions to the station. The Commission reasoned that interaction between the station and the community would help foster programming responsive to community needs and concerns.

3. In 2017, however, the Commission eliminated the main studio rule and the associated requirements that the main studio have full-time management and staff present during normal business hours, and that it have program origination capability. The Commission found that technological changes have “rendered local studios unnecessary” as a means for viewers and listeners to contact or access their local station. The Commission noted that most community members communicate with stations via email, station websites, telephone, or other means, rather than visiting a main studio, and that public inspection files can now be viewed on the Commission's Online Public Inspection File (OPIF) database. The Commission also found that there was no evidence that the physical location of a station's main studio is the reason broadcasters are able to deliver content that meets the needs and interests of the local community.

4. The elimination of the main studio rule and its associated requirements followed other, earlier steps taken by the Commission to reduce or eliminate regulations applicable to TV and radio broadcasters that were intended to reinforce the obligation of stations to provide programming responsive to community needs and interests. In its radio and television deregulation orders, the Commission eliminated its formal ascertainment and program log requirements and quantitative guidelines regarding the duration, type, and time of presentation of nonentertainment programming. While the Commission concluded generally that these requirements were no longer necessary or appropriate means to ensure station operation in the public interest, it reaffirmed the continuing obligation of all licensees to provide issue-responsive programming.

5. Currently, the Commission requires stations to prepare quarterly a list of programs that “have provided the most significant treatment of community issues.” The purpose of this requirement is to provide both the public and the Commission with information needed to monitor a licensee's performance in meeting its public interest obligation of providing programming that is responsive to its community. Our current rules require full-power radio and TV and Class A TV broadcasters to post these issues/programs lists on the station's OPIF. Further, as part of the broadcast station license renewal process, the Commission is required to find that “the station has served the public interest, convenience, and necessity” during its preceding license term.

6. To provide an additional incentive to stations to broadcast content responsive to the needs of the local community, particularly news and information, we propose to adopt a change in our application processing procedures that would benefit those radio and TV broadcasters that certify that they provide locally originated content. Specifically, when reviewing applications for renewal, transfer, or assignment of license, we propose to adopt a processing policy to prioritize evaluation of those applications filed by stations that certify that they provide locally originated programming. These applications would be the first to be reviewed, which would likely result in quicker action and, if the application is granted, quicker approval of these applications.

7. We tentatively conclude that our proposal to award priority application review to applicants that provide locally originated programming advances the Commission's longstanding policy goal of encouraging licensees to air programming that serves the needs and interests of their local community. We also tentatively conclude that the provision by a station of locally originated programming serves as a reasonable gauge of whether the station is serving the public interest by providing programming that is responsive to particular local needs. In addition, by focusing on where the programming is created, our proposal avoids having the Commission try to evaluate the content of a station's broadcasts to determine their local nature.

8. The Commission has recognized that programming does not have to be locally originated to have interest or value to audiences in any particular community and has suggested that locally originated content may not always be responsive to a community's needs or interests. But the corollary that some may read into those statements—that locally originated programming is not valuable enough to warrant Commission attention—goes too far. To the contrary, programming containing at least some locally sourced content appears quite likely to be responsive to local concerns and interests. We believe that the incentives behind the creation of local programming (including but not limited to financial incentives) tend to align local creators with the needs and interests of local audiences; evidence suggests that creators of local programming would be unlikely to expend time and financial resources on material that has little or no appeal to local listeners and viewers. We also recognize that the line between “local” and “non-local” is not always a sharp one; broadcasters may “localize” a state, national, or international issue by providing local commentary or local expert explanations on the probable effect of the issue on people within the station's signal contour. Such content plainly also serves local needs and interests. We seek comment on these views.

9. Accordingly, to the degree that the Main Studio Elimination Order could be read to the contrary, we tentatively conclude that locally originated programming usually reflects needs, interests, circumstances, or perspectives that may be quite pertinent to that community and that production of local broadcast programming remains a key consideration. We also question whether the Main Studio Elimination Order's predictive judgment—that the Commission's action there would foster creation of more and better local content—has actually come to pass. We invite comment on these views and request commenters to provide analysis and data in support of their positions. Under our proposal, licensees will continue to ultimately have the discretion to determine what mix of local and non-local programming will best serve the community. We tentatively conclude our proposal does not interfere with this discretion but merely offers an opportunity to licensees to obtain prioritized review of applications if they certify that they provide programming that is locally originated. We invite comment generally on these views.

10. We tentatively conclude that our proposal would apply only to those applications for which processing is not immediately available because the application has a hold, petition to deny, or other pending issue that requires further staff review. Applications without holds or other processing issues requiring additional staff review, also referred to here as “simple” applications, would be acted upon consistent with current routine processing procedures. In contrast, applications that have holds related to the applicant's failure to comply with Commission rules, or where petitions to deny or informal objections have been filed, generally require additional staff research and processing time before they can be processed. The amount of time it takes to process these types of applications is often dependent upon the number of applications pending before the Commission at any given time, the complexity of the issues involved, and the availability of Commission staff to process the applications in light of other agency priorities. With respect to these more “complex” applications, we propose that the staff first would consider those that are filed together with a certification that the station provides programming that is locally originated. We tentatively conclude this approach will not slow the review of “simple” applications that are otherwise grantable but will create a priority system for more “complex” applications that require further staff attention. We will not delay the processing of a “simple” application while a more “complex” application with a certification is pending. We seek comment on this approach.

11. We propose that the decision by a licensee to elect to certify that the station meets the local programming guideline be purely voluntary, and we seek comment on this proposal. With respect to those licensees that either cannot, or choose not, to provide a certification, the Commission staff will process the licensee's application pursuant to its normal procedures. Applications that do not include a certification will not be scrutinized or processed differently as a substantive matter than applications with a certification, other than the prioritization proposal discussed above.

12. While we do not propose at this time to extend our proposed application processing priority to modification applications, waiver requests, or requests for Special Temporary Authority (STA), we invite comment on whether these types of applications and requests should be included in our proposal herein. Based upon the experience of the Media's Bureaus licensing divisions, we note that the review time for these applications is generally more abbreviated than for renewals and transactions, and therefore such a prioritization may not be appreciably relevant. Despite this, should these, or other, kind of requests be treated in the same manner as renewal applications and applications for assignment and transfer of control for purposes of application processing priority?

13. Finally, we do not propose to offer priority application review, as outlined herein, to applications filed for radio translators or boosters or TV translators. Booster stations do not originate programming and translator stations may only originate a very limited amount of programming so the underlying purpose of the proposed processing policy— i.e., to further incentivize broadcast licensees to serve community needs and interests through production of locally originated programming—would not apply. Accordingly, we believe there would be minimal value, if any, in asking these stations to certify they provide locally originated programming content. As noted above, we tentatively conclude this approach will not slow the review of “simple” applications that are otherwise grantable. We seek comment on our proposals and findings.

14. Under our proposal, we would prioritize the review of applications filed by stations that provide locally originated programming. We invite comment on how we should define “local” for this purpose. The former main studio rule required each AM, FM, and television broadcast station to maintain a main studio that is located either: “(1) [w]ithin the station's community of license; (2) [a]t any location within the principal community contour of any AM, FM, or TV broadcast station licensed to the station's community of license; or (3) [w]ithin twenty-five miles from the reference coordinates of the center of its community of license as described in § 73.208(a)(1).” Should we define “locally originated” programing as programming originated within one or more of these geographic areas? One purpose of the former main studio rule was to ensure that the station complied with its local service obligations. Would adopting a definition of the geographic area in which “locally originated ” programming is created for purposes of priority application review in a manner similar to the geographic area used for the former main studio rule help ensure that this programming reflects the needs and interests of the local community? Should we instead define the “local” market as the station's service contour? As service contours generally encompass a larger geographic area than a station's community of license or principal community contour, this definition would give the station more flexibility with respect to where local programming could be originated. We invite comment generally on how to define the geographic area in which a program should be originated in order to qualify as “local” under our proposal herein. Should we define the local market differently for radio stations than for TV stations? Should we define the local market differently for low power TV stations than full power TV stations?

15. We also invite comment on how to define programming “originated” locally for purposes of qualifying for priority application review. We propose that any kind of activity involved in creating audio (radio) or video (TV) programming that occurs within the “local” market, as defined in this proceeding, would be sufficient. Local program origination could involve, for example, activities such as program scripting, recording (video or audio) at a studio or other location in the local market, or editing. Our proposed approach would include programming that contains video or audio recordings that were made at locations outside the local market, as long as the program also includes some other element of local creation. For particular programming that contains content made at locations outside the local market, should we establish a minimum amount of required locally originated programming? What other kinds of local activities should qualify as local program origination?

16. We note that, in the case of mutually exclusive applications for new Low Power FM (LPFM) stations, the Commission's rules favor the selection of applicants that pledge to provide at least eight hours of locally originated programming each day. The LPFM rules define “local origination” as “the production of programming by the licensee within ten miles of the coordinates of the proposed transmitting antenna” and provides the following examples of locally originated programming: “licensee produced call-in shows, music selected and played by a disc jockey present on site, broadcasts of events at local schools, and broadcasts of musical performances at a local studio or festival, whether recorded or live.” We propose that these kinds of programs and activities would qualify as locally originated programming for purposes of our proposed priority application review, and invite comment on this proposal. Are there other examples of locally originated programming we should provide?

17. We note that, in the LPFM context for resolving mutually exclusive applications, the rules require the locally originated programming to be produced by the licensee. We do not propose to adopt a similar requirement for this priority application review proposal. Thus, we propose that the locally originated content can be produced by a third party that is not the licensee. We invite comment on this approach.

18. The LPFM rules further provide that local origination “does not include the broadcast of repetitive or automated programs or time-shifted recordings of non-local programming whatever its source.” Should we exclude these kinds of programs and/or time-shifted recordings from the definition of local programming for purposes of priority application review? In addition, the LPFM rules provide that “local origination does not include a local program that has been broadcast twice, even if the licensee broadcasts the program on a different day or makes small variations in the program thereafter.” In adopting this restriction for LPFM, the Commission noted that local origination is a “central virtue” of that service and that there was “room for abuse” if repetitious, automated programs could count as locally originated. Should we adopt this same restriction on repetition of locally originated programming for purposes of priority application review? With respect to television stations, should we define “locally originated programming” for purposes of priority application review as programming containing simultaneous video and audio programming where the audio portion of the programming directly relates to the video portion of the program? This would mean that, for television applicants, video-only or audio-only programming would not count for purposes of obtaining priority application review. For television stations, would this restriction help ensure that locally originated programming contains the type of television services viewers expect TV stations to provide?

19. We propose to provide priority staff review to licensees that certify that the station(s) provides on average at least three hours per week of locally originated programming. We note that, to be eligible for Class A status, the CBPA required that low power TV stations, during the 90 days preceding the date of enactment of the statute, broadcast an average of at least three hours per week of programming produced within the “market area” served by the station. Should we adopt the same three-hour guideline for purposes of priority staff review? We note that under a three-hour per week criteria, stations on the air 24 hours per day seven days each week that air locally originated programming for just two minutes at the top of each hour would exceed a three-hour guideline. Should the guideline number be greater or less than three hours? Should it be prorated for stations that are on the air less than 24 hours per day? Should the amount be the same for radio and television stations? Should it be the same for commercial and non-commercial stations? Should applicants be required to have met the required amount of hours per week for a minimum number of days or weeks prior to filing of the application? If so, what would be an appropriate minimum number of days or weeks? As in the CBPA, would 90 days prior to the filing of the application be an appropriate timeframe? Should applicants also be required to continue to meet the required amount of hours per week while the subject application is pending? Should applicants be required to re-certify compliance while the application is pending? Should applicants also be required to continue to meet the required amount of hours per week for a minimum number of days or weeks after the application is granted? If so, what would be an appropriate minimum number of days or weeks?

20. We propose that the Media Bureau add a question to each FCC application form for which expedited processing would be made available ( e.g., each TV/radio renewal, transfer, and assignment application form) asking the licensee whether it certifies, under penalty of perjury, that the station(s) provides at least three hours per week of locally originated programming, consistent with the criteria adopted in this proceeding. We invite comment on this approach. We propose that, in the case of applications involving multiple stations (such as an application proposing the transfer or assignment of multiple stations), priority review be available only if the applicant certifies that every station included in the application meets the priority processing criteria, and invite comment on this proposal. Should we require the applicant to provide any additional information that would permit the Commission to review the certification, such as identifying the programs the applicant claims are locally originated?

21. Finally, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

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

23. Filing Requirements—Comments and Replies. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

24. During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

25. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, we have prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible impact of the rule changes proposed in this NPRM on small entities. Written public comments are requested on the IRFA. Comments must be filed by the deadlines for comments on the NPRM indicated on the first page of this document and must have a separate and distinct heading designating them as responses to the IRFA.

26. Providing Accountability Through Transparency Act. The Providing Accountability Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. Accordingly, the Commission will publish the required summary of this Notice of Proposed Rulemaking/Further Notice of Proposed Rulemaking on https://www.fcc.gov/proposed-rulemakings.

27. This document proposes new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens and pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, invites the general public and the Office of Management and Budget (OMB) to comment on these information collection requirements. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

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

29. In this NPRM, we propose to prioritize processing review of certain applications filed by commercial and noncommercial radio and television broadcast stations that provide locally originated programming. Our goal is to provide additional incentive to stations to provide programming that responds to the needs and interests of the communities they are licensed to serve. In 2017, the Commission eliminated the rule that required broadcast stations to maintain a main studio located in or near their community of license, as well as the associated requirement that the main studio have program origination capability. We propose this processing priority in order to further encourage radio and TV stations to serve their community of license with local journalism or other locally originated programming. Such prioritization would be granted to renewal applicants, as well as applicants for assignment or transfer of license, that certify they provide locally originated programming, thereby advancing our efforts to promote localism and serve local communities across the nation.

30. The NPRM also seeks comment on the Commission's proposal to exclude television translator and radio translator and booster stations from the proposed priority application review proposal and on whether its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority.

31. The proposed action is authorized pursuant to sections 1, 2, 4(i), 4(j), 303, 307, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 307, and 309.

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

33. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA'sOffice of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

34. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

35. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

36. Television Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies businesses having $41.5 million or less in annual receipts as small. 2017 U.S. Census Bureau data indicate that 744 firms in this industry operated for the entire year. Of that number, 657 firms had revenue of less than $25,000,000. Based on this data we estimate that the majority of television broadcasters are small entities under the SBA small business size standard.

37. As of March 31, 2023, there were 1,375 licensed commercial television stations. Of this total, 1,282 stations (or 93.2%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Media Access Pro Television Database (BIA) on April 7, 2023, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates as of March 31, 2023, there were 383 licensed noncommercial educational (NCE) television stations, 381 Class A TV stations, and 1,887 LPTV stations. The Commission, however, does not compile and otherwise does not have access to financial information for these television broadcast stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of these television station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

38. Radio Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in the station's own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies firms having $41.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 2,963 firms operated in this industry during that year. Of this number, 1,879 firms operated with revenue of less than $25 million per year. Based on this data and the SBA's small business size standard, we estimate a majority of such entities are small entities.

39. The Commission has estimated the number of licensed commercial radio stations to be 11,153 (4,472 commercial AM stations and 6,681 commercial FM stations). Of this total, 11,151 stations (or 99.98%) had revenues of $41.5 million or less in 2022, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on April 7, 2023, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates that as of March 31, 2023, the number of licensed noncommercial radio stations to be 4,219, and the number of LPFM Stations to be 1,999. The Commission however does not compile, and otherwise does not have access to financial information for these radio stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of radio station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

40. We note that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. This estimate, therefore, likely overstates the number of small entities that might be affected, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

41. We expect that the proposed rules set forth in the NPRM will impose new or additional filing, recordkeeping and reporting requirements for small and other entities. We note, however, that while the proposed rules will create additional compliance requirements, the NPRM also proposes that the decision by a licensee to elect to certify that the station meets the local programming guideline be purely voluntary. With respect to those small or other licensees that either cannot, or choose not, to provide a certification, the Commission staff will process the licensee's application pursuant to its normal procedures.

42. The NPRM proposes to provide priority in terms of processing review to applications filed by commercial and noncommercial radio and television broadcast stations that certify that they provide on average at least three hours per week of locally originated programming. The NPRM also seeks comment on whether applicants should also be required to re-certify compliance while the subject application is pending, and whether they should be required to continue to meet the required amount of hours per week for a minimum number of days or weeks after the application is granted. We propose that the Media Bureau add a question to each FCC application form for which expedited processing would be made available ( e.g., each TV/radio renewal, transfer, and assignment application form) asking the licensee whether it certifies, under penalty of perjury, that the station(s) provides at least three hours per week of locally originated programming, consistent with the criteria adopted in this proceeding. We also propose that, in the case of applications involving multiple stations, priority review be available only if the applicant certifies that every station included in the application meets the priority processing criteria. We invite comment on these proposals. We also seek comment on whether we should require applicants to provide any additional information that would permit the Commission to review the certification, such as identifying the programs the applicant claims are locally originated.

43. We propose that licensees that request priority staff review of an application(s) be required to certify, under penalty of perjury, that the station meets the criteria adopted in this proceeding. The NPRM seeks comment on whether we should require applicants to provide any additional information that would permit the Commission to review the certification, such as identifying the programs the applicant claims are locally originated. We expect that the information we receive in the comments will help the Commission identify and evaluate relevant compliance matters for small entities, including compliance costs and other burdens that may emerge as a result of the potential changes discussed in the NPRM.

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

45. The NPRM seeks comment generally on its proposal to provide priority staff review of applications filed by stations that certify that they provide an average of at least three hours per week of locally originated programming. The NPRM invites comment on whether this guideline is appropriate. We also invite comment on all the proposed approaches and on any alternatives, which will provide the Commission additional information on possible steps that can be taken to minimize any significant impact on small entities.

46. In an effort to minimize significant economic impact on small entities as a result of the proposals that are ultimately adopted, the NPRM makes clear that a station's participation in certifying that it meets the qualifications for priority application review is purely voluntary. A station may choose whether it wants to provide the additional information to qualify for prioritized review of its application and, should it decline to, would have its application processed pursuant to its normal procedures. Applications that do not include a certification will not be scrutinized or processed differently as a substantive matter than applications with a certification, other than the prioritization proposal discussed in the NPRM.

47. Finally, we do not propose to offer priority application review, as outlined herein, to applications filed for radio translators or boosters or TV translators. Booster stations do not originate programming and translator stations may only originate a very limited amount of programming so the underlying purpose of the proposed processing policy— i.e., to further incentivize broadcast licensees to serve community needs and interests through production of locally originated programming—would not apply. Accordingly, we believe there would be minimal value, if any, in asking these stations to certify they provide locally originated programming. We tentatively conclude that our prioritized processing approach will not slow the review of “simple” applications that are otherwise grantable.

48. None.

49. Accordingly, it is ordered that, pursuant to the authority found in sections 1, 2, 4(i), 4(j), 303, 307, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 307, and 309, this Notice of Proposed Rulemaking is adopted .

50. It is further ordered that the Office of the Secretary, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

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