[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Proposed Rules]
[Pages 5002-5187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00702]
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Vol. 87
Monday,
No. 20
January 31, 2022
Part II
Regulatory Information Service Center
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Introduction to the Unified Agenda of Federal Regulatory and
Deregulatory Actions--Fall 2021
Federal Register / Vol. 87 , No. 20 / Monday, January 31, 2022 /
Regulatory Plan
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REGULATORY INFORMATION SERVICE CENTER
Introduction to the Unified Agenda of Federal Regulatory and
Deregulatory Actions--Fall 2021
AGENCY: Regulatory Information Service Center.
ACTION: Introduction to the Regulatory Plan and the Unified Agenda of
Federal Regulatory and Deregulatory Actions.
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SUMMARY: Publication of the Fall 2021 Unified Agenda of Federal
Regulatory and Deregulatory Actions represents a key component of the
regulatory planning mechanism prescribed in Executive Order (``E.O.'')
12866, ``Regulatory Planning and Review,'' (58 FR 51735) and reaffirmed
in E.O. 13563, ``Improving Regulation and Regulatory Review,'' (76 FR
3821). The Regulatory Flexibility Act requires that agencies publish
semiannual regulatory agendas in the Federal Register describing
regulatory actions they are developing that may have a significant
economic impact on a substantial number of small entities (5 U.S.C.
602).
The Unified Agenda of Regulatory and Deregulatory Actions (Unified
Agenda), published in the fall and spring, helps agencies fulfill all
of these requirements. All federal regulatory agencies have chosen to
publish their regulatory agendas as part of this publication. The
complete Unified Agenda and Regulatory Plan can be found online at
www.reginfo.gov and a reduced print version can be found in the Federal
Register. Information regarding obtaining printed copies can also be
found on the Reginfo.gov website (or below, VI. How Can Users Get
Copies of the Plan and the Agenda?).
The Fall 2021 Unified Agenda publication appearing in the Federal
Register includes the Regulatory Plan and agency regulatory flexibility
agendas, in accordance with the publication requirements of the
Regulatory Flexibility Act. Agency regulatory flexibility agendas
contain only those Agenda entries for rules that are likely to have a
significant economic impact on a substantial number of small entities
and entries that have been selected for periodic review under section
610 of the Regulatory Flexibility Act.
The complete Fall 2021 Unified Agenda contains the Regulatory Plans
of 27 Federal agencies and 67 Federal agency regulatory agendas.
ADDRESSES: Regulatory Information Service Center (MR), General Services
Administration, 1800 F Street NW, Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT: For further information about specific
regulatory actions, please refer to the agency contact listed for each
entry. To provide comment on or to obtain further information about
this publication, contact: Boris Arratia, Director, Regulatory
Information Service Center (MR), General Services Administration, 1800
F Street NW, Washington, DC 20405, 703-795-0816. You may also send
comments to us by email at: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Introduction to the Regulatory Plan and the Unified Agenda of Federal
Regulatory and Deregulatory Actions
I. What are the Regulatory Plan and the Unified Agenda?
II. Why are the Regulatory Plan and the Unified Agenda published?
III. How are the Regulatory Plan and the Unified Agenda organized?
IV. What information appears for each entry?
V. Abbreviations
VI. How can users get copies of the Plan and the Agenda?
Introduction to the Fall 2021 Regulatory Plan
Agency Regulatory Plans
Cabinet Departments
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy
Department of Health and Human Services
Department of Homeland Security
Department of Housing and Urban Development
Department of the Interior
Department of Justice
Department of Labor
Department of Transportation
Department of the Treasury
Department of Veterans Affairs
Other Executive Agencies
Architectural and Transportation Barriers Compliance Board
Environmental Protection Agency
General Services Administration
National Aeronautics and Space Administration
National Archives and Records Administration
National Science Foundation
Office of Management and Budget
Office of Personnel Management
Pension Benefit Guaranty Corporation
Small Business Administration
Social Security Administration
Independent Regulatory Agencies
Consumer Product Safety Commission
Federal Trade Commission
National Indian Gaming Commission
Nuclear Regulatory Commission
Agency Agendas
Cabinet Departments
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy
Department of Health and Human Services
Department of Homeland Security
Department of the Interior
Department of Labor
Department of Transportation
Department of the Treasury
Other Executive Agencies
Committee for Purchase From People Who Are Blind or Severely
Disabled
Environmental Protection Agency
General Services Administration
Office of Management and Budget
Office of Personnel Management
Small Business Administration
Joint Authority
Department of Defense/General Services Administration/National
Aeronautics and Space Administration (Federal Acquisition
Regulation)
Independent Regulatory Agencies
Consumer Financial Protection Bureau
Consumer Product Safety Commission
Federal Communications Commission
Federal Reserve System
National Labor Relations Board
Nuclear Regulatory Commission
Securities and Exchange Commission
Surface Transportation Board
Introduction to the Regulatory Plan and the Unified Agenda of Federal
Regulatory and Deregulatory Actions
I. What are the Regulatory Plan and the Unified Agenda?
The Regulatory Plan serves as a defining statement of the
Administration's regulatory and deregulatory policies and priorities.
The Plan is part of the fall edition of the Unified Agenda. Each
participating agency's regulatory plan contains: (1) A narrative
statement of the agency's regulatory and deregulatory priorities, and,
for the most part, (2) a description of the most important significant
regulatory and deregulatory actions that the agency reasonably expects
to issue in proposed or final form during the upcoming fiscal year.
This edition includes the regulatory plans of 30 agencies.
The Unified Agenda provides information about regulations that the
Government is considering or reviewing. The Unified Agenda has appeared
in the Federal Register twice each year since 1983 and has been
available online since 1995. The complete Unified Agenda is available
to the public at www.reginfo.gov. The online Unified Agenda offers
flexible search tools and access to the historic
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Unified Agenda database to 1995. The complete online edition of the
Unified Agenda includes regulatory agendas from 65 Federal agencies.
Agencies of the United States Congress are not included.
The Fall 2021 Unified Agenda publication appearing in the Federal
Register consists of The Regulatory Plan and agency regulatory
flexibility agendas, in accordance with the publication requirements of
the Regulatory Flexibility Act. Agency regulatory flexibility agendas
contain only those Agenda entries for rules that are likely to have a
significant economic impact on a substantial number of small entities
and entries that have been selected for periodic review under section
610 of the Regulatory Flexibility Act. Printed entries display only the
fields required by the Regulatory Flexibility Act. Complete agenda
information for those entries appears, in a uniform format, in the
online Unified Agenda at www.reginfo.gov.
The following agencies have no entries for inclusion in the printed
regulatory flexibility agenda. An asterisk (*) indicates agencies that
appear in The Regulatory Plan. The regulatory agendas of these agencies
are available to the public at www.reginfo.gov.
Cabinet Departments
Department of Justice*
Department of Housing and Urban Development*
Department of State*
Department of Veterans Affairs*
Other Executive Agencies
Agency for International Development
Architectural and Transportation Barriers Compliance Board
Commission on Civil Rights
Corporation for National and Community Service
Council on Environmental Quality
Court Services and Offender Supervision Agency for the District of
Columbia
Federal Mediation Conciliation Service
Institute of Museum and Library Services
Inter-American Foundation
National Aeronautics and Space Administration*
National Archives and Records Administration*
National Endowment for the Arts
National Endowment for the Humanities
National Mediation Board
National Science Foundation
Office of Government Ethics
Office of National Drug Control Policy
Office of Personnel Management*
Peace Corps
Pension Benefit Guaranty Corporation*
Railroad Retirement Board*
Social Security Administration*
Tennessee Valley Authority
U.S. Agency for Global Media
Independent Agencies
Commodity Futures Trading Commission
Council of the Inspectors General on Integrity and Efficiency
Farm Credit Administration
Federal Deposit Insurance Corporation
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Maritime Commission
Federal Mine Safety and Health Review Commission
Federal Permitting Improvement Steering Council
Federal Trade Commission*
National Credit Union Administration
National Indian Gaming Commission*
National Labor Relations Board
National Transportation Safety Board
Postal Regulatory Commission
Council of the Inspectors General on Integrity and Efficiency
Farm Credit Administration
Federal Deposit Insurance Corporation
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Maritime Commission
Federal Mine Safety and Health Review Commission
Federal Trade Commission*
National Credit Union Administration
National Indian Gaming Commission*
National Labor Relations Board
National Transportation Safety Board
Postal Regulatory Commission
The Regulatory Information Service Center compiles the Unified
Agenda for the Office of Information and Regulatory Affairs (OIRA),
part of the Office of Management and Budget. OIRA is responsible for
overseeing the Federal Government's regulatory, paperwork, and
information resource management activities, including implementation of
Executive Order 12866 (incorporated in Executive Order 13563). The
Center also provides information about Federal regulatory activity to
the President and his Executive Office, the Congress, agency officials,
and the public.
The activities included in the Agenda are, in general, those that
will have a regulatory action within the next 12 months. Agencies may
choose to include activities that will have a longer timeframe than 12
months. Agency agendas also show actions or reviews completed or
withdrawn since the last Unified Agenda. Executive Order 12866 does not
require agencies to include regulations concerning military or foreign
affairs functions or regulations related to agency organization,
management, or personnel matters.
Agencies prepared entries for this publication to give the public
notice of their plans to review, propose, and issue regulations. They
have tried to predict their activities over the next 12 months as
accurately as possible, but dates and schedules are subject to change.
Agencies may withdraw some of the regulations now under development,
and they may issue or propose other regulations not included in their
agendas. Agency actions in the rulemaking process may occur before or
after the dates they have listed. The Regulatory Plan and Unified
Agenda do not create a legal obligation on agencies to adhere to
schedules in this publication or to confine their regulatory activities
to those regulations that appear within it.
II. Why are the Regulatory Plan and the Unified Agenda published?
The Regulatory Plan and the Unified Agenda helps agencies comply
with their obligations under the Regulatory Flexibility Act and various
Executive orders and other statutes.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires agencies to identify those
rules that may have a significant economic impact on a substantial
number of small entities (5 U.S.C. 602). Agencies meet that requirement
by including the information in their submissions for the Unified
Agenda. Agencies may also indicate those regulations that they are
reviewing as part of their periodic review of existing rules under the
Regulatory Flexibility Act (5 U.S.C. 610). Executive Order 13272,
``Proper Consideration of Small Entities in Agency Rulemaking,'' signed
August 13, 2002 (67 FR 53461), provides additional guidance on
compliance with the Act.
Executive Order 12866
Executive Order 12866, ``Regulatory Planning and Review,''
September 30, 1993 (58 FR 51735), requires covered agencies to prepare
an agenda of all regulations under development or review. The Order
also requires that certain agencies prepare annually a regulatory plan
of their ``most important significant regulatory actions,'' which
appears as part of the fall Unified Agenda. Executive Order 13497,
signed January 30, 2009 (74 FR 6113), revoked the amendments to
Executive Order 12866 that were contained in Executive Order 13258 and
Executive Order 13422.
Executive Order 13563
Executive Order 13563, ``Improving Regulation and Regulatory
Review,''
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January 18, 2011 (76 FR 3821) supplements and reaffirms the principles,
structures, and definitions governing contemporary regulatory review
that were established in Executive Order 12866, which includes the
general principles of regulation and public participation, and orders
integration and innovation in coordination across agencies; flexible
approaches where relevant, feasible, and consistent with regulatory
approaches; scientific integrity in any scientific or technological
information and processes used to support the agencies' regulatory
actions; and retrospective analysis of existing regulations.
Executive Order 13132
Executive Order 13132, ``Federalism,'' August 4, 1999 (64 FR
43255), directs agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have ``federalism
implications'' as defined in the Order. Under the Order, an agency that
is proposing a regulation with federalism implications, which either
preempt State law or impose non-statutory unfunded substantial direct
compliance costs on State and local governments, must consult with
State and local officials early in the process of developing the
regulation. In addition, the agency must provide to the Director of the
Office of Management and Budget a federalism summary impact statement
for such a regulation, which consists of a description of the extent of
the agency's prior consultation with State and local officials, a
summary of their concerns and the agency's position supporting the need
to issue the regulation, and a statement of the extent to which those
concerns have been met. As part of this effort, agencies include in
their submissions for the Unified Agenda information on whether their
regulatory actions may have an effect on the various levels of
government and whether those actions have federalism implications.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, title II)
requires agencies to prepare written assessments of the costs and
benefits of significant regulatory actions ``that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more in any 1 year.'' The
requirement does not apply to independent regulatory agencies, nor does
it apply to certain subject areas excluded by section 4 of the Act.
Affected agencies identify in the Unified Agenda those regulatory
actions they believe are subject to title II of the Act.
Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' May 18,
2001 (66 FR 28355), directs agencies to provide, to the extent
possible, information regarding the adverse effects that agency actions
may have on the supply, distribution, and use of energy. Under the
Order, the agency must prepare and submit a Statement of Energy Effects
to the Administrator of the Office of Information and Regulatory
Affairs, Office of Management and Budget, for ``those matters
identified as significant energy actions.'' As part of this effort,
agencies may optionally include in their submissions for the Unified
Agenda information on whether they have prepared or plan to prepare a
Statement of Energy Effects for their regulatory actions.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (Pub. L.
104-121, title II) established a procedure for congressional review of
rules (5 U.S.C. 801 et seq.), which defers, unless exempted, the
effective date of a ``major'' rule for at least 60 days from the
publication of the final rule in the Federal Register. The Act
specifies that a rule is ``major'' if it has resulted, or is likely to
result, in an annual effect on the economy of $100 million or more or
meets other criteria specified in that Act. The Act provides that the
Administrator of OIRA will make the final determination as to whether a
rule is major.
III. How are the Regulatory Plan and the Unified Agenda organized?
The Regulatory Plan appears in part II in a daily edition of the
Federal Register. The Plan is a single document beginning with an
introduction, followed by a table of contents, followed by each
agency's section of the Plan. Following the Plan in the Federal
Register, as separate parts, are the regulatory flexibility agendas for
each agency whose agenda includes entries for rules which are likely to
have a significant economic impact on a substantial number of small
entities or rules that have been selected for periodic review under
section 610 of the Regulatory Flexibility Act. Each printed agenda
appears as a separate part. The sections of the Plan and the parts of
the Unified Agenda are organized alphabetically in four groups: Cabinet
departments; other executive agencies; the Federal Acquisition
Regulation, a joint authority (Agenda only); and independent regulatory
agencies. Agencies may in turn be divided into subagencies. Each
printed agency agenda has a table of contents listing the agency's
printed entries that follow. Each agency's part of the Agenda contains
a preamble providing information specific to that agency. Each printed
agency agenda has a table of contents listing the agency's printed
entries that follow.
Each agency's section of the Plan contains a narrative statement of
regulatory priorities and, for most agencies, a description of the
agency's most important significant regulatory and deregulatory
actions. Each agency's part of the Agenda contains a preamble providing
information specific to that agency plus descriptions of the agency's
regulatory and deregulatory actions.
The online, complete Unified Agenda contains the preambles of all
participating agencies. Unlike the printed edition, the online Agenda
has no fixed ordering. In the online Agenda, users can select the
particular agencies' agendas they want to see. Users have broad
flexibility to specify the characteristics of the entries of interest
to them by choosing the desired responses to individual data fields. To
see a listing of all of an agency's entries, a user can select the
agency without specifying any particular characteristics of entries.
Each entry in the Agenda is associated with one of five rulemaking
stages. The rulemaking stages are:
1. Prerule Stage--actions agencies will undertake to determine
whether or how to initiate rulemaking. Such actions occur prior to a
Notice of Proposed Rulemaking (NPRM) and may include Advance Notices of
Proposed Rulemaking (ANPRMs) and reviews of existing regulations.
2. Proposed Rule Stage--actions for which agencies plan to publish
a Notice of Proposed Rulemaking as the next step in their rulemaking
process or for which the closing date of the NPRM Comment Period is the
next step.
3. Final Rule Stage--actions for which agencies plan to publish a
final rule or an interim final rule or to take other final action as
the next step.
4. Long-Term Actions--items under development but for which the
agency does not expect to have a regulatory action within the 12 months
after publication of this edition of the Unified Agenda. Some of the
entries in this section may contain abbreviated information.
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5. Completed Actions--actions or reviews the agency has completed
or withdrawn since publishing its last agenda. This section also
includes items the agency began and completed between issues of the
Agenda.
6. Long-Term Actions--are rulemakings reported during the
publication cycle that are outside of the required 12-month reporting
period for which the Agenda was intended. Completed Actions in the
publication cycle are rulemakings that are ending their lifecycle
either by Withdrawal or completion of the rulemaking process.
Therefore, the Long-Term and Completed RINs do not represent the
ongoing, forward-looking nature intended for reporting developing
rulemakings in the Agenda pursuant to Executive Order 12866, section
4(b) and 4(c). To further differentiate these two stages of rulemaking
in the Unified Agenda from active rulemakings, Long-Term and Completed
Actions are reported separately from active rulemakings, which can be
any of the first three stages of rulemaking listed above. A separate
search function is provided on www.reginfo.gov to search for Completed
and Long-Term Actions apart from each other and active RINs.
A bullet () preceding the title of an entry indicates that
the entry is appearing in the Unified Agenda for the first time.
In the printed edition, all entries are numbered sequentially from
the beginning to the end of the publication. The sequence number
preceding the title of each entry identifies the location of the entry
in this edition. The sequence number is used as the reference in the
printed table of contents. Sequence numbers are not used in the online
Unified Agenda because the unique Regulation Identifier Number (RIN) is
able to provide this cross-reference capability.
Editions of the Unified Agenda prior to fall 2007 contained several
indexes, which identified entries with various characteristics. These
included regulatory actions for which agencies believe that the
Regulatory Flexibility Act may require a Regulatory Flexibility
Analysis, actions selected for periodic review under section 610(c) of
the Regulatory Flexibility Act, and actions that may have federalism
implications as defined in Executive Order 13132 or other effects on
levels of government. These indexes are no longer compiled, because
users of the online Unified Agenda have the flexibility to search for
entries with any combination of desired characteristics. The online
edition retains the Unified Agenda's subject index based on the Federal
Register Thesaurus of Indexing Terms. In addition, online users have
the option of searching Agenda text fields for words or phrases.
IV. What information appears for each entry?
All entries in the online Unified Agenda contain uniform data
elements including, at a minimum, the following information:
Title of the Regulation--a brief description of the subject of the
regulation. In the printed edition, the notation ``Section 610 Review''
following the title indicates that the agency has selected the rule for
its periodic review of existing rules under the Regulatory Flexibility
Act (5 U.S.C. 610(c)). Some agencies have indicated completions of
section 610 reviews or rulemaking actions resulting from completed
section 610 reviews. In the online edition, these notations appear in a
separate field.
Priority--an indication of the significance of the regulation.
Agencies assign each entry to one of the following five categories of
significance.
(1) Economically Significant
As defined in Executive Order 12866, a rulemaking action that will
have an annual effect on the economy of $100 million or more or will
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. The definition of an ``economically significant'' rule is
similar but not identical to the definition of a ``major'' rule under 5
U.S.C. 801 (Pub. L. 104-121). (See below.)
(2) Other Significant
A rulemaking that is not Economically Significant but is considered
Significant by the agency. This category includes rules that the agency
anticipates will be reviewed under Executive Order 12866 or rules that
are a priority of the agency head. These rules may or may not be
included in the agency's regulatory plan.
(3) Substantive, Nonsignificant
A rulemaking that has substantive impacts, but is neither
Significant, nor Routine and Frequent, nor Informational/
Administrative/Other.
(4) Routine and Frequent
A rulemaking that is a specific case of a multiple recurring
application of a regulatory program in the Code of Federal Regulations
and that does not alter the body of the regulation.
(5) Informational/Administrative/Other
A rulemaking that is primarily informational or pertains to agency
matters not central to accomplishing the agency's regulatory mandate
but that the agency places in the Unified Agenda to inform the public
of the activity.
Major--whether the rule is ``major'' under 5 U.S.C. 801 (Pub. L.
104-121) because it has resulted or is likely to result in an annual
effect on the economy of $100 million or more or meets other criteria
specified in that Act. The Act provides that the Administrator of the
Office of Information and Regulatory Affairs will make the final
determination as to whether a rule is major.
Unfunded Mandates--whether the rule is covered by section 202 of
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The Act
requires that, before issuing an NPRM likely to result in a mandate
that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector of more than
$100 million in 1 year, agencies, other than independent regulatory
agencies, shall prepare a written statement containing an assessment of
the anticipated costs and benefits of the Federal mandate.
Legal Authority--the section(s) of the United States Code (U.S.C.)
or Public Law (Pub. L.) or the Executive order (E.O.) that authorize(s)
the regulatory action. Agencies may provide popular name references to
laws in addition to these citations.
CFR Citation--the section(s) of the Code of Federal Regulations
that will be affected by the action.
Legal Deadline--whether the action is subject to a statutory or
judicial deadline, the date of that deadline, and whether the deadline
pertains to an NPRM, a Final Action, or some other action.
Abstract--a brief description of the problem the regulation will
address; the need for a Federal solution; to the extent available,
alternatives that the agency is considering to address the problem; and
potential costs and benefits of the action.
Timetable--the dates and citations (if available) for all past
steps and a projected date for at least the next step for the
regulatory action. A date displayed in the form 12/00/19 means the
agency is predicting the month and year the action will take place but
not the day it will occur. In some instances, agencies may indicate
what the next action will be, but the date of that action is ``To Be
Determined.'' ``Next Action Undetermined'' indicates the agency does
not know what action it will take next.
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Regulatory Flexibility Analysis Required--whether an analysis is
required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
because the rulemaking action is likely to have a significant economic
impact on a substantial number of small entities as defined by the Act.
Small Entities Affected--the types of small entities (businesses,
governmental jurisdictions, or organizations) on which the rulemaking
action is likely to have an impact as defined by the Regulatory
Flexibility Act. Some agencies have chosen to indicate likely effects
on small entities even though they believe that a Regulatory
Flexibility Analysis will not be required.
Government Levels Affected--whether the action is expected to
affect levels of government and, if so, whether the governments are
State, local, tribal, or Federal.
International Impacts--whether the regulation is expected to have
international trade and investment effects, or otherwise may be of
interest to the Nation's international trading partners.
Federalism--whether the action has ``federalism implications'' as
defined in Executive Order 13132. This term refers to actions ``that
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.''
Independent regulatory agencies are not required to supply this
information.
Included in the Regulatory Plan--whether the rulemaking was
included in the agency's current regulatory plan published in fall
2021.
Agency Contact--the name and phone number of at least one person in
the agency who is knowledgeable about the rulemaking action. The agency
may also provide the title, address, fax number, email address, and TDD
for each agency contact.
Some agencies have provided the following optional information:
RIN Information URL--the internet address of a site that provides
more information about the entry.
Public Comment URL--the internet address of a site that will accept
public comments on the entry.
Alternatively, timely public comments may be submitted at the
Governmentwide e-rulemaking site, www.regulations.gov.
Additional Information--any information an agency wishes to include
that does not have a specific corresponding data element.
Compliance Cost to the Public--the estimated gross compliance cost
of the action.
Affected Sectors--the industrial sectors that the action may most
affect, either directly or indirectly. Affected sectors are identified
by North American Industry Classification System (NAICS) codes.
Energy Effects--an indication of whether the agency has prepared or
plans to prepare a Statement of Energy Effects for the action, as
required by Executive Order 13211 ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' signed May
18, 2001 (66 FR 28355).
Related RINs--one or more past or current RIN(s) associated with
activity related to this action, such as merged RINs, split RINs, new
activity for previously completed RINs, or duplicate RINs.
Statement of Need--a description of the need for the regulatory
action.
Summary of the Legal Basis--a description of the legal basis for
the action, including whether any aspect of the action is required by
statute or court order.
Alternatives--a description of the alternatives the agency has
considered or will consider as required by section 4(c)(1)(B) of
Executive Order 12866.
Anticipated Costs and Benefits--a description of preliminary
estimates of the anticipated costs and benefits of the action.
Risks--a description of the magnitude of the risk the action
addresses, the amount by which the agency expects the action to reduce
this risk, and the relation of the risk and this risk reduction effort
to other risks and risk reduction efforts within the agency's
jurisdiction.
V. Abbreviations
The following abbreviations appear throughout this publication:
ANPRM--An Advance Notice of Proposed Rulemaking is a preliminary
notice, published in the Federal Register, announcing that an agency is
considering a regulatory action. An agency may issue an ANPRM before it
develops a detailed proposed rule. An ANPRM describes the general area
that may be subject to regulation and usually asks for public comment
on the issues and options being discussed. An ANPRM is issued only when
an agency believes it needs to gather more information before
proceeding to a notice of proposed rulemaking.
CFR--The Code of Federal Regulations is an annual codification of
the general and permanent regulations published in the Federal Register
by the agencies of the Federal Government. The Code is divided into 50
titles, each title covering a broad area subject to Federal regulation.
The CFR is keyed to and kept up to date by the daily issues of the
Federal Register.
E.O.--An Executive order is a directive from the President to
Executive agencies, issued under constitutional or statutory authority.
Executive orders are published in the Federal Register and in title 3
of the Code of Federal Regulations.
FR--The Federal Register is a daily Federal Government publication
that provides a uniform system for publishing Presidential documents,
all proposed and final regulations, notices of meetings, and other
official documents issued by Federal agencies.
FY--The Federal fiscal year runs from October 1 to September 30.
NPRM--A Notice of Proposed Rulemaking is the document an agency
issues and publishes in the Federal Register that describes and
solicits public comments on a proposed regulatory action. Under the
Administrative Procedure Act (5 U.S.C. 553), an NPRM must include, at a
minimum: A statement of the time, place, and nature of the public
rulemaking proceeding.
Legal Authority--A reference to the legal authority under which the
rule is proposed; and either the terms or substance of the proposed
rule or a description of the subjects and issues involved.
Pub. L.--A public law is a law passed by Congress and signed by the
President or enacted over his veto. It has general applicability,
unlike a private law that applies only to those persons or entities
specifically designated. Public laws are numbered in sequence
throughout the 2-year life of each Congress; for example, Public Law
112-4 is the fourth public law of the 112th Congress.
RFA--A Regulatory Flexibility Analysis is a description and
analysis of the impact of a rule on small entities, including small
businesses, small governmental jurisdictions, and certain small not-
for-profit organizations. The Regulatory Flexibility Act (5 U.S.C. 601
et seq.) requires each agency to prepare an initial RFA for public
comment when it is required to publish an NPRM and to make available a
final RFA when the final rule is published, unless the agency head
certifies that the rule would not have a significant economic impact on
a substantial number of small entities.
RIN--The Regulation Identifier Number is assigned by the Regulatory
Information Service Center to identify
[[Page 5007]]
each regulatory action listed in the Regulatory Plan and the Unified
Agenda, as directed by Executive Order 12866 (section 4(b)).
Additionally, OMB has asked agencies to include RINs in the headings of
their Rule and Proposed Rule documents when publishing them in the
Federal Register, to make it easier for the public and agency officials
to track the publication history of regulatory actions throughout their
development.
Seq. No.--The sequence number identifies the location of an entry
in the printed edition of the Regulatory Plan and the Unified Agenda.
Note that a specific regulatory action will have the same RIN
throughout its development but will generally have different sequence
numbers if it appears in different printed editions of the Unified
Agenda. Sequence numbers are not used in the online Unified Agenda.
U.S.C.--The United States Code is a consolidation and codification
of all general and permanent laws of the United States. The U.S.C. is
divided into 50 titles, each title covering a broad area of Federal
law.
VI. How can users get copies of the Plan and the Agenda?
Copies of the Federal Register issue containing the printed edition
of The Regulatory Plan and the Unified Agenda (agency regulatory
flexibility agendas) are available from the Superintendent of
Documents, U.S. Government Publishing Office, P.O. Box 371954,
Pittsburgh, PA 15250-7954.
Telephone: (202) 512-1800 or 1-866-512-1800 (toll-free).
Copies of individual agency materials may be available directly
from the agency or may be found on the agency's website. Please contact
the particular agency for further information.
All editions of The Regulatory Plan and the Unified Agenda of
Federal Regulatory and Deregulatory Actions since fall 1995 are
available in electronic form at www.reginfo.gov, along with flexible
search tools.
The Government Publishing Office's GPO GovInfo website contains
copies of the Agendas and Regulatory Plans that have been printed in
the Federal Register. These documents are available at www.govinfo.gov.
Dated: December 7, 2021.
Boris Arratia,
Director.
Introduction to the Fall 2021 Regulatory Plan
Executive Order 12866, issued in 1993, requires the annual
production of a Unified Regulatory Agenda and Regulatory Plan. It does
so in order to promote transparency--or in the words of the Executive
Order itself, ``to have an effective regulatory program, to provide for
coordination of regulations, to maximize consultation and the
resolution of potential conflicts at an early stage, to involve the
public and its State, local, and tribal officials in regulatory
planning, and to ensure that new or revised regulations promote the
President's priorities and the principles set forth in this Executive
order.'' The requirements of Executive Order 12866 were reaffirmed in
Executive Order 13563, issued in 2011.
We are now providing the first Regulatory Plan of the Biden-Harris
Administration for public scrutiny and review. The regulatory plans and
agendas submitted by agencies and included here offer blueprints for
how the Administration plans to continue delivering on the President's
agenda as we build back better. This agenda is fully consistent with
the priorities outlined by the President as reflected in his executive
orders and our previous regulatory agenda. We are proud to shine a
light on the regulatory agenda as a way to share with the public how
the themes of equity, prosperity and public health cut across
everything we do to improve the lives of the American people.
These new plans build on significant progress the Administration
has already made advancing our priorities and proving that our
Government can deliver results--from confronting the pandemic, to
creating a stronger and fairer economy, to addressing climate change
and advancing equity. For example, since releasing the spring
regulatory agenda, we have proposed or finalized regulatory protections
to:
Protect the Public from COVID--The Centers for Disease
Control and Prevention (CDC) issued orders requiring all people to wear
face masks while on public transportation and in transportation hubs.
In addition, CDC issued Global Testing Orders for all international air
travelers, strengthening protocols to protect travelers and the health
and safety of American communities.
Combat Housing Discrimination. Following President Biden's
Presidential Memorandum directing his Administration to address racial
discrimination in the housing market, the Department of Housing and
Urban Development (HUD) published an interim final rule requiring HUD
funding recipients to affirmatively further fair housing, including by
completing an assessment of fair housing issues, identifying fair
housing priorities and goals, and then committing to meaningful actions
to meet those goals and remedy identified issues.
Tackle the Climate Crisis. The Environmental Protection
Agency (EPA) took an important step forward to advance President
Biden's commitment to action on climate change and protect people's
health by proposing comprehensive new protections to sharply reduce
pollution from the oil and natural gas industry--including, for the
first time, reductions from existing sources nationwide. The proposed
new Clean Air Act rule would lead to significant, cost-effective
reductions in methane emissions and other health-harming air pollutants
that endanger nearby communities.
Improve Pipeline Safety and Environmental Standards. In a
major step to enhance and modernize pipeline safety and environmental
standards, the Department of Transportation issued a final rule that--
for the first time--applies federal pipeline safety regulations to tens
of thousands of miles of unregulated gas gathering pipelines. This rule
will improve safety, reduce greenhouse gas emissions, and result in
more jobs for pipeline workers that are needed to help upgrade the
safety and operations of these lines.
In addition to these significant actions, the Administration has
also made key progress advancing another core objective: Effectively
implementing the American Rescue Plan (ARP). Since the ARP went into
effect in March, the Administration has promulgated 17 proposed and 32
final rules to get much needed relief to the communities across the
countries efficiently and equitably. For example:
The Department of Education established requirements to
ensure that state and local educational agencies consult members of the
public in determining how to use school emergency relief funds, and
develop plans for a safe return to in-person instruction.
The Department of Housing and Urban Development finalized
a rule so the agency could require that operators of project-based
rental assistance housing (such as Section 8) notify tenants of the
availability of emergency rent relief, and give tenants time to secure
that relief.
The Small Business Administration finalized a rule to
deliver much needed support to small business by streamlining
forgiveness of small loans under the Paycheck Protection Program (a
program extended by the ARP Act).
In this agenda, we are adding important new measures under
[[Page 5008]]
consideration to advance additional Administration priorities,
including:
Uncovering Hidden Airline Service Fees. The Department of
Transportation plans to better protect consumers and improve
competition by ensuring that consumers have ancillary fee information,
including ``baggage fees,'' ``change fees,'' and ``cancellation fees''
at the time of ticket purchase. The Department also plans to examine
whether fees for certain ancillary services should be disclosed at the
first point in a search process where a fare is listed.
Stopping Super-Pollutants. The EPA is considering
restricting--fully, partially, or on a graduated schedule--the use of
Hydrofluorocarbons (HFCs) in sectors or subsectors including the
refrigeration, air conditioning, aerosol, and foam sectors. HFCs are
potent greenhouse gases found in a range of appliances and substances,
including refrigerators, air conditioners and foams, and have an impact
on warming our climate that is hundreds to thousands of times greater
than the same amount of carbon dioxide.
Transitioning Toward Zero-Emission Technologies. The EPA
plans to strengthen greenhouse gas emission standards for light- and
heavy-duty vehicles, with an eye towards encouraging automakers to
transition to zero-emission technologies. If implemented, the new
standards would save consumers money, cut pollution, boost public
health, advance environmental justice, and tackle the climate crisis.
Lowering Mental Health and Substance Use Treatment Costs.
The Department of Labor, Department of Health and Human Services, and
Department of Treasury are considering changes to clarify health
insurance plans' and issuers' obligations to cover mental health and
substance use treatment in light of new legislative enactments and
experience implementing the MHPAEA law since the last relevant
rulemaking in 2014.
Increasing Access for People With Disabilities. As part of
the Administration's commitment to equity, the Department of Justice is
exploring a new rule to ensure that individuals with disabilities can
use sidewalks and other pedestrian facilities.
Between this regulatory agenda and the next in spring 2022,
agencies will also be developing plans for implementing the
Infrastructure Investment and Jobs Act (IIJA), historic legislation to
rebuild crumbling infrastructure, create good paying jobs, and grow our
economy. These plans will provide greater detail on how agencies will
administer new IIJA programs in a manner that delivers meaningful
results to all Americans, strengthens American manufacturing, and
advances climate resilience. These plans will provide an opportunity
for the public to be partners in the implementation of the IIJA--and
all government programs. Public engagement in IIJA implementation can
only make it better and more responsive to what our families and
communities most need.
Department of Agriculture
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
1............................. Poultry Grower Ranking 0581-AE03 Proposed Rule Stage.
Systems (AMS-FTPP-21-
0044).
2............................. Clarification of Scope of 0581-AE04 Proposed Rule Stage.
the Packers and
Stockyards Act (AMS-FTPP-
21-0046).
3............................. Unfair Practices in 0581-AE05 Proposed Rule Stage.
Violation of the Packers
and Stockyards Act (AMS-
FTPP-21-0045).
4............................. Organic Livestock and 0581-AE06 Proposed Rule Stage.
Poultry Standards.
5............................. Establishing AWA 0579-AE61 Proposed Rule Stage.
Standards for Birds.
6............................. Voluntary Labeling of 0583-AD87 Proposed Rule Stage.
Meat Products With
``Product of USA'' and
Similar Statements.
7............................. Revision of the Nutrition 0583-AD56 Final Rule Stage.
Facts Panels for Meat
and Poultry Products and
Updating Certain
Reference Amounts
Customarily Consumed.
8............................. Prior Label Approval 0583-AD78 Final Rule Stage.
System: Expansion of
Generic Label Approval.
----------------------------------------------------------------------------------------------------------------
Department of Commerce
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
9............................. Request for Comments 0694-AI41 Prerule Stage.
Concerning the
Imposition of Export
Controls on Certain
Brain-Computer Interface
(BCI) Emerging
Technology.
10............................ Foundational 0694-AH80 Proposed Rule Stage.
Technologies: Proposed
Controls; Request for
Comments.
11............................ Removal of Certain 0694-AH55 Final Rule Stage.
General Approved
Exclusions (GAEs) Under
the Section 232 Steel
and Aluminum Tariff
Exclusions Process.
12............................ Information Security 0694-AH56 Final Rule Stage.
Controls: Cybersecurity
Items.
13............................ Authorization of Certain 0694-AI06 Final Rule Stage.
``Items'' to Entities on
the Entity List in the
Context of Specific
Standards Activities.
14............................ Commerce Control List: 0694-AI08 Final Rule Stage.
Expansion of Controls on
Certain Biological
Equipment ``Software''.
15............................ Changes To Implement 0651-AD55 Final Rule Stage.
Provisions of the
Trademark Modernization
Act of 2020.
----------------------------------------------------------------------------------------------------------------
Department of Defense
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
16............................ Department of Defense 0790-AK86 Proposed Rule Stage.
(DoD)-Defense Industrial
Base (DIB) Cybersecurity
(CS) Activities.
17............................ Nondiscrimination on the 0790-AJ04 Final Rule Stage.
Basis of Disability in
Programs or Activities
Assisted or Conducted by
the DoD.
[[Page 5009]]
18............................ Federal Voting Assistance 0790-AK90 Final Rule Stage.
Program.
19............................ Small Business Innovation 0750-AK84 Proposed Rule Stage.
Research Program Data
Rights (DFARS Case 2019-
D043).
20............................ Reauthorization and 0750-AK96 Proposed Rule Stage.
Improvement of Mentor-
Protege Program (DFARS
Case 2020-D009).
21............................ Maximizing the Use of 0750-AK85 Final Rule Stage.
American-Made Goods
(DFARS Case 2019-D045).
22............................ Policy and Procedures for 0710-AB22 Proposed Rule Stage.
Processing Requests to
Alter US Army Corps of
Engineers Civil Works
Projects Pursuant to 33
U.S.C. 408.
23............................ Credit Assistance for 0710-AB31 Proposed Rule Stage.
Water Resources
Infrastructure Projects.
24............................ Flood Control Cost- 0710-AB34 Proposed Rule Stage.
Sharing Requirements
Under the Ability to Pay
Provision.
25............................ Revised Definition of 0710-AB40 Proposed Rule Stage.
``Waters of the United
States''--Rule 1.
26............................ Revised Definition of 0710-AB47 Proposed Rule Stage.
``Waters of the United
States''--Rule 2 (Reg
Plan Seq No. XX).
27............................ TRICARE Coverage and 0720-AB81 Final Rule Stage.
Payment for Certain
Services in Response to
the COVID-19 Pandemic.
28............................ TRICARE Coverage of 0720-AB82 Final Rule Stage.
Certain Medical Benefits
in Response to the COVID-
19 Pandemic.
29............................ TRICARE Coverage of 0720-AB83 Final Rule Stage.
National Institute of
Allergy and Infectious
Disease Coronavirus
Disease 2019 Clinical
Trials.
30............................ Expanding TRICARE Access 0720-AB85 Final Rule Stage.
to Care in Response to
the COVID-19 Pandemic.
----------------------------------------------------------------------------------------------------------------
Department of Education
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
31............................ Nondiscrimination on the 1870-AA16 Proposed Rule Stage.
Basis of Sex in
Education Programs or
Activities Receiving
Federal Financial
Assistance.
32............................ Family Educational Rights 1875-AA15 Proposed Rule Stage.
and Privacy Act.
33............................ Determining the Amount of 1840-AD55 Prerule Stage.
Federal Education
Assistance Funds
Received by Institutions
of Higher Education (90/
10).
34............................ Borrower Defense......... 1840-AD53 Proposed Rule Stage.
35............................ Pell Grants for Prison 1840-AD54 Proposed Rule Stage.
Education Programs.
36............................ Gainful Employment....... 1840-AD57 Proposed Rule Stage.
37............................ Improving Student Loan 1840-AD59 Proposed Rule Stage.
Cancellation Authorities.
38............................ Income Contingent 1840-AD69 Proposed Rule Stage.
Repayment.
39............................ Public Service Loan 1840-AD70 Proposed Rule Stage.
Forgiveness.
----------------------------------------------------------------------------------------------------------------
Department of Energy
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
40............................ Energy Conservation 1904-AD34 Proposed Rule Stage.
Standards for Commercial
Water Heating-Equipment.
41............................ Backstop Requirement for 1904-AF09 Proposed Rule Stage.
General Service Lamps.
42............................ Energy Efficiency 1904-AE44 Final Rule Stage.
Standards for New
Federal Commercial and
Multi-Family High-Rise
Residential Buildings
Baseline Standards
Update.
43............................ Energy Conservation 1904-AF13 Final Rule Stage.
Program for Appliance
Standards: Procedures
for Use in New or
Revised Energy
Conservation Standards
and Test Procedures for
Consumer Products and
Commercial/Industrial
Equipment.
----------------------------------------------------------------------------------------------------------------
Department of Health and Human Services
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
44............................ Amendments to Civil 0936-AA09 Final Rule Stage.
Monetary Penalty Law
Regarding Grants,
Contracts, and
Information Blocking.
45............................ Rulemaking on 0945-AA15 Proposed Rule Stage.
Discrimination on the
Basis of Disability in
Critical Health and
Human Services Programs
or Activities.
46............................ Confidentiality of 0945-AA16 Proposed Rule Stage.
Substance Use Disorder
Patient Records.
47............................ Nondiscrimination in 0945-AA17 Proposed Rule Stage.
Health Programs and
Activities.
48............................ ONC Health IT 0955-AA03 Proposed Rule Stage.
Certification Program
Updates, Health
Information Network
Attestation Process for
the Trusted Exchange
Framework and Common
Agreement, and
Enhancements to Support
Information Sharing.
49............................ Treatment of Opioid Use 0930-AA38 Proposed Rule Stage.
Disorder With
Buprenorphine Utilizing
Telehealth.
50............................ Treatment of Opioid use 0930-AA39 Proposed Rule Stage.
Disorder With Extended
Take Home Doses of
Methadone.
[[Page 5010]]
51............................ Requirement for Proof of 0920-AA80 Final Rule Stage.
Vaccination or Other
Proof of Immunity
Against Quarantinable
Communicable Diseases.
52............................ Nonprescription Drug 0910-AH62 Proposed Rule Stage.
Product With an
Additional Condition for
Nonprescription Use.
53............................ Nutrient Content Claims, 0910-AI13 Proposed Rule Stage.
Definition of Term:
Healthy.
54............................ Biologics Regulation 0910-AI14 Proposed Rule Stage.
Modernization.
55............................ Medical Devices; Ear, 0910-AI21 Proposed Rule Stage.
Nose and Throat Devices;
Establishing Over-the-
Counter Hearing Aids and
Aligning Other
Regulations.
56............................ Tobacco Product Standard 0910-AI28 Proposed Rule Stage.
for Characterizing
Flavors in Cigars.
57............................ Conduct of Analytical and 0910-AI57 Proposed Rule Stage.
Clinical Pharmacology,
Bioavailability and
Bioequivalence Studies.
58............................ Tobacco Product Standard 0910-AI60 Proposed Rule Stage.
for Menthol in
Cigarettes.
59............................ 340B Drug Pricing 0906-AB28 Proposed Rule Stage.
Program; Administrative
Dispute Resolution.
60............................ Catastrophic Health 0917-AA10 Proposed Rule Stage.
Emergency Fund (CHEF).
61............................ Acquisition Regulations; 0917-AA18 Final Rule Stage.
Buy Indian Act;
Procedures for
Contracting.
62............................ Streamlining the Medicaid 0938-AU00 Proposed Rule Stage.
and Chip Application,
Eligibility
Determination,
Enrollment, and Renewal
Processes (CMS-2421).
63............................ Provider 0938-AU64 Proposed Rule Stage.
Nondiscrimination
Requirements for Group
Health Plans and Health
Insurance Issuers in the
Group and Individual
Markets (CMS-9910).
64............................ Assuring Access to 0938-AU68 Proposed Rule Stage.
Medicaid Services (CMS-
2442).
65............................ Implementing Certain 0938-AU85 Proposed Rule Stage.
Provisions of the
Consolidated
Appropriations Act and
Other Revisions to
Medicare Enrollment and
Eligibility Rules (CMS-
4199).
66............................ Requirements for Rural 0938-AU92 Proposed Rule Stage.
Emergency Hospitals (CMS-
3419).
67............................ Mental Health Parity and 0938-AU93 Proposed Rule Stage.
Addiction Equity Act and
the Consolidated
Appropriations Act, 2021
(CMS-9902).
68............................ Coverage of Certain 0938-AU94 Proposed Rule Stage.
Preventive Services (CMS-
9903).
69............................ Omnibus COVID-19 Health 0938-AU75 Final Rule Stage.
Care Staff Vaccination
(CMS-3415).
70............................ Native Hawaiian Revolving 0970-AC84 Proposed Rule Stage.
Loan Fund Eligibility
Requirements.
71............................ Paternity Establishment 0970-AC86 Proposed Rule Stage.
Percentage Performance
Relief.
72............................ ANA Non-federal Share 0970-AC88 Proposed Rule Stage.
Emergency Waivers.
73............................ Foster Care Legal 0970-AC89 Proposed Rule Stage.
Representation.
74............................ Separate Licensing 0970-AC91 Proposed Rule Stage.
Standards for Relative
or Kinship Foster Family
Homes.
75............................ National Institute for 0985-AA16 Proposed Rule Stage
Disability, Independent
Living, and
Rehabilitation Research
Notice of Proposed
Rulemaking.
----------------------------------------------------------------------------------------------------------------
Department of Homeland Security
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
76............................ Procedures for Asylum and 1615-AC42 Proposed Rule Stage.
Withholding of Removal;
Credible Fear and
Reasonable Fear Review.
77............................ Deferred Action for 1615-AC64 Proposed Rule Stage.
Childhood Arrivals.
78............................ Asylum and Withholding 1615-AC65 Proposed Rule Stage.
Definitions.
79............................ Rescission of ``Asylum 1615-AC66 Proposed Rule Stage.
Application, Interview,
& Employment
Authorization'' Rule and
Change to ``Removal of
30 Day Processing
Provision for Asylum
Applicant Related Form I-
765 Employment
Authorization''.
80............................ U.S. Citizenship and 1615-AC68 Proposed Rule Stage.
Immigration Services Fee
Schedule.
81............................ Bars to Asylum 1615-AC69 Proposed Rule Stage.
Eligibility and
Procedures.
82............................ Inadmissibility on Public 1615-AC74 Proposed Rule Stage.
Charge Grounds.
83............................ Procedures for Credible 1615-AC67 Final Rule Stage.
Fear Screening and
Consideration of Asylum,
Withholding of Removal
and Cat Protection
Claims by Asylum
Officers.
84............................ Electronic Chart and 1625-AC74 Prerule Stage.
Navigation Equipment
Carriage Requirements.
85............................ Shipping Safety Fairways 1625-AC57 Proposed Rule Stage.
Along the Atlantic Coast.
86............................ MARPOL Annex VI; 1625-AC78 Proposed Rule Stage.
Prevention of Air
Pollution from Ships.
87............................ Advance Passenger 1651-AB43 Proposed Rule Stage.
Information System:
Electronic Validation of
Travel Documents.
88............................ Automation of CBP Form I- 1651-AB18 Final Rule Stage.
418 for Vessels.
89............................ Vetting of Certain 1652-AA69 Proposed Rule Stage.
Surface Transportation
Employees.
90............................ Indirect Air Carrier 1652-AA72 Proposed Rule Stage.
Security.
91............................ Flight Training Security. 1652-AA35 Final Rule Stage.
92............................ Surface Transportation 1652-AA74 Long-Term Actions.
Cybersecurity Measures.
93............................ Fee Adjustment for U.S. 1653-AA82 Proposed Rule Stage.
Immigration and Customs
Enforcement Form I-246,
Application for a Stay
of Deportation or
Removal.
94............................ RFI National Flood 1660-AB11 Prerule Stage.
Insurance Program's
Floodplain Management
Standards for Land
Management & Use, & an
Assessment of the
Program's Impact on
Threatened and
Endangered Species &
Their Habitats.
95............................ National Flood Insurance 1660-AB06 Proposed Rule Stage.
Program: Standard Flood
Insurance Policy,
Homeowner Flood Form.
[[Page 5011]]
96............................ Amendment to the Public 1660-AB10 Final Rule Stage.
Assistance Program's
Simplified Procedures
Large Project Threshold.
97............................ Individual Assistance 1660-AB07 Long-Term Actions.
Program Equity.
98............................ Ammonium Nitrate Security 1670-AA00 Proposed Rule Stage.
Program.
----------------------------------------------------------------------------------------------------------------
Department of Housing and Urban Development
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
99............................ Increased 40-year Term 2502-AJ59 Proposed Rule Stage.
for Loan Modifications
(FR-6263).
100........................... Affirmatively Furthering 2529-AB05 Proposed Rule Stage.
Fair Housing (FR-6250).
----------------------------------------------------------------------------------------------------------------
Department of Justice
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
101........................... Nondiscrimination on the 1190-AA76 Prerule Stage.
Basis of Disability by
State and Local
Governments and Places
of Public Accommodation;
Equipment and Furniture.
102........................... Implementation of the ADA 1190-AA73 Proposed Rule Stage.
Amendments Act of 2008:
Federally Conducted
(Section 504 of the
Rehabilitation Act of
1973).
103........................... Nondiscrimination on the 1190-AA77 Proposed Rule Stage.
Basis of Disability by
State and Local
Governments; Public
Right-of-Way.
104........................... Definition of ``Frame or 1140-AA54 Final Rule Stage.
Receiver'' and
Identification of
Firearms.
105........................... Factoring Criteria for 1140-AA55 Final Rule Stage.
Firearms With an
Attached Stabilizing
Brace.
106........................... Bars to Asylum 1125-AB12 Proposed Rule Stage.
Eligibility and
Procedures.
107........................... Asylum and Withholding 1125-AB13 Proposed Rule Stage.
Definitions.
108........................... Procedures for Asylum and 1125-AB15 Proposed Rule Stage.
Withholding of Removal.
109........................... Appellate Procedures and 1125-AB18 Proposed Rule Stage.
Decisional Finality in
Immigration Proceedings;
Administrative Closure.
110........................... Professional Conduct for 1125-AA83 Final Rule Stage.
Practitioners--Rules and
Procedures, and
Representation and
Appearances.
111........................... Procedures for Credible 1125-AB20 Final Rule Stage.
Fear Screening and
Consideration of Asylum,
Withholding of Removal
and CAT Protection
Claims by Asylum
Officers.
----------------------------------------------------------------------------------------------------------------
Department of Labor
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
112........................... Proposal to Rescind 1250-AA09 Proposed Rule Stage.
Implementing Legal
Requirements Regarding
the Equal Opportunity
Clause's Religious
Exemption.
113........................... Modification of 1250-AA14 Proposed Rule Stage.
Procedures to Resolve
Potential Employment
Discrimination.
114........................... Defining and Delimiting 1235-AA39 Proposed Rule Stage.
the Exemptions for
Executive,
Administrative,
Professional, Outside
Sales and Computer
Employees.
115........................... Modernizing the Davis- 1235-AA40 Proposed Rule Stage.
Bacon and Related Acts
Regulations.
116........................... Tip Regulations Under the 1235-AA21 Final Rule Stage.
Fair Labor Standards Act
(FLSA).
117........................... E.O. 14026, Increasing 1235-AA41 Final Rule Stage.
the Minimum Wage for
Federal Contractors.
118........................... Wagner-Peyser Act 1205-AC02 Proposed Rule Stage.
Staffing.
119........................... Apprenticeship Programs, 1205-AC06 Proposed Rule Stage.
Labor Standards for
Registration, Amendment
of Regulations.
120........................... Prudence and Loyalty in 1210-AC03 Proposed Rule Stage.
Selecting Plan
Investments and
Exercising Shareholder
Rights.
121........................... Mental Health Parity and 1210-AC11 Proposed Rule Stage.
Addiction Equity Act and
the Consolidated
Appropriations Act, 2021.
122........................... Requirements Related to 1210-AB99 Final Rule Stage.
Surprise Billing, Part 1.
123........................... Requirements Related to 1210-AC00 Final Rule Stage.
Surprise Billing, Part 2.
124........................... Respirable Crystalline 1219-AB36 Proposed Rule Stage.
Silica.
125........................... Safety Program for 1219-AB91 Proposed Rule Stage.
Surface Mobile Equipment.
126........................... Prevention of Workplace 1218-AD08 Prerule Stage.
Violence in Health Care
and Social Assistance.
127........................... Heat Illness Prevention 1218-AD39 Prerule Stage.
in Outdoor and Indoor
Work Settings.
128........................... Infectious Diseases...... 1218-AC46 Proposed Rule Stage.
----------------------------------------------------------------------------------------------------------------
[[Page 5012]]
Department of Transportation
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
129........................... Processing Buy America 2105-AE79 Proposed Rule Stage.
and Buy American Waivers
Based on Nonavailability.
130........................... Accessible Lavatories on 2105-AE89 Proposed Rule Stage.
Single-Aisle Aircraft:
Part II.
131........................... Enhancing Transparency of 2105-AF10 Proposed Rule Stage.
Airline Ancillary
Service Fees.
132........................... Registration and Marking 2120-AK82 Final Rule Stage.
Requirements for Small
Unmanned Aircraft.
133........................... Greenhouse Gas Emissions 2125-AF99 Proposed Rule Stage.
Measure.
134........................... Manual on Uniform Traffic 2125-AF85 Final Rule Stage.
Control Devices for
Streets and Highways.
135........................... Heavy Vehicle Automatic 2127-AM36 Proposed Rule Stage.
Emergency Braking.
136........................... Light Vehicle Automatic 2127-AM37 Proposed Rule Stage.
Emergency Braking (AEB)
with Pedestrian AEB.
137........................... Corporate Average Fuel 2127-AM33 Final Rule Stage.
Economy (CAFE)
Preemption.
138........................... Passenger Car and Light 2127-AM34 Final Rule Stage.
Truck Corporate Average
Fuel Economy Standards.
139........................... Train Crew Staffing...... 2130-AC88 Proposed Rule Stage.
140........................... Pipeline Safety: Class 2137-AF29 Long-Term Actions.
Location Requirements.
----------------------------------------------------------------------------------------------------------------
Department of Veterans Affairs
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
141........................... Modifying Copayments for 2900-AQ30 Proposed Rule Stage.
Veterans at High Risk
for Suicide.
142........................... VA Pilot Program on 2900-AR01 Proposed Rule Stage.
Graduate Medical
Education and Residency.
143........................... Staff Sergeant Parker 2900-AR16 Final Rule Stage.
Gordon Fox Suicide
Prevention Grant Program.
----------------------------------------------------------------------------------------------------------------
Environmental Protection Agency
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
144........................... National Emission 2060-AU37 Proposed Rule Stage.
Standards for Hazardous
Air Pollutants: Ethylene
Oxide Commercial
Sterilization and
Fumigation Operations.
145........................... Control of Air Pollution 2060-AU41 Proposed Rule Stage.
From New Motor Vehicles:
Heavy-Duty Engine and
Vehicle Standards.
146........................... Amendments to the NSPS 2060-AV09 Proposed Rule Stage.
for GHG Emissions From
New, Modified,
Reconstructed Stationary
Sources: EGUs.
147........................... Emission Guidelines for 2060-AV10 Proposed Rule Stage.
Greenhouse Gas Emissions
from Fossil Fuel-Fired
Existing Electric
Generating Units.
148........................... Renewable Fuel Standard 2060-AV11 Proposed Rule Stage.
(RFS) Program: RFS
Annual Rules.
149........................... NESHAP: Coal- and Oil- 2060-AV12 Proposed Rule Stage.
Fired Electric Utility
Steam Generating Units-
Revocation of the 2020
Reconsideration, and
Affirmation of the
Appropriate and
Necessary Supplemental
Finding.
150........................... Standards of Performance 2060-AV16 Proposed Rule Stage.
for New, Reconstructed,
and Modified Sources and
Emissions Guidelines for
Existing Sources: Oil
and Natural Gas Sector
Climate Review.
151........................... Review of Final Rule 2060-AV20 Proposed Rule Stage.
Reclassification of
Major Sources as Area
Sources Under Section
112 of the Clean Air Act.
152........................... Restrictions on Certain 2060-AV46 Proposed Rule Stage.
Uses of
Hydrofluorocarbons Under
Subsection (i) of the
American Innovation and
Manufacturing Act.
153........................... Review of the National 2060-AV52 Proposed Rule Stage.
Ambient Air Quality
Standards for
Particulate Matter.
154........................... Pesticides; Modification 2070-AK55 Proposed Rule Stage.
to the Minimum Risk
Pesticide Listing
Program and Other
Exemptions Under FIFRA
Section 25(b).
155........................... Cyclic Aliphatic Bromide 2070-AK71 Proposed Rule Stage.
Cluster (HBCD);
Rulemaking Under TSCA
Section 6(a).
156........................... Asbestos (Part 1: 2070-AK86 Proposed Rule Stage.
Chrysotile Asbestos);
Rulemaking under TSCA
Section 6(a).
157........................... Designating PFOA and PFOS 2050-AH09 Proposed Rule Stage.
as CERCLA Hazardous
Substances.
158........................... Hazardous and Solid Waste 2050-AH14 Proposed Rule Stage.
Management System:
Disposal of Coal
Combustion Residuals
From Electric Utilities;
Legacy Surface
Impoundments.
159........................... Accidental Release 2050-AH22 Proposed Rule Stage.
Prevention Requirements:
Risk Management Program
Under the Clean Air Act;
Retrospection.
160........................... Federal Baseline Water 2040-AF62 Proposed Rule Stage.
Quality Standards for
Indian Reservations.
161........................... Clean Water Act Section 2040-AG12 Proposed Rule Stage.
401: Water Quality
Certification.
162........................... Revised Definition of 2040-AG13 Proposed Rule Stage.
``Waters of the United
States''--Rule 1.
163........................... Revised Definition of 2040-AG19 Proposed Rule Stage.
``Waters of the United
States''--Rule 2.
164........................... Revised 2023 and Later 2060-AV13 Final Rule Stage.
Model Year Light-Duty
Vehicle Greenhouse Gas
Emissions Standards.
165........................... Hazardous and Solid Waste 2050-AH07 Final Rule Stage.
Management System:
Disposal of Coal
Combustion Residuals
From Electric Utilities;
Federal CCR Permit
Program.
166........................... Hazardous and Solid Waste 2050-AH18 Final Rule Stage.
Management System:
Disposal of CCR; A
Holistic Approach to
Closure Part B:
Implementation of
Closure.
167........................... Cybersecurity in Public 2040-AG20 Final Rule Stage.
Water Systems.
168........................... National Primary Drinking 2040-AG16 Long-Term Actions.
Water Regulations for
Lead and Copper:
Regulatory Revisions.
[[Page 5013]]
169........................... Per- and polyfluoroalkyl 2040-AG18 Long-Term Actions.
Substances (PFAS):
Perfluorooctanoic Acid
(PFOA) and
Perfluorooctanesulfonic
Acid (PFOS) National
Primary Drinking Water
Regulation Rulemaking.
----------------------------------------------------------------------------------------------------------------
Pension Benefit Guaranty Corporation
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
170........................... Special Financial 1212-AB53 Final Rule Stage.
Assistance by PBGC.
----------------------------------------------------------------------------------------------------------------
Small Business Administration
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
171........................... Service-Disabled Veteran- 3245-AH69 Prerule Stage.
Owned Small Business
Certification.
----------------------------------------------------------------------------------------------------------------
Social Security Administration
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
172........................... Omitting Food From In- 0960-AI60 Proposed Rule Stage
Kind Support and
Maintenance Calculations.
173........................... $20 Tolerance Rule to 0960-AI68 Proposed Rule Stage.
Establish That the
Individual Meets the Pro-
Rata Share of Household
Expenses When Living in
the Household of Another.
174........................... Inquiry About SSI 0960-AI69 Proposed Rule Stage.
Eligibility at
Application Filing Date
Which Will Remove the
Requirement for a Signed
Written Statement and
Will Expand Protective
Filing.
----------------------------------------------------------------------------------------------------------------
Nuclear Regulatory Commission
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
175........................... Cyber Security at Fuel 3150-AJ64 Proposed Rule Stage.
Cycle Facilities [NRC-
2015-0179].
176........................... Alternative Physical 3150-AK19 Proposed Rule Stage.
Security Requirements
for Advanced Reactors
[NRC-2017-0227].
177........................... Revision of Fee 3150-AK44 Proposed Rule Stage.
Schedules: Fee Recovery
for FY 2022 [NRC-2020-
0031].
178........................... Advanced Nuclear Reactor 3150-AK55 Proposed Rule Stage.
Generic Environmental
Impact Statement [NRC-
2020-0101].
179........................... Emergency Preparedness 3150-AJ68 Final Rule Stage.
Requirements for Small
Modular Reactors and
Other New Technologies
[NRC-2015-0225].
180........................... NuScale Small Modular 3150-AJ98 Final Rule Stage.
Reactor Design
Certification [NRC-2017-
0029].
181........................... American Society of 3150-AK22 Final Rule Stage.
Mechanical Engineers
2019-2020 Code Editions
[NRC-2018-0290].
----------------------------------------------------------------------------------------------------------------
BILLING CODE 6820-27-P
The U.S. Department of Agriculture's (USDA) fall 2021 Regulatory
Agenda and Plan prioritizes initiatives fostering 21st century
innovation, job creation, economic and market opportunity in rural
America, particularly among historically underserved people and
communities, and a safe end to the pandemic. USDA will continue to
leverage existing programs in response to unforeseen events and
national emergencies affecting the American farm economy, schools,
individual households, and our National Forests. All USDA programs,
including the priorities contained in this Regulatory Plan, will be
structured to advance the cause of equity by removing barriers and
opening new opportunities.
In 2021, the USDA:
Agricultural Marketing Service (AMS) implemented a Dairy Donation
Program to reimburse dairy organization for donated dairy products to
non-profit organizations for distribution to recipient individuals and
families. The new program was brought about by the 2020 COVID-19
pandemic which disrupted dairy supply chains and displaced significant
volumes of milk normally used in food service channels. This led to
milk being dumped or fed to animals across the United States. The new
program is intended to encourage the donation of dairy products and to
prevent and minimize food waste. Farm Service Agency (FSA) implemented
a new Heirs' Property Relending Program authorized by changes that the
Agriculture Improvement Act of 2018 (2018 Farm Bill) made to the
Consolidated Farm and Rural Development Act. The relending program
provides revolving loan funds to eligible intermediary lenders to
resolve ownership and succession on farmland with multiple owners. The
lenders give loans to qualified individuals to resolve these ownership
issues. The intermediary lenders consolidate and coordinate the
ownerships of the land-ownership interests.
[[Page 5014]]
Outlined below are some of our most important upcoming regulatory
actions. These include efforts to restore and expand economic
opportunity amid a safe end to the pandemic; address the climate change
emergency; and support agricultural markets that are free, open and
promote competition. This Regulatory Plan also reflects USDA's
continued commitments to ensuring a safe and nutritious food supply and
animal welfare protections. As always, our Semiannual Regulatory Agenda
contains information on a broad-spectrum of USDA's initiatives and
upcoming regulatory actions.
Restore and Expand Economic Opportunity Amid a Safe End to the Pandemic
Pandemic Assistance Programs
USDA will provide additional direct financial assistance to
producers of agricultural commodities who suffered eligible revenue
losses in calendar year 2020 during the COVID-19 pandemic; this will
expand on the assistance USDA provided last year. Payments will be made
using funds under the Coronavirus Aid, Relief, and Economic Security
Act (CARES Act; Pub. L. 116-136). The rule will also implement the
expanded Pandemic Cover Crop Program (PCCP) to help agricultural
producers impacted by the effects of the COVID-19 outbreak. Given cover
crop cultivation requires sustained, long-term investments to improve
soil health and gain other agronomic benefits, the economic challenges
due to the pandemic made maintaining cover cropping systems financially
challenging for many producers. In addition, the rule will also update
the regulations for the Emergency Conservation Program (ECP); the
Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish
Program (ELAP); and the Livestock Forage Disaster Program (LFP);
Livestock Indemnity Program (LIP); and payment eligibility provisions.
For more information about this rule, see RIN 0503-AA75.
Address the Climate Change Emergency
Special Areas; Roadless Area Conservation; National Forest System
Lands in Alaska: USDA proposes to repeal a final rule promulgated in
2020 that exempted the Tongass National Forest from the 2001 Roadless
Area Conservation Rule (2001 Roadless Rule). The 2001 Roadless Rule
prohibited timber harvest and road construction or reconstruction
within designated Inventoried Roadless Areas, with limited exceptions.
This proposal is consistent with President Biden's Executive Order
13990, Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis, directing action to address
Federal regulations issued during the previous four years that may
conflict with protecting the environment and to immediately commence
work to confront the climate crisis. For more information about this
rule, see RIN 0596-AD51.
Support Agricultural Markets That Are Free, Open and Promote
Competition
On July 9, 2021, President Biden signed Executive Order 14036 to
address the growing concerns over competition and concentration in the
U.S. economy, including the agriculture sector. The order includes 72
initiatives by more than a dozen federal agencies including USDA to
promptly tackle some of the most pressing competition problems across
the economy. Specifically, the White House fact sheet looks to
``empower family farmers and increase their incomes by strengthening
the Department of Agriculture's tools to stop the abusive practices of
some meat processors.'' One of USDA's initiatives is this area will be
to revitalize, through the following rulemakings, the Packers and
Stockyards Act to fight unfair practices and rebuild a competitive
marketplace:
Poultry Grower Ranking Systems: The proposal would address the use
of poultry grower ranking systems as a method of payment and settlement
grouping for poultry growers under contract in poultry growing
arrangements with live poultry dealers. The proposal would establish
certain requirements with which a live poultry dealer must comply if a
poultry grower ranking system is utilized to determine grower payment.
A live poultry dealer's failure to comply would be deemed an unfair,
unjustly discriminatory, and deceptive practice according to factors
outlined in the proposed rule. For more information about this rule,
see RIN 0581-AE03.
Clarification of Scope of the Packers and Stockyards Act: The
proposal would revise regulations under the Packers and Stockyards Act
(Act), providing clarity regarding conduct that may violate the Act.
The proposal would make clear that it is not necessary to demonstrate
harm or likely harm to competition to establish a violation of either
section 202(a) or (b) of the Act. For more information about this rule,
see RIN 0581-AE04.
Unfair Practices in Violation of the Packers and Stockyards Act:
The proposal supplements recent updates to the regulations issued under
the Act that provided criteria for the Secretary to consider when
determining whether certain conduct or actions by packers, swine
contractors, or live poultry dealers is unduly or unreasonably
preferential or advantageous. The proposal clarifies the conduct USDA
considers unfair, unjustly discriminatory, or deceptive and a violation
of the Act, regardless of whether such action harms or is likely to
harm competition. The proposal also clarifies the criteria and types of
conduct considered unduly preferential, advantageous, prejudicial, or
disadvantageous and violations of the Act. For more information about
this rule, see RIN 0581-AE05.
Ensuring That America's Food Supply Is Safe and Nutritious
USDA's Food Safety and Inspection Service (FSIS) continues to
ensure that meat, poultry, and egg products are properly marked,
labeled, and packaged, and prohibits the distribution in-commerce of
meat, poultry, and egg products that are adulterated or misbranded.
Consistent with the President's priorities of advancing the country's
economic recovery and promoting economic resilience, FSIS is proposing
several rules to improve regulatory certainty, which assure consumers
that meat, poultry, and egg products are safe and truthfully labeled
and fosters fair competition among the regulated industry. In a similar
vein, AMS has prepared proposed standards for organic livestock and
poultry production.
Voluntary Labeling of Meat Products With ``Product of USA'' and
Similar Statements: In accordance with Executive Order 14036, Promoting
Competition in the American Economy, FSIS will propose to address
concerns that the voluntary ``Product of USA'' label claim may confuse
consumers about the origin of FSIS regulated products. FSIS intends to
clarify the voluntary claim so that it is more meaningful to consumers
and ensures a fair and competitive marketplace for American farmers and
ranchers. For more information about this rule, see RIN 0583-AD87.
Revision of the Nutrition Facts Panels for Meat and Poultry
Products and Updating Certain Reference Amounts Customarily Consumed;
Prior Label Approval System: Expansion of Generic Label Approval: FSIS
plans to finalize two rules, one to update nutrition labeling for meat
and poultry products and another to expand the categories of meat and
poultry product labels deemed generically approved that may be used
[[Page 5015]]
in commerce without prior FSIS review and approval. The rule expanding
the categories of generically approved labels would reduce labeling
costs for meat and poultry establishments, including small and very
small establishments. Both rules will provide additional certainty
about what is required for meat and poultry labeling while ensuring
that consumers have access to the information they need about the food
they buy. For more information about these rules, see RINs 0583-AD56
and 0583-AD78.
National Organic Program; Organic Livestock and Poultry Standards:
The proposal would establish standards that support additional practice
standards for organic livestock and poultry production. This proposed
action would add provisions to the USDA organic regulations to address
and clarify livestock and poultry living conditions (for example,
outdoor access, housing environment and stocking densities), health
care practices (for example physical alterations, administering medical
treatment, euthanasia), and animal handling and transport to and during
slaughter. For more information about this rule, see RIN 0581-AE06.
Animal Welfare Protections
Standards for the Humane Handling, Care, Treatment and
Transportation of Birds Not Bred for Use in Research under the Animal
Welfare Act: The proposal would establish standards for humane
handling, care, treatment, and transportation of birds not bred for use
in research when those birds are engaged in any activity covered under
the Animal Welfare Act. For more information about this rule, see RIN
0579-AE61.
USDA--AGRICULTURAL MARKETING SERVICE (AMS)
Proposed Rule Stage
1. Poultry Grower Ranking Systems (AMS-FTPP-21-0044)
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: The U.S. Department of Agriculture's Agricultural
Marketing Service proposes to amend the regulations issued under the
Packers and Stockyards Act (P&S Act) to address the use of poultry
grower ranking systems as a method of payment and settlement grouping
for poultry growers under contract in poultry growing arrangements with
live poultry dealers. The proposed regulation would establish certain
requirements with which a live poultry dealer must comply if a poultry
grower ranking system is utilized to determine grower payment. A live
poultry dealer's failure to comply would be deemed an unfair, unjustly
discriminatory, and deceptive practice.
Statement of Need: Although poultry grower ranking systems may
promote healthy competition among growers and the use of improved
technologies, differences in size and imbalances of power between
parties in contractual poultry growing arrangements can have
detrimental effects on one of the contracting parties and may result in
marketplace inefficiencies. An often-cited concern is the live poultry
dealer's full control over inputs, e.g., chick, feed, medication, etc.,
to the poultry growing process. Industry members have asked the
Agricultural Marketing Service (AMS) to address such imbalances by
specifying the conduct that would be considered violative of the
Packers and Stockyards Act (Act).
Summary of Legal Basis: The Agricultural Marketing Service (AMS) is
delegated authority by the Secretary of Agriculture to enforce the P&S
Act. AMS has received numerous complaints regarding the imbalance of
power in poultry growing agreements, wherein one side controls all of
the inputs, then arbitrarily ranks grower performance against other
growers to determine pay.
Alternatives: AMS considered finalizing a 2016 proposed rule that
would have identified criteria for determining whether a live poultry
dealer's use of a grower ranking system for payment purposes might be
unlawful under the Packers and Stockyards Act.
Anticipated Cost and Benefits: USDA estimates the first-year costs
associated with this proposed rule to be $17.37 million. Subsequent
year costs are expected to be significantly less than first-year costs,
resulting in a ten-year total cost of $34.64 million. USDA expects the
primary benefit of the regulation will be the increased ability to
protect poultry growers from unfair practices associated with the use
of poultry grower ranking systems. At the same time, the rule is
expected to improve efficiencies through the use of new technologies
and to reduce market failures among poultry growers.
Risks: Extended litigation over legal challenges from the industry
could result in the rule being struck down by the courts, hindering the
agency's ability to enforce the Act for years.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Michael V. Durando, Deputy Administrator, Fair
Trade Practices Program, Department of Agriculture, Agricultural
Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-
0237, Phone: 202 720-0219.
RIN: 0581-AE03
USDA--AMS
2. Clarification of Scope of the Packers and Stockyards Act (AMS-FTPP-
21-0046)
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: USDA proposes to revise the regulations issued under the
Packers and Stockyards Act (Act) (7 U.S.C. 181 229c) to provide clarity
regarding conduct that may violate the Act. This action is intended to
support market growth, assure fair trade practices and competition, and
protect livestock and poultry growers and producers. The proposed rule
addresses long-standing issues related to competitiveness and whether
all allegations of violations of the Act must be accompanied by a
showing of harm or likely harm to competition.
Statement of Need: Revisions to regulations pertaining to the
Packers and Stockyards Act (Act) that would clarify the scope of the
Act are needed to establish what conduct or action, depending on their
nature and the circumstances, violate the Act without a finding of harm
or likely harm to competition. Such revisions reflect the Department of
Agriculture's (USDA) longstanding position in this regard and
complement two concurrent rules related to poultry grower ranking
systems and conduct that constitutes unfair trade practices under the
Act.
Summary of Legal Basis: The Act provides USDA with the authority to
assure fair competition and trade practices and to safeguard farmers
against receiving less than the true market value of their livestock.
Sections 202(c), (d), and (e) of the Act limit the application of those
sections to acts or practices that have an adverse effect on
competition, such as acts restraining commerce, creating a monopoly, or
[[Page 5016]]
producing another type of antitrust injury. However, provisions in
sections 202(a) and (b) restrict practices that are deceptive, unfair,
unjust, undue, and unreasonable; terms that are understood to encompass
more than anticompetitive conduct. USDA's position is that Congress did
not intend application of sections 202(a) and (b) to be limited to
instances in which there is harm to competition.
Alternatives: USDA considered doing nothing, not challenging
standing court decisions. However, courts are not unanimous in their
findings. Further, several courts disagree with USDA's position. Lack
of clarity hinders the agency's ability to consistently administer and
enforce the Act.
Anticipated Cost and Benefits: USDA estimate annual costs related
to this rule of $9 million for the first five years, decreasing in
subsequent years, for total ten-year costs of $66 million. We believe
the primary benefit of the proposed regulation is the increased ability
to protect producers and growers through enforcement of the Act for
violations of section 202(a) and/or (b) that do not result in harm, or
a likelihood of harm, to competition.
Risks: Courts have recognized that the proper analysis of alleged
violations of these two sections depends on the facts of each case.
However, four courts of appeals have disagreed with USDA's
interpretation of the Act and have concluded that plaintiffs could not
prove their claims under those sections without proving harm to
competition or likely harm to competition. There is a risk if future
legal challenge of USDA interpretation of sections 202(c), (d), and (e)
of the Act.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Michael V. Durando, Deputy Administrator, Fair
Trade Practices Program, Department of Agriculture, Agricultural
Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-
0237, Phone: 202 720-0219.
RIN: 0581-AE04
USDA--AMS
3. Unfair Practices in Violation of the Packers and Stockyards Act
(AMS-FTPP-21-0045)
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: USDA proposes to supplement a recent revision to
regulations issued under the Packers and Stockyards Act (Act) (7 U.S.C.
181 229c) that provided criteria for the Secretary to consider when
determining whether certain conduct or action by packers, swine
contractors, or live poultry dealers is unduly or unreasonably
preferential or advantageous. The proposed supplemental amendments
would clarify the conduct the Department considers unfair, unjustly
discriminatory, or deceptive and a violation of sections 202(a) and (b)
of the Act. USDA would also clarify the criteria and types of conduct
that would be considered unduly or unreasonably preferential,
advantageous, prejudicial, or disadvantageous and violations of the
Act.
Statement of Need: Revisions to regulations pertaining to the
Packers and Stockyards Act (Act) would clarify the types of conduct by
packers, swine contractors, or live poultry dealers that the
Agricultural Marketing Service (AMS) considers unfair, unjustly
discriminatory, or deceptive and a violation of section 202(a) of the
Act, regardless of whether such action harms or is likely to harm
competition. The proposed rule would also clarify the criteria and/or
types of conduct that would be considered unduly or unreasonably
preferential, advantageous, prejudicial, or disadvantageous and a
violation of section 202(b) of the Act.
Sections 202(a) and 202(b) of the P&S Act are broadly written to
prohibit unfair practices and undue preferences and prejudices.
Industry members have complained that the regulations effectuating the
Act are too vague and do not provide adequate clarity about the types
of conduct or action that are likely to violate the Act. This rule is
needed to provide essential clarity about what would be considered
violations of the Act, regardless of whether such violations harm or
are likely to harm competition.
Summary of Legal Basis: The Packers and Stockyards Act (Act)
authorizes AMS to determine if conduct within the poultry and livestock
industries are unfair, unjustly discriminatory, or deceptive and,
therefore a violation of the Act.
Alternatives: AMS considered taking no further action, allowing 100
years of case law to determine precedent in making determinations about
whether certain behaviors violate the Act. AMS also considered
revisiting the withdrawn 2016 rulemaking approach that would have
identified criteria with which to determine whether certain behaviors
violate the Act.
Anticipated Cost and Benefits: USDA estimates first-year costs
associated with this proposed rule to be $27.19 million, with
significantly decreased costs each year thereafter, resulting in a ten-
year total cost of $54.21 million. AMS expects this proposed rule to
benefit all segments of the industry, providing greater clarity about
what would be considered violations of the Act. AMS expects this
proposed rule, coupled with a concurrent rule on the scope of the Act,
to strengthen enforcement of the Act, resulting in fairer and more
competitive markets for producers and poultry growers.
Risks: Industry is divided about adding lists or examples of
specific prohibited conduct to the regulations. Some argue such lists
would inhibit freedom to forge contracts that fit individual
situations, while others contend greater specificity is required so
that affected parties can more readily identify violative behavior.
Industry is also split on the question of whether identified prohibited
behaviors must be found to harm or likely harm competition to be
considered violations of the Act. AMS expects to resolve some of the
controversy by being proactive and transparent with the industry to
allow for critical discussions and decisions on the rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Michael V. Durando, Deputy Administrator, Fair
Trade Practices Program, Department of Agriculture, Agricultural
Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-
0237, Phone: 202 720-0219.
RIN: 0581-AE05
USDA--AMS
4. Organic Livestock and Poultry Standards
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 7 U.S.C. 6501-7 U.S.C. 6524
CFR Citation: 7 CFR 205
Legal Deadline: None.
[[Page 5017]]
Abstract: This action would establish additional practice standards
l for organic livestock and poultry production. This action would add
provisions to the USDA organic regulations to address and clarify that
livestock and poultry living conditions (for example, outdoor access,
housing environment, and stocking densities), health care practices
(for example, physical alterations, administering medical treatment,
and euthanasia), and animal handling and transport to and during
slaughter are part of the organic certification.
Statement of Need: The Organic Livestock and Poultry Standards
(OLPS) proposed rule is needed to clarify the USDA organic standards
for livestock and poultry living conditions and health practices. The
current regulations for livestock production provide general
requirements but some of these provisions are ambiguous and have led to
inconsistent divergent practices, particularly in the organic poultry
sector. This rule responds to nine recommendations from the National
Organic Standards Board and findings from a USDA Office of Inspector
General (OIG) report. (See USDA, Office of the Inspector General. March
2010. Audit Report 01601-03-Hy, Oversight of the National Organic
Program. Available at: http://www.usda.gov/oig/rptsauditsams.htm.) This
proposed rule includes provisions to support the expression of natural
behaviors and the welfare of organic livestock and poultry.
Summary of Legal Basis: OLPS is authorized by the Organic Foods
Production Act of 1990 (OFPA), 7 U.S.C. 65016524. OFPA authorizes the
USDA to establish national standards governing the marketing of certain
agricultural products as organically produced products to assure
consumers that organically produced products meet a consistent standard
and to facilitate interstate commerce in fresh and processed food that
is organically produced.
Alternatives: AMS considered several alternatives and presents
these in the proposed rule. AMS presents two compliance date
alternatives in the proposed rule that would affect the costs and
benefits of the rule. Additionally, AMS discusses alternatives to
specific policies included in the proposed rule, including alternative
indoor and outdoor space requirements, and non-regulatory alternatives,
including consumer education or no rule.
Anticipated Cost and Benefits: AMS estimates an annual cost of
approximately $4 million annually for layer operations and an
associated benefit of approximately $14 million annually. Additionally,
AMS estimates an annual cost to broiler producers of approximately $12
million annually and an associated benefit of nearly $100 million
annually. The costs of the rule would primarily affect USDA-certified
organic operations that produce livestock and poultry. Qualitatively,
AMS also anticipates the rule will establish a clear standard
protecting the value of the USDA organic seal to consumers, provide a
consistent, level playing field for organic livestock producers, and
facilitate enforcement of organic livestock and poultry standards.
Risks: A final rule that is very similar to this proposed rule was
published on January 19, 2017. That rule was subsequently withdrawn and
never became effective. The USDA continues to face two legal challenges
related to the withdrawal of the rule. Publishing a new proposed rule
will indicate that the USDA is taking steps to advance the regulations.
This could be viewed favorably by some, although others would prefer
reinstating the January 2017 rule without the associated steps required
to finalize a new rule.
The final rule published in January 2017 elicited mixed responses
and was opposed by a multitude of producer groups, representing both
organic and non-organic producers. Publication of this proposed rule is
likely to produce similar responses. Additionally, USDA argued in its
withdrawal of the rule that USDA had no authority under the Organic
Foods Production Act to promulgate the rule, so there is legal risk in
reversing direction and publishing a similar rule.
Finally, AMS plans to seek comment on providing an extended
compliance date (15 years) for poultry operations that do not provide
birds with access to soil or vegetation in outdoor spaces (i.e., porch
systems). AMS's presentation of this option is likely to invoke strong
opinions among some stakeholders.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Erin Healy, Director, Standards Division, National
Organic Program, Department of Agriculture, Agricultural Marketing
Service, Washington, DC 20024, Phone: 202 617-4942, Email:
[email protected].
Related RIN: Related to 0581-AD44, Related to 0581-AD74, Related to
0581-AD75.
RIN: 0581-AE06
USDA--ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS)
Proposed Rule Stage
5. Establishing AWA Standards for Birds
Priority: Other Significant.
Legal Authority: 7 U.S.C. 2131 to 2159
CFR Citation: 9 CFR 1 to 3.
Legal Deadline: NPRM, Judicial, February 2022.
Mandated by the U.S. District Court for the District of Columbia in
a May 26, 2020 Stay (Case # 1:18-cv-01138-TNM).
Abstract: This rulemaking would extend APHIS enforcement of the
Animal Welfare Act (AWA) to birds, other than birds bred for use in
research. This would help ensure the humane care and treatment of such
birds.
Statement of Need: Although the AWA authorizes the regulation of
birds not bred for use in research, APHIS has not to this date
promulgated regulations and standards for the humane care and treatment
of such birds.
Summary of Legal Basis: 7 U.S.C. 2131 to 2159; 7 CFR 2.22, 2.80,
and 371.7.
Alternatives: N/A.
Anticipated Cost and Benefits: Undetermined.
Risks: Failure to issue the rule would not comport with the Court's
order in the Stay, and could place at risk the humane care and
treatment of birds, other than birds bred for use in research.
Timetable:
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Action Date FR Cite
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NPRM................................ 02/00/22 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Additional Information: Additional information about APHIS and its
programs is available on the internet at http://www.aphis.usda.gov.
Agency Contact: Lance Bassage, DVM, Director, National Policy
Staff, Animal Care, Department of Agriculture, Animal and Plant Health
Inspection Service, 4700 River Road, Unit 84, Riverdale, MD 20737,
Phone: 518 218-7551, Email: [email protected].
RIN: 0579-AE61
[[Page 5018]]
USDA--FOOD SAFETY AND INSPECTION SERVICE (FSIS)
Proposed Rule Stage
6. Voluntary Labeling of Meat Products With ``Product of USA'' and
Similar Statements
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601, et seq.
CFR Citation: 9 CFR 317.8.
Legal Deadline: None.
Abstract: The Food Safety and Inspection Service (FSIS) is
proposing to amend its regulations to define the conditions under which
the labeling of meat product labels can bear voluntary statements
indicating that the product is of United States (U.S.) origin, such as
Product of USA, or Made in the USA.
Statement of Need: In 2018 and 2019, FSIS received two petitions
requesting that it change its policy regarding the labeling of meat
products to indicate U.S. origin. After considering the petitions and
the public comments submitted in response to them, FSIS concluded that
adherence to the current labeling policy guidance may be causing
confusion in the marketplace with respect to certain imported meat and
that the current labeling policy may no longer meet consumer
expectations of what the Product of USA claim signifies. The Agency
wants to ensure that any changes to its current policy are accomplished
by an open and transparent process. Therefore, FSIS decided that,
instead of changing the Policy Book entry, it would initiate rulemaking
to define the conditions under which the labeling of meat products
would be permitted to bear voluntary statements indicating that the
product is of U.S. origin.
Summary of Legal Basis: The Federal Meat Inspection Act (21 U.S.C.
601 et seq.).
Alternatives: FSIS has considered the current labeling guidance and
the alternatives proposed in the two petitions: (1) To amend the FSIS
Policy Book to state that meat products may be labeled as Product of
USA only if significant ingredients having a bearing on consumer
preference such as meat, vegetables, fruits, dairy products, etc., are
of domestic origin and; (2) to amend the FSIS Policy Book to provide
that any beef product labeled as Made in the USA, Product of the USA,
USA Beef or in any other manner that suggests that the origin is the
United States, be derived from cattle that have been born, raised, and
slaughtered in the United States. FSIS will now be conducting a
comprehensive review of origin labeling claims for meat and conducting
a consumer perception survey pursuant to developing the proposed
regulations.
Anticipated Cost and Benefits: Establishments may incur costs
associated with voluntarily changing their labels as a result of any
revised Product of USA labeling claim definition. This proposed rule is
expected to benefit consumers by providing them more specific
information on what Product of USA means for single-ingredient beef and
pork products.
Risks: N/A.
Timetable:
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Action Date FR Cite
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NPRM................................ 10/00/22 .......................
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Matthew Michael, Director, Regulations Development
Staff, Department of Agriculture, Food Safety and Inspection Service,
Office of Policy and Program Development, 1400 Independence Avenue SW,
Washington, DC 20250-3700, Phone: 202 720-0345, Fax: 202 690-0486,
Email: [email protected].
RIN: 0583-AD87
USDA--FSIS
Final Rule Stage
7. Revision of the Nutrition Facts Panels for Meat and Poultry Products
and Updating Certain Reference Amounts Customarily Consumed
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601 et seq., Federal Meat Inspection
Act; 21 U.S.C. 451 et seq., Poultry Products Inspection Act
CFR Citation: 9 CFR 317; 9 CFR 381; 9 CFR 413.
Legal Deadline: None.
Abstract: Consistent with the changes that the Food and Drug
Administration (FDA) finalized, the Food Safety and Inspection Service
(FSIS) is amending the Federal meat and poultry products inspection
regulations to update and revise the nutrition labeling requirements
for meat and poultry products to reflect recent scientific research and
dietary recommendations and to improve the presentation of nutrition
information to assist consumers in maintaining healthy dietary
practices. The final rule will: (1) Update the list of nutrients that
are required or permitted to be declared; (2) provide updated Daily
Reference Values (DRV) and Reference Daily Intake (RDI) values that are
based on current dietary recommendations from consensus reports; and
(3) amend the requirements for foods represented or purported to be
specifically for children under the age of four years and pregnant and
lactating women and establish nutrient reference values specifically
for these population subgroups. FSIS is also revising the format and
appearance of the Nutrition Facts Panel; amending the definition of a
single-serving container; requiring dual-column labeling for certain
containers; and updating and modifying several reference amounts
customarily consumed (RACCs or reference amounts). FSIS is also
consolidating the nutrition labeling regulations for meat and poultry
products into a new Code of Federal Regulations (CFR) part.
Statement of Need: On May 27, 2016, the Food and Drug
Administration (FDA) published two final rules: (1) ``Food Labeling:
Revision of the Nutrition and Supplement Facts Labels'' (81 FR 33742);
and (2) ``Food Labeling: Serving Sizes of Foods that Can Reasonably be
Consumed at One Eating Occasion; Dual-Column Labeling; Updating,
Modifying, and Establishing Certain Reference Amounts Customarily
Consumed; Serving Size for Breath Mints; and Technical Amendments'' (81
FR 34000). FDA finalized these rules to update the Nutrition Facts
label to reflect new nutrition and public health research, to reflect
recent dietary recommendations from expert groups, and to improve the
presentation of nutrition information to help consumers make more
informed choices and maintain healthy dietary practices. FSIS has
reviewed FDA's analysis and, to ensure that nutrition information is
presented consistently across the food supply, FSIS will propose to
amend the nutrition labeling regulations for meat and poultry products
to parallel, to the extent possible, FDA's regulations. This approach
will help increase clarity of information to consumers and will improve
efficiency in the marketplace.
Summary of Legal Basis: The Federal Meat Inspection Act (21 U.S.C.
601 et seq.) and the Poultry Products Inspection Act (21 U.S.C. 451 et
seq.).
Alternatives: FSIS is considering different alternatives for the
compliance period of the final rule.
Anticipated Cost and Benefits: These proposed regulations are
expected to benefit consumers by increasing and improving dietary
information available in the market. An estimate of the monetary
benefits from these market improvements can be obtained by calculating
the medical cost savings generated by linking information use to
improved consumer diets. In addition, FSIS believes that the public
would be
[[Page 5019]]
better served by having the regulations governing nutrition labeling
consolidated in one part of title 9. Rather than searching through two
separate parts of title 9, CFR parts 317 and 381, to find the nutrition
labeling regulations, interested parties would only have to survey one,
part 413, to be able to apply nutrition panels to their meat and
poultry products. Firms would incur a one-time cost for relabeling,
recordkeeping costs, and costs associated with voluntary reformulation.
Many firms have voluntarily begun using the FDA format, which will
reduce costs.
Risks: None.
Timetable:
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Action Date FR Cite
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NPRM................................ 01/19/17 82 FR 6732
NPRM Comment Period End............. 04/19/17 .......................
Final Action........................ 06/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Matthew Michael, Director, Regulations Development
Staff, Department of Agriculture, Food Safety and Inspection Service,
Office of Policy and Program Development, 1400 Independence Avenue SW,
Washington, DC 20250-3700, Phone: 202 720-0345, Fax: 202 690-0486,
Email: [email protected].
RIN: 0583-AD56
USDA--FSIS
8. Prior Label Approval System: Expansion of Generic Label Approval
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601 et seq.; 21 U.S.C. 451 et seq.
CFR Citation: 9 CFR 412.2 (a) (1); 9 CFR 317.7; 9 CFR 381.128; 9
CFR 412.2 (b).
Legal Deadline: None.
Abstract: The Food Safety and Inspection Service (FSIS) is amending
its labeling regulations to expand the categories of meat and poultry
product labels that it will deem generically approved and thus not
required to be submitted to FSIS. These reforms will reduce the
regulatory burden on producers seeking to bring products to market, as
well as the Agency costs expended to evaluate the labels.
Statement of Need: This action is needed to reduce the regulatory
burden on producers seeking to bring products to market, as well as the
Agency costs expended to evaluate the labels. Based on FSIS experience
evaluating the labels in question and the ability of inspection
personnel to verify labeling in the field, FSIS anticipates this action
will have no impact on food safety or the accuracy of meat and poultry
product labeling.
Summary of Legal Basis: The Acts direct the Secretary of
Agriculture to maintain meat and poultry inspection programs designed
to assure consumers that these products are safe, wholesome, not
adulterated, and properly marked, labeled, and packaged. Section 7(d)
of the Federal Meat Inspection Act (21 U.S.C. 607(d)) states: No
article subject to this title shall be sold or offered for sale by any
person, firm, or corporation, in commerce, under any name or other
marking or labeling which is false or misleading, or in any container
of a misleading form or size, but established trade names and other
marking and labeling and containers which are not false or misleading
and which are approved by the Secretary are permitted. The Poultry
Products Inspection Act contains similar language in section 21 U.S.C.
457(c).
Alternatives: FSIS considered three alternatives to the proposed
rule: Taking no action, adopting the current proposal except with
continued evaluation of labels that would otherwise be generically
approved, and allowing all labels to be generically approved.
Anticipated Cost and Benefits: There are no additional costs to
industry, or the Agency associated with this rule. FSIS will continue
to verify that product labels, including those that are generically
approved, are truthful and not misleading and otherwise comply with
FSIS's requirements.
This rule is expected to reduce the number of labels industry is
required to submit to FSIS for evaluation by approximately 35 percent.
Establishments will realize a cost savings because they will no longer
need to incur costs for submitting certain types of labels to FSIS for
evaluation (e.g., preparing a printer's proof). In addition,
streamlining the evaluation process for specific types of labels would
allow a faster introduction of products into the marketplace by
reducing wait times for label approvals.
FSIS will also benefit from a reduction in the number of labels
submitted to it for review. FSIS will be able to reallocate staff hours
from evaluating labels towards the development of labeling policy.
Timetable:
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Action Date FR Cite
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NPRM................................ 09/14/20 85 FR 56538
NPRM Comment Period End............. 11/13/20 .......................
Final Rule.......................... 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Matthew Michael, Director, Regulations Development
Staff, Department of Agriculture, Food Safety and Inspection Service,
Office of Policy and Program Development, 1400 Independence Avenue SW,
Washington, DC 20250-3700, Phone: 202 720-0345, Fax: 202 690-0486,
Email: [email protected].
RIN: 0583-AD78
BILLING CODE 3410-90-P
DEPARTMENT OF COMMERCE
Statement of Regulatory and Deregulatory Priorities
Established in 1903, the Department of Commerce (Commerce or
Department) is one of the oldest Cabinet-level agencies in the Federal
Government. Commerce's mission is to create the conditions for economic
growth and opportunity across all American communities by promoting
innovation, entrepreneurship, competitiveness, and environmental
stewardship. Commerce has 12 operating units, which manage a diverse
portfolio of programs and services ranging from trade promotion and
economic development assistance to improved broadband access and the
National Weather Service, and from standards development and
statistical data production, including the decennial census, to patents
and fisheries management. Across these varied activities, the
Department seeks to provide a foundation for a more equitable,
resilient, and globally competitive economy.
To fulfill its mission, Commerce works in partnership with
businesses, educational institutions, community organizations,
government agencies, and individuals to:
Innovate by creating new ideas through cutting-edge
science and technology, from advances in nanotechnology to ocean
exploration to broadband deployment, and by protecting American
innovations through the patent and trademark system;
Support entrepreneurship and commercialization by enabling
community development and
[[Page 5020]]
strengthening minority businesses and small manufacturers;
Maintain U.S. economic competitiveness in the global
marketplace by promoting exports and foreign direct investment,
ensuring a level playing field for U.S. businesses, and ensuring that
technology transfer is consistent with our nation's economic and
security interests;
Provide effective management and stewardship of our
nation's resources and assets to ensure sustainable economic
opportunities; and
Make informed policy decisions and enable better
understanding of the economy and our communities by providing timely,
accessible, and accurate economic and demographic data.
Responding to the Administration's Regulatory Philosophy and Principles
Commerce's Regulatory Plan tracks the most important regulations
that the Department anticipates issuing to implement these policy and
program priorities and foster sustainable and equitable growth. Of
Commerce's 12 primary operating units, three bureaus--the National
Oceanic and Atmospheric Administration (NOAA), the United States Patent
and Trademark Office (USPTO), and the Bureau of Industry and Security
(BIS)--issue the vast majority of the Department's regulations, and
these three bureaus account for all the planned actions that are
considered the Department's most important significant pre-regulatory
or regulatory actions for FY 2022.
National Oceanic and Atmospheric Administration
NOAA's mission is built on three pillars: Science, service, and
stewardship--to understand and predict changes in climate, weather,
oceans, and coasts; to share that knowledge and information with
others; and to conserve and manage coastal and marine ecosystems and
resources.
At its core, NOAA is a scientific agency. It observes, measures,
monitors, and collects data from the depths of the ocean to the surface
of the sun, and it does so following principles of scientific
integrity. These data are turned into weather and climate models and
forecasts that are then used for everything from local weather
forecasts to predicting the movement of wildfire smoke to identifying
the impacts of climate change on fisheries and living marine resources.
With respect to service, NOAA not only collects data but is
mandated to make it operational, and NOAA seeks to be the authoritative
provider of climate products and services. By providing Federal, State,
and local government partners, the private sector, and the public with
actionable environmental information, NOAA can facilitate decisions in
the face of climate change. Such decisions can range from businesses
planning the location of offices; insurance companies trying to
incorporate climate risk into their insurance policies; and
municipalities looking to ensure that plans for construction of new
housing developments will be resilient to increasing sea level risk,
flooding, and heavy precipitation.
The final pillar of NOAA's mission is stewardship. NOAA seeks to
conserve our lands, waters, and natural resources, protecting people
and the environment now and for future generations. As part of
Commerce, moreover, NOAA recognizes that economic growth must go hand-
in-hand with environmental stewardship. For example, with respect to
the nation's fisheries, NOAA looks simultaneously to optimize
productivity and ensure sustainability in order to boost long-term
economic growth and competitiveness in this vital sector of the U.S.
economy. Similarly, national marine sanctuaries both protect important
natural resources and also are significant drivers of eco-tourism and
local recreation.
Within NOAA, the National Marine Fisheries Services (NMFS) and the
National Ocean Service (NOS) are the components that most often
exercise regulatory authority to implement NOAA's mission. NMFS
oversees the management and conservation of the nation's marine
fisheries; protects marine mammals and Endangered Species Act (ESA)-
listed marine and anadromous species; and promotes economic development
of the U.S. fishing industry. NOS assists the coastal states in their
management of land and ocean resources in their coastal zones,
including estuarine research reserves; manages national marine
sanctuaries; monitors marine pollution; and directs the national
program for deep-seabed minerals and ocean thermal energy.
Much of NOAA's rulemaking is conducted pursuant to the following
key statutes:
Magnuson-Stevens Fishery Conservation and Management Act
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) rulemakings concern the conservation and management of
fishery resources in the U.S. Exclusive Economic Zone (generally 3-200
nautical miles from shore). As itemized in the Unified Agenda, NOAA
plans to take several hundred actions in FY 2022 under Magnuson-Stevens
Act authority, of which roughly 20 are expected to be significant
rulemakings, as defined in Executive Order 12866. With certain
exceptions, rulemakings under Magnuson-Stevens are usually initiated by
the actions of eight regional Fishery Management Councils (FMCs or
Councils). These Councils are comprised of representatives from the
commercial and recreational fishing sectors, environmental groups,
academia, and Federal and State government, and they are responsible
for preparing fishery management plans (FMPs) and FMP amendments, and
for recommending implementing regulations for each managed fishery.
FMPs address a variety of issues, including maximizing fishing
opportunities on healthy stocks, rebuilding overfished stocks, and
addressing gear conflicts. After considering the FMCs' recommendations
in light of the standards and requirements set forth in the Magnuson-
Stevens Act and in other applicable laws, NOAA may issue regulations to
implement the proposed FMPs and FMP amendments.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (MMPA) provides the
authority for the conservation and management of marine mammals under
U.S. jurisdiction. It expressly prohibits, with certain exceptions, the
intentional take of marine mammals. The MMPA allows, upon request and
subsequent authorization, the incidental take of marine mammals by U.S.
citizens who engage in a specified activity (e.g., oil and gas
development, pile driving) within a specified geographic region. NMFS
authorizes incidental take under the MMPA if it finds that the taking
would be of small numbers, have no more than a ``negligible impact'' on
those marine mammal species or stock, and would not have an
``unmitigable adverse impact'' on the availability of the species or
stock for ``subsistence'' uses. NMFS also initiates rulemakings under
the MMPA to establish a management regime to reduce marine mammal
mortalities and injuries as a result of interactions with fisheries. In
addition, the MMPA allows NMFS to permit the take or import of wild
animals for scientific research or public display or to enhance the
survival of a species or stock.
Endangered Species Act
The Endangered Species Act of 1973 (ESA) provides for the
conservation of
[[Page 5021]]
species that are determined to be ``endangered'' or ``threatened,'' and
the conservation of the ecosystems on which these species depend. NMFS
and the Department of Interior's Fish and Wildlife Service (FWS)
jointly administer the provisions of the ESA: NMFS manages marine and
several anadromous species, and FWS manages land and freshwater
species. Together, NMFS and FWS work to protect critically imperiled
species from extinction. NMFS rulemaking actions under the ESA are
focused on determining whether any species under its responsibility is
an endangered or threatened species and whether those species must be
added to the list of protected species. NMFS is also responsible for
designating, reviewing and revising critical habitat for any listed
species. In addition, as indicated in the list of highlighted actions
below, NMFS and FWS may also issue rules clarifying how particular
provisions of the ESA will be implemented.
The National Marine Sanctuaries Act
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary
of Commerce to designate and protect as national marine sanctuaries
areas of the marine environment with special national significance due
to their conservation, recreational, ecological, historical,
scientific, cultural, archeological, educational, or aesthetic
qualities. The primary objective of the NMSA is to protect marine
resources, such as coral reefs, sunken historical vessels, or unique
habitats.
NOAA's Office of National Marine Sanctuaries (ONMS), within NOS,
has the responsibility for management of national marine sanctuaries.
ONMS regulations, issued pursuant to NMSA, prohibit specific kinds of
activities, describe and define the boundaries of the designated
national marine sanctuaries, and set up a system of permits to allow
the conduct of certain types of activities that would otherwise not be
allowed.
These regulations can, among other things, regulate and restrict
activities that may injure natural resources, including all extractive
and destructive activities, consistent with community-specific needs
and NMSA's purpose to ``facilitate to the extent compatible with the
primary objective of resource protection, all public and private uses
of the resources of these marine areas.'' In FY 2022, NOAA is expected
to have at least three regulatory actions under NMSA.
Coastal Zone Management Act
The Coastal Zone Management Act (CZMA) was passed in 1972 to
preserve, protect, and develop and, where possible, to restore and
enhance the resources of the nation's coastal zone. The CZMA creates a
voluntary state-federal partnership, where coastal states (States in,
or bordering on, the Atlantic, Pacific or Arctic Ocean, the Gulf of
Mexico, Long Island Sound, or one or more of the Great Lakes), may
elect to develop comprehensive programs that meet federal approval
standards. Currently, 34 of the 35 eligible entities are implementing a
federally approved coastal management plan approved by the Secretary of
Commerce.
NOAA's Regulatory Plan Actions
Of the numerous regulatory actions that NOAA is planning for this
year and that are included in the Unified Agenda, there are five,
described below, that the Department considers to be of particular
importance.
1. Illegal, Unreported, and Unregulated Fishing; Fisheries
Enforcement; High Seas Driftnet Fishing Moratorium Protection Act
(0648-BG11): The United States is a signatory to the Port State
Measures Agreement (PSMA). The agreement is aimed at combating illegal,
unreported, and unregulated (IUU) fishing activities through increased
port inspection of foreign fishing vessels and by preventing the
products of illegal fishing from landing and entering into commerce.
The High Seas Driftnet Fishing Moratorium Act (Fishing Moratorium Act)
implemented provisions of the PSMA, and NOAA issued regulations under
the Fishing Moratorium Act in 2011 and 2013. Since then, the provisions
of the Fishing Moratorium Act have been amended by the Illegal,
Unreported and Unregulated Fishing Enforcement Act of 2015 (Pub. L.
114-81) and the Ensuring Access to Pacific Fisheries Act (Pub. L. 114-
327). This proposed rule would implement amendments made by these later
two laws. NMFS will also propose changes to the definition of IUU
fishing for the purposes of identifying and certifying nations.
2. Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule (0648-BI88): Regulatory modifications are needed to
further reduce the likelihood of mortalities and serious injuries to
endangered North Atlantic right whales from vessel collisions, which
are a primary cause of the species' decline and greatly contributing to
the ongoing Unusual Mortality Event (2017-present). Following two
decades of growth, the species has been in decline over the past decade
with a population estimate of only 368 individuals as of 2019. Vessel
strikes are one of the two primary causes of North Atlantic right whale
mortality and serious injury across their range, and human-caused
mortality to adult females in particular is limiting recovery of the
species. Entanglement in fishing gear is the other primary cause of
mortality and serious injury, which is being addressed by separate
regulatory actions.
3. Endangered and Threatened Wildlife and Plants; Revision of the
Regulations for Listing Endangered and Threatened Species and
Designation of Critical Habitat (0648-BJ44): This action responds to
section 2 of the Executive Order on Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis (E.O.
13990) and the associated Fact Sheet (List of Agency Actions for
Review). This is a joint rulemaking by NMFS and the FWS (the Services)
to rescind the regulatory definition of the term ``habitat.'' This
previously undefined term was defined by regulation for the first time
in 2020 for the purpose of designating critical habitat under the ESA.
Pursuant to Executive Order 13990, the Services also considered the
alternatives of retaining the existing habitat definition or revising
the habitat definition and will be considering any alternatives
provided during the public comment period on the proposed rule.
4. Endangered and Threatened Wildlife and Plants; Regulations for
Listing Species and Designating Critical Habitat (0648-BK47): This
action responds to section 2 of the Executive Order on Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis (E.O. 13990) and the associated Fact Sheet (List of
Agency Actions for Review). This is a joint rulemaking by the Services
to revise joint regulations issued in 2019 implementing section 4 of
the ESA. Specifically addressed in this action are joint regulations
that address the classification of species as threatened or endangered
and the criteria and process for designating critical habitat for
listed species. Pursuant to Executive Order 13990, the Services
reviewed the specific regulatory provisions that had been revised in
the 2019 final rule. Following a review of the 2019 rule, the Services
are proposing to revise a portion of these regulations but are also
soliciting public comments on all aspects of the 2019 rule before
issuing a final rule.
5. Endangered and Threatened Wildlife and Plants; Revision of
[[Page 5022]]
Regulations for Interagency Cooperation (0648-BK48): This action
responds to section 2 of the Executive Order on Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis (E.O. 13990) and the associated Fact Sheet (List of Agency
Actions for Review). This is a joint rulemaking by the Services to
revise joint regulations implementing section 7 of the ESA, which
requires Federal agencies to consult with the Services whenever any
action the agency undertakes, funds, or authorizes may affect
endangered or threatened species or their critical habitat, to ensure
that the action does not jeopardize listed species or adversely modify
critical habitat. In 2019, the Services revised various aspects of the
regulations governing the consultation process under ESA Section 7
including, significantly, how the Services define the ``effects of the
action,'' which has importance for determining the scope of
consultation. Pursuant to Executive Order 13990, the Services reviewed
the specific regulatory provisions that had been revised in the 2019
final rule. Following this review of the 2019 rule, the Services are
proposing to revise a portion of these regulations, including ``effects
of the action,'' but are also soliciting public comments on all aspects
of the 2019 rule before issuing a final rule. In addition to revising
provisions from the 2019 rule, the Services are proposing to clarify
the responsibilities of a Federal agency and the Services regarding the
requirement to reinitiate consultation.
The United States Patent and Trademark Office
The USPTO's mission is to foster innovation, competitiveness, and
economic growth, domestically and abroad, by delivering high quality
and timely examination of patent and trademark applications, guiding
domestic and international intellectual property policy, and delivering
intellectual property information and education worldwide.
Major Programs and Activities
The USPTO is responsible for granting U.S. patents and registering
trademarks. This system of secured property rights, which has its
foundation in Article I, Section 8, Clause 8, of the Constitution
(providing that Congress shall have the power to ``promote the Progress
of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries'') has enabled American industry to flourish. New products
have been invented, new uses for old ones discovered, and employment
opportunities created for millions of Americans. The continued demand
for patents and trademarks underscores the importance to the U.S.
economy of effective mechanisms to protect new ideas and investments in
innovation, as well as the ingenuity of American inventors and
entrepreneurs.
In addition to granting patents and trademarks, the USPTO advises
the President of the United States, the Secretary of Commerce, and U.S.
government agencies on intellectual property (IP) policy, protection,
and enforcement; and promotes strong and effective IP protection around
the world. The USPTO furthers effective IP protection for U.S.
innovators and entrepreneurs worldwide by working with other agencies
to secure strong IP provisions in free trade and other international
agreements. It also provides training, education, and capacity building
programs designed to foster respect for IP and encourage the
development of strong IP enforcement regimes by U.S. trading partners.
As part of its work, the USPTO administers regulations located at
title 37 of the Code of Federal Regulations concerning its patent and
trademark services and the other functions it performs.
The USPTO's Regulatory Plan Actions
1. Final Rule: Changes to Implement Provisions of the Trademark
Modernization Act of 2020 (0651-AD55): The USPTO amends the rules of
practice in trademark cases to implement provisions of the Trademark
Modernization Act of 2020. This rule establishes ex parte expungement
and reexamination proceedings for cancellation of a registration when
the required use in commerce of the registered mark has not been made;
provides for a new nonuse ground for cancellation before the Trademark
Trial and Appeal Board; establishes flexible USPTO action response
periods; and amends the existing letter-of-protest rule to indicate
that letter-of-protest determinations are final and non-reviewable. The
rule also sets fees for petitions requesting institution of ex parte
expungement and reexamination proceedings, and for requests to extend
USPTO action response deadlines.
The two new ex parte proceedings created by this rulemaking--one
for expungement and one for reexamination--are intended to help ensure
the accuracy of the trademark register by providing a new mechanism for
removing a registered mark from the trademark register or cancelling
the registration as to certain goods and/or services, when the
registrant has not used the mark in commerce. The proposed changes will
give U.S. businesses new tools to clear away unused registered
trademarks from the federal trademark register and will give the USPTO
the ability to move applications through the system more efficiently.
Bureau of Industry and Security
BIS advances U.S. national security, foreign policy, and economic
objectives by maintaining and strengthening adaptable, efficient, and
effective export control and treaty compliance systems as well as by
administering programs to prioritize certain contracts to promote the
national defense and to protect and enhance the defense industrial
base.
Major Programs and Activities
BIS administers four sets of regulations. The Export Administration
Regulations (EAR) regulate exports and reexports to protect national
security, foreign policy, and short supply interests. The EAR includes
the Commerce Control List (CCL), which describes commodities, software,
and technology that are subject to licensing requirements for specific
reasons for control. The EAR also regulates U.S. persons' participation
in certain boycotts administered by foreign governments. The National
Security Industrial Base Regulations provide for prioritization of
certain contracts and allocations of resources to promote the national
defense, require reporting of foreign government-imposed offsets in
defense sales, provide for surveys to assess the capabilities of the
industrial base to support the national defense, and address the effect
of imports on the defense industrial base. The Chemical Weapons
Convention Regulations implement declaration, reporting, and on-site
inspection requirements in the private sector necessary to meet United
States treaty obligations under the Chemical Weapons Convention treaty.
The Additional Protocol Regulations implement similar requirements for
certain civil nuclear and nuclear-related items with respect to an
agreement between the United States and the International Atomic Energy
Agency.
BIS also has an enforcement component with nine offices covering
the United States, as well as BIS export control officers stationed at
several U.S. embassies and consulates abroad. BIS works with other U.S.
Government agencies to promote coordinated U.S. Government efforts in
export controls and other programs. BIS participates in U.S. Government
efforts to strengthen
[[Page 5023]]
multilateral export control regimes and promote effective export
controls through cooperation with other governments.
In FY 2022, BIS plans to publish a number of proposed and final
rules amending the EAR. These rules will cover a range of issues,
including emerging and foundational technology, country specific
policies, CCL revisions based on decisions by the four multilateral
export control regimes (Australia Group, Missile Technology Control
Regime, Nuclear Suppliers Group, and Wassenaar Arrangement), and
implementation of any interagency agreed transfers from the United
States Munitions List to the CCL.
BIS's Regulatory Plan Actions
1. Authorization of Certain ``Items'' to Entities on the Entity
List in the Context of Specific Standards Activities (0694-AI06): BIS
is amending the EAR to clarify its applicability to releases of
technology for standards setting or development to support U.S.
participation in standards efforts.
2. Commerce Control List: Implementation of Controls on
``Software'' Designed for Certain Automated Nucleic Acid Assemblers and
Synthesizers (0694-AI08): BIS is publishing this final rule to amend
the CCL by adding a new Export Control Classification Number (ECCN)
2D352 to control software that is designed for automated nucleic acid
assemblers and synthesizers controlled under ECCN 2B352.j and capable
of designing and building functional genetic elements from digital
sequence data. These amendments to the CCL are based upon a finding,
consistent with the emerging and foundational technologies interagency
process set forth in section 1758 of the Export Control Reform Act of
2018 (ECRA) (50 U.S.C. 4817), that such software is capable of being
utilized in the production of pathogens and toxins and, consequently,
the absence of export controls on such software could be exploited for
biological weapons purposes.
3. Information Security Controls: Cybersecurity Items (0694-AH56):
In 2013, the Wassenaar Arrangement (WA), a multilateral export control
regime in which the United States participates, added cybersecurity
items to the WA List, including a definition for ``intrusion
software.'' In 2015, public comments on a BIS proposed implementation
rule revealed serious issues concerning scope and implementation
regarding these controls. Based on these comments, as well as
substantial commentary from Congress, the private sector, academia,
civil society, and others on the potential unintended consequences of
the 2013 controls, the U.S. government returned to the WA to
renegotiate the controls. This interim final rule outlines the progress
the United States has made in this area, revises implementation, and
requests from the public information about the impact of these revised
controls on U.S. industry and the cybersecurity community. These items
warrant controls because these tools could be used for surveillance,
espionage, or other actions that disrupt, deny or degrade the network
or devices on it.
4. Imposition of Export Controls on Certain Brain-Computer
Interface (BCI) Emerging Technology (0694-AI41): Section 1758 of ECRA,
as codified under 50 U.S.C. 4817, authorizes BIS to establish
appropriate controls on the export, reexport or transfer (in-country)
of emerging and foundational technologies. Pursuant to ECRA, BIS has
identified Brain Computer Interface technology as part of a
representative list of technology categories for which BIS will seek
public comment to determine whether this is an emerging technology that
is important to U.S. national security and for which effective controls
can be implemented. In this Advance Notice of Proposed Rulemaking, BIS
is seeking comments specifically concerning whether this technology
could provide the United States, or any of its adversaries, with a
qualitative military or intelligence advantage. In addition, BIS is
seeking public comments on how to ensure that the scope of any controls
that may be imposed on this technology in the future would be effective
and appropriate with respect to their potential impact on legitimate
commercial or scientific applications.
5. Foundational Technologies: Proposed Controls (0694-AH80): BIS is
considering expanding controls on certain foundational technologies.
Foundational technologies may be items that are currently subject to
control for military end use or military end user reasons.
Additionally, foundational technologies may be additional items, for
which an export license is generally not required (except for certain
countries), that also warrant review to determine if they are
foundational technologies essential to the national security. For
example, such controls may be reviewed if the items are being utilized
or are required for innovation in developing conventional weapons or
enabling foreign intelligence collection activities or weapons of mass
destruction applications. In an effort to address this concern, this
proposed rule would amend the CCL by adding controls on certain
aircraft reciprocating or rotary engines and powdered metals and
alloys. This rule requests public comments to ensure that the scope of
these proposed controls will be effective and appropriate, including
with respect to their potential impact on legitimate commercial or
scientific applications.
6. Removal of Certain General Approved Exclusions (GAEs) Under the
Section 232 Steel and Aluminum Tariff Exclusions Process (0694-AH55):
On December 14, 2020, BIS published an interim final rule (the December
14 rule) that revised aspects of the process for requesting exclusions
from the duties and quantitative limitations on imports of aluminum and
steel discussed in three previous Commerce interim final rules
implementing the exclusion process authorized by the President under
section 232 of the Trade Expansion Act of 1962, as amended (232), as
well as a May 26, 2020, notice of inquiry. The December 14 rule added
123 General Approved Exclusions (GAEs) to the regulations. The addition
of GAEs was an important step in improving the efficiency and
effectiveness of the 232 exclusions process for certain Harmonized
Tariff Schedule of the United States (HTSUS) codes for steel and
aluminum that had not received objections. Commerce determined it could
authorize imports under GAEs for these specified HTSUS codes for all
importers instead of requiring each importer to submit an exclusion
request. Subsequently, based on Commerce's review of the public
comments received in response to the December 14 rule and additional
analysis conducted by Commerce of 232 exclusion request submissions,
Commerce determined that a subset of the GAEs added in the December 14
rule did not meet the criteria for inclusion as a GAE and should
therefore be removed. Commerce is removing these GAEs in this interim
final rule to ensure that only those GAEs that meet the stated criteria
from the December 14 rule will continue to be included as eligible
GAEs. Lastly, this interim final rule makes two conforming changes to
the GAE list for a recent change to one HTSUS classification and adds a
footnote to both GAE supplements to address future changes to the
HTSUS.
[[Page 5024]]
DOC--BUREAU OF INDUSTRY AND SECURITY (BIS)
Prerule Stage
9. Request for Comments Concerning the Imposition of Export Controls on
Certain Brain-Computer Interface (BCI) Emerging Technology
Priority: Other Significant.
Legal Authority: 50 U.S.C. 4817(a)(2)(C)
CFR Citation: None.
Legal Deadline: None.
Abstract: Section 1758 of the Export Control Reform Act of 2018
(ECRA), as codified under 50 U.S.C. 4817, authorizes BIS to establish
appropriate controls on the export, reexport or transfer (in-country)
of emerging and foundational technologies. Pursuant to ECRA, BIS has
identified Brain Computer Interface (BCI) technology as part of a
representative list of technology categories concerning which BIS,
through an interagency process, seeks public comment to determine
whether this technology represents an emerging technology that is
important to U.S. national security and for which effective controls
can be implemented. Specifically, BIS is seeking comments concerning
whether this technology could provide the United States, or any of its
adversaries, with a qualitative military or intelligence advantage. In
addition, BIS is seeking public comments on how to ensure that the
scope of any controls that may be imposed on this technology in the
future would be effective and appropriate (with respect to their
potential impact on legitimate commercial or scientific applications).
Statement of Need: The Bureau of Industry and Security (BIS) is
publishing this ANPRM to obtain public comments on the potential uses
of Brain-Computer Interface (BCI) technology, which includes, inter
alia, neural-controlled interfaces, mind-machine interfaces, direct
neural interfaces, and brain-machine interfaces. On November 19, 2018,
BIS published an ANPRM (83 FR 58201) that identified BCI technology as
part of a representative list of technology categories concerning which
BIS, through an interagency process, sought public comments to
determine whether there are specific emerging technologies that are
essential to U.S. national security and for which effective controls
can be implemented.
Additional input from the public is needed to assist in the
interagency process of evaluating BCI technology as a potential
emerging technology and to determine if there are specific BCI
technologies for which export controls would be appropriate. The
public's responses to the questions posed in this ANPRM will be
considered during the aforementioned interagency process to evaluate
BCI technology as a potential emerging technology and to ensure that
the scope of any controls that may be imposed on this technology would
be effective (in terms of protecting U.S. national security interests)
and appropriate (with respect to minimizing their potential impact on
legitimate commercial or scientific applications).
Summary of Legal Basis: Section 1758(a) of the Export Control
Reform Act (ECRA) of 2018 (50 U.S.C. 4817(a)) outlines an interagency
process for identifying emerging and foundational technologies. BCI
technology has been identified as a technology for evaluation as a
potential emerging technology, consistent with the interagency process
described in section 1758 of ECRA. Consequently, BIS is publishing this
ANPRM to obtain feedback from the public and U.S. industry concerning
whether such technology could provide the United States, or any of its
adversaries, with a qualitative military or intelligence advantage.
Alternatives: The Secretary of Commerce must establish appropriate
controls on the export, reexport or transfer (in-country) of technology
identified pursuant to the section 1758 process. In so doing, the
Secretary must consider the potential end-uses and end-users of
emerging and foundational technologies, and the countries to which
exports from the United States are restricted (e.g., embargoed
countries). While the Secretary has discretion to set the level of
export controls, at a minimum a license must be required for the export
of such technologies to countries subject to a U.S. embargo, including
those countries subject to an arms embargo.
If the interagency process results in a determination that certain
BCI technology constitutes an emerging technology, for purposes of
section 1758 of ECRA, then BIS is required, pursuant to ECRA to
institute export controls on such technology. However, BIS does have
some flexibility to ensure that the scope of any controls that may be
imposed on this technology would be effective (in terms of protecting
U.S. national security interests) and appropriate (with respect to
minimizing their potential impact on legitimate commercial or
scientific applications).
Anticipated Cost and Benefits: This ANPRM is being published by BIS
to assist in evaluating, not only whether certain BCI technology is an
emerging technology, but also to obtain information from the public to
assist in evaluating how the implementation of export controls on such
technology would impact U.S. industry, in terms of both its economic
and technological competitiveness. In short, this ANPRM is intended to
assist, as part of the aforementioned interagency process, in
evaluating the anticipated costs and benefits of imposing export
controls on certain BCI technology.
Risks: The risks of imposing export controls on certain BCI
technology would be to hurt the economic and technological
competitiveness of U.S. industry, which is one of the primary reasons
that BIS is soliciting comments from the public in accordance with this
ANPRM. There are also risks to U.S. national security and to U.S.
industry should such technology fall into the hands of our adversaries.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 10/26/21 86 FR 59070
ANPRM Comment Period End............ 12/10/21 .......................
NPRM................................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Willard Fisher, Export Administration Specialist,
Department of Commerce, Bureau of Industry and Security, 14th Street
and Pennsylvania Avenue NW, Washington, DC 20230, Phone: 202 482-2440,
Fax: 202 482-3355, Email: [email protected].
RIN: 0694-AI41
DOC--BIS
Proposed Rule Stage
10. Foundational Technologies: Proposed Controls; Request for Comments
Priority: Other Significant.
Legal Authority: 50 U.S.C. 4801 to 4852
CFR Citation: 15 CFR 742; 15 CFR 774.
Legal Deadline: None.
Abstract: The Bureau of Industry and Security (BIS), the Department
of Commerce, maintains controls on the export, reexport, and transfer
(in-country) of dual-use and less sensitive military items through the
Export Administration Regulations (EAR), including the Commerce Control
List (CCL). Foundational technologies may be items that are currently
subject to control for military end use or military
[[Page 5025]]
end user reasons. Additionally, foundational technologies may be
additional items, for which an export license is not required (except
for certain countries) that also warrant review to determine if they
are foundational technologies essential to the national security. For
example, such controls may be reviewed if the items are being utilized
or required for innovation in developing conventional weapons or
enabling foreign intelligence collection activities or weapons of mass
destruction applications. In an effort to address this concern, this
rule proposes to amend the CCL with identified foundational
technologies. This rule requests public comments to ensure that the
scope of these proposed controls will be effective and appropriate,
including with respect to their potential impact on legitimate
commercial or scientific applications.
Statement of Need: As part of the National Defense Authorization
Act (NDAA) for Fiscal Year 2019 (Pub. L. 115-232), Congress enacted the
Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4817). Section 1758
of ECRA authorizes the Bureau of Industry and Security (BIS) to
establish appropriate controls on the export, reexport, or transfer
(in-country) of emerging and foundational technologies. With this
proposed rule, BIS continues to identify technologies that may warrant
more restrictive controls than they have at present and establishes a
control framework applicable to certain unilaterally-controlled
emerging and foundational technologies.
Summary of Legal Basis: There are a variety of legal authorities
under which BIS operates. However, ECRA (50 U.S.C. 4817) provides the
most substantive legal basis for BIS's actions under this proposed
rule.
Alternatives: There are not alternatives to this rule. This rule
serves as the first tranche of controls specifically outlining
foundational technologies.
Anticipated Cost and Benefits: The anticipated costs and benefits
of this proposed rule are not applicable.
Risks: There are no applicable risks to this proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 08/27/20 85 FR 52934
ANPRM Correction and Comment 10/09/20 85 FR 64078
Extension.
ANPRM Comment Period End............ 10/26/20 .......................
ANPRM Correction and Comment 11/09/20 .......................
Extension Period End.
NPRM................................ 08/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Logan D. Norton, Department of Commerce, Bureau of
Industry and Security, 1401 Constitution Avenue, Washington, DC 20230,
Phone: 202 812-1762, Email: [email protected].
RIN: 0694-AH80
DOC--BIS
Final Rule Stage
11. Removal of Certain General Approved Exclusions (GAEs) Under the
Section 232 Steel and Aluminum Tariff Exclusions Process
Priority: Other Significant.
Legal Authority: 19 U.S.C. 1862
CFR Citation: 15 CFR 705.
Legal Deadline: None.
Abstract: On December 14, 2020, the Department of Commerce
published an interim final rule (December 14 rule) that revised aspects
of the process for requesting exclusions from the duties and
quantitative limitations on imports of aluminum and steel. The December
14 rule added 123 General Approved Exclusions (GAEs) to the
regulations. The addition of GAEs was an important step in improving
the efficiency and effectiveness of the 232 exclusions process for
certain Harmonized Tariff Schedule of the United States (HTSUS) codes
for steel and aluminum that had not received objections. Subsequently,
based on Commerce's review of the public comments received in response
to the December 14 rule and additional analysis conducted by Commerce
of 232 submissions, Commerce determined that a subset of the GAEs added
in the December 14 rule did not meet the criteria for inclusion as a
GAE and should therefore be removed. Commerce is removing these GAEs in
today's interim final rule to ensure that only those GAEs that meet the
stated criteria from the December 14 rule will continue to be included
as eligible GAEs.
Statement of Need: On December 14, 2020, the Department of Commerce
published an interim final rule (the December 14 rule) that revised
aspects of the process for requesting exclusions from the duties and
quantitative limitations on imports of aluminum and steel discussed in
three previous Department of Commerce (Commerce) interim final rules
implementing the exclusion process authorized by the President under
section 232 of the Trade Expansion Act of 1962, as amended (232), as
well as a May 26, 2020 notice of inquiry. The December 14 rule included
adding 123 General Approved Exclusions (GAEs) to the regulations. The
addition of GAEs was an important step in improving the efficiency and
effectiveness of the 232 exclusions process. Commerce selected certain
steel and aluminum articles under select Harmonized Tariff Schedule of
the United States (HTSUS) codes as GAEs on the basis that exclusion
requests submitted for the specified HTSUS codes had not received
objections from domestic industry in the 232 exclusions process.
Commerce is publishing this interim final rule to remove a subset
of General Approved Exclusions (GAEs) added in the December 14 rule
after public comments on the December 14 rule and subsequent Commerce
analysis of data in the 232 Exclusions Portal identified these HTSUS
codes as not meeting the criteria for inclusion as a GAE. These cases
include HTSUS codes with exclusion requests that recently received
objections and/or denials in the 232 Exclusions Portal. Commerce is
removing these GAEs in this interim final rule to ensure that only
those GAEs that meet the stated criteria from the December 14 rule will
continue to be included as eligible GAEs.
Summary of Legal Basis: The legal basis of this rule is section 232
of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862) and
Reorg. Plan No. 3 of 1979 (44 FR 69273, December 3, 1979). This rule is
also implementing the directive included in Proclamations 9704 and 9705
of March 8, 2018. As explained in the reports submitted by the
Secretary to the President, steel and aluminum are being imported into
the United States in such quantities or under such circumstances as to
threaten to impair the national security of the United States, and
therefore the President is implementing these remedial actions (as
described Proclamations 9704 and 9705 of March 8, 2018) to protect U.S.
national security interests. That implementation includes the creation
of an effective process by which affected domestic parties can obtain
exclusion requests based upon specific national security
[[Page 5026]]
considerations. Commerce started this process with the publication of
the March 19 rule and refined the process with the publication of the
September 11, June 10, and December 14 rules and is continuing the
process with the publication of today's interim final rule. The
revisions to the exclusion request process are informed by the comments
received in response to the December 14 rule and Commerce's experience
with managing the 232 exclusions process.
Alternatives: Alternatives to doing this rule would include not
publishing the rule. The public has the ability to apply for exclusion
requests, so instead of creating GAEs, the public could be told to rely
on the existing exclusions process. However, numerous commenters on the
232 interim final rules that have been published have emphasized the
need for making improvements in the efficiency, transparency, and
fairness of the 232 exclusion process and had suggested the creation of
a GAE type of approval as part of the 232 exclusions process would
benefit the program. Commenters on the December 14 rule identified
certain GAE eligible items that they believed did not meet the stated
criteria for what should be eligible for be authorized under a GAE.
Commerce after reviewing those comments and conducting its own
additional analysis agrees that certain items identified under the
current GAEs no longer reflect the GAE criteria and therefore should be
removed, so the alternative of not doing a rule or the option of
removing the GAE approvals completely are not viable options for
achieving the intended policy objectives that Commerce is trying to
fulfill with having a more effective exclusion process.
Anticipated Cost and Benefits: For the anticipated costs, this rule
is expected to increase the burden hours for one of the collections
associated with this rule, OMB control number 0694-0139. This increase
is expected because of the removal of certain GAEs for steel and GAEs
for aluminum, which is expected to result in an increase of 1,100
exclusion request submissions per year. These removals are estimated to
result in a twenty percent reduction in the burden and costs savings
described in the December 14 rule. These GAE removals are expected to
be an increase in 1,100 burden hours for a total cost increase of
162,800 dollars to the public. There is also expected to be an increase
in 6,600 burden hours for a total cost increase of 257,000 dollars to
the U.S. Government. As Commerce asserted in the December 14 rule that
the steel and aluminum articles identified as being eligible for GAEs,
including those being removed in today's rule, had not received any
objections, the addition of those new GAEs was not estimated to result
in a decrease in the number of objections, rebuttals, or surrebuttals
received by BIS. As described elsewhere in this rule, the GAEs removed
in today's interim final rule did receive objections and/or denials and
therefore warrant removal at this time. Because the December 14 rule
did not make any adjustments to the collections for objections,
rebuttals, or surrebuttals, the removal of these GAEs is estimated to
result in no change in the burden associated with the other three
collections.
For the anticipated benefits, these changes will ensure the
effectiveness of the GAEs under the 232 exclusions process. By ensuring
that only those GAEs that meet the stated criteria for what should be
considered a GAE, will help improve the effectiveness, fairness and
transparency of the 232 exclusions process. Importers and other users
of steel and aluminum in the U.S. and U.S. producers and steel and
aluminum have comments in response to the various section 232 interim
final rules published that creating an effective 232 exclusion process
is key to reduce burdens on the public. The adoption of the GAEs was an
important step in improving efficiency, but in order ensure U.S.
national security interests are protected, only items that meet the GAE
criteria should be eligible and any other item should be required to be
included in the normal 232 exclusion process.
Risks: If this interim final rule were to be delayed, companies in
the United States would be unable to immediately benefit from the
improvements made to the GAE process and could face significant
economic hardship, which could potentially create a detrimental effect
on the general U.S. economy and national security. Comments received on
the December 14 rule that were critical of the GAEs were clear that the
removal of GAEs that consisted of HTSUS codes that received objections
and/or denials under the 232 process was needed. Commenters noted that
failure to provide this additional improvement could allow the
floodgates to open for imports of those articles, and that the influx
of such articles could undermine the efficiency of the 232 process.
Commenters also noted that if this specific improvement is not made,
significant economic consequences could occur. Given the imports of
these articles have already been objected to and/or denied in exclusion
requests under the 232 process for national security reasons, allowing
these specific GAEs to exist could undermine other critical U.S.
national security interests.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 03/19/18 83 FR 12106
Interim Final Rule Effective........ 03/19/18 .......................
Interim Final Rule Comment Period 05/18/18 .......................
End.
Interim Final Rule.................. 09/11/18 83 FR 46026
Interim Final Rule Effective........ 09/11/18 .......................
Interim Final Rule Comment Period 11/13/18 .......................
End.
Interim Final Rule.................. 06/10/19 84 FR 26751
Interim Final Rule Effective........ 06/13/19 .......................
Interim Final Rule Comment Period 08/09/19 .......................
End.
Interim Final Rule.................. 12/14/20 85 FR 81060
Interim Final Rule Effective........ 12/14/20 .......................
Interim Final Rule Effective........ 12/29/20 .......................
Interim Final Rule.................. 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Timothy Mooney, Export Policy Analyst, Department
of Commerce, Bureau of Industry and Security, 14th Street and
Pennsylvania Avenue NW, Washington, DC 20230, Phone: 202 482-3371, Fax:
202 482-3355, Email: [email protected].
RIN: 0694-AH55
DOC--BIS
12. Information Security Controls: Cybersecurity Items
Priority: Other Significant.
Legal Authority: 10 U.S.C. 7420; 10 U.S.C. 7430(e); 15 U.S.C.
1824a; 22 U.S.C. 287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; 30 U.S.C. 185(s); 30 U.S.C.
185(u); 42 U.S.C. 2139a; 43 U.S.C. 1354; 50 U.S.C. 1701 et seq.; 50
U.S.C. 4305; 50 U.S.C. 4601 et seq.; E.O. 12058; E.O. 12851; E.O.
12938; E.O. 13026; E.O. 13222; Pub. L. 108-11
CFR Citation: 15 CFR 740; 15 CFR 742; 15 CFR 772; 15 CFR 774.
Legal Deadline: None.
Abstract: In 2013, the Wassenaar Arrangement (WA) added
cybersecurity items to the WA List, including a definition for
``intrusion software.'' On May 20, 2015, the Bureau of Industry and
Security (BIS) published a proposed
[[Page 5027]]
rule describing how these new controls would fit into the Export
Administration Regulations (EAR) and requested information from the
public about the impact on U.S. industry. The public comments on the
proposed rule revealed serious issues concerning scope and
implementation regarding these controls. Based on these comments, as
well as substantial commentary from Congress, the private sector,
academia, civil society, and others on the potential unintended
consequences of the 2013 controls, the U.S. government returned to the
WA to renegotiate the controls. This interim final rule outlines the
progress the United States has made in this area, revised Commerce
Control List (CCL) implementation, and requests from the public
information about the impact of these revised controls on U.S. industry
and the cybersecurity community.
Statement of Need: In 2013, the Wassenaar Arrangement (WA) added
cybersecurity items to the WA List, including a definition for
intrusion software. On May 20, 2015, the Bureau of Industry and
Security (BIS) published a proposed rule describing how these new
controls would fit into the Export Administration Regulations (EAR) and
requested information from the public about the impact on U.S.
industry. The public comments on the proposed rule revealed serious
issues concerning scope and implementation regarding these controls.
Based on these comments, as well as substantial commentary from
Congress, the private sector, academia, civil society, and others on
the potential unintended consequences of the 2013 controls, the U.S.
government returned to the WA to renegotiate the controls. This interim
final rule outlines the progress the United States has made in this
area, implements revised Commerce Control List (CCL) text, establishes
a new License Exception Authorized Cybersecurity Exports (ACE) and
requests from the public information about the impact of these revised
controls on U.S. industry and the cybersecurity community.
Summary of Legal Basis: On August 13, 2018, the President signed
into law the John S. McCain National Defense Authorization Act for
Fiscal Year 2019, which included the Export Control Reform Act of 2018
(ECRA), 50 U.S.C. 4801-4852. ECRA provides the legal basis for BIS's
principal authorities and serves as the authority under which BIS
issues this rule.
Alternatives: As noted above, BIS does not believe that the
amendments in this rule, will have a significant economic impact on a
substantial number of small entities. Nevertheless, consistent with 5
U.S.C. 603(c), BIS considered significant alternatives to these
amendments to assess whether the alternatives would: (1) Accomplish the
stated objectives of this rule (consistent with the requirements in
ECRA); and (2) minimize any significant economic impact of this rule on
small entities. BIS could have implemented a much broader control on
software capable of cybersecurity controlled under ECCNs 4A005, 4D004,
4E001, 4E001, and 5A001 that would have captured a greater amount of
such software and related technology. That in turn would have had a
greater impact not only on small businesses, but also on research and
development laboratories (both academic and corporate), which are
involved in network security. BIS has determined that implementing
focused controls on specific software and related technology (i.e., the
software controlled under new ECCN 4A005, 4D004, 4E001.a, 4E001.c, and
5A001.j and corresponding development technology in ECCN 5E001) is the
least disruptive alternative for implementing export controls in a
manner consistent with controlling technology that has been determined,
through the interagency process authorized under ECRA, to be essential
to U.S. national security. BIS is not implementing different compliance
or reporting requirements for small entities. If a small business is
subject to a compliance requirement for the export, reexport or
transfer (in-country) of this software and related technology, then it
would submit a license application using the same process as any other
business (i.e., electronically via SNAPR). The license application
process is free of charge to all entities, including small businesses.
In addition, as noted above, the resources and other compliance tools
made available by BIS typically serve to lessen the impact of any EAR
license requirements on small businesses.
Anticipated Cost and Benefits: For the existing ECCNs included in
this rule (4D001, 4E001, 5A001, 5A004, 5D001, 5E001), the 2020 data
from U.S. Customs and Border Protection's Automated Export System (AES)
shows 980 shipments valued at $39,146,164. Of those shipments, 120
shipments valued at $1,864,699 went to Country Group D:1 or D:5
countries, which would make them ineligible for License Exception ACE.
There were no shipments to Country Group E:1 or E:2. Under the
provisions of this rule, the 120 shipments require a license
application submission to BIS.
As there is no specific ECCN data in AES for the new export
controls in new ECCNs 4A005 and 4D004 or new paragraph 4E001.c, BIS
uses other data to estimate the number of shipments of these new ECCNs
that will require a license. Bureau of Economic Analysis (BEA) data
from 2019 show a total dollar value of $55,657 million for Telecom,
Computer, and Information Technology Services exports. Multiplying this
value by 12.1% (the percentage of all exports that are subject to an
EAR license requirement as determined by using AES data) suggests that
$6,734,497,000 of Telecom/Computer/IT exports are now subject to EAR
license requirements. Based on AES data on the existing ECCNs affected
by this rule, BIS estimates the average value of each shipment for the
new ECCNs at about $40,000, and further estimates that 0.6% of all new
ECCN shipments (1,010 shipments) are now eligible for License Exception
ACE and 0.03% of all new ECCN shipments (50 shipments) require a
license application submission. Therefore, the annual total estimated
cost associated with the paperwork burden imposed by this rule (that
is, the projected increase of license application submissions based on
the additional shipments requiring a license) is estimated to be 170
new applications x 29.6 minutes = 5,032/60 min = 84 hours x $30 =
$2,520.
There is no paperwork submission to BIS associated with using
License Exception ACE, and therefore there is no increase to any
paperwork burden or information collection cost associated with License
Exception ACE requirements in this rule.
Benefit: Cybersecurity items in the wrong hands raise both national
security and foreign policy concerns. The benefit of publishing these
revisions and controlling cybersecurity items in the way contemplated
by this rule is that national security and foreign policy concerns are
addressed, in that these regulations assist in keeping such items out
of the hands of those that would use them for nefarious end uses, while
at the same time not disrupt legitimate cybersecurity exports.
Risks: The risks of publishing this rule is that it has unexpected
consequences, which is why there is a 90 day delayed effective date and
45 day comment period that will allow the public to comment on the
rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 10/21/21 86 FR 58205
Interim Final Rule Comment Period 12/06/21
End.
Interim Final Rule Effective........ 01/19/22
[[Page 5028]]
Next Action Undetermined............ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Sharron Cook, Policy Analyst, Department of
Commerce, Bureau of Industry and Security, 14th Street and Pennsylvania
Avenue NW, Washington, DC 20230, Phone: 202 482-2440, Fax: 202 482-
3355, Email: [email protected].
Related RIN: Related to 0694-AG49.
RIN: 0694-AH56
DOC--BIS
13. Authorization of Certain ``Items'' to Entities on the Entity List
in the Context of Specific Standards Activities
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 50 U.S.C. 4801 to 4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938
CFR Citation: 15 CFR 734.
Legal Deadline: None.
Abstract: The Bureau of Industry and Security (BIS) is amending the
Export Administration Regulations (EAR) to clarify the applicability of
the Export Administration Regulations (EAR) to releases of technology
for standards setting or development in standards organizations.
Statement of Need: The Bureau of Industry and Security (BIS) is
amending the Export Administration Regulations (EAR) to clarify the
applicability of the Export Administration Regulations (EAR) to
releases of technology for standards setting or development to support
U.S. participation in standards efforts.
Summary of Legal Basis: There are a variety of legal authorities
under which BIS operates. However, ECRA (50 U.S.C. 4817) provides the
most substantive legal basis for BIS's actions under this rule.
Alternatives: There are not alternatives to this rule.
Anticipated Cost and Benefits: The anticipated costs and benefits
of this proposed rule are not applicable.
Risks: There are no applicable risks to this rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 06/16/20 85 FR 36719
Interim Final Rule Effective........ 06/18/20
Interim Final Rule Comment Period 08/17/20
End.
Final Action........................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Hillary Hess, Department of Commerce, Bureau of
Industry and Security, 1401 Constitution Avenue, Washington, DC 20230,
Phone: 202 482-4819, Email: [email protected].
RIN: 0694-AI06
DOC--BIS
14. Commerce Control List: Expansion of Controls on Certain Biological
Equipment ``Software''
Priority: Other Significant.
Legal Authority: 50 U.S.C. 4801 to 4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 8720
CFR Citation: 15 CFR 774.
Legal Deadline: None.
Abstract: BIS is publishing this final rule to amend the Commerce
Control List (CCL) by adding a new Export Control Classification Number
(ECCN) 2D352 to control ``software'' that is designed for automated
nucleic acid assemblers and synthesizers controlled under ECCN 2B352
and is capable of designing and building functional genetic elements
from digital sequence data. These proposed amendments to the CCL are
based upon a finding, consistent with the emerging and foundational
technologies interagency process set forth in section 1758 of ECRA (50
U.S.C. 4817), that such ``software'' is capable of being utilized in
the production of pathogens and toxins and, consequently, the absence
of export controls on such software could be exploited for biological
weapons purposes. In addition, this rule amends ECCN 2E001 to indicate
that this ECCN controls ``technology'' for the ``development'' of
``software'' described in the new ECCN 2D352.
Statement of Need: The Bureau of Industry and Security (BIS) is
publishing this final rule to amend the Export Administration
Regulations (EAR) to implement the decision made at the Australia Group
(AG) Virtual Implementation Meeting session held in May 2021, and later
adopted pursuant to the AG's silence procedure. This decision updated
the AG Common Control List for dual-use biological equipment by adding
controls on nucleic acid assembler and synthesizer software that is
capable of designing and building functional genetic elements from
digital sequence data.
Prior to the addition of nucleic acid assembler/synthesizer
software to the AG biological equipment list, BIS identified this
software as a technology to be evaluated as an emerging technology,
consistent with the interagency process described in section 1758 of
the Export Control Reform Act of 2018 (ECRA) (codified at 50 U.S.C.
4817). This identification was based on a finding that this software is
capable of being used to operate nucleic acid assemblers and
synthesizers controlled under ECCN 2B352 for the purpose of generating
pathogens and toxins without the need to acquire controlled genetic
elements and organisms. Consequently, the absence of export controls on
this software could be exploited for biological weapons purposes.
Summary of Legal Basis: Section 1758(a) of the Export Control
Reform Act (ECRA) of 2018 (50 U.S.C. 4817(a)) outlines an interagency
process for identifying emerging and foundational technologies. Nucleic
acid synthesizer software has been identified as a technology for
evaluation as a potential emerging technology, consistent with the
interagency process described in section 1758 of ECRA. Consequently,
BIS published a proposed rule on November 6, 2020 (85 FR 71012), to
provide the public with notice and the opportunity to comment on adding
a new ECCN 2D352 to control software for the operation of nucleic acid
assemblers and synthesizers described in ECCN 2B352.j that is capable
of designing and building functional genetic elements from digital
sequence data. Subsequent to the publication of this proposed rule, the
Australia Group (AG) added this software to their biological equipment
Common Control List. This final rule amends the EAR to reflect the
action taken by the AG.
Alternatives: The Secretary of Commerce must establish appropriate
controls on the export, reexport or transfer (in-country) of technology
identified pursuant to the Section 1758 process. In so doing, the
Secretary must consider the potential end-uses and end-users of
emerging and foundational technologies, and the countries to which
exports from the United States are restricted (e.g., embargoed
countries). While the Secretary has discretion to set the level of
export controls, at a minimum a license must be required for the export
of such technologies to countries subject to a U.S. embargo,
[[Page 5029]]
including those countries subject to an arms embargo.
If the interagency process results in a determination that a
certain technology constitutes an emerging technology, for purposes of
section 1758 of ECRA, then BIS is required, pursuant to ECRA, to
institute export controls on such technology. However, BIS does have
some flexibility to ensure that the scope of any controls that may be
imposed on this technology would be effective (in terms of protecting
U.S. national security interests) and appropriate (with respect to
minimizing their potential impact on legitimate commercial or
scientific applications). In this particular instance, the controls on
this technology will be multilateral, because they have been adopted by
the Australia Group (AG) for inclusion in their biological equipment
Common Control List.
Anticipated Cost and Benefits: The changes that would be made by
this rule would only marginally affect the scope of the EAR controls on
chemical weapons precursors, human and animal pathogens/toxins, and
equipment capable of use in handling biological materials.
The number of additional license applications that would have to be
submitted per year, as a result of the addition of ECCN 2D352 to the
CCL, as described above, is not expected to exceed fifteen license
applications. This total represents a relatively insignificant portion
of the overall trade in such items and is well within the scope of the
information collection approved by the Office of Management and Budget
(OMB) under control number 06940088.
Risks: This software is capable of being used to operate nucleic
acid assemblers and synthesizers controlled under ECCN 2B352 for the
purpose of generating pathogens and toxins without the need to acquire
controlled genetic elements and organisms. Consequently, the absence of
export controls on this software could be exploited for biological
weapons purposes.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/06/20 85 FR 71012
NPRM Comment Period End............. 12/21/20
Final Action........................ 10/05/21 86 FR 54814
Final Action Effective.............. 10/05/21
Next Action Undetermined............ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Willard Fisher, Export Administration Specialist,
Department of Commerce, Bureau of Industry and Security, 14th Street
and Pennsylvania Avenue NW, Washington, DC 20230, Phone: 202 482-2440,
Fax: 202 482-3355, Email: [email protected].
RIN: 0694-AI08
DOC--PATENT AND TRADEMARK OFFICE (PTO)
Final Rule Stage
15. Changes To Implement Provisions of the Trademark Modernization Act
of 2020
Priority: Other Significant.
Legal Authority: 15 U.S.C. 1066; 15 U.S.C. 1067; 15 U.S.C. 1113; 15
U.S.C. 1123; 35 U.S.C. 2; Pub. L. 112-29; Pub. L. 116-260
CFR Citation: 37 CFR 2; 37 CFR 7.
Legal Deadline: Final, Statutory, December 27, 2021.
Abstract: The United States Patent and Trademark Office (USPTO or
Office) amends the rules of practice in trademark cases to implement
provisions of the Trademark Modernization Act of 2020. The rule
establishes ex parte expungement and reexamination proceedings for
cancellation of a registration when the required use in commerce of the
registered mark has not been made; provides for a new nonuse ground for
cancellation before the Trademark Trial and Appeal Board; establishes
flexible Office action response periods; and amends the existing
letter-of-protest rule to indicate that letter-of-protest
determinations are final and non-reviewable. The USPTO also sets fees
for petitions requesting institution of ex parte expungement and
reexamination proceedings, and for requests to extend Office action
response deadlines. Amendments are also for the rules concerning the
suspension of USPTO proceedings and the rules governing attorney
recognition in trademark matters. Finally, a new rule is to address
procedures regarding court orders cancelling or affecting
registrations.
Statement of Need: The purpose of this action is to amend the rules
of practice in trademark cases to implement provisions of the Trademark
Modernization Act of 2020. In addition, amendments are also proposed
for the rules concerning suspension of USPTO proceedings and the rules
governing attorney recognition in trademark matters, and a new rule is
proposed to address procedures regarding court orders cancelling or
affecting registrations.
Summary of Legal Basis: The Trademark Modernization Act of 2020
(TMA) was enacted on December 27, 2020. See Public Law 116260, Div. Q,
Tit. II, Subtit. B, 221228 (Dec. 27, 2020). The TMA amends the
Trademark Act of 1946 (the Act) to establish new ex parte expungement
and reexamination proceedings to cancel, either in whole or in part,
registered marks for which the required use in commerce was not made.
Furthermore, the TMA amends 14 of the Act to allow a party to allege
that a mark has never been used in commerce as a basis for cancellation
before the Trademark Trial and Appeal Board (TTAB). The TMA also
authorizes the USPTO to promulgate regulations to set flexible Office
action response periods between 60 days and 6 months, with an option
for applicants to extend the deadline up to a maximum of 6 months from
the Office action issue date. In addition, the TMA includes statutory
authority for the USPTO's letter-of-protest procedures, which allow
third parties to submit evidence to the USPTO relevant to a trademark's
registrability during the initial examination of the trademark
application, and provides that the decision whether to include such
evidence in the application record is final and non-reviewable. The TMA
requires the USPTO to promulgate regulations to implement the
provisions relating to the new ex parte expungement and reexamination
proceedings, and the letter-of-protest procedures, within one year of
the TMA's enactment. The USPTO also proposes under its authority under
the Trademark Act of 1946, 15 U.S.C. 1051 et seq., to amend the rules
regarding attorney recognition and correspondence, and to add a new
rule formalizing the USPTO's longstanding procedures concerning action
on court orders cancelling or affecting a registration under section 37
of the Act, 15 U.S.C. 1119.
Alternatives: The TMA mandates the framework for many of the
procedures in this rulemaking, particularly in regard to the changes to
the letter-of-protest procedures and most of the procedures for the new
ex parte expungement and reexamination proceedings, except for those
indicated below. Thus, the USPTO has little to no discretion in the
rulemaking required to implement those procedures. For those provisions
for which alternatives were possible because the TMA provided the
Director discretion to implement regulations (i.e., fees; limit on
petitions requesting expungement or
[[Page 5030]]
reexamination; reasonable investigation and evidence; director-
initiated proceedings; response time periods in new ex parte
proceedings; flexible response periods; suspension of proceedings; and
attorney recognition), a full discussion of alternatives is provided in
the proposed rule.
Anticipated Cost and Benefits: The proposed regulations have
qualitative benefits of ensuring a well-functioning trademark system
where the trademark register accurately reflects trademarks that are
currently in use.
Risks: The risk of taking no action is that USPTO would not comply
with its statutory mandate under the TMA.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/18/21 86 FR 26862
NPRM Comment Period End............. 07/19/21
Final Action........................ 11/00/21
Final Action Effective.............. 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: None.
Agency Contact: Catherine Cain, Trademark Manual of Examining
Procedure Editor, Department of Commerce, Patent and Trademark Office,
P.O. Box 1451, Alexandria, VA 22313, Phone: 571 272-8946, Fax: 751 273-
8946, Email: [email protected].
RIN: 0651-AD55
BILLING CODE 3410-12-P
DEPARTMENT OF DEFENSE
Statement of Regulatory Priorities
Background
The Department of Defense (DoD) is the largest Federal department,
employing over 1.6 million military personnel and 750,000 civilians
with operations all over the world. DoD's enduring mission is to
provide combat-credible military forces needed to deter war and protect
the security of our nation. In support of this mission, DoD adheres to
a strategy where a more lethal force, strong alliances and
partnerships, American technological innovation, and a culture of
performance will generate a decisive and sustained United States
military advantage. Because of this expansive and diversified mission
and reach, DoD regulations can address a broad range of matters and
have an impact on varied members of the public, as well as other
federal agencies.
Pursuant to Executive Order 12866, ``Regulatory Planning and
Review'' (September 30, 1993) and Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (January 18, 2011), the DoD
Regulatory Plan and Agenda provide notice about the DoD's regulatory
and deregulatory actions within the Executive Branch.
Retrospective Review of Existing Regulations
Pursuant to section 6 of Executive Order 13563 ``Improving
Regulation and Regulatory Review'' (January 18, 2011), the Department
continues to review existing regulations with a goal to eliminate
outdated, unnecessary, or ineffective regulations; account for the
currency and legitimacy of each of the Department's regulations; and
ultimately reduce regulatory burden and costs.
DOD Priority Regulatory Actions
The regulatory and deregulatory actions identified in this
Regulatory Plan embody the core of DoD's regulatory priorities for
Fiscal Year (FY) 2022 and help support President Biden's regulatory
priorities and the Secretary of Defense's top priorities, along with
those of the National Defense Strategy, to defend the Nation. The DoD
prioritization is focused on initiatives that:
Promote the country's economic resilience, including
addressing COVID-related issues.
Support underserved communities and improve small business
opportunities.
Promote diversity, equity, inclusion, and accessibility in
the Federal workforce.
Support national security efforts, especially safeguarding
Federal Government information and information technology systems.
Support the climate change emergency; and
Promote Access to Voting.
Rules That Promote the Country's Economic Resilience
Pandemic
Pursuant to Executive Order 13987, ``Organizing and Mobilizing the
United States Government to Provide a Unified and Effective Response to
Combat COVID-19 and to Provide United States Leadership on Global
Health and Security,'' January 20, 2021; Executive Order 13995,
``Ensuring an Equitable Pandemic Response and Recovery,'' January 21,
2021; Executive Order 13997, ``Improving and Expanding Access to Care
and Treatments for COVID-19,'' January 21, 2021; and Executive Order
13999, ``Protecting Worker Health and Safety,'' January 21, 2021, the
Department has temporarily modified its TRICARE regulation so TRICARE
beneficiaries have access to the most up-to-date care required for the
diagnosis and treatment of COVID-19. TRICARE continues to reimburse
like Medicare, to the extent practicable, as required by statute. The
Department is researching the impacts of making some of those
modifications permanent and may pursue such future action.
These modifications include:
TRICARE Coverages and Payment for Certain Services in Response
to the COVID-19 Pandemic. RIN 0720-AB81
DoD is finalizing an interim final rule that temporarily amended 32
CFR part 199 to revise: (1) 32 CFR part 199.4 to remove the restriction
on audio-only telemedicine services; (2) 32 CFR part 199.6 to authorize
reimbursement for interstate practice by TRICARE-authorized providers
when such authority is consistent with State and Federal licensing
requirements; and (3) 32 CFR part 199.17 to eliminate copayments for
telemedicine services. These changes reduce the spread of COVID-19
among TRICARE beneficiaries by incentivizing use of telemedicine
services, and aid providers in caring for TRICARE beneficiaries by
temporarily waiving some licensure requirements. The final rule adopts
this interim final rule as final with changes.
TRICARE Coverage of Certain Medical Benefits in Response to
the COVID-19 Pandemic. RIN 0720-AB82
DoD is finalizing an interim final rule that temporarily amended 32
CFR part 199 to revise certain elements of the TRICARE program under 32
CFR part 199 to: (1) Waive the three-day prior hospital qualifying stay
requirement for coverage of skilled nursing facility care; (2) add
coverage for treatment use of investigational drugs under expanded
access authorized by the United States (U.S.) Food and Drug
Administration (FDA) when for the treatment of coronavirus disease 2019
(COVID-19); (3) waive certain provisions for acute care hospitals that
permitted authorization of temporary hospital facilities and
freestanding ambulatory surgical centers providing inpatient and
outpatient hospital services; and, consistent with similar changes
under the Centers for Medicaid and Medicare Services; (4) revise
diagnosis related group (DRG) reimbursement by temporarily reimbursing
DRGs at a 20 percent higher rate for COVID-19
[[Page 5031]]
patients; and (5) waive certain requirements for long term care
hospitals. The final action permanently adopts Medicare's New
Technology Add-On Payments adjustment to DRGs for new medical services
and technologies and adopted Medicare's Hospital Value Based Purchasing
Program. The final rule adopts the interim final rule with changes,
except for the note to section 199.4(g)(15)(i)(A), published at 85 FR
54923, September 3, 2020, which remains interim.
TRICARE Coverage of National Institute of Allergy and
Infectious Disease--Coronavirus Disease 2019 Clinical Trials. RIN 0720-
AB83
This interim final rule temporarily amended section 199.4(e)(26) of
32 CFR 199 to revise certain elements of the TRICARE program to add
coverage for National Institute of Allergy and Infectious Disease-
sponsored clinical trials for the treatment or prevention of
coronavirus disease 2019 (COVID-19).
Title 10, U.S.C. 1079(a)(12) authorizes, pursuant to an agreement
with the Secretary of Health and Human Services (HHS) and under such
regulations as the Secretary of Defense may prescribe, a waiver of the
requirement that covered care be medically or psychologically necessary
in connection with clinical trials sponsored by the NIH, provided the
Secretary of Defense determines that such a waiver will promote access
by covered beneficiaries to promising new treatments and contribute to
the development of such treatments. On September 19, 2020, the DoD
entered into an agreement with NIH to permit coverage of such trials.
Based on an agreement with the National Cancer Institute (NCI) and 32
CFR 199.4(e)(26), TRICARE currently covers NCI sponsored clinical
trials related to cancer prevention, screening, and early detection.
The intent of these statutory and regulatory provisions is to expand
TRICARE beneficiary access to new treatments and to contribute to the
development of such treatments.
This rule, pursuant to the agreement with the NIH, temporarily
amends the TRICARE regulation to authorize coverage of cost-sharing for
medical care and testing of TRICARE-eligible patients who participate
in Phase I, II, III, or IV clinical trials examining the treatment or
prevention of COVID-19 that are sponsored by NIAID, enforcing the
provisions within the agreement between DoD and NIH. Additionally, this
change establishes requirements for TRICARE cost-sharing care related
to NIAID-sponsored COVID-19 clinical trials; these new requirements
mirror the existing requirements set forth in 32 CFR
199.4(e)(26)(ii)(B) for coverage of cancer clinical trials. This
amendment supports statutory intent by encouraging participation of
TRICARE beneficiaries in clinical trials studying the prevention or
treatment of COVID-19 and contributing to the development of
treatments, including vaccines, for COVID-19.
Expanding TRICARE Access to Care in Response to the COVID-19
Pandemic. RIN 0720-AB85
This interim final rule will temporarily amend the TRICARE
regulation at 32 CFR part 199 by: (1) Adding freestanding End Stage
Renal Disease facilities as a category of TRICARE-authorized
institutional provider and modifying the reimbursement for such
facilities; (2) adding coronavirus 2019 (COVID-19) Immunizers who are
not otherwise an eligible TRICARE-authorized provider as providers
eligible for reimbursement for COVID-19 vaccines and vaccine
administration; (3) and adopting Medicare New COVID-19 Treatments Add-
on Payments (NTCAPs).
Maximizing the Use of American-Made Goods (DFARS Case 2019-D045). RIN:
0750-AK85
This rule supports Executive Order 14005, ``Ensuring the Future is
Made in All of America by All of America's Workers,'' January 25, 2021,
that builds upon a previous Executive Order 13881, Maximizing Use of
American-Made Goods, Products, and Materials,'' July 15, 2019. The rule
implements Executive Order 13881 which requires an amendment to the FAR
to provide that materials shall be considered of foreign origin if: (a)
For iron and steel end products, the cost of foreign iron and steel
used in such iron and steel end products constitutes 5 percent or more
of the cost of all the products used in such iron and steel end
products; or (b) for all other end products, the cost of the foreign
products used in such end products constitutes 45 percent or more of
the cost of all the products used in such end products. The FAR changes
were accomplished under FAR Case 2019-016, published in the Federal
Register at 86 FR 6180.
In addition, the Executive Order 13881 provides that in determining
price reasonableness, the evaluation factors of 20 percent (for other
than small businesses), or 30 percent (for small businesses) shall be
applied to offers of materials of foreign origin. The DFARS currently
applies a 50 percent factor and requires no additional revisions. This
DFARS rule makes conforming changes as a result of implementation of
the Executive Order in the FAR.
Rules That Support Underserved Communities and Improve Small Business
Opportunities
Executive Order 13985, ``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government'' January 20,
2021
Rules of Particular Interest to Small Business
Small Business Innovation Research Program Data Rights (DFARS Case
2019-D043). RIN: 0750-AK84
This rule implements changes made by the Small Business
Administration (SBA) related to data rights in the Small Business
Innovation Research (SBIR) Program and Small Business Technology
Transfer (STTR) Program Policy Directive, published in the Federal
Register on April 2, 2019 (84 FR 12794). The SBIR and STTR programs
fund a diverse portfolio of startups and small businesses across
technology areas and markets to stimulate technological innovation,
meet Federal research and development (R&D) needs, and increase
commercialization to transition R&D into impact. The final SBA Policy
Directive includes several revisions to clarify data rights, which
require corresponding revisions to the DFARS. These changes include
harmonizing definitions, lengthening the SBIR/STTR protection period
from 5 years to 20 years, and providing for the granting of Government-
purpose rights license in place of an unlimited rights license upon
expiration of the SBIR/STTR protection period.
Reauthorization and Improvement of Mentor-Prot[eacute]g[eacute] Program
(DFARS Case 2020-D009). RIN: 0750-AK96
This rule implements section 872 of the National Defense
Authorization Act for Fiscal Year 2020. Section 872 reauthorizes and
modifies the DoD Mentor-Prot[eacute]g[eacute] Program. The purpose of
the Program is to provide incentives for DoD contractors to assist
eligible small businesses (prot[eacute]g[eacute]s) in enhancing their
capabilities and to increase participation of such firms in Government
and commercial contracts. Under this program, prot[eacute]g[eacute]s
expand their footprint in the defense industrial base by partnering
with larger companies (mentors). As a result of this rule, the date by
which new mentor-prot[eacute]g[eacute] agreements may be submitted and
approved is extended to September 30, 2024. In addition, mentors
incurring costs prior to September 30, 2026, may
[[Page 5032]]
be eligible for certain credits and reimbursements. Per the statute,
this rule also establishes additional performance goals and outcome-
based metrics to measure progress in meeting those goals.
Rules That Promote Diversity, Equity, Inclusion, and Accessibility in
the Federal Workforce
Nondiscrimination on the Basis of Disability in Program or Activities
Assisted or Conducted by the DoD and in Equal Access to Information and
Communication Technology Used by DoD, and Procedures for Resolving
Complaints. RIN: 0790-AJ04
Revisions to this regulation: (1) Update and clarify the
obligations that Section 504 of the Rehabilitation Act of 1973 (section
504) imposes on recipients of Federal financial assistance and the
Military Departments and Components (DoD Components); (2) reflect the
most current Federal statutes and regulations, as well as developments
in Supreme Court jurisprudence, regarding unlawful discrimination on
the basis of disability and promotes consistency with comparable
provisions implementing title II of the Americans with Disabilities Act
(ADA); (3) implement section 508 of the Rehabilitation Act of 1973
(section 508), requiring DoD make its electronic and information
technology accessible to individuals with disabilities; (4) establish
and clarify obligations under the Architectural Barriers Act of 1968
(ABA), which requires that DoD make facilities accessible to
individuals with disabilities; and (5) Provide complaint resolution and
enforcement procedures pursuant to section 504 and the complaint
resolution and enforcement procedures pursuant to section 508. These
revisions are particularly relevant in light of Executive Order 14035,
``Diversity, Equity, Inclusion, and Accessibility in the Federal
Workforce.
Rules That Support National Security Efforts
Department of Defense (DoD)--Defense Industrial Base (DIB)
Cybersecurity (CS) Activities. RIN: 0790-AK86
This rule will amend the DoD--Defense Industrial Base (DIB)
Cybersecurity (CS) activities regulation. It will allow a broader
community of defense contractors access to relevant cyber threat
information that is critical in defending unclassified networks and
information systems and protecting DoD warfighting capabilities. These
amendments seek to address the increasing cyber threat targeting all
defense contractors including those in the vulnerable supply chain by
expanding eligibility to defense contractors that process, store,
develop, or transmit DoD Controlled Unclassified Information (CUI).
These steps align with the Administration's efforts to provide defense
contractors with critical and real-time cybersecurity resources needed
to safeguard DoD CUI.
Rules That Support the Climate Change Emergency
Policy and Procedures for Processing Requests To Alter U.S. Army Corps
of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408. RIN: 0710-
AB22
Where a party other than the USACE seeks to use or alter a Civil
Works project that USACE constructed, the proposed use or alteration is
subject to the prior approval of the USACE. Some examples of such
alterations include an improvement to the project; relocation of part
of the project; or installing utilities or other non-project features.
This requirement was established in section 14 of the Rivers and
Harbors Act of 1899 and is codified at 33 U.S.C. 408 (section 408).
Section 408 provides that the USACE may grant permission for another
party to alter a Civil Works project, upon a determination that the
alteration proposed will not be injurious to the public interest and
will not impair the usefulness of the Civil Works project. The USACE is
proposing to convert its policy that governs the section 408 program to
a binding regulation. This policy, Engineer Circular 1165-2-220, Policy
and Procedural Guidance for Processing Requests to Alter U.S. Army
Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408, was
issued in September 2018.
Credit Assistance for Water Resources Infrastructure Projects. RIN:
0710-AB31
The USACE proposes to implement a new credit program for dam safety
work at non-Federal dams. The program is authorized under the Water
Infrastructure Finance and Innovation Act of 2014 (WIFIA) and Division
D, Title 1 of the Consolidated Appropriations Act of 2021. WIFIA
authorizes the USACE to provide secured (direct) loans and loan
guarantees (Federal Credit instruments) to eligible water resources
infrastructure projects and to charge fees to recover all or a portion
of the USACE' cost of providing credit assistance and the costs of
conducting engineering reviews and retaining expert firms, including
financial and legal services, to assist in the underwriting and
servicing of Federal credit instruments. Projects would be evaluated
and selected by the Secretary of the Army (the Secretary), based on the
requirements and the criteria described in this rule.
Flood Control Cost-Sharing Requirements Under the Ability To Pay
Provision. RIN: 0710-AB34
Section 103(m) of the Water Resources Development Act (WRDA) of
1986, as amended (33 U.S.C. 2213(m)), authorizes the USACE to reduce
the non-Federal share of the cost of a study or project for certain
communities that are not able financially to afford the standard cost-
share. Part 241 of title 33 in the Code of Federal Regulations provides
the criteria that the USACE uses in making these determinations where
the primary purpose of the study or project is flood damage reduction.
The proposed rule would update this regulation, including by broadening
the project purposes for which the USACE could reduce the non-Federal
cost-share on this basis.
Revised Definition of ``Waters of the United States''--Rule 1. RIN:
0710-AB40
In April 2020, the EPA, and the Department of the Army (``the
agencies'') published the Navigable Waters Protection Rule (NWPR) that
revised the previously codified definition of ``waters of the United
States'' (85 FR 22250, April 21, 2020). The agencies are now initiating
this new rulemaking process that restores the regulations (51 FR 41206)
in place prior to the 2015 ``Clean Water Rule: Definition of `Waters of
the United States' '' (80 FR 37054, June 29, 2015), updated to be
consistent with relevant Supreme Court decisions. The agencies intend
to consider further revisions in a second rule in light of additional
stakeholder engagement and implementation considerations, scientific
developments, and environmental justice values. This effort will also
be informed by the experience of implementing the pre-2015 rule, the
2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.
Revised Definition of ``Waters of the United States''--Rule 2. RIN:
0710-AB47
The Department of the Army and the Environmental Protection Agency
intend to pursue a second rule defining ``Waters of the United States''
to consider further revisions to the agencies' first rule (RIN 0710-
AB40) which proposes to restore the regulations in place prior to the
2015 ``Clean Water Rule: Definition of `Waters
[[Page 5033]]
of the United States' '' (80 FR 37054, June 29, 2015), updated to be
consistent with relevant Supreme Court Decisions. This second rule
proposes to include revisions reflecting on additional stakeholder
engagement and implementation considerations, scientific developments,
and environmental justice values. This effort will also be informed by
the experience of implementing the pre-2015 rule, the 2015 Clean Water
Rule, and the 2020 Navigable Waters Protection Rule.
Rules Promoting Access to Voting
Federal Voting Assistant Program (FVAP). RIN: 0790-AK90
DOD is finalizing an interim final rule for its Federal Voting
Assistance Program (FVAP). The FVAP assists overseas service members
and other overseas citizens with exercising their voting rights by
serving as a critical resource to successfully register to vote. On
March 7, 2021, the White House released Executive Order 14019 on
Promoting Access to Voting. The purpose of the Executive Order is to
protect and promote the exercise of the right to vote, eliminate
discrimination and other barriers to voting, expand access to voter
registration and accurate election information, and ensure registering
to vote and the act of voting be made simple and easy for all those
eligible to do so. To accomplish this purpose, with this final rule DoD
is doing the following:
Maximizing voter awareness of Uniformed and Overseas
Citizens Absentee Voting Act (UOCAVA) eligibility and resources by
providing better coordination with the Federal Government's voting
assistance services to improve voter accessibility and communication.
Requiring DoD components to establish component-wide
programs to communicate and disseminate voting information, with the
goal of improving communication and clarity for the impacted
population.
Requiring federal agencies to enter into memorandums of
understanding (MOU) with the DoD to provide accurate, nonpartisan
voting information and assistance to ensure military and overseas
voters understand their voting rights, how to register and apply for an
absentee ballot, and how to return their absentee ballot successfully.
Promoting opportunities to register to vote and
participate in elections to include civilians working for the
Department who vote locally.
Distributing voter information and use of vote.gov in
conjunction with fvap.gov website and current communications to support
a comprehensive approach to voter awareness.
Creating innovative solutions to reduce barriers and
increase voter awareness of their status in the Uniformed and Overseas
Citizens Absentee Voting Act absentee voting process, including
increased visibility of overseas ballots.
Developing materials to support absentee voting by
military and overseas U.S. citizens with limited English proficiency.
Federal Register Requests for Information (RFIs)
In support of Executive Orders 14017, ``America's Supply Chains,''
13985, ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government, and 14036, Promoting
Competition in the American Economy,'' DoD published a RFI on September
8, 2021, titled ``Notice of Request for Comments on Barriers Facing
Small Businesses in Contracting with the Department of Defense.'' The
participation of dynamic, resilient, and innovative small businesses in
the defense industrial base is critical to the United States' efforts
to maintain its technological superiority, military readiness, and
warfighting advantage. In furtherance of its efforts to maximize
opportunities for small businesses to contribute to national security,
the DoD sought public input on the barriers that small businesses face
in working with the DoD.
Additionally, in support of Executive Order 14017, ``America's
Supply Chains,'' DoD published an RFI on September 28, 2021, titled
``Federal Register Notice of Request for Written Comments in Support of
the Department of Defense's One-Year Response to Executive Order 14017,
``America's Supply Chains.'' The Executive Order directs six Federal
agencies to conduct a review of their respective industrial bases, with
the objective to use this assessment to secure and strengthen America's
supply chains. One of these directives is for the Secretary of Defense,
in consultation with the heads of appropriate agencies, to submit a
report on supply chains for the defense industrial base, including key
vulnerabilities and potential courses of action to strengthen the
defense industrial base. The effort will build on the Executive Order.
report, Assessing and Strengthening the Manufacturing and Defense
Industrial Base and Supply Chain Resiliency of the United States
(released October 2018) and the Annual Industrial Capabilities Report,
which is mandated by the Congress.
DOD--OFFICE OF THE SECRETARY (OS)
Proposed Rule Stage
16. Department of Defense (DOD)--Defense Industrial Base (DIB)
Cybersecurity (CS) Activities
Priority: Other Significant.
Legal Authority: 10 U.S.C. 391; 10 U.S.C. 2224; 44 U.S.C. 3541; 10
U.S.C. 393
CFR Citation: 32 CFR 236.
Legal Deadline: None.
Abstract: The DIB CS Program is currently only permitted to provide
cyber threat information to cleared defense contractors, per the
Program eligibility requirements within 32 CFR part 236. However, this
proposed revision to the Federal rule would allow all defense
contractors who process, store, develop, or transit DoD CUI to be
eligible to participate and begin receiving critical cyber threat
information. Expanding participation in the DIB CS Program is part of
DoD's comprehensive approach to collaborate with the DIB to counter
cyber threats through information sharing between the Government and
DIB participants. The expanded eligibility criteria will allow a
broader community of defense contractors to participate in the DIB CS
Program, in alignment with the National Defense Strategy.
Statement of Need: Unauthorized access and compromise of DoD
unclassified information and operations poses an imminent threat to
U.S. national security and economic security interests. Defense
contractors with this information are being targeted on a daily basis.
Many of these contractors are small and medium size contractors that
can benefit from partnering with DoD to enhance and supplement their
cybersecurity capabilities.
Summary of Legal Basis: This revised regulation supports the
Administration's effort to promote public-private cyber collaboration
by expanding eligibility for the DIB CS voluntary cyber threat
information sharing program to all defense contractors. This regulation
aligns with DoD's statutory responsibilities for cybersecurity
engagement with those contractors supporting the Department.
Alternatives: (1) No action alternative: Maintain status quo with
the ongoing voluntary cybersecurity program for cleared contractors.
(2) Next best alternative: DoD posts generic cyber threat information
and cybersecurity best practices on a public accessible website without
directly engaging participating companies.
Anticipated Cost and Benefits: Participation in the voluntary DIB
CS
[[Page 5034]]
Program enables DoD contractors to access Government Furnished
Information and collaborate with the DoD Cyber Crime Center (DC3) to
better respond to and mitigate the cyber threat. To participate in the
DIB CS Program, DoD contractors must have or obtain a DoD-approved,
medium assurance certificate to enable access to a secure DoD
unclassified web portal. Cost of the DoD-approved medium assurance
certificate is approximately $175 for each individual identified by the
DoD contractor. See https://public.cyber.mil/eca/ for more information
about DoD-approved certificates.
Contractors are encouraged to voluntarily report information to
promote sharing of cyber threat indicators that they believe are
valuable in alerting the Government and others, as appropriate, in
order to better counter cyber threat actor activity. This cyber
information may be of interest to the DIB and DoD for situational
awareness and does not include mandatory cyber incident reporting
included under DFARS 252.204-7012.
The costs are under review.
Risks: Cyber threats to DIB unclassified information systems
represent an unacceptable risk of compromise of DoD information and
mission and pose an imminent threat to U.S. national security and
economic security interests. This threat is particularly acute for
those small and medium size companies with less mature cybersecurity
capabilities. The combination of mandatory cyber activities under DFARS
252.204-7012, combined with the voluntary participation in the DIB CS
Program, will enhance and supplement DoD contractors capabilities to
safeguard DoD information that resides on, or transits, DoD contractors
unclassified network or information systems. Through collaboration with
DoD and the sharing with other contractors in the DIB CS Program,
defense contractors will be better prepared to mitigate the cyber risk
they face today and in the future.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Agency Contact: Kevin Dulany, Director, Cybersecurity Policy and
Partnerships CIO, Department of Defense, Office of the Secretary, 4800
Mark Center, Alexandria, VA 22311, Phone: 571 372-4699, Email:
[email protected].
RIN: 0790-AK86
DOD--OS
Final Rule Stage
17. Nondiscrimination on the Basis of Disability in Programs or
Activities Assisted or Conducted by the DOD
Priority: Other Significant.
Legal Authority: Pub. L. 100-259; Pub. L. 102-569; 29 U.S.C. 791 to
794d; 42 U.S.C. ch. 51 and 126; E.O. 12250
CFR Citation: 32 CFR 56.
Legal Deadline: None.
Abstract: The Department of Defense (DoD) is amending its
regulation prohibiting unlawful discrimination on the basis of
disability in programs or activities receiving Federal financial
assistance from, or conducted by, DoD. These revisions will update and
clarify the obligations that section 504 of the Rehabilitation Act of
1973, as amended, imposes on recipients of Federal financial assistance
and DoD Components, and the obligations that the Architectural Barriers
Act imposes on DoD Components. The updates will also clarify the
procedures for resolving complaints regarding information and
communication technology accessible to and usable by individuals with
disabilities in accordance with section 508 of the Rehabilitation Act,
as amended. This rule promotes the Biden Administration's priorities on
diversity, equity, and inclusion.
Statement of Need: Finalization of this Department-wide rule will
clarify the longstanding policy of the Department. It does not change
the Department's practices in addressing issues of discrimination. This
rule amends the Department's prior regulation to include updated
accessibility standards for recipients of Federal financial assistance
to be more user-friendly and to support individuals with disabilities.
This update is particularly relevant in light of Executive Order 14035,
Diversity, Equity, Inclusion, and Accessibility in the Federal
Workforce.
Summary of Legal Basis: This rule is proposed under the authorities
of title 29, U.S.C., chapter 16, subchapter V, sections 794 through
794d, codifying legislation prohibiting discrimination on the basis of
disability under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Federal
agency, including provisions establishing the United States Access
Board and requiring Federal agencies to ensure that information and
communication technology is accessible to and usable by individuals
with disabilities. Title 28, Code of Federal Regulations, part 41
implementing Executive Order 12250, which assigns the DOJ
responsibility to coordinate implementation of section 504 of the
Rehabilitation Act.
Alternatives: The Department considered taking no new action and
continuing to rely on the existing regulation. The Department
considered issuing sub-regulatory guidance to clarify existing
regulation. Both options were rejected because of the need to update
and clarify the Department's obligations pursuant to section 504 and
section 508 of the Rehabilitation Act of 1973, as amended.
Anticipated Cost and Benefits: Because OMB originally determined
this rule to not be a significant regulatory action, a cost and benefit
analysis has not yet been completed.
Risks: Without this final rule, the Department's current regulation
is inconsistent with current Federal statutes and regulations, as well
as developments in Supreme Court jurisprudence, regarding unlawful
discrimination on the basis of disability. Consistent with
congressional intent, the provisions in the final rule are consistent
with the nondiscrimination provisions in DOJ regulations implementing
title II of the ADA Amendments Act (applicable to state and local
government entities).
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/16/20 85 FR 43168
NPRM Comment Period End............. 09/14/20
Final Action........................ 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: The full title of the rule is
``Nondiscrimination on the Basis of Disability in Programs or
Activities Assisted or Conducted by the DoD and in Equal Access to
Information and Communication Technology Used by DoD, and Procedures
for Resolving Complaints.'' That title is too long to include above, so
I am including it here.
DoD Instruction 1020.dd (``Unlawful Discrimination on the Basis of
Disability in Programs or Activities Receiving Federal Financial
Assistance from, or Conducted by, the DoD'') will be codified as a rule
under 32 CFR part 56. The rule was originally reported as being
codified under 32 CFR part 195.
[[Page 5035]]
Agency Contact: Randy Cooper, Director, Department of Defense
Disability EEO Policy and Compliance, Department of Defense, Office of
the Secretary, 4000 Defense Pentagon, Room 5D641, Washington, DC 20301-
4000, Phone: 703 571-9327, Email: [email protected].
RIN: 0790-AJ04
DOD--OS
18. Federal Voting Assistance Program
Priority: Other Significant.
Legal Authority: E.O. 12642; 10 U.S.C. 1566a; 52 U.S.C. 20506; 52
U.S.C. ch. 203
CFR Citation: 32 CFR 233.
Legal Deadline: None.
Abstract: The FVAP assists overseas service members and other
overseas citizens with exercising their voting rights by serving as a
critical resource to successfully register to vote. It requires Federal
agencies to enter into Memorandums of Understanding with the DoD to
provide accurate, nonpartisan voting information and assistance to
ensure military and overseas voters understand their voting rights, how
to register and apply for an absentee ballot, and how to return their
absentee ballot successfully.
Statement of Need: This rule establishes policy and assigns
responsibilities for the Federal Voting Assistance Program (FVAP). It
establishes policy and assigns responsibilities for the development and
implementation of installation voter assistance (IVA) offices as voter
registration agencies. This part establishes policy to develop and
implement, jointly with States, procedures for persons to apply to
register to vote at recruitment offices of the Military Services.
Summary of Legal Basis: This rule is proposed under the authorities
of the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 52
U.S.C. chapter 203, on behalf of the Secretary of Defense, as the
Presidential designee under 53 U.S.C. 20301(a). See Executive Order No.
12642, Designation of Secretary of Defense as Presidential Designee, 53
FR 21975 (June 8, 1988) and Executive Order 14019, Promoting Access to
Voting.
Alternatives: No Action--If DoD took no action, decreases in
successful voting by voters covered by the Uniformed and Overseas
Citizens Absentee Voting Act could occur.
Voters who received assistance from FVAP or Voting Assistance
Officers were significantly more likely to submit a ballot than if they
did not receive that assistance a consistent finding across the last
four General Elections. The impacted public, without coordinated FVAP
voter assistance, could experience confusion with the voting
registration process, and may endure inefficient FVAP assistance
leading up to, and on Election Day. With no purposeful effort to
streamline these regulations, there is a dire possibility that absentee
voter ballots will not be sent and received in time to be counted. DoD,
as the presidential designee agency, pursuant to Executive Order 12642,
shoulders the responsibility and desire to resolve known issues, better
communicate with the public, and provide a seamless and uniform voting
assistance framework for the public populations overseas.
Anticipated Cost and Benefits: This amendment of the current
policies seeks to establish uniform framework within DoD on how to
interact and disseminate communications with the impacted public
populations overseas. The changes outlined in this rule improve the
transparency and effectiveness of communication to the general public,
absent overseas voters, Service member spouse and dependents, and
eligible voters who seek to register to vote on Military Service
installations. This includes maximizing awareness of voter UOCAVA
eligibility, and providing resources to the impacted public
populations. These changes will maximize voting assistance
effectiveness and outcomes, address known concerns impacting the
public, ahead of upcoming election cycles.
While the Department estimates that the public will not incur any
costs as a result of this rule, the public may receive better voter
assistance since DoD will improve the Government's coordination to
provide voter assistance to absent uniformed service voters and
overseas voters and support the government's efforts to implement a
comprehensive program to cover all executive branch agencies and
overseas citizens more broadly.
Risks: This rule seeks to increase the likelihood of voters
protected under UOCAVA and military voting assistance laws to receive
and return absentee ballots. It enables FVAP to provide assistance and
information to military and overseas American voters in an effective
manner based on surveys, research and historical after action reports.
Should FVAP become unable to foster voter awareness through the
States and voter assistance programs, the Department of Defense will
become less effective to meet military and civilian voter assistance
requirements, thus increasing the possible risk of absentee ballot
rejections during federal election cycles. This may bring unwanted
stakeholder and Congressional scrutiny. FVAP would cease to provide
active engagement mechanisms to elicit input and offer recommendations
to improve levels of voter success and effectiveness for State absentee
balloting processes for absent overseas uniformed voters and citizens.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 03/06/20 85 FR 13045
Interim Final Rule Effective........ 03/06/20
Interim Final Rule Comment Period 04/06/20
End.
Final Action........................ 11/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: David Beirne, Director, DODHRA FVAP, Department of
Defense, Office of the Secretary, 48 Mark Center Drive, Alexandria, VA
22408, Phone: 571 372-0740, Email: [email protected].
RIN: 0790-AK90
DOD--DEFENSE ACQUISITION REGULATIONS COUNCIL (DARC)
Proposed Rule Stage
19. Small Business Innovation Research Program Data Rights (DFARS Case
2019-D043)
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303
CFR Citation: 48 CFR 227; 48 CFR 252.
Legal Deadline: None.
Abstract: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement changes related to data
rights in the Small Business Administration's Policy Directive for the
Small Business Innovation Research (SBIR) Program, published in the
Federal Register on April 2, 2019 (84 FR 12794). The final SBA Policy
Directive includes several revisions to clarify data rights, which
require corresponding revisions to the DFARS.
Statement of Need: This rule is necessary to implement the Small
Business Administration (SBA) related to data rights in the Small
Business Innovation Research (SBIR) Program and Small Business
Technology Transfer (STTR) Program Policy Directive, published in the
Federal
[[Page 5036]]
Register on April 2, 2019 (84 FR 12794). The final SBA Policy Directive
includes several revisions to clarify data rights, which require
corresponding revisions to the DFARS.
Summary of Legal Basis: The legal basis for this rule is 15 U.S.C.
638, which provides the authorization, policy, and framework for SBIR/
STTR programs.
Alternatives: There are no alternatives that would meet the stated
objective of this rule.
Anticipated Cost and Benefits: While specific costs and savings
have not been quantified, this rule is expected to have significant
benefit for small businesses participating in the DoD SBIR/STTR
program. SBIR and STTR enable small businesses to explore their
technological potential and provide the incentive to profit from its
commercialization. By including qualified small businesses in the
nation's R&D arena, high-tech innovation is stimulated, and the United
States gains entrepreneurial spirit as it meets its specific research
and development needs.
Risks: The continuous protection of an awardee's SBIR/STTR Data
while actively pursuing or commercializing its technology with the
Federal Government, provides a significant incentive for innovative
small businesses to participate in these programs.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 08/31/20 85 FR 53758
Correction.......................... 09/21/20 85 FR 59258
ANPRM Comment Period End............ 10/30/20
Comment Period Extended............. 12/04/20 85 FR 78300
ANPRM Comment Period End............ 01/31/21
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
Agency Contact: Jennifer Johnson, Defense Acquisition Regulations
System, Department of Defense, Defense Acquisition Regulations Council,
3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone:
571 372-6100, Email: [email protected].
RIN: 0750-AK84
DOD--DARC
20. Reauthorization and Improvement of Mentor-Protege Program (DFARS
Case 2020-D009)
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303; Pub. L. 116-92, sec. 872
CFR Citation: 48 CFR, ch. 2, app. I.
Legal Deadline: None.
Abstract: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement to implement section 872 of the National Defense
Authorization Act for Fiscal Year 2020, which reauthorizes and improves
the DoD Mentor-Protege Program.
Statement of Need: This rule is necessary to amend the DFARS to
implement the reauthorization of and amendments to the Mentor
Prot[eacute]g[eacute] Program provided by section 872 of the National
Defense authorization act (NDAA) of Fiscal Year (FY) 2020.
Summary of Legal Basis: The legal basis for this rule is section
872 of the NDAA for FY 2020 (Pub. L. 116-92).
Alternatives: There are no alternatives that would meet the
requirements of the statute.
Anticipated Cost and Benefits: This rule is expected to be of
significant benefit to small businesses accepted as
prot[eacute]g[eacute]s under the program, as well as the firms that
mentor such small businesses, by bringing more small businesses into
DoD's supply chain. DoD's Mentor-Prot[eacute]g[eacute] Program is the
oldest continuously operating Federal mentor-prot[eacute]g[eacute]
program in existence. DoD's Mentor-Prot[eacute]g[eacute] Program has
successfully helped more than 190 small businesses fill unique niches
and become part of the military's supply chain. Many mentors have made
the Program an integral part of their sourcing plans.
Prot[eacute]g[eacute]s have used their involvement in the Program to
develop technical capabilities. Successful mentor-prot[eacute]g[eacute]
agreements provide a winning relationship for the
prot[eacute]g[eacute], the mentor, and DoD.
Risks: Failure to implement section 872 and extend DoD's Mentor-
Prot[eacute]g[eacute] Program would significantly inhibit the
Department's ability to provide incentives for DoD contractors to
assist small businesses in enhancing their capabilities and to increase
participation of such firms in Government and commercial contracts.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
Agency Contact: Jennifer Johnson, Defense Acquisition Regulations
System, Department of Defense, Defense Acquisition Regulations Council,
3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone:
571 372-6100, Email: [email protected].
RIN: 0750-AK96
DOD--DARC
Final Rule Stage
21. Maximizing the Use of American-Made Goods (DFARS Case 2019-D045)
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303
CFR Citation: 48 CFR 225; 48 CFR 252.
Legal Deadline: None.
Abstract: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Executive Order
13881, Maximizing Use of American-Made Goods, Products, and Materials.
Executive Order 13881 requires an amendment to the Federal Acquisition
Regulation (FAR) to provide that materials shall be considered of
foreign origin if: (a) For iron and steel end products, the cost of
foreign iron and steel used in such iron and steel end products
constitutes 5 percent or more of the cost of all the products used in
such iron and steel end products; or (b) for all other end products,
the cost of the foreign products used in such end products constitutes
45 percent or more of the cost of all the products used in such end
products. The FAR changes were accomplished under FAR Case 2019-016,
published in the Federal Register at 86 FR 6180. This DFARS rule will
make conforming changes to the DFARS.
Statement of Need: This rule is needed to implement Executive Order
13881, Maximizing Use of American-Made Goods, Products, and Materials,
dated July 15, 2019, which requires an amendment to the Federal
Acquisition Regulation (FAR) and the Defense Federal Acquisition
Regulation Supplement (DFARS) to provide that under the Buy American
statute, materials shall be considered of foreign origin if--
(A) For iron and steel products, the cost of foreign iron and steel
used in such iron and steel products constitutes 5 percent or more of
the cost of all the product's domestic content; or
(B) For all other products, the cost of the foreign components used
in such
[[Page 5037]]
products constitutes 45 percent or more of the cost of all the
product's domestic content.
In addition, the Executive order provides that in determining price
reasonableness, the evaluation factors of 20 percent (for other than
small businesses), or 30 percent (for small businesses) shall be
applied to offers of materials of foreign origin. The DFARS applies a
50 percent factor and requires no additional revisions. This rule makes
conforming changes to the applicable clauses as a result of
implementation of the Executive order requirements in the FAR.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and Executive Order 13881, Maximizing Use of American-Made Goods,
Products, and Materials, dated July 15, 2019.
Alternatives: There are no alternatives that would meet the
requirements of Executive Order 13881.
Anticipated Cost and Benefits: This rule increases the percentages
for use in the domestic content test applied to offers of products and
materials to determine domestic or foreign origin. The rule will
strengthen domestic preferences under the Buy American statute and
provide both large and small businesses the opportunity and incentive
to deliver U.S. manufactured products from domestic suppliers. It is
expected that this rule will benefit large and small U.S.
manufacturers, including those of iron or steel.
Risks: N/A.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/30/21 86 FR 48370
NPRM Comment Period End............. 10/29/21
Final Action........................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Jennifer Johnson, Defense Acquisition Regulations
System, Department of Defense, Defense Acquisition Regulations Council,
3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone:
571 372-6100, Email: [email protected].
RIN: 0750-AK85
DOD--U.S. ARMY CORPS OF ENGINEERS (COE)
Proposed Rule Stage
22. Policy and Procedures for Processing Requests To Alter U.S. Army
Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408
Priority: Other Significant.
Legal Authority: 33 U.S.C. 408
CFR Citation: 33 CFR 350.
Legal Deadline: None.
Abstract: Where a party other than the U.S. Army Corps of Engineers
(Corps) seeks to use or alter a Civil Works project that the Corps
constructed, the proposed use or alteration is subject to the prior
approval of the Corps. Some examples of such alterations include an
improvement to the project; relocation of part of the project; or
installing utilities or other non-project features. This requirement
was established in section 14 of the Rivers and Harbors Act of 1899 and
is codified at 33 U.S.C. 408 (section 408). Section 408 provides that
the Corps may grant permission for another party to alter a Civil Works
project upon a determination that the alteration proposed will not be
injurious to the public interest and will not impair the usefulness of
the Civil Works project. The Corps is proposing to convert its policy
that governs the section 408 program to a binding regulation. This
policy, Engineer Circular 1165-2-220, Policy and Procedural Guidance
for Processing Requests to Alter U.S. Army Corps of Engineers Civil
Works Projects Pursuant to 33 U.S.C. 408, was issued in September 2018.
Statement of Need: Through the Civil Works program, the U.S. Army
Corps of Engineers (Corps), in partnership with stakeholders, has
constructed many Civil Works projects across the Nation's landscape.
Given the widespread locations of these projects, there may be a need
for others outside of the Corps to alter or occupy these projects and
their associated lands. Reasons for alterations could include
activities such as improvements to the project; relocation of part of
the project; or installing utilities or other non-project features. In
order to ensure that these projects continue to provide their intended
benefits to the public, Congress provided that any use or alteration of
a Civil Works project by another party is subject to the prior approval
of the Corps. This requirement was established in section 14 of the
Rivers and Harbors Act of 1899 and is codified at 33 U.S.C. 408
(section 408). Specifically, section 408 provides that the Corps may
grant permission for another party to alter a Civil Works project upon
a determination that the alteration proposed will not be injurious to
the public interest and will not impair the usefulness of the Civil
Works project. The Corps is proposing to convert its policy that
governs the section 408 program to a binding regulation. Engineer
Circular 1165-2-220, Policy and Procedural Guidance for Processing
Requests to Alter U.S. Army Corps of Engineers Civil Works Projects
Pursuant to 33 U.S.C. 408 was issued in September 2018.
Summary of Legal Basis: The Corps has legal authority over the
section 408 program under 33 U.S.C. 408.
Alternatives: The preferred alternative would be to conduct
rulemaking to issue the requirements governing the section 408 review
process in the form of a binding regulation. The current Corps policy
appears in an Engineer Circular that has expired. The next best
alternative would involve issuing these requirements in the form of an
Engineer Regulation. That alternative would not fulfill the intent of
the law because it would not be binding on the regulated public.
Anticipated Cost and Benefits: The proposed rule would reduce costs
to the regulated public by clarifying the applicable requirements and
providing consistent implementation of these requirements across the
Corps program.
Risks: The proposed action is not anticipated to increase risk to
public health, safety, or the environment because it outlines the
procedures the Corps will follow when evaluating requests for section
408 permissions. The Corps will comply with all statutory requirements
when reviewing requests.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Virginia Rynk, Department of Defense, U.S. Army
Corps of Engineers, Attn: CECW-EC, 441 G Street NW, Washington, DC
20314, Phone: 202 761-4741.
RIN: 0710-AB22
DOD--COE
23. Credit Assistance for Water Resources Infrastructure Projects
Priority: Other Significant.
[[Page 5038]]
Legal Authority: Pub. L. 114-94; Pub. L. 114-322; Pub. L. 115-270;
33 U.S.C. 3901
CFR Citation: 33 CFR 386.
Legal Deadline: None.
Abstract: The U.S. Army Corps of Engineers (Corps) proposes to
implement a new credit program for dam safety work at non-Federal dams.
The program is authorized under the Water Infrastructure Finance and
Innovation Act of 2014 (WIFIA) and Division D, title 1 of the
Consolidated Appropriations Act of 2020. WIFIA authorizes the Corps to
provide secured (direct) loans and loan guarantees (Federal Credit
instruments) to eligible water resources infrastructure projects and to
charge fees to recover all or a portion of the Corps' cost of providing
credit assistance and the costs of conducting engineering reviews and
retaining expert firms, including financial and legal services, to
assist in the underwriting and servicing of Federal credit instruments.
Projects would be evaluated and selected by the Secretary of the Army
(the Secretary) based on the requirements and the criteria described in
this rule.
Statement of Need: The USACE WIFIA program is focused on providing
Federal loans, and potentially to also include loan guarantees, to
projects for maintaining, upgrading, and repairing dams identified in
the National Inventory of Dams owned by non-federal entities. These
loans will be repaid with non-Federal funding.
Summary of Legal Basis: The USACE WIFIA program was authorized
under Subtitle C of Title V of the Water Resources Reform and
Development Act of 2014 (WRRDA 2014), which authorizes USACE to provide
secured (direct) loans, and potentially to also include loan
guarantees, to eligible water resources infrastructure projects (needed
further authorization was provided by Division D, Title 1 of the
Consolidated Appropriations Act of 2020). The statute also authorizes
USACE to charge fees to recover all or a portion of USACE's cost of
providing credit assistance and the costs of conducting engineering
reviews and retaining expert firms, including financial and legal
services, to assist in the underwriting and servicing of Federal credit
instruments.
The Fiscal 2021 Consolidated Appropriations Act, provided USACE
WIFIA appropriations of $2.2M admin, and $12M credit subsidy and a loan
volume limit of $950M. These appropriated funds are limited to fund
projects focused on maintaining, upgrading, and repairing dams
identified in the National Inventory of Dams owned by non-federal
entities.
Alternatives: The preferred alternative would be to conduct
proposed rulemaking to implement a new credit program for dam safety
work at non-Federal dams in the form of a binding regulation in
compliance with the Water Infrastructure Finance and Innovation Act of
2014 (WIFIA) and Division D, title 1 of the Consolidated Appropriations
Act of 2020. The next best alternative would involve issuing these
implementing procedures in the form of an Engineer Regulation. That
alternative would not fulfill the intent of the law because it would
not be binding on the regulated public. The no action alternative would
be to not conduct rulemaking which would not fulfill the authorization
provided by Congress.
Anticipated Cost and Benefits: The proposed rule would add Corps
procedures to the CFR on the implementation of a new credit program for
dam safety work at non-Federal dams to allow for consistent
implementation across the Corps and clear understanding of the program
and its requirements by the regulated public. The USACE would incur
costs to administer the loan program while benefits are expected for
the public in the form of benefits from projects enabled by WIFIA
loans.
Risks: The proposed action is not anticipated to increase risk to
public health, safety, or the environment because it outlines the
procedures the Corps will follow for implementing a federal loan
program. The Corps will comply with all statutory requirements when
reviewing requests.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Aaron Snyder, Department of Defense, U.S. Army
Corps of Engineers, 441 G Street NW, Washington, DC 20314, Phone: 651
290-5489, Email: [email protected].
Related RIN: Merged with 0710-AB32.
RIN: 0710-AB31
DOD--COE
24. Flood Control Cost-Sharing Requirements Under the Ability To Pay
Provision
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 2213(m)
CFR Citation: 33 CFR 241.
Legal Deadline: None.
Abstract: Section 103(m) of the Water Resources Development Act
(WRDA) of 1986, as amended (33 U.S.C. 2213(m)), authorizes the U.S.
Army Corps of Engineers (Corps) to reduce the non-Federal share of the
cost of a study or project for certain communities that are not able
financially to afford the standard non-Federal cost-share. Part 241 of
title 33 in the Code of Federal Regulations provides the criteria that
the Corps uses in making these determinations where the primary purpose
of the study or project is flood damage reduction. The proposed rule
would update this regulation, including by broadening its applicability
by including projects with other purposes (instead of just flood damage
reduction) and by including the feasibility study of a project (instead
of just design and construction).
Statement of Need: The Corps may conduct a rulemaking to propose
amendments to the Corps' regulations at 33 CFR part 241 for Corps
projects. The WRDA 2000 modified Section 103(m) to also include the
following mission areas: Environmental protection and restoration,
flood control, navigation, storm damage protection, shoreline erosion,
hurricane protection, and recreation or an agricultural water supply
project which have not yet been added to the regulation. It also
included the opportunity to cost share all phases of a USACE project to
also include feasibility in addition to the already covered design and
construction. This rule would provide a framework for deciding which
projects are eligible for consideration for a reduction in the non-
Federal cost share based on ability to pay.
Summary of Legal Basis: 33 U.S.C. 2213(m).
Alternatives: The preferred alternative would be to conduct
rulemaking to amend 33 CFR 241 by broadening the project purposes for
which the Corps could reduce the non-Federal cost-share based on
ability to pay and by allowing such a reduction for feasibility
studies. The next best alternative would be to provide additional
guidance instead of amending the existing regulation. This
[[Page 5039]]
alternative could lead to confusion for the regulated public.
Anticipated Cost and Benefits: The proposed rule would add Corps
procedures on the ability to pay provision allowing for consistent
implementation across the Corps and clear understanding of the program
and its requirements by the regulated public.
Risks: The proposed action is not anticipated to increase risk to
public health, safety, or the environment because it outlines the
procedures the Corps will follow when evaluating the ability to pay
provision for cost-sharing with the non-Federal sponsor.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Amy Frantz, Program Manager, Department of Defense,
U.S. Army Corps of Engineers, CECW-P, 441 G Street NW, Washington, DC
20314, Phone: 202 761-0106, Email: [email protected].
Related RIN: Previously reported as 0710-AA91.
RIN: 0710-AB34
DOD--COE
25. Revised Definition of ``Waters of the United States''--Rule 1
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 1344
CFR Citation: 33 CFR 328.
Legal Deadline: None.
Abstract: In April 2020, the EPA and the Department of the Army
(``the agencies'') published the Navigable Waters Protection Rule
(NWPR) that revised the previously codified definition of ``waters of
the United States'' (85 FR 22250, April 21, 2020). The agencies are now
initiating this new rulemaking process that restores the regulations
(51 FR 41206) in place prior to the 2015 ``Clean Water Rule: Definition
of 'Waters of the United States'' (80 FR 37054, June 29, 2015), updated
to be consistent with relevant Supreme Court decisions. The agencies
intend to consider further revisions in a second rule in light of
additional stakeholder engagement and implementation considerations,
scientific developments, and environmental justice values. This effort
will also be informed by the experience of implementing the pre-2015
rule, the 2015 Clean Water Rule, and the 2020 Navigable Waters
Protection Rule.
Statement of Need: In 2015, the Environmental Protection Agency and
the Department of the Army (``the agencies'') published the ``Clean
Water Rule: Definition of 'Waters of the United States (80 FR 37054,
June 29, 2015).'' In April 2020, the agencies published the Navigable
Waters Protection Rule (85 FR 22250, April 21, 2020). The agencies
conducted a substantive re-evaluation of the definition of ``waters of
the United States'' in accordance with the Executive Order 13990 and
determined that they need to revise the definition to ensure the
agencies listen to the science, protect the environment, ensure access
to clean water, consider how climate change resiliency may be affected
by the definition of waters of the United States, and to ensure
environmental justice is prioritized in the rulemaking process.
Summary of Legal Basis: The Clean Water Act (33 U.S.C. 1251 et
seq.).
Alternatives: Please see EPA's alternatives. EPA is the lead for
this rulemaking action.
Anticipated Cost and Benefits: Please see EPA's statement of
anticipated costs and benefits. EPA is the lead for this rulemaking
action.
Risks: Please see EPA's risks. EPA is the lead for this rulemaking
action.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Federalism: Undetermined.
Agency Contact: Stacey M. Jensen, Office of the Assistant Secretary
of the Army, Department of Defense, U.S. Army Corps of Engineers, 108
Army Pentagon, Washington, DC 22202, Phone: 703 695-6791, Email:
[email protected].
RIN: 0710-AB40
DOD--COE
26. Revised Definition of ``Waters of the United States''--
Rule 2 (Reg Plan Seq No. XX)
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 1344
CFR Citation: 33 CFR 328.
Legal Deadline: None.
Abstract: The Department of the Army and the Environmental
Protection Agency intend to pursue a second rule defining ``Waters of
the United States'' to consider further revisions to the agencies'
first rule (RIN 0710-AB40) which proposes to restore the regulations in
place prior to the 2015 waters of the United States rule (51 FR 41206),
updated to be consistent with relevant Supreme Court Decisions. This
second rule proposes to include revisions reflecting on additional
stakeholder engagement and implementation considerations, scientific
developments, and environmental justice values. This effort will also
be informed by the experience of implementing the pre-2015 rule, the
2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.
Statement of Need: In 2015, the Environmental Protection Agency and
the Department of the Army (``the agencies'') published the ``Clean
Water Rule: Definition of 'Waters of the United States (80 FR 37054,
June 29, 2015).'' In April 2020, the agencies published the Navigable
Waters Protection Rule (85 FR 22250, April 21, 2020). The agencies
conducted a substantive re-evaluation of the definition of ``waters of
the United States'' in accordance with the Executive Order 13990 and
determined that they need to revise the definition to ensure the
agencies listen to the science, protect the environment, ensure access
to clean water, consider how climate change resiliency may be affected
by the definition of waters of the United States, and to ensure
environmental justice is prioritized in the rulemaking process.
Summary of Legal Basis: The Clean Water Act (33 U.S.C. 1251 et
seq.).
Alternatives: Please see EPA's alternatives. EPA is the lead for
this rulemaking action.
Anticipated Cost and Benefits: Please see EPA's statement of
anticipated costs and benefits. EPA is the lead for this rulemaking
action.
Risks: Please see EPA's risks. EPA is the lead for this rulemaking
action.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Stacey M. Jensen, Office of the Assistant Secretary
of the Army, Department of Defense, U.S. Army Corps of Engineers, 108
Army Pentagon, Washington, DC 22202, Phone: 703 695-6791, Email:
[email protected].
RIN: 0710-AB47
[[Page 5040]]
DOD--OFFICE OF ASSISTANT SECRETARY FOR HEALTH AFFAIRS (DODOASHA)
Final Rule Stage
27. Tricare Coverage and Payment for Certain Services in Response to
the Covid-19 Pandemic
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 10 U.S.C. ch. 55
CFR Citation: 32 CFR 199.
Legal Deadline: None.
Abstract: The Department of Defense is finalizing an interim final
rule that temporarily amended 32 CFR part 199 to revise: (1) 32 CFR
part 199.4 to remove the restriction on audio-only telemedicine
services; (2) 32 CFR part 199.6 to authorize reimbursement for
interstate practice by TRICARE-authorized providers when such authority
is consistent with State and Federal licensing requirements; and (3) 32
CFR part 199.17 to eliminate copayments for telemedicine services. The
changes in this rule are effective from the date published through the
end of the coronavirus 2019 (COVID-19) pandemic. These changes reduce
the spread of COVID-19 among TRICARE beneficiaries by incentivizing use
of telemedicine services, and aid providers in caring for TRICARE
beneficiaries by temporarily waiving some licensure requirements.
The final rule adopts this interim final rule as final with
changes.
Statement of Need: Pursuant to the President's health emergency
declaration and as a result of the worldwide coronavirus 2019 (COVID-
19) pandemic, the Assistant Secretary of Defense for Health Affairs
hereby modifies the following regulations, but in each case, only to
the extent necessary, as determined by the Director, Defense Health
Agency, to encourage social distancing and prevent the spread of COVID-
19 by incentivizing the use of telehealth services, and to allow
TRICARE-authorized providers to care for TRICARE beneficiaries wherever
there is need as a result of the consequences of the COVID-19 pandemic.
The modifications to section 199.4(g)(52) in this interim final
rule (IFR) will allow TRICARE beneficiaries to obtain telephonic office
visits with TRICARE-authorized providers for medically necessary care
and treatment and allow reimbursement to those providers during the
COVID-19 pandemic. It provides an exception to the regulatory exclusion
prohibiting audio-only telephone services.
The modifications to section 199.6(c)(2)(i) in this IFR will allow
providers to be reimbursed for interstate practice, both in person and
via telehealth, during the global pandemic so long as the provider
meets the requirements for practicing in that State or under Federal
law. It removes the requirement that the provider must be licensed in
the State where practicing, even if that license is optional. For
providers overseas, this will allow providers, both in person and via
telehealth, to practice outside of the nation where licensed when
permitted by the host nation.
The modifications to section 199.17(l)(3) will remove cost-shares
and copayments for telehealth services for TRICARE Prime and Select
beneficiaries utilizing telehealth services with an in-network,
TRICARE-authorized provider during the global pandemic. It adds in-
network telehealth services as a special cost-sharing rule to waive the
beneficiary copay.
Summary of Legal Basis: This rule is issued under 10 U.S.C. 1073
(a)(2) giving authority and responsibility to the Secretary of Defense
to administer the TRICARE program.
Alternatives:
(1) No action.
(2) Only apply the regulatory modifications to COVID-19-related
diagnoses. This was rejected because the effects of the COVID-19
pandemic are causing stress on the entire health care system. The
regulatory modifications in this IFR will take the pressure off of the
health care system by: (1) Covering telephone appointments with a
TRICARE-authorized provider and thereby supporting social distancing
recommendations; (2) covering TRICARE-authorized providers practicing
across state lines, thereby increasing the overall access to medical
care and treatment; and (3) waiving all copayments for in-network
telehealth services, thereby removing the potential cost barrier to
obtaining medical services remotely and inducing demand for these
services, reducing potential person-to-person transmission of COVID-19
during medical appointments.
Anticipated Cost and Benefits: Health Care Costs Associated with
Removing Copays for Telehealth.
There are three factors that would increase Department of Defense
(DoD) health care costs due to this rule. First, the government would
lose cost-sharing revenue paid by beneficiaries on the existing level
of telehealth visits. Second, there would be induced demand costs, as
removal of patient costs will increase patient demand for these
services. Finally, there would be a substitution effect, as the COVID-
19 pandemic and removal of telehealth cost-shares would encourage a
shift from in-person visits, for which beneficiaries would pay a copay,
to telehealth visits, which would be free to beneficiaries.
The below provides a summary of the combined government health care
and administrative costs of the IFR.
Summary of Government Costs of the Proposed COVID-19 Telehealth IFR
----------------------------------------------------------------------------------------------------------------
Government Healthcare Cost (HC) 3-Month scenario 6-Month scenario 9-Month scenario
----------------------------------------------------------------------------------------------------------------
Loss of copays on existing telehealth.................. $156,949 $313,897 $470,846
Induced demand......................................... 117,772 235,544 353,316
Loss of copays on in-person shifting to Telehealth..... 26,673,895 48,611,002 65,459,795
--------------------------------------------------------
Subtotal, Government HC cost....................... 26,948,616 49,160,443 66,283,957
----------------------------------------------------------------------------------------------------------------
Start-up administrative cost........................... 67,494 67,494 67,494
--------------------------------------------------------
Total Government Cost increase..................... 27,016,110 49,227,937 66,351,451
----------------------------------------------------------------------------------------------------------------
Beneficiary Cost Impact
There are two types of savings for beneficiaries estimated here.
First, beneficiaries would avoid the cost-sharing they otherwise would
have paid on existing telehealth visits and on in-person visits that
would shift to telehealth. It is estimated the cost-sharing savings to
beneficiaries would be: $26,830,844 for a three-month scenario;
$48,924,899 for a six-month scenario; and $65,930,641 for a nine-
[[Page 5041]]
month scenario. Second, for the share of historical visits that is
estimated would shift from in-person to telehealth, beneficiaries would
avoid travel time and time spent in the provider's waiting room. Two
parameters were considered in developing the estimate of the value of
time saved for TRICARE beneficiaries: (1) The average amount of time
saved per visit, and (2) a monetized estimate of the value of the time
saved, based on the opportunity cost of that time. See the below table
Estimated Value to Beneficiaries for the combined results of avoided
cost-sharing and dollar value of saved time.
Estimated Value to Beneficiaries
----------------------------------------------------------------------------------------------------------------
3-Month scenario 6-Month scenario 9-Month scenario
----------------------------------------------------------------------------------------------------------------
Avoided cost-sharing................................... $26,830,844 $48,924,899 $65,930,641
Dollar value of time saved............................. 17,085,995 31,089,668 41,384,466
--------------------------------------------------------
Total estimated value to beneficiaries............. 43,916,839 80,014,567 107,315,107
----------------------------------------------------------------------------------------------------------------
An important value to beneficiaries that is not feasible to
estimate but worth noting is the possibility that shifting visits from
in-person to telehealth might reduce the risk of COVID-19 exposure,
with all the potential benefits that could accompany that reduced
exposure risk. This reduced risk of COVID-19 exposure may also result
in downstream reductions in cost to the TRICARE Program in avoided
COVID-19 diagnostics and treatment.
Risks: None. This rule will promote the efficient functioning of
the economy and markets by temporarily modifying regulations to ensure
that actors in the health care market (primarily health care providers)
will continue to be reimbursed despite disruption in the health care
ecosystem by the COVID-19 pandemic. Reimbursing providers despite
changing licensing requirements and in ways that recognize the critical
role telehealth will play in the coming months ensures that TRICARE
supports not just its beneficiaries, but the economy in general.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 05/12/20 85 FR 27921
Interim Final Rule Effective........ 05/12/20
Interim Final Rule Comment Period 06/11/20
End.
Final Action........................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Erica Ferron, Defense Health Agency, Medical
Benefits and Reimbursement Division, Department of Defense, Office of
Assistant Secretary for Health Affairs, 16401 E Centretech Parkway,
Aurora, CO 80011-9066, Phone: 303 676-3626, Email:
[email protected].
RIN: 0720-AB81
DOD--DODOASHA
28. Tricare Coverage of Certain Medical Benefits in Response to the
Covid-19 Pandemic
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 10 U.S.C. ch. 55
CFR Citation: 32 CFR 199.
Legal Deadline: None.
Abstract: The Department of Defense is finalizing an interim final
rule that temporarily amended 32 CFR part 199 to revise certain
elements of the TRICARE program under 32 CFR part 199 to: (1) Waive the
three-day prior hospital qualifying stay requirement for coverage of
skilled nursing facility care; (2) add coverage for treatment use of
investigational drugs under expanded access authorized by the United
States (U.S.) Food and Drug Administration (FDA) when for the treatment
of coronavirus disease 2019 (COVID-19); (3) waive certain provisions
for acute care hospitals that permitted authorization of temporary
hospital facilities and freestanding ambulatory surgical centers
providing inpatient and outpatient hospital services; and, consistent
with similar changes under the Centers for Medicaid and Medicare
Services; (4) revise diagnosis related group (DRG) reimbursement by
temporarily reimbursing DRGs at a 20 percent higher rate for COVID-19
patients; and (5) waive certain requirements for long term care
hospitals. The final action permanently adopts Medicare's New
Technology Add-On Payments adjustment to DRGs for new medical services
and technologies and adopted Medicare's Hospital Value Based Purchasing
Program.
The final rule adopts the interim final rule with changes, except
for the note to section 199.4(g)(15)(i)(A), published at 85 FR 54923,
September 3, 2020, which remains interim.
Statement of Need: Pursuant to the President's emergency
declaration and as a result of the worldwide coronavirus disease 2019
(COVID-19) pandemic, the Assistant Secretary of Defense for Health
Affairs is temporarily modifying the following regulations, but in each
case, only to the extent necessary to ensure that TRICARE beneficiaries
have access to the most up-to-date care required for the diagnosis and
treatment of COVID-19, and that TRICARE continues to reimburse like
Medicare, to the extent practicable, as required by statute.
The modification to paragraph 199.4(b)(3)(xiv) waives the
requirement for a minimum three-day prior hospital stay, not including
leave day, for coverage of a skilled nursing facility admission. This
provision reduces stress on acute care hospitals.
The modification to paragraph 199.4(g)(15) permits cost-sharing of
investigational new drugs (INDs). This provision also increases access
to emerging therapies.
The modification to paragraph 199.6(b)(4)(i) waives certain
provisions for acute care hospitals that will permit authorization of
temporary hospital facilities and freestanding ambulatory surgical
centers. This provision supports increased access to acute care.
The modifications to paragraph 199.14(a)(1)(iii)(E) increase the
diagnosis related group (DRG) amount by 20 percent for an individual
diagnosed with COVID-19 and adopt Medicare's New Technology Add-On
Payments (NTAPs) and Hospital Value-Based Purchasing (HVBP) Program.
These provisions support the requirement that TRICARE reimburse like
Medicare. The NTAPs and HVBP Program are adopted permanently.
The modification to paragraph 199.14(a)(9) waives site neutral
payment provisions by reimbursing all long-term care hospitals (LTCHs)
at the standard federal rate for claims. This provision supports the
requirement that TRICARE reimburse like Medicare.
Summary of Legal Basis: This rule is issued under 10 U.S.C. 1073
(a)(2)
[[Page 5042]]
giving authority and responsibility to the Secretary of Defense to
administer the TRICARE program.
Alternatives:
(1) No action.
(2) The second alternative the Department of Defense considered was
implementing a more limited benefit change for COVID-19 patients by not
covering treatment INDs. While this would have the benefit of
reimbursing only care that has more established evidence in its favor,
this alternative is not preferred because early access to treatments is
critical for TRICARE beneficiaries given the rapid progression of the
disease and the lack of available approved treatments.
Anticipated Cost and Benefits: Health Care and Administrative
Costs.
The cost estimates related to the changes discussed in this Interim
Final Rule (IFR) include incremental health care cost increases as well
as administrative costs to the government. The duration of the COVID-19
national emergency and Health and Human Services Public Health
Emergency (PHE) are uncertain, resulting in a range of estimates for
each provision in this IFR. Cost estimates are provided for an
approximate nine-month (ending 12/31/2020) and eighteen-month scenario
(ending 9/30/2021). The nine-month and 18-month periods would be longer
for those provisions applicable beginning in January of this year, and
shorter for those effective the date this IFR publishes. The terms
nine-month and 18-month period are used throughout this estimate for
the sake of simplicity.
The cost estimates consider whether the outbreak will have more
than one active stage. The first active stage is considered to be March
through August 2020, based on the Institutes for Health Metrics and
Evaluation data as of May 12, 2020 (https://covid19.healthdata.org/united-states-of-america). A two-wave scenario would have a second
stage in winter/spring 2021, while a three-wave scenario would have
additional waves from September 2020 to December 2020 and from January
2021 to June 2021.
Based on these factors, we estimate that the total cost estimate
for this IFR will be between $43.6M and $59.4M for a nine-month period,
and $66.3M to $82.1M for an 18-month period. This estimate includes
just over $1M in administrative start-up costs and no ongoing
administrative costs. The primary cost drivers in this analysis are the
reimbursement changes being adopted under the statutory requirement
that TRICARE reimburse like Medicare; that is, the 20 percent DRG
increase for COVID-19 patients, the adoption of NTAPs and HVBP, and the
waiver of LTCH site neutral payment reductions.
A breakdown of costs, by provision, is provided in the below table.
A discussion of assumptions follows.
------------------------------------------------------------------------
Nine-month Eighteen-month
Provision scenario scenario
------------------------------------------------------------------------
Paragraph 199.4(b)(3)(xiv) SNF Three-Day $0.3M $0.6M
Prior Stay Waiver......................
Paragraph 199.4(g)(15)(A) INDs for COVID- 0.7M-2.2M 2.7M-4.2M
19.....................................
Paragraph 199.6(b)(4)(i) Temporary 0M 0M
Hospitals and Freestanding ASCs
Registering as Hospitals...............
Paragraph 199.14(a)(1)(iii)(E)(2) 20 27.7M-42M 37.1M-51.4M
Percent DRG Increase for COVID-19
Patients...............................
Paragraph 199.14(a)(1)(iii)(E)(5) NTAPs. 5.7M 11.6M
Paragraph 199.14(a)(1)(iii)(E)(6) HVBP.. 2.5M 2.5M
Paragraph 199.14(a)(9) LTCH Site Neutral 5.6M 10.6M
Payments...............................
Administrative Costs.................... 1.1M 1.2M
-------------------------------
Estimated Total Cost Impact......... 43.6M-59.4M 66.3M-82.1M
------------------------------------------------------------------------
Benefits to the TRICARE Program
Depending on the impact of certain provisions of this IFR, some
cost savings could be achieved from a reduction in hospitalization
rates (i.e., use of treatment INDs), estimated from no savings to $40M
over 18 months. The amount of cost-savings achieved will be determined
by the therapies developed, how widespread their usage is, the extent
to which the therapies are authorized as treatment INDs, the
effectiveness of the therapies in reducing hospitalizations and/or the
use of mechanical ventilators, and how long the therapies remain as
INDs before transitioning to United States Food and Drug
Administration-approval, clearance, or emergency use authorization.
Any benefits achieved in reduced hospitalizations and/or mechanical
ventilator use are also benefits to TRICARE beneficiaries, for whom
avoidance of more serious COVID-19 illness is of paramount concern.
While we cannot estimate the value of this avoidance in quantitative
figures, the potential long-term consequences of a serious COVID-19
illness, including permanent cardiac or lung damage, are not
insignificant. If beneficiaries are able to access emerging therapies
that prevent long-term consequences (including death), this will be a
benefit to the beneficiary.
The largest creators of costs under this IFR (reimbursement
changes) are not anticipated or intended to create any cost savings.
However, these changes will benefit TRICARE institutional providers and
take stress off the entire health care system by ensuring adequate
reimbursement during the PHE, at a time during which hospitals are
losing revenue due to reduced elective procedures and patients who
delay care due to fears of contracting COVID-19 during health care
encounters. Ensuring a robust health care system is of benefit to our
beneficiaries and the general public, particularly in rural or
underserved areas, even though this benefit is not quantifiable.
Risks:
None. This rule will promote the efficient functioning of the
economy and markets by modifying the regulations to better reimburse
health care providers for care provided during the COVID-19 pandemic,
particularly as strain on the health care economy is being felt due to
reductions in higher cost elective procedures.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 09/03/20 85 FR 54915
Interim Final Rule Effective........ 09/03/20
Interim Final Rule Comment Period 11/02/20
End.
Final Action........................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Erica Ferron, Defense Health Agency, Medical
Benefits and Reimbursement Division, Department of Defense, Office of
Assistant Secretary for Health Affairs, 16401 E Centretech
[[Page 5043]]
Parkway, Aurora, CO 80011-9066, Phone: 303 676-3626, Email:
[email protected].
RIN: 0720-AB82
DOD--DODOASHA
29. TRICARE Coverage of National Institute of Allergy and Infectious
Disease Coronavirus Disease 2019 Clinical Trials
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 10 U.S.C. ch 55
CFR Citation: 32 CFR 199.
Legal Deadline: None.
Abstract: The Department of Defense is finalizing an interim final
rule that temporarily amended 32 CFR 199 to revise certain elements of
the TRICARE program, to add coverage for National Institute of Allergy
and Infectious Disease-sponsored clinical trials for the treatment or
prevention of coronavirus disease 2019 (COVID-19).
Statement of Need: Pursuant to the President's national emergency
declaration and as a result of the worldwide COVID-19 pandemic, the
Assistant Secretary of Defense for Health Affairs hereby temporarily
modifies the regulation at 32 CFR 199.4(e)(26) to permit TRICARE
coverage for National Institute of Allergy and Infectious Disease
(NIAID)-sponsored COVID-19 phase I, II, III, and IV clinical trials for
the treatment or prevention of coronavirus disease 2019 (COVID-19).
This provision supports increased access to emerging therapies for
TRICARE beneficiaries.
Summary of Legal Basis: This rule is issued under 10 U.S.C. 1079
giving authority and responsibility to the Secretary of Defense to
administer the TRICARE program.
Alternatives:
(1) No action.
(2) The second alternative the DoD considered was implementing a
more limited benefit change for COVID-19 patients by not covering phase
I clinical trials. Although this would have the benefit of reimbursing
only care that has more established evidence in its favor, this
alternative is not preferred because early access to treatments is
critical for TRICARE beneficiaries given the rapid progression of the
disease and the lack of available approved treatments.
Anticipated Cost and Benefits:
Costs: We estimate the total cost for TRICARE participation in
NIAID-sponsored COVID-19 clinical trials will be $3.2M for the duration
of the national emergency, with an additional $4.0M for continued care
for beneficiaries enrolled in clinical trials prior to termination of
the national emergency. There were several assumptions we made in
developing this estimate. The duration of the COVID-19 national
emergency is uncertain; however, for the purposes of this estimate, we
assumed the national emergency would expire on September 30, 2021. As
of the drafting of this IFR, there were 27 NIAID-sponsored COVID-19
clinical trials begun since the start of the national emergency. We
assumed 6.2 new trials every 30 days, for a total of 126 trials by
September 2021. We assumed, based on average trial enrollment and that
TRICARE beneficiaries would participate in trials at the same rate as
the general population, that 4,549 TRICARE beneficiaries would
participate through September 2021. Each of the assumptions in this
estimate is highly uncertain, and our estimate could be higher or lower
depending on real world events (more or fewer trials, a longer or
shorter national emergency, and/or higher or lower participation in
clinical trials by TRICARE beneficiaries).
Benefits: These changes expand the therapies available to TRICARE
beneficiaries in settings that ensure informed consent of the
beneficiary, and where the benefits of treatment outweigh the potential
risks. Participation in clinical trials may provide beneficiaries with
benefits such as reduced hospitalizations and/or use of a mechanical
ventilator. Although we cannot estimate the value of avoiding these
outcomes quantitatively, the potential long-term consequences of
serious COVID-19 illness, including permanent cardiac or lung damage,
are not insignificant. Beneficiary access to emerging therapies that
reduce these long-term consequences or even death can be considered to
be high-value for those able to participate.
TRICARE providers will be positively affected by being able to
provide their patients with a broader range of treatment options. The
general public will benefit from an increased pool of available
participants for the development of treatments and vaccines for COVID-
19, as well as the evidence (favorable or otherwise) that results from
this participation.
Risks: None. This rule will not directly affect the efficient
functioning of the economy or private markets. However, increasing the
pool of available participants for clinical trials may help speed the
development of treatments or vaccines for COVID-19. Once effective
treatments or vaccines for COVID-19 exist, individuals are likely to be
more confident interacting in the public sphere, resulting in a
positive impact on the economy and private markets.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 10/30/20 85 FR 68753
Interim Final Rule Effective........ 10/30/20
Interim Final Rule Comment Period 11/30/20
End.
Final Action........................ 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Erica Ferron, Defense Health Agency, Medical
Benefits and Reimbursement Division, Department of Defense, Office of
Assistant Secretary for Health Affairs, 16401 E Centretech Parkway,
Aurora, CO 80011-9066, Phone: 303 676-3626, Email:
[email protected].
RIN: 0720-AB83
DOD--DODOASHA
30. Expanding TRICARE Access to Care in Response to the COVID-19
Pandemic
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 10 U.S.C. ch. 55
CFR Citation: 32 CFR 199
Legal Deadline: None.
Abstract: This interim final rule with comment will temporarily
amend the TRICARE regulation at 32 CFR part 199 by: (1) Adding
freestanding End Stage Renal Disease facilities as a category of
TRICARE-authorized institutional provider and modifying the
reimbursement for such facilities; (2) adding coronavirus 2019 (COVID-
19) Immunizers who are not otherwise an eligible TRICARE-authorized
provider as providers eligible for reimbursement for COVID-19 vaccines
and vaccine administration; (3) and adopting Medicare New COVID-19
Treatments Add-on Payments (NTCAPs).
Statement of Need: Pursuant to the President's emergency
declaration and as a result of the COVID-19 pandemic, the Assistant
Secretary of Defense for Health Affairs is temporarily modifying the
following regulations (except for the modifications to paragraphs
199.6(b)(4)(xxi) and 199.14(a)(1)(iii)(E)(7), which will not expire),
but, in each case, only to the extent necessary to ensure that TRICARE
beneficiaries have access to the most up-to-date care required for the
prevention, diagnosis, and treatment of
[[Page 5044]]
COVID-19, and that TRICARE continues to reimburse like Medicare, to the
extent practicable, as required by statute.
The modifications to paragraphs 199.6(b)(4)(xxi) and
199.14(a)(1)(iii)(E)(7) establish freestanding End Stage Renal Disease
(ESRD) facilities as a category of TRICARE-authorized institutional
provider and modify TRICARE reimbursement of freestanding ESRD
facilities. These provisions will improve TRICARE beneficiary access to
medically necessary dialysis and other ESRD services and supplies.
These provisions also support the requirement that TRICARE reimburse
like Medicare, and will help to alleviate regional health care
shortages due to the COVID-19 pandemic by ensuring access to dialysis
care in freestanding ESRD facilities rather than hospital outpatient
departments.
The modification to paragraph 199.14(a)(iii)(E) adopts Medicare's
New COVID-19 Treatments Add-on Payment (NCTAP) for COVID-19 cases that
meet Medicare's criteria. This provision increases access to emerging
COVID-19 treatments and supports the requirement that TRICARE reimburse
like Medicare.
The modification to paragraph 199.6(d)(7) adds providers who
administer COVID-19 vaccinations, but are not otherwise authorized
under 199.6, as TRICARE-authorized providers. This provision increases
access to COVID-19 vaccinations. This provision increases access to
COVID-19 vaccines for eligible TRICARE beneficiaries and supports the
United States (U.S.) public health goal of ending the COVID-19
pandemic.
Summary of Legal Basis: This rule is issued under 10 U.S.C.
1073(a)(2) giving authority and responsibility to the Secretary of
Defense to administer the TRICARE program.
Alternatives:
(1) No action.
(2) The second alternative the Department of Defense considered was
to adopt Medicare's ESRD reimbursement methodology, the ESRD
Prospective Payment System (PPS), in total. While this would have been
completely consistent with the statutory provision to pay institutional
providers using the same reimbursement methodology as Medicare, this
alternative is not preferred because there is still a relatively low
volume of TRICARE beneficiaries who receive dialysis services from
freestanding ESRDs and who are not enrolled to Medicare. The cost of
implementing the full ESRD PPS system is estimated to be at least
$600,000.00 in start-up costs, plus ongoing administrative costs, to
ensure all adjustments were made for each claim, plus additional
special pricing software or algorithms. In contrast, we estimate that
the option provided in this IFR can be implemented relatively quickly
(within six months of publication), and for approximately $300,000.00
in start-up costs with lower ongoing administrative costs. Further, the
flat rate will provide the ESRD facilities with predictability with
regard to TRICARE payments and will reduce uncertainty and specialized
coding or case-mix documentation requirements that may be required by
the ESRD PPS, reducing the administrative burden on the provider.
To summarize, adopting the ESRD PPS was considered, but was deemed
impracticable and overly burdensome to both the Government and
providers due to the relative low volume of claims that will be priced
and paid by TRICARE as primary under this system.
Anticipated Cost and Benefits: Health Care and Administrative
Costs.
The Independent Cost A by Kennell and Associates, Inc., estimates a
total of $6.8M. Only the ESRD provisions are expected to result in
recurring incremental health care costs; the remaining two provisions
are expected to result in one-time cost increases. For these temporary
changes to the regulation, our cost estimate assumes that the majority
of adults in the U.S. will be vaccinated by September 2021, based on
the most recent information provided by Federal and state agencies,
and, as a result, that the President's emergency declaration and the
public health emergency relating to the COVID-19 pandemic will end by
September 2021. While this estimate would have the President's
emergency declaration end shortly after publication of the rule, the
COVID-19 pandemic contains substantial uncertainty including the
possibility of a virus variant resistant to current vaccines. As such,
we find it appropriate to make these regulatory changes despite the
potential short effective period, as the end of the pandemic is by no
means a certainty.
Based on these factors, as well as the assumptions for each
provision detailed below, we estimate that the total cost estimate for
this Interim Final Rule (IFR) will be approximately $6.8M. This
estimate includes approximately $0.9M in administrative costs and $5.9M
in direct health care costs. $1.8M of the total cost impact is expected
to be a one-time start-up cost for both the temporary and permanent
provisions, while the permanent ESRD provisions are expected to result
in $5M in incremental annual costs.
A breakdown of costs, by provision, is provided in the below table.
------------------------------------------------------------------------
Provision Costs
------------------------------------------------------------------------
Add Freestanding ESRD Facilities as TRICARE-Authorized $5.3M
Institutional Providers and Modify ESRD Reimbursement..
Temporarily Authorize Immunizers Providing COVID-19 0.4M
Vaccines...............................................
Temporarily Adopt DRG Add-On Payment for NCTAPs......... 1.1M
---------------
Estimated Total Cost Impact......................... 6.8M
------------------------------------------------------------------------
Risks: None. This rule will promote the efficient functioning of
the economy and markets by modifying the regulations to better
reimburse health care providers for care provided during the COVID-19
pandemic, particularly as strain on the health care economy is being
felt due to reductions in higher cost elective procedures.
Additionally, this rule will increase the access of TRICARE
beneficiaries to more providers administering COVID-19 vaccinations,
which promotes the efficient functioning of the U.S. economy by
quickening the pace at which the public receives COVID-19 vaccinations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 11/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Jahanbakhsh Badshah, Healthcare Program
Specialist--Reimbursement, Department of Defense, Office of Assistant
Secretary for Health Affairs, 16401 E. Centretech Parkway, Aurora, CO
80011, Phone: 303 676-3881, Email: [email protected].
[[Page 5045]]
RIN: 0720-AB85
BILLING CODE 5001-06-P
DEPARTMENT OF EDUCATION
Statement of Regulatory Priorities
I. Introduction
The U.S. Department of Education (Department) supports States,
local communities, institutions of higher education, and families in
improving education and other services nationwide to ensure that all
Americans, including those with disabilities and who have been
underserved, receive a high-quality and safe education and are prepared
for employment that provides a livable wage. We provide leadership and
financial assistance pertaining to education and related services at
all levels to a wide range of stakeholders and individuals, including
State educational and other agencies, local school districts, providers
of early learning programs, elementary and secondary schools,
institutions of higher education, career and technical schools,
nonprofit organizations, students, members of the public, families, and
many others. These efforts are helping to advance equity, recover from
the COVID-19 pandemic, and ensure that all children and students from
pre-kindergarten through grade 12 will be ready for, and succeed in,
postsecondary education, and employment, and that students attending
postsecondary institutions, or participating in other postsecondary
education options, are prepared for a profession or career.
We also vigorously monitor and enforce the implementation of
Federal civil rights laws in educational programs and activities that
receive Federal financial assistance from the Department, and support
innovative and promising programs, research and evaluation activities,
technical assistance, and the dissemination of data, research, and
evaluation findings to improve the quality of education.
Overall, the laws, regulations, and programs that the Department
administers will affect nearly every American during his or her life.
Indeed, in the 2020-21 school year, about 56 million students attended
an estimated 131,000 elementary and secondary schools in approximately
13,600 districts, and about 20 million students were enrolled in
postsecondary schools. Many of these students may benefit from some
degree of financial assistance or support from the Department.
In developing and implementing regulations, guidance, technical
assistance, evaluations, data gathering and reporting, and monitoring
related to our programs, we are committed to working closely with
affected persons and groups. Our core mission includes serving the most
vulnerable, and facilitating equal access for all, to ensure all
students receive a high-quality and safe education, and complete it
with a well-considered and attainable path to a sustainable career.
Toward these ends, we work with a broad range of interested parties and
the general public, including families, students, and educators; State,
local, and Tribal governments; other Federal agencies; and neighborhood
groups, community-based early learning programs, elementary and
secondary schools, postsecondary institutions, rehabilitation service
providers, adult education providers, professional associations, civil
rights, nonprofits, advocacy organizations, businesses, and labor
organizations.
If we determine that it is necessary to develop regulations, we
seek public participation at the key stages in the rulemaking process.
We invite the public to submit comments on all proposed regulations
through the internet or by regular mail. We also continue to seek
greater public participation in our rulemaking activities through the
use of transparent and interactive rulemaking procedures and new
technologies.
To facilitate the public's involvement, we participate in the
Federal Docket Management System (FDMS), an electronic single
Government-wide access point (www.regulations.gov) that enables the
public to submit comments on different types of Federal regulatory
documents and read and respond to comments submitted by other members
of the public during the public comment period. This system provides
the public with the opportunity to submit comments electronically on
any notice of proposed rulemaking or interim final regulations open for
comment as well as read and print any supporting regulatory documents.
II. Regulatory Priorities
The following are the key rulemaking actions the Department is
planning for the coming year. These rulemaking actions advance the
Department's mission of ``promot[ing] student achievement and
preparation for global competitiveness by fostering educational
excellence and ensuring equal access.'' These rulemaking actions also
advance the President's priorities of ensuring that every American has
access to a high-quality education, regardless of background, and that
government should affirmatively work to expand educational
opportunities for underserved communities. During his first year in
office, the President has repeatedly made clear the importance of
advancing equity and opportunity for those who have historically been
underserved, both as a general matter and with regard to the education
system in particular. See Executive Order 13985 (On Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government); Executive Order 14021 (Guaranteeing an Educational
Environment Free From Discrimination on the Basis of Sex, Including
Sexual Orientation or Gender Identity); Executive Order 14041 (White
House Initiative on Advancing Educational Equity, Excellence, and
Economic Opportunity Through Historically Black Colleges and
Universities); Executive Order 14045 (White House Initiative on
Advancing Educational Equity, Excellence, and Economic Opportunity for
Hispanics); Executive Order 14049 (White House Initiative on Advancing
Educational Equity, Excellence, and Economic Opportunity for Native
Americans and Strengthening Tribal Colleges and Universities); and
Executive Order 14050 (White House Initiative on Advancing Educational
Equity, Excellence, and Economic Opportunity for Black Americans). The
rulemaking actions on the Department's agenda seek to advance the
President's priorities, as set out in these executive orders and more
broadly. The rules below cover a wide range of topics, and a wide range
of educational institutions--from those serving our youngest children
to colleges, universities, and adult education programs. In each of
these contexts, promoting equity and opportunity for students who have
been historically underserved is central to the Department's regulatory
plan.
These key rulemakings include Public Service Loan Forgiveness,
Income Contingent Repayment, Improving Student Loan Cancellation
Authorities, Pell Grants for Prison Education Programs, State-Defined
Processes for Ability to Benefit, and Civil Rights, such as Title IX
Nondiscrimination on the Basis of Sex in Education Program or
Activities Receiving Federal Financial Assistance. For example, the
Pell Grants for Prison Education Programs rule would support increased
educational opportunities for individuals who are incarcerated and
provide quality options for individuals in this underserved community.
Additionally, the Income Contingent Repayment rule would make student
loan payments
[[Page 5046]]
more affordable for borrowers, with a particular goal of helping
increase educational opportunities for many low-income borrowers. The
Department has also dispersed billions of dollars in funding during the
COVID-19 pandemic to address inequities exacerbated by the pandemic,
which targets resources to historically underserved groups of students
and those students most impacted by the pandemic through the American
Rescue Plan and other relief efforts.
For rulemakings that we are just beginning now, we have limited
information about their potential costs and benefits. We note that some
policies that were previously included in the Spring Unified Agenda,
such as policies impacting the magnet schools and charter school
programs, are still part of the Department's plans but do not require
regulation and, therefore, are not included as items in the Fall
regulatory agenda or in this regulatory plan. We have also identified
the Innovative Assessment Demonstration Authority (IADA) rulemaking as
a long-term action because we are waiting for the forthcoming progress
report on the initial demonstration authority to inform any potential
regulatory proposal.
Postsecondary Education/Federal Student Aid
The Department's upcoming higher education regulatory efforts
include the following areas:
Public Service Loan Forgiveness
Borrower Defense to Repayment
Improving Student Loan Cancellation Authorities
Income Contingent Repayment
Pell Grants for Prison Education Programs
Gainful Employment
90/10 rule
These areas are focused on several general areas which include
improving the rules governing student loan repayment and targeted
student loan cancellation authorities and protecting students and
taxpayers from poor-performing programs, among other topics. These
rulemakings reflect the Department's commitment to serving students and
borrowers well and protecting them from harmful programs and practices
that may derail their postsecondary and career goals. Through these
regulatory efforts, the Department plans to address gaps in
postsecondary outcomes, particularly those related to student loan
repayment, affordability, and default. The Department is also focused
on the disparate impacts by income, race/ethnicity, gender, disability
status, and other demographic characteristics that may affect students'
postsecondary and career goals. For its higher education rulemakings,
generally the Department uses a negotiated rulemaking process. We have
selected participants for the negotiated rulemaking committees from
nominees of the organizations and groups that represent the interests
significantly affected by the proposed regulations. To the extent
possible, we selected nominees who reflect the diversity among program
participants.
Specifically, the Department is currently conducting negotiated
rulemaking addressing, among other things, student loan repayment and
targeted student loan discharges by improving Public Service Loan
Forgiveness, Borrower Defense to Repayment, and other targeted student
loan cancellation authorities. On Income Contingent Repayment, the
Department plans to create or adjust an income-contingent repayment
plan that would allow borrowers to more easily afford their student
loan payments. For Public Service Loan Forgiveness, the Department
plans to streamline the process for receiving loan forgiveness after 10
years of qualifying payments on qualifying loans while engaging in
public service. For Borrower Defense, the Secretary plans to amend the
regulations that specify the acts or omissions of an institution of
higher education that a borrower may assert as a defense to repayment
of a loan made under the Federal Direct Loan Program. In Improving
Student Loan Cancellation Authorities, the Department plans to propose
improvements in areas where Congress has provided borrowers with relief
or benefits related to Federal student loans. This includes authorities
granted under the Higher Education Act (HEA) that allow the Department
to cancel loans for borrowers who meet certain criteria, such as having
a total and permanent disability, attending a school that closed, or
having been falsely certified for a student loan. For these borrowers,
the Secretary plans to amend the regulations relating to borrower
eligibility and streamline application requirements and the application
and certification processes. To increase access to educational
opportunities, the Department also plans to propose regulations that
would guide correctional facilities and eligible institutions of higher
education that seek to establish eligibility for the Pell Grant program
for individuals who are incarcerated.
The Department also plans to conduct negotiated rulemaking on
Gainful Employment and how to determine the amount of Federal
educational assistance received by institutions of higher education
through implementation of the 90/10 rule. For Gainful Employment, the
Department plans to propose regulations on program eligibility under
the HEA, including regulations that determine whether postsecondary
educational programs prepare students for gainful employment in
recognized occupations, and the conditions under which programs remain
eligible for student financial assistance programs under title IV of
the HEA. On the 90/10 rule, in response to changes to the HEA made by
the American Rescue Plan Act of 2021, the Department plans to amend
provisions governing whether proprietary institutions meet requirements
that institutions receive at least 10 percent of their revenue from
sources other than Federal education assistance funds.
Civil Rights/Title IX
The Secretary is planning a new rulemaking to amend its regulations
implementing Title IX of the Education Amendments of 1972, as amended,
consistent with the priorities of the Biden-Harris Administration.
These priorities include those set forth in Executive Order 13988 on
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation and Executive Order 14021 on Guaranteeing an
Educational Environment Free from Discrimination on the Basis of Sex,
Including Sexual Orientation and Gender Identity.
Student Privacy
The Department is considering policy options to amend the Family
Educational Rights and Privacy Act (FERPA) regulations, to update,
clarify, and improve the current regulations. The proposed regulations
are also needed to implement statutory amendments to FERPA contained in
the Uninterrupted Scholars Act of 2013 and the Healthy, Hunger-Free
Kids Act of 2010, to reflect a change in the name of the office
designated to administer FERPA, and to make changes related to the
enforcement responsibilities of the office concerning FERPA.
COVID-19 Regulations
As part of the Biden-Harris Administration's efforts to combat
COVID-19, safely reopen and support schools, and implement the American
Rescue Plan Act (ARP), the Department has issued: Interim final
requirements to promote accountability, transparency, and the effective
use of ARP Elementary and Secondary School Emergency Relief
[[Page 5047]]
Funds; a request for information regarding implementation of the
statutory requirements for ARP's maintenance of equity (a first-of-its-
kind requirement to protect schools and districts serving students from
low-income backgrounds from harmful budget cuts); final requirements to
clarify the requirements applicable to the ARP Emergency Assistance to
Non-Public Schools program; amended regulations so that an institution
of higher education (IHE) may appropriately determine which individuals
currently or previously enrolled at an institution are eligible to
receive emergency financial aid grants to students under the Higher
Education Emergency Relief programs; and a final rule regarding the
allocations to Historically Black Colleges and Universities (HBCUs)
awarded under section 314(a)(2) of the Coronavirus Response and Relief
Supplemental Appropriations Act, 2021 (CRRSAA).
III. Principles for Regulating
Over the next year, we may need to issue other regulations because
of new legislation or programmatic changes. In doing so, we will follow
the Principles for Regulating, which determine when and how we will
regulate. Through consistent application of those principles, we have
eliminated unnecessary regulations and identified situations in which
major programs could be implemented without regulations or with limited
regulatory action.
In deciding when to regulate, we consider the following:
Whether regulations are essential to promote quality and
equality of opportunity in education.
Whether a demonstrated problem cannot be resolved without
regulation.
Whether regulations are necessary to provide a legally
binding interpretation to resolve ambiguity.
Whether entities or situations subject to regulation are
similar enough that a uniform approach through regulation would be
meaningful and do more good than harm.
Whether regulations are needed to protect the Federal
interest, that is, to ensure that Federal funds are used for their
intended purpose and to eliminate fraud, waste, and abuse.
In deciding how to regulate, we are mindful of the following
principles:
Regulate no more than necessary.
Minimize burden to the extent possible and promote
multiple approaches to meeting statutory requirements if possible.
Encourage coordination of federally funded activities with
State and local reform activities.
Ensure that the benefits justify the costs of regulating.
To the extent possible, establish performance objectives
rather than specify the behavior or manner of compliance a regulated
entity must adopt.
Encourage flexibility, to the extent possible and as
needed to enable institutional forces to achieve desired results.
ED--OFFICE FOR CIVIL RIGHTS (OCR)
Proposed Rule Stage
31. Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1681 et seq.
CFR Citation: 34 CFR 106.
Legal Deadline: None.
Abstract: The Department plans to propose to amend its regulations
implementing Title IX of the Education Amendments of 1972, 20 U.S.C.
1681 et seq., consistent with the priorities of the Biden-Harris
Administration. These priorities include those set forth in Executive
Order 13988 on Preventing and Combating Discrimination on the Basis of
Gender Identity or Sexual Orientation and Executive Order 14021 on
Guaranteeing an Educational Environment Free from Discrimination on the
Basis of Sex, Including Sexual Orientation and Gender Identity. We
anticipate this rulemaking may include, but would not be limited to,
amendments to 34 CFR 106.8 (Designation of coordinator, dissemination
of policy, and adoption of grievance procedures), 106.30 (Definitions),
106.44 (Recipient's response to sexual harassment), and 106.45
(Grievance process for formal complaints of sexual harassment).
Statement of Need: This rulemaking is necessary to align the Title
IX regulations with the priorities of the Biden-Harris Administration,
including those set forth in the Executive Order on Preventing and
Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation (E.O. 13988) and the Executive Order on Guaranteeing an
Educational Environment Free from Discrimination on the Basis of Sex,
Including Sexual Orientation and Gender Identity (E.O. 14021).
Summary of Legal Basis: We are conducting this rulemaking under 20
U.S.C. 1681 et seq.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Anne Hoogstraten, Department of Education, Office
for Civil Rights, 400 Maryland Avenue SW, Room PCP-6148, Washington, DC
20202, Phone: 202 245-7466, Email: [email protected].
RIN: 1870-AA16
ED--OFFICE OF PLANNING, EVALUATION AND POLICY DEVELOPMENT (OPEPD)
Proposed Rule Stage
32. Family Educational Rights and Privacy Act
Priority: Other Significant.
Legal Authority: 20 U.S.C. 1232g; 20 U.S.C. 1221e-3; 20 U.S.C. 3474
CFR Citation: 34 CFR 99.
Legal Deadline: None.
Abstract: The Department plans to propose to amend the Family
Educational Rights and Privacy Act (FERPA) regulations, 34 CFR part 99,
to update, clarify, and improve the current regulations by addressing
outstanding policy issues, such as clarifying the definition of
``education records'' and clarifying provisions regarding disclosures
to comply with a judicial order or subpoena. The proposed regulations
are also needed to implement statutory amendments to FERPA contained in
the Uninterrupted Scholars Act of 2013 and the Healthy, Hunger-Free
Kids Act of 2010, to reflect a change in the name of the office
designated to administer FERPA, and to make changes related to the
enforcement responsibilities of the office concerning FERPA.
Statement of Need: These regulations are needed to implement
amendments to FERPA contained in the Healthy,
[[Page 5048]]
Hunger-Free Kids Act of 2010 (Pub. L. 111296) and the Uninterrupted
Scholars Act (USA) of 2013 (Pub. L. 112278); to provide needed clarity
regarding the definitions of terms and other key provisions of FERPA;
and to make necessary changes identified as a result of the
Department's experience administering FERPA and the current
regulations. A number of the proposed changes reflect the Department's
existing guidance and interpretations of FERPA.
Summary of Legal Basis: These regulations are being issued under
the authority provided in 20 U.S.C. 1221e-3, 20 U.S.C. 3474, and 20
U.S.C. 1232g.
Alternatives: These are discussed in the preamble to the proposed
regulations.
Anticipated Cost and Benefits: These are discussed in the preamble
to the proposed regulations.
Risks: These are discussed in the preamble to the proposed
regulations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For Public Comments: www.regulations.gov.
Agency Contact: Dale King, Department of Education, Office of
Planning, Evaluation and Policy Development, 400 Maryland Avenue SW,
Room 6C100, Washington, DC 20202, Phone: 202 453-5943, Email:
[email protected].
RIN: 1875-AA15
ED--OFFICE OF POSTSECONDARY EDUCATION (OPE)
Prerule Stage
33. Determining the Amount of Federal Education Assistance Funds
Received by Institutions of Higher Education (90/10)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099a-3,
1099c
CFR Citation: 34 CFR 668.28.
Legal Deadline: None.
Abstract: To reflect changes to the HEA made by the American Rescue
Plan Act, the Secretary plans to propose to amend the Student
Assistance General Provisions (34 CFR 668.28 Non-Title IV revenue)
governing whether proprietary institutions meet the requirement in 34
CFR 668.14(b)(16) that institutions receive at least 10 percent of
their revenue from sources other than Federal education assistance
funds.
Statement of Need: This rulemaking is necessary to reflect changes
to the HEA made by the American Rescue Plan Act, governing whether
proprietary institutions meet the requirement in 34 CFR 668.14(b)(16)
that these institutions receive at least 10 percent of their revenue
from sources other than Federal education assistance funds.
Summary of Legal Basis: We are conducting this rulemaking under the
following authorities: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099a-3,
and 1099c.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 11/00/21 .......................
Negotiated Rulemaking.
NPRM................................ 07/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Gregory Martin, Department of Education, Office of
Postsecondary Education, 400 Maryland Avenue SW, Room 2C136,
Washington, DC 20202, Phone: 202 453-7535, Email:
[email protected].
RIN: 1840-AD55
ED--OPE
Proposed Rule Stage
34. Borrower Defense
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1082(a)(5), (a)(6); 20 U.S.C. 1087(a);
20 U.S.C. 1087e(h); 20 U.S.C. 1221e-3; 20 U.S.C. 1226a-1; 20 U.S.C.
1234(a); 31 U.S.C. 3711
CFR Citation: 34 CFR 30; 34 CFR 668; 34 CFR 674; 34 CFR 682; 34 CFR
685; 34 CFR 686.
Legal Deadline: None.
Abstract: The Secretary proposes to amend regulations that
determine what acts or omissions of an institution of higher education
a borrower may assert as a defense to repayment of a loan made under
the Federal Direct Loan and Federal Family Education Loan Programs and
specify the consequences of such borrower defenses for borrowers,
institutions, and the Secretary. Further, the Secretary intends to
review the use of class-action lawsuits and pre-dispute arbitration
agreements for matters pertaining to borrower defense claims by schools
receiving Title IV assistance under the Higher Education Act.
Statement of Need: This rulemaking is necessary to determine what
acts or omissions of an institution of higher education a borrower may
assert as a defense to repayment of a loan made under the Federal
Direct Loan Program and specify the consequences of such borrower
defenses for borrowers, institutions, and the Secretary.
Summary of Legal Basis: We are conducting this rulemaking under the
following authorities: 20 U.S.C. 1082(a)(5), (a)(6); 20 U.S.C.1087(a);
20 U.S.C. 1087e(h); 20 U.S.C. 1221e-3; 20 U.S.C. 1226a-1; 20 U.S.C.
1234(a); and 31 U.S.C. 3711.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 05/26/21 86 FR 28299
Negotiated Rulemaking.
NPRM................................ 05/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Jennifer Hong, Director, Policy Coordination Group,
Department of Education, 400 Maryland Avenue SW, Room 287-23,
Washington, DC 20202, Phone: 202 453-7805, Email: [email protected].
RIN: 1840-AD53
[[Page 5049]]
ED--OPE
35. Pell Grants for Prison Education Programs
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1001-1002; 20 U.S.C. 1070a, 1070a-1,
1070b, 1070c-1, 1070c-2, 1070g; 20 U.S.C. 1085, 1087aa-1087hh, 1088,
1091; 1094; 1099b, and 1099c; 42 U.S.C. 2753
CFR Citation: 34 CFR 600.20; 34 CFR 600.21; 34 CFR 668.8.
Legal Deadline: None.
Abstract: The Consolidated Appropriation Act, 2021 defines prison
education programs for purposes of Pell Grant eligibility. The
Department plans to propose regulations that would guide correctional
facilities and eligible institutions of higher education that seek to
establish eligibility for the Pell Grant program.
Statement of Need: These regulations are necessary to increase
access to educational opportunities for individuals who are
incarcerated because research demonstrates that high-quality prison
education programs increase the knowledge and skills necessary to
obtain high-quality and stable employment.
Summary of Legal Basis: These regulations are being issued under
the following authorities: 20 U.S.C. 1001-1002; 20 U.S.C. 1070a, 1070a-
1, 1070b, 1070c-1, 1070c-2, 1070g; 20 U.S.C. 1085, 1087aa-1087hh, 1088,
1091; 1094; 1099b, and 1099c; and 42 U.S.C. 2753.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 05/26/21 86 FR 28299
Negotiated Rulemaking.
NPRM................................ 05/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Aaron Washington, Department of Education, Office
of Postsecondary Education, 400 Maryland Avenue SW, Room 294-12,
Washington, DC 20202, Phone: 202 453-7241, Email:
[email protected].
RIN: 1840-AD54
ED--OPE
36. Gainful Employment
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1001; 20 U.S.C. 1002; 20 U.S.C. 1003; 20
U.S.C. 1088; 20 U.S.C. 1091; 20 U.S.C. 1094; 20 U.S.C. 1099(b); 20
U.S.C. 1099(c); 20 U.S.C. 1082; . . .
CFR Citation: 34 CFR 668; 34 CFR 600.
Legal Deadline: None.
Abstract: The Secretary plans to propose to amend 34 CFR parts 668
and 600 on institution and program eligibility under the HEA, including
regulations that determine whether postsecondary educational programs
prepare students for gainful employment in recognized occupations, and
the conditions under which institutions and programs remain eligible
for student financial assistance programs under Title IV of the HEA.
Statement of Need: This rulemaking is necessary to determine
whether postsecondary educational programs prepare students for gainful
employment and the conditions under which institutions and programs
remain eligible for student financial assistance programs under Title
IV of the HEA.
Summary of Legal Basis: We are conducting this rulemaking under the
following authorities: 20 U.S.C. 1001; 20 U.S.C. 1002; 20 U.S.C. 1003;
20 U.S.C. 1088; 20 U.S.C. 1091; 20 U.S.C. 1094; 20 U.S.C. 1099(b); 20
U.S.C. 1099(c); and 20 U.S.C. 1082.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 05/26/21 86 FR 28299
Negotiated Rulemaking.
NPRM................................ 07/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Gregory Martin, Department of Education, Office of
Postsecondary Education, 400 Maryland Avenue SW, Room 2C136,
Washington, DC 20202, Phone: 202 453-7535, Email:
[email protected].
RIN: 1840-AD57
ED--OPE
37. Improving Student Loan Cancellation Authorities
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1087; 20 U.S.C. 1087e; 20 U.S.C. 1087dd
CFR Citation: 34 CFR 674; 34 CFR 682; 34 CFR 685.
Legal Deadline: None.
Abstract: The Department plans to propose improvements in areas
where Congress has provided borrowers with relief or benefits related
to Federal student loans. This includes authorities granted under the
HEA that allow the Department to cancel loans for borrowers who meet
certain criteria, such as: (a) Being totally and permanently disabled;
(b) attending a school that recently closed; or (c) having been falsely
certified as able to benefit from a program despite not having a high
school diploma or its recognized equivalent. For these borrowers, the
Secretary plans to amend regulations to improve borrower eligibility,
application requirements, and processes.
Statement of Need: This rulemaking is necessary to improve areas
where Congress has provided borrowers with relief or benefits related
to Federal student loans, including to improve borrower eligibility,
application requirements, and processes.
Summary of Legal Basis: We are conducting this rulemaking under 20
U.S.C. 1087; 20 U.S.C. 1087e; and 20 U.S.C. 1087dd.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the potential cost and benefits and cannot estimate them at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence........ 05/26/21 86 FR 28299
Negotiated Rulemaking...............
[[Page 5050]]
NPRM................................ 05/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Jennifer Hong, Director, Policy Coordination Group,
Department of Education, 400 Maryland Avenue SW, Room 287-23,
Washington, DC 20202, Phone: 202 453-7805, Email: [email protected].
RIN: 1840-AD59
ED--OPE
38. Income Contingent Repayment
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 20 U.S.C. 1087e
CFR Citation: 34 CFR 685.
Legal Deadline: None.
Abstract: Using the income-contingent repayment (ICR) authority
under the Higher Education Act of 1965, the Secretary of Education may
create or adjust income-driven repayment plans to cap borrower payments
at a set share of their income. The Department will propose
improvements to these plans in 34 CFR part 685.
Statement of Need: This rulemaking is necessary to make
improvements to the income- driven repayment plans created under the
ICR authority in Higher Education Act of 1965 that allows the Secretary
to cap payments at a set share of a borrower's income.
Summary of Legal Basis: The Department is conducting this
rulemaking under 20 U.S.C. 1087e.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 05/26/21 86 FR 28299
Negotiated Rulemaking.
NPRM................................ 05/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Jennifer Hong, Director, Policy Coordination Group,
Department of Education, 400 Maryland Avenue SW, Room 287-23,
Washington, DC 20202, Phone: 202 453-7805, Email: [email protected].
RIN: 1840-AD69
ED--OPE
39. Public Service Loan Forgiveness
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 20 U.S.C. 1087e
CFR Citation: 34 CFR 685.
Legal Deadline: None.
Abstract: The Higher Education Act of 1965 allows borrowers to
receive loan forgiveness after 10 years of qualifying payments on
qualifying loans while engaging in public service. The Department will
propose improvements to this program in 34 CFR part 685.
Statement of Need: This rulemaking is necessary to make
improvements that more closely align the Public Service Loan
Forgiveness program with the statute and purpose of the program.
Summary of Legal Basis: We are conducting this rulemaking under 20
U.S.C. 1087e.
Alternatives: We have limited information about the alternatives at
this time.
Anticipated Cost and Benefits: We have limited information about
the anticipated costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Intent to Commence 05/26/21 86 FR 28299
Negotiating Rulemaking.
NPRM................................ 05/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Jennifer Hong, Director, Policy Coordination Group,
Department of Education, 400 Maryland Avenue SW, Room 287-23,
Washington, DC 20202, Phone: 202 453-7805, Email: [email protected].
RIN: 1840-AD70
BILLING CODE 4000-01-P
DEPARTMENT OF ENERGY
Statement of Regulatory and Deregulatory Priorities
The Department of Energy (Department or DOE) makes vital
contributions to the Nation's welfare through its activities focused on
improving national security, energy supply, energy efficiency,
environmental remediation, and energy research. The Department's
mission is to:
Promote dependable, affordable and environmentally sound
production and distribution of energy;
Advance energy efficiency and conservation;
Provide responsible stewardship of the Nation's nuclear
weapons;
Provide a responsible resolution to the environmental
legacy of nuclear weapons production; and
Strengthen U.S. scientific discovery, economic
competitiveness, and improve quality of life through innovations in
science and technology.
The Department's regulatory activities are essential to achieving
its critical mission and to implementing the President's clean energy
and climate initiatives. Among other things, the Regulatory Plan and
the Unified Agenda contain the rulemakings the Department will be
engaged in during the coming year to fulfill the Department's
commitment to meeting deadlines for issuance of energy conservation
standards and related test procedures. The Regulatory Plan and Unified
Agenda also reflect the Department's continuing commitment to cut
costs, reduce regulatory burden, and increase responsiveness to the
public.
Review of Regulations Under Executive Order 13990
Pursuant to Executive Order 13990, ``Protecting Public Health and
the Environment and Restoring Science To Tackle the Climate Crisis,''
DOE reviewed all regulations, orders, guidance documents and policies
promulgated or adopted between January 20, 2017, and January 20, 2021,
and determined whether these actions are consistent with the policy
goals of protecting public health and the environment, including
reducing greenhouse gas emissions and bolstering the Nation's
resilience to the impacts of climate change. DOE identified fourteen
rulemakings that the Department will review under E.O. 13990.
In response to E.O. 13990, DOE published ten notices of proposed
rulemakings or technical determinations re-evaluating rulemakings
finalized in the prior four years. Four of these
[[Page 5051]]
publications were explicitly required to be published in 2021. First,
DOE published two notices of proposed rulemaking in 2021 that remove
unnecessary obstacles to DOE's ability to develop energy conservation
standards and test procedures for consumer products and commercial/
industrial equipment. Second, DOE published two technical
determinations that determined that the latest version of a commercial
building code and residential building code are more efficient than the
prior versions of these codes, paving the path for states to adopt
these codes.
Other 2021 proposed Departmental appliance standards program
actions triggered by E.O. 13990 but based on DOE statutory authorities
included a rule to revert to the prior, water-saving definition of
showerheads; a rule to remove a product class for dishwashers, clothes
washers and clothes dryers that had the effect of removing standards
from these products; a rule to streamline the test procedure waiver
process; a rule to broaden the definition of general service lamps; and
a rule proposing to reinterpret a features provision for some types of
consumer products and commercial equipment.
Energy Efficiency Program for Consumer Products and Commercial
Equipment
The Energy Policy and Conservation Act requires DOE to set
appliance efficiency standards at levels that achieve the maximum
improvement in energy efficiency that is technologically feasible and
economically justified. The Department continues to follow its schedule
for setting new appliance efficiency standards by both addressing its
backlog of rulemakings with missed statutory deadlines and advancing
rulemakings with upcoming statutory deadlines. In the August 2021
Energy Policy Act of 2005 Report to Congress, DOE notes that it plans
to publish 31 actions relating to energy conservation standards,
including four final rules, and 31 actions related to test procedures,
including six final rules, before the end of 2021. See: https://www.energy.gov/eere/buildings/reports-and-publications. These
rulemakings are expected to save American consumers billions of dollars
in energy costs over a 30-year timeframe.
In the Department's 2021 Fall Regulatory Plan, DOE is highlighting
three important appliance rules. The first rule is ``Energy
Conservation Standards for Commercial Water Heating Equipment.'' DOE
estimates that the energy conservation standards rulemaking for
commercial water heating-equipment will result in energy savings for
combined natural gas and electricity of up to 1.8 quads over 30 years
and the net benefit to the Nation will be between $2.26 billion and
$6.75 billion.
The second rule is ``Procedures, Interpretations, and Policies for
Consideration in New or Revised Energy Conservation Standards and Test
Procedures for Consumer Products and Commercial/Industrial Equipment.''
This rulemaking is focused on both the procedural requirements as well
as the methodologies used to establish all DOE energy conservation
standards and their related test procedures. DOE anticipates that the
contemplated revisions would allow DOE to eliminate inefficiencies that
lengthen the rulemaking process and consume DOE and stakeholder
resources without appreciable benefit, while not affecting the ability
of the public to participate in the agency's rulemaking process.
Eliminating these inefficiencies would allow DOE to more quickly
develop energy conservation standards that deliver benefits to the
Nation, including environmental benefits such as reductions in
greenhouse gas emissions.
The third rule is ``Backstop Requirement for General Service
Lamps.'' This rulemaking would codify in the Code of Federal
Regulations the 45 lumens per watt backstop requirement for general
service lamps (``GSLs'') that Congress prescribed in the Energy Policy
and Conservation Act, as amended. Codifying the statutory standard,
which would also prohibit sales of GSLs that do not meet a minimum 45
lumens per watt standard, is estimated to result in total net benefits
of $3.3 billion to $4.9 billion per year.
Federal Agency Leadership in Climate Change
Beyond the appliance program, DOE is supporting Federal agency
leadership in climate change in various ways, including in its Federal
government energy efficiency rulemakings. DOE is highlighting one rule
supporting Federal agency leadership in climate change under the Energy
Conservation and Production Act. The rule establishes baseline Federal
energy efficiency performance standards for the construction of new
Federal commercial and multi-family high-rise residential buildings.
The total incremental first cost savings under the rule is $32.67
million per year, with a potential cost reduction in new Federal
construction costs of 0.85%, and life-cycle cost net savings of $161.9
million. Compared to the prior building standard, DOE expects a
4,472,870 metric ton reduction in carbon dioxide emissions over 30
years.
DOE--ENERGY EFFICIENCY AND RENEWABLE ENERGY (EE)
Proposed Rule Stage
40. Energy Conservation Standards for Commercial Water Heating-
Equipment
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
Public Law 104-4.
Legal Authority: 42 U.S.C. 6313(a)(6)(C)(i) and (vi)
CFR Citation: 10 CFR 429; 10 CFR 431.
Legal Deadline: Other, Statutory, Subject to 6-year-look-back in 42
U.S.C. 6313(a)(6)(C).
Abstract: Once completed, this rulemaking will fulfill the U.S.
Department of Energy's (DOE) statutory obligation under the Energy
Policy and Conservation Act, as amended, (EPCA) to either propose
amended energy conservation standards for commercial water heaters and
hot water supply boilers, or determine that the existing standards do
not need to be amended. (Unfired hot water storage tanks and commercial
heat pump water heaters are being considered in a separate rulemaking.)
DOE must determine whether national standards more stringent than those
that are currently in place would result in a significant additional
amount of energy savings and whether such amended national standards
would be technologically feasible and economically justified.
Statement of Need: DOE is required under 42 U.S.C. 6313(a)(6)(C) to
consider the need for amended performance-based energy conservation
standards for commercial water heaters. This rulemaking is being
conducted to satisfy that requirement by evaluating potential standards
related to certain classes of commercial water heating equipment.
Summary of Legal Basis: This rulemaking is being conducted under
DOE's authority pursuant to 42 U.S.C. 6311, which establishes the
agency's legal authority over water heaters as one type of covered
equipment that DOE may regulate, and 42 U.S.C. 6313(a)(6)(C), which
requires DOE to conduct a rulemaking to consider the need for amended
performance-based energy conservation standards for this equipment.
Alternatives: Under EPCA, DOE shall either establish an amended
uniform national standard for this equipment at the minimum level
specified in the
[[Page 5052]]
amended ASHRAE/IES Standard 90.1, unless the Secretary determines, by
rule published in the Federal Register, and supported by clear and
convincing evidence, that adoption of a uniform national standard more
stringent than the amended ASHRAE/IES Standard 90.1 for this equipment
would result in significant additional conservation of energy and is
technologically feasible and economically justified (42 U.S.C.
6313(a)(6)(A)-(C)).
Anticipated Cost and Benefits: DOE preliminarily determined that
the anticipated benefits to the Nation of the proposed energy
conservation standards for the subject commercial water heating
equipment would outweigh the burdens DOE estimates that potential
amended energy conservation standards for commercial water heaters may
result in energy savings for combined natural gas and electricity of
1.8 quads over 30 years and the net benefit to the Nation of between
$2.26 billion and $6.75 billion.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 10/21/14 79 FR 62899
RFI Comment Period End.............. 11/20/14
NPRM................................ 05/31/16 81 FR 34440
NPRM Comment Period End............. 08/01/16
NPRM Comment Period Reopened........ 08/05/16 81 FR 51812
NPRM Comment Period Reopened End.... 08/30/16
Notice of Data Availability (NODA).. 12/23/16 81 FR 94234
NODA Comment Period End............. 01/09/17
Notice of NPRM Withdrawal........... 01/15/21 86 FR 3873
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
URL For More Information: www1.eere.energy.gov/buildings/appliance_standards/product.aspx/productid/51.
URL For Public Comments: www.regulations.gov/#!docketDetail;D=EERE-
2014-BT-STD-0042.
Agency Contact: Julia Hegarty, Department of Energy, 1000
Independence Avenue SW, Washington, DC 20585, Phone: 240 597-6737,
Email: [email protected].
Related RIN: Related to 1904-AE39.
RIN: 1904-AD34
DOE--EE
41. Backstop Requirement for General Service Lamps
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 6295(i)(6)(A)
CFR Citation: 10 CFR 430.
Legal Deadline: Other, Statutory, Subject to 7-year-lookback in 42
U.S.C. 6293(b).
Abstract: The U.S. Department of Energy (DOE) proposes to codify
the 45 lumens per watt (``im/W'') backstop requirement for general
service lamps (GSLs) that Congress prescribed in the Energy Policy and
Conservation Act, as amended. DOE proposes this backstop requirement
apply because DOE failed to complete a rulemaking regarding general
service lamps in accordance with certain statutory criteria. This
proposal represents a departure from DOE's previous determination
published in 2019 that the backstop requirement was not triggered. DOE
re-evaluates its previous determination that the backstop was not
triggered in accordance with the review requirement under E.O. 13990,
``Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis,'' 86 FR 7037 (January 25, 2021).
Statement of Need: Under the Energy Policy and Conservation Act
(EPCA), as amended, if DOE fails to complete a rulemaking regarding
general service lamps (GSL's) in accordance with certain statutory
criteria, the Secretary of Energy (Secretary) must prohibit the sale of
any GSL that does not meet a minimum efficacy of 45 lumens per watt. In
two final rules published on September 5, 2019 and December 27, 2019,
DOE determined that this statutory backstop requirement for GSLs was
not triggered. DOE now revisits this determination and proposes to
determine that the statutory backstop does not apply, consistent with
its statutory obligations under EPCA. This action was triggered in part
by Executive order 13990, which specifically instructed DOE to examine
the GSL rules.
Anticipated Cost and Benefits: Codifying the statutory standard,
which would also prohibit sales of GSLs that do not meet a minimum 45
lumens per watt standard, is estimated to result in total net benefits
of 3.3 billion to $4.9 billion per year.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI); Early 05/25/21 86 FR 28001
Assessment Review.
RFI Comment Period End.............. 06/24/21
NPRM................................ 01/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Stephanie Johnson, General Engineer, Department of
Energy, Energy Efficiency and Renewable Energy, 1000 Independence
Avenue SW, Building Technologies Office, EE5B, Washington, DC 20585,
Phone: 202 287-1943, Email: [email protected].
RIN: 1904-AF09
DOE--EE
Final Rule Stage
42. Energy Efficiency Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings Baseline Standards Update
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6834
CFR Citation: 10 CFR 433.
Legal Deadline: Final, Statutory, October 31, 2020, 42 U.S.C.
6834(a)(3)(B).
Abstract: The U.S. Department of Energy (DOE) is working on a final
rule to implement provisions in the Energy Conservation and Production
Act (ECPA) that require DOE to update the baseline Federal energy
efficiency performance standards for the construction of new Federal
commercial and multi-family high-rise residential buildings. This rule
would update the baseline Federal commercial standard to the American
Society of Heating, Refrigerating, and Air-Conditioning Engineers
(ASHRAE) Standard 90.1-2019, if the Secretary determines that the
baseline Federal energy efficiency performance standards should be
updated to reflect the new standard, based on the cost-effectiveness of
the requirements under the amendment.
Statement of Need: This rule addresses DOE's statutory obligation
under ECPA to review the newest version of ASHRAE 90.1, that is, ASHRAE
90.1-2019, and update the energy efficiency performance standards for
federal commercial and multi-family, high-rise buildings to reflect the
new version of this industry standard. the rule will also support
federal agency
[[Page 5053]]
leadership in addressing climate change by reducing energy use in
Federal buildings and reducing emissions.
Anticipated Cost and Benefits: This rule is expected to result in
432.67 million annual incremental first-cost savings and annual life-
cycle cost net savings of $161.9 million. Furthermore, compared to the
prior Federal buildings standard, DOE expects a 4,472,870 metric ton
reduction in carbon dioxide emissions over 30 years.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule.......................... 01/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
Agency Contact: Nicolas Baker, Office of Federal Energy Management
Program, EE-2L, Department of Energy, Energy Efficiency and Renewable
Energy, 1000 Independence Avenue SW, Washington, DC 20585, Phone: 202
586-8215, Email: [email protected].
RIN: 1904-AE44
DOE--EE
43. Energy Conservation Program for Appliance Standards: Procedures for
Use in New or Revised Energy Conservation Standards and Test Procedures
for Consumer Products and Commercial/Industrial Equipment
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6191 to 6317
CFR Citation: 10 CFR 430, subpart C, App. A; 10 CFR 431.
Legal Deadline: None.
Abstract: The U.S. Department of Energy (``DOE'' or ``the
Department'') is finalizing its revisions to the Department's current
rulemaking guidance titled ``Procedures, Interpretations, and Policies
for Consideration of New or Revised Energy Conservation Standards and
Test Procedures for Consumer Products and Certain Commercial/Industrial
Equipment'' (``Process Rule''), which was last modified in 2020. These
proposed revisions, which are the first of two sets of revisions to the
Process Rule that DOE intends to propose, are consistent with
longstanding DOE practice prior to the 2020 amendment and would remove
unnecessary obstacles to DOE's ability to meet its statutory
obligations under the Energy Policy and Conservation Act (``EPCA'') and
other applicable law. These proposed changes would include modifying
the Process Rule to remove its mandatory application, removing its
recently-added threshold for determining when significant energy
savings is met, removing the current provision regarding the use of a
comparative analysis when selecting potential energy conservation
standards, and reverting to its prior guidance for determining whether
a trial standard level is economically justified, among other changes.
DOE is undertaking this action as required by E.O. 13990, ``Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis'', 86 FR 7037 (January 25, 2021).
Statement of Need: On February 14, 2020 and August 19, 2020, DOE
published two final rules (``Process Rule Amendment Final Rules'') that
made significant revisions to the existing Process Rule. DOE is
reconsidering the merits of the approach taken by these 2020 revisions
to the Process Rule--specifically, the one-fits-all rulemaking approach
and the added rulemaking steps now required under the Process Rule. In
its proposed revisions, the Department seeks to ensure that the
document remains consistent with DOE's legal obligations under the
Energy Policy and Conservation Act, as amended. DOE's action in
examining the current Process Rule was triggered in part by Executive
Order 13990, which specifically instructed DOE to examine the Process
Rule.
Anticipated Cost and Benefits: DOE anticipates that the
contemplated revisions would allow DOE to eliminate inefficiencies that
lengthen the rulemaking process and consume DOE and stakeholder
resources without appreciable benefit, while not affecting the ability
of the public to participate in the agency's rulemaking process.
Eliminating these inefficiencies would allow DOE to more quickly
develop energy conservation standards that deliver benefits to the
Nation, including environmental benefits, such as reductions in
greenhouse gas emissions, that DOE is directed to pursue under E.O.
13990. DOE notes that these revisions would not dictate any particular
rulemaking outcome in an energy conservation standard or test procedure
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM (Round 1)...................... 04/12/21 86 FR 18901
NPRM (Round 1) Comment Period End... 05/27/21
NPRM (Round 2)...................... 07/07/21 86 FR 35668
NPRM (Round 2) Comment Period 08/09/21 86 FR 43429
Extended.
NPRM (Round 2) Comment Period 09/13/21
Extended End.
Final Rule.......................... 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: John Cymbalsky, Building Technologies Office, EE-
5B, Department of Energy, Energy Efficiency and Renewable Energy, 1000
Independence Avenue SW, Washington, DC 20585, Phone: 202 287-1692,
Email: [email protected].
RIN: 1904-AF13
BILLING CODE 6450-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Statement of Regulatory Priorities for Fiscal Year 2022
As the federal agency with principal responsibility for protecting
the health of all Americans and for providing essential human services,
the Department of Health and Human Services (HHS or the Department)
implements programs that strengthen the health care system; advance
scientific knowledge and innovation; and improve the health, safety,
and wellbeing of the American people.
The Department's Regulatory Plan for Fiscal Year 2022 delivers on
the Biden-Harris Administration's commitment to tackle the COVID-19
pandemic, build, and expand access to affordable health care, address
health disparities, increase health equity, and promote the wellbeing
of children and families:
This agenda expands access to quality, affordable health
care for all Americans, with rules to provide evidence-based behavioral
health treatment via telehealth and rules to streamline enrollment and
improve access to care in Medicaid and the Children's Health Insurance
Program (CHIP) to ensure that children and families eligible for these
programs are able to maintain coverage and obtain needed care.
As we work to expand access to affordable health care, we
will simultaneously tackle disparities that persist in who gain access
to care. Forthcoming rules--including one designed to prevent
discrimination in accessing care and coverage--serve to protect every
person's right to access the health care they need, no matter where
they live or who they are.
[[Page 5054]]
Building on recent rules requiring COVID-19 vaccinations
for staff at most Medicare- and Medicaid-participating health care
providers and in Head Start programs, our Regulatory Plan augments our
fight against COVID-19 and future pandemics by including new rules that
permit CDC to set vaccination requirements for airline passengers
entering the U.S. and increase the resilience of HHS programs to deal
with COVID-19 and future public health emergencies.
Our work to promote the health and wellbeing of every
person includes extending additional support and resources to children
and families. Whether we are providing flexibility to ensure more
children in foster care are placed in homes with their relatives or
reimbursing state foster care agencies for the cost of providing
independent legal representation for children and parents, we are
working to support our next generation of leaders--and the people who
help raise them.
In short, this agenda allows the Department to support government-
wide efforts to build a healthy America by charting a course to Build
Back Better with rules designed to help protect public health and
improve the health and wellbeing of every person touched by our
programs.
I. Building and Expanding Access to Affordable Health Care
Since its enactment, the Affordable Care Act (ACA) has dramatically
reduced the number of uninsured Americans while strengthening consumer
protections and improving our nation's health care system. Yet high
uninsured rates and other barriers to care continue to persist,
compounded by the health and economic challenges facing Americans
nationwide due to the COVID-19 pandemic. From day one, the Biden-Harris
Administration has been focused on closing these gaps in coverage and
access. The American Rescue Plan (ARP) alongside the ACA and executive
actions by the Biden-Harris Administration have already led to lower
premiums for consumers and more opportunities to gain coverage,
achieving record-high enrollment in ACA Marketplace and Medicaid
coverage.
The Department plans to continue expanding access to affordable
health care over the next year, including through its regulatory
actions. Secretary Becerra's regulatory priorities in this area
include: Enhancing coverage and access for Americans in the ACA
Marketplace, Medicaid, CHIP, and Medicare; expanding the accessibility
and affordability of drugs and medical products; addressing behavioral
health needs; and streamlining the secure exchange of health
information.
Enhancing Coverage and Access in the ACA Marketplace, Medicaid, CHIP,
and Medicare
The Department will take several regulatory actions in the next
year building on the success of the ACA and improving access to care
for Americans. In his Executive Order on Strengthening Medicaid and the
Affordable Care Act (E.O. 14009), President Biden asked the Department
to consider a range of actions, including actions that would protect
and strengthen Medicaid. Following this regulatory review, the
Department is issuing two rules. First, the Department will issue a
proposed rule on Assuring Access to Medicaid and Children's Health
Insurance Program (CHIP) Services. Together, Medicaid and CHIP cover
nearly one in four Americans and provide for access to a broad array of
health benefits and services critical to underserved populations,
including low-income adults, children, pregnant women, elderly, and
people with disabilities. This rule would empower the Department to
assure and monitor equitable access to services in Medicaid and CHIP.
Additionally, the Department will issue a proposed rule on
Streamlining the Medicaid and CHIP Application, Eligibility
Determination, Enrollment, and Renewal Processes. Although considerable
progress has been made in these areas, gaps remain in states' ability
to seamlessly process beneficiaries' eligibility and enrollment. This
rule would streamline eligibility and enrollment processes for all
Medicaid and CHIP populations and create new enrollment pathways to
maximize enrollment and retention of eligible individuals. The first
step to ensuring access to services is making certain that people can
maintain a consistent source of high-quality coverage.
The Department also plans to issue a proposed rule on Requirements
for Rural Emergency Hospitals. This rule would establish health and
safety requirements as Conditions of Participation (CoPs) for Rural
Emergency Hospitals (REHs) participating in Medicare or Medicaid, in
accordance with Section 125 of the Consolidated Appropriations Act,
2021, and will establish payment policies and payment rates for REHs.
This rule will aim to address barriers to health care, unmet social
needs, and other health challenges and risks faced by rural
communities.
Improving access to care for populations with ACA Marketplace
coverage is also a regulatory priority of the Department. For instance,
the Department will issue a proposed rule to protect patients' access
to care and promote competition by ensuring that plans do not engage in
unlawful discrimination against health care providers. While the ACA's
provider nondiscrimination protections are currently set forth in
guidance, the No Surprises Act directs the Department to implement
these protections through regulation.
The Department will also work to ensure access to benefits and
services afforded under the law. A critical part of this work will
include amending regulations on contraceptive coverage which guarantee
cost-free coverage to the consumer under the ACA. In addition to the
actions described above, the Department's regulatory agenda includes
several payment rules and notices issued annually by the Centers for
Medicare & Medicaid Services (CMS) that affect Medicare, Medicaid, and
the ACA Marketplace. These rules, though they are not included in the
HHS Regulatory Plan, will include policies in service of the
Secretary's priority of expanding access to affordable, high-quality
health care.
Expanding the Accessibility and Affordability of Drugs and Medical
Products
The Department is committed to improving Americans' access to
affordable drugs and medical products. Earlier this year, the
Department issued a proposed rule entitled Medical Devices; Ear, Nose
and Throat Devices; Establishing Over-the-Counter Hearing Aids and
Aligning Other Regulations. Consistent with President Biden's Executive
Order on Promoting Competition in the American Economy (E.O. 14036),
this rule proposes to establish a new category of over the counter of
hearing aids. If finalized, the rule would allow hearing aids within
this category to be sold directly to consumers in stores or online
without a medical exam or a fitting by an audiologist. This action will
address existing barriers on access to hearing aids, improve consumer
choice, and have a direct impact on quality of life.
Over the next year, the Department will continue pursuing greater
accessibility and affordability for Americans in need of drugs and
medical products, consistent with the Department's Comprehensive Plan
for Addressing High Drug Prices, released in September 2021. For
example, the Department plans to issue a proposed
[[Page 5055]]
rule entitled Nonprescription Drug Product With an Additional Condition
for Nonprescription Use. This rule would establish requirements for
drug products that could be marketed as nonprescription drug products
with an additional condition that a manufacturer must implement to
ensure appropriate self-selection or appropriate actual use or both for
consumers. The rule is expected to increase consumer access to drug
products, which could translate into a reduction in under-treatment of
certain diseases and conditions. The Department also plans to issue a
proposed rule on Biologics Regulation Modernization, which would update
Food and Drug Administration (FDA) biologics regulations to account for
the existence of biosimilar and interchangeable biological products.
This rule is intended to support competition and enhance consumer
choice by preventing efforts to delay or block competition from
biosimilars and interchangeable products.
In addition, the Department will issue a proposed rule entitled
340B Drug Pricing Program; Administrative Dispute Resolution. The 340B
Drug Pricing Program, which requires drug manufacturers to provide
discounts on outpatient prescription drugs to certain safety net
providers, is critical to the ability of safety net providers to
stretch scarce federal resources and reach patients with low incomes or
without insurance. The rule would establish new requirements and
procedures for the Program's Administrative Dispute Resolution (ADR)
process, making the process more equitable and accessible for
participation by program participants. This is intended to replace the
previous administration's rulemaking on the same subject, which was
finalized in December 2020.
Addressing Behavioral Health Needs
The COVID-19 pandemic has made clear that too many Americans have
unmet behavioral health needs, which have seen an alarming rise during
the pandemic due to illness, grief, job loss, food insecurity, and
isolation. The Secretary is committed to addressing the behavioral
health effects of the COVID-19 pandemic--including mental health
conditions and substance use disorders--especially in underserved
communities. This commitment informs the Department's regulatory
priorities over the next year.
The Department is proposing two rules intended to extend telehealth
flexibilities for substance use disorder treatments that were granted
during the COVID-19 public health emergency. First, the Department will
issue a proposed rule on Treatment of Opioid use Disorder With Extended
Take Home Doses of Methadone. This rule would propose revisions to
Substance Abuse and Mental Health Services Administration (SAMHSA)
regulations to make permanent regulatory flexibilities for opioid
treatment programs to provide extended take-home doses of methadone to
patients when it is safe and appropriate to do so. Likewise, the
Department also plans to issue a proposed rule on Treatment of Opioid
Use Disorder with Buprenorphine Utilizing Telehealth. This rule would
propose revisions to SAMHSA regulations to permanently allow opioid
treatment programs and certain other providers to provide buprenorphine
via telehealth. Both changes would allow more patients to receive
comprehensive opioid use disorder treatment and could address barriers
to treatment such as transportation, geographic proximity, employment,
or other required activities of daily living.
Furthermore, the Department, working closely with the Department of
Labor, will issue a proposed rule on the Mental Health Parity and
Addiction Equity Act (MHPAEA) and the Consolidated Appropriations Act,
2021. The MHPAEA is a federal law that prevents group health plans and
health insurance issuers that provide mental health or substance use
disorder benefits from imposing less favorable benefit limitations on
those benefits than on medical and surgical benefits. This rule would
clarify group health plans and health insurance issuers' obligations
under the MHPAEA and promote compliance with MHPAEA, among other
improvements.
Finally, the Department also plans to issue a proposed rule on the
Confidentiality of Substance Use Disorder Patient Records. Section 3221
of the CARES Act modifies the statute that establishes protections for
the confidentiality of substance use disorder treatment records and
directs the Department to work with other federal agencies to update
the regulations at 42 CFR part 2 (part 2). As required by the CARES
Act, this rule would align certain provisions of part 2 with aspects of
the HIPAA Privacy, Breach Notification, and Enforcement Rules;
strengthen part 2 protections against uses and disclosures of patients'
substance use disorder records for civil, criminal, administrative, and
legislative proceedings; and require that a HIPAA Notice of Privacy
Practices address privacy practices with respect to Part 2 records.
Streamlining the Secure Exchange of Health Information
The secure exchange of health information among health care
providers and other entities improves patient care, reduces costs, and
provides more accurate public health data. The 21st Century Cures Act
(Cures Act) included important provisions related to improving the
interoperability and transparency of health information.
Two of the Department's planned rulemakings directly address and
implement these statutory provisions. First, the Department plans to
finalize the implementation of the Cures Act provision that authorizes
the Department to impose civil monetary penalties, assessments, and
exclusions upon individuals and entities that engage in fraud and other
misconduct related to HHS grants, contracts, and other agreements. It
would also implement Cures Act provisions on information blocking,
which authorize the Office of Inspector General (OIG) to investigate
claims of information blocking and grant the Department the power to
impose civil monetary penalties (CMPs) for information blocking. The
Department's regulations would also be updated to include the increased
civil monetary penalties provided in the Bipartisan Budget Act of 2018.
Additionally, the Department will issue a proposed rule entitled
Health Information Technology: Updates to the ONC Health IT
Certification Program, Establishment of the Trusted Exchange Framework
and Common Agreement Attestation Process, and Enhancements to Support
Information Sharing. This rule would implement certain provisions of
the Cures Act, including the Electronic Health Record (EHR) Reporting
Program condition and maintenance of certification requirements under
the ONC Health IT Certification Program (Certification Program); a
process for health information networks that voluntarily adopt the
Trusted Exchange Framework and Common Agreement to attest to the agreed
upon interoperable data exchange; and enhancements to support
information sharing under the information blocking regulations.
II. Addressing Health Disparities and Promoting Equity
Equity is the focus of over a dozen Executive Orders issued by
President Biden, and it remains a cornerstone of the Biden-Harris
Administration's agenda. The Department recognizes that people of
color, people with disabilities, lesbian, gay, bisexual, transgender,
and
[[Page 5056]]
queer (LGBTQ+) people, and other underserved groups in the U.S. have
been systematically denied a full and fair opportunity to participate
in economic, social, and civic life. Among its other manifestations,
this history of inequality shows up as persistent disparities in health
outcomes and access to care. As the federal agency responsible for
ensuring the health and wellbeing of Americans, the Department under
Secretary Becerra's leadership is committed to tackling these
entrenched inequities and their root causes throughout its programs and
policies. This regulatory priority includes promoting equity in health
care, strengthening health and safety standards for consumer products
that impact underserved communities, preventing and combatting
discrimination, and ensuring the equitable administration of HHS
programs. The Department is also systematically reviewing existing
regulations to make certain they adequately address the needs of those
most vulnerable to climate change related impacts.
Promoting Equity in Health Care
The Department is taking action to promote equity in health care
programs and delivery. Earlier this year, the Department finalized a
rule on Ensuring Access to Equitable, Affordable, Client-centered,
Quality Family Planning Services. This rule revoked the previous
administration's harmful restrictions on the use of Title X family
planning funds, which had a disproportionate impact on low-income
clients and caused substantial decreases in utilization among clients
of color. Revoking the previous rule will allow the Title X service
network to expand in size and capacity to provide quality family
planning services to more clients.
In addition, the rule updates the Title X regulations to ensure
access to equitable, affordable, client-centered, quality family
planning services.
The Department is also committed to improving the effectiveness of
federal health programs that constitute an important source of care for
underserved communities. For instance, the Department plans to issue a
proposed rule on the Catastrophic Health Emergency Fund (CHEF). CHEF
was established to reimburse tribally operated Indian Health Service
(IHS) Purchased/Referred Care programs, which serve American Indian/
Alaska Native patients, for medical expenses related to high-cost
illnesses and events after a threshold cost has been met. This rule
would establish regulations governing CHEF, set the threshold cost that
must be reached before CHEF reimbursement can be paid, and establish
the procedures for reimbursement under the program.
Strengthening Health and Safety Standards for Consumer Products That
Impact Underserved Communities
The Department recognizes that people of color, LGBTQ+ people,
people with disabilities, people with low incomes, and other
underserved populations experience longstanding disparities in leading
public health indicators--including obesity and the use of certain
tobacco products. To protect the public health and advance equity, the
Department is pursuing regulatory action with respect to consumer
products that have a disproportionate impact on the health of
underserved groups.
For instance, the Department plans to propose two rules on tobacco
product standards. First, the Department will issue a proposed rule on
Tobacco Product Standard for Menthol in Cigarettes, which would ban
menthol as a characterizing flavor in cigarettes. Menthol cigarettes
are marketed to and disproportionately used by Black smokers and
increase the appeal of smoking for youth and young adults. This
standard would reduce the availability of menthol cigarettes. By likely
decreasing consumption and increasing the likelihood of cessation, the
standard would likely improve the health of current menthol cigarette
smokers. Similarly, the Department plans to issue a proposed rule on
Tobacco Product Standard for Characterizing Flavors in Cigars. This
rule is a tobacco product standard that would ban characterizing
flavors--such as strawberry, grape, orange, and cocoa--in all cigars.
As with menthol cigarettes, flavored cigars appeal to youth and
disproportionately affect underserved communities. This product
standard would likely reduce the appeal of cigars, particularly to
youth and young adults, and is intended to decrease the likelihood of
experimentation, progression to regular use, and the potential for
addiction to nicotine.
Furthermore, the Department will issue a proposed rule entitled
Nutrient Content Claims, Definition of Term: Healthy. This rule would
update the definition for the implied nutrient content claim
``healthy'' to be consistent with current nutrition science and federal
dietary guidelines. This would ensure that foods labeled ``healthy''
can help consumers build more healthful diets to help reduce their risk
of diet-related chronic disease. This action is necessary to improve
the public health and reduce disparities in health outcomes,
particularly among people of color and people with low incomes in the
U.S., who are disproportionately affected by obesity and diet-related
chronic illness.
Preventing and Remedying Discrimination
The Department is taking actions to eliminate discrimination as a
barrier for historically marginalized communities seeking access to HHS
programs and activities. This includes two proposed rules in the
Department's Regulatory Plan for the coming year. First, the Department
will issue a proposed rule on Nondiscrimination in Health Programs and
Activities, which would make changes to the previous administration's
final rule implementing the nondiscrimination provisions in section
1557 of the ACA. The current section 1557 regulations significantly
narrow the scope of section 1557's protections. Because discrimination
in the U.S. health care system is a driver of health disparities, the
Section 1557 regulations present a key opportunity for the Department
to promote equity and ensure protection of health care as a right.
Additionally, the Department will issue a proposed rule entitled
Rulemaking on Discrimination on the Basis of Disability in Critical
Health and Human Services Programs or Activities. This rule would
revise regulations under section 504 of the Rehabilitation Act of 1973
to address unlawful discrimination on the basis of disability in
certain vital HHS-funded health and human services programs. Covered
topics include nondiscrimination in life-sustaining care, organ
transplantation, suicide prevention services, child welfare programs
and services, health care value assessment methodologies, accessible
medical equipment, auxiliary aids and services, Crisis Standards of
Care and other relevant health and human services activities.
Ensuring the Equitable Administration of HHS Programs
Consistent with President Biden's Executive Order on Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government (E.O. 13985), the Department is working to embed
equity throughout HHS programs and policies, including in the awarding
of grants, loans, and procurement contracts.
For instance, the Department plans to issue a proposed rule on the
National Institute for Disability, Independent Living, and
Rehabilitation Research
[[Page 5057]]
(NIDILRR), which would propose revisions to the NIDILRR regulations to
advance equity in the peer review criteria used to evaluate disability
research applications across all of its research programs, in addition
to making other changes. The Department will also issue a proposed rule
on the Native Hawaiian Revolving Loan Fund (NHRLF). The Native Hawaiian
Revolving Loan Fund (NHRLF) was established to provide loans and loan
guarantees to Native Hawaiians who are unable to obtain loans from
private sources on reasonable terms and conditions for the purpose of
promoting economic development in Hawaii. This rule proposes to reduce
the required Native Hawaiian ownership or control for an eligible
applicant to NHRLF program from 100 percent, as the 100 percent Native
Hawaiian ownership requirement prevents many Native Hawaiian family-
owned businesses and families from obtaining a loan. Additionally, the
Department plans to issue a proposed rule entitled Acquisition
Regulations; Buy Indian Act; Procedures for Contracting. This rule
would establish regulations guiding implementation of the Buy Indian
Act, which allows the Department to set aside procurement contracts for
Indian-owned and controlled businesses. This would promote the growth
and development of Indian industries and in turn, foster economic
development and sustainability in Indian Country.
III. Tackling the COVID-19 Pandemic
As the federal agency charged with protecting the health of all
Americans, the Department plays a central role in the Biden-Harris
Administration's whole-of-government response to the COVID-19 pandemic.
From ensuring access to COVID-19 testing, treatment, and vaccines, to
bolstering the capacity of the health care system in a public health
emergency, to addressing the effects of the pandemic on the behavioral
health of Americans, Secretary Becerra has leveraged the Department's
full resources to pursue a comprehensive strategy to combat COVID-19.
Over the last several months, the Secretary has pursued this regulatory
priority by issuing a number of critical rules requiring COVID-19
vaccinations to keep schools, workplaces, and communities safe and
increasing regulatory oversight of SARS-CoV-2 laboratory
experimentation. Over the next year, the Department plans to continue
its work to address COVID-19 through new regulations.
Building on COVID-19 Vaccine Requirements To Keep Schools, Workplaces,
and Communities Safe
Despite tremendous gains over the course of 2021, tens of millions
of people remain unvaccinated against COVID-19. Reaching this
population is an essential component of the Biden-Harris
Administration's strategy to accelerate our nation's path out of the
pandemic. For this reason, vaccine requirements are one of the
Department's most impactful regulatory options in combatting COVID-19.
Accordingly, the Department has recently issued rules expanding
COVID-19 vaccine requirements. For example, the Department issued an
interim final rule requiring COVID-19 vaccinations for staff at most
Medicare- and Medicaid-participating providers and suppliers.
Additionally, the Department issued an interim final rule with
comment period to add new provisions to the Head Start Program
Performance Standards to mitigate the spread of the COVID-19 in Head
Start programs through COVID-19 vaccine requirements.
Building on these accomplishments, in the coming months, the
Department plans to issue an interim final rule that will provide CDC
with authority to require individuals entering the U.S. at any port of
entry to present proof of vaccination or other proof of immunity
against any quarantinable communicable diseases for which the Centers
for Disease Control and Prevention (CDC) determines that a public
health need exists. This rule will provide CDC with authority to
require travelers to be fully vaccinated upon arrival and will reduce
the number of international travelers arriving while infected.
Increasing the Resilience of HHS Programs To Deal With COVID-19 and
Future Public Health Emergencies
The Department is planning to introduce new flexibilities in HHS
programs to minimize disruptions and alleviate burdens that may be
caused by COVID-19 or future emergencies. For example, the Department
issued a final rule on Flexibility for Head Start Designation Renewals
in Certain Emergencies. This rule adds a new provision to the Head
Start Program Performance Standards to establish parameters by which
the Administration for Children and Families (ACF) may make designation
renewal determinations during widespread disasters or emergencies and
in the absence of all normally required data.
The Department also plans to issue a proposed rule on
Administration for Native Americans (ANA) Non-federal Share Emergency
Waivers. The rule will propose the ability for current grantees to
request an emergency waiver for the non-federal share match. This
update to ANA's regulation would provide a new provision for recipients
to request an emergency waiver in the event of a natural or man-made
emergency such as a public health pandemic.
Additionally, the Department issued a proposed rule on Paternity
Establishment Percentage Performance Relief. This rule proposes to
modify the Paternity Establishment Percentage performance requirements
in child support regulations to provide relief from financial penalties
to states impacted by the COVID-19 pandemic. Without regulatory relief,
20 out of the 54 child support programs may be subject to financial
penalties associated with their failure to achieve performance for the
Paternity Establishment Percentage (PEP). PEP-related financial
penalties, which are imposed as reductions in the state's Temporary
Assistance for Needy Families (TANF) program funding, place an undue
burden on state budgets and threaten funding that supports the very
families who are most in need during this time of crisis.
IV. Boosting the Wellbeing of Children and Families
The Department's mission to provide effective human services to
Americans includes a focus on protecting the wellbeing of children and
families. This focus has special significance given the COVID-19
pandemic and its economic consequences, which have deeply affected the
lives of children and youth, especially those who are in foster care or
otherwise involved in the child welfare system. Secretary Becerra has
therefore prioritized children and youth that are in, or candidates
for, foster care in the HHS Regulatory Plan.
In support of this priority, the Department will issue a proposed
rule to allow Licensing Standards for Relative or Kinship Foster Family
Homes that are different from non-relative homes. Currently, in order
to claim Title IV-E funding, federal regulations require that all
foster family homes meet the same licensing standards, regardless of
whether the foster family home is a relative or non-relative placement.
The proposed change would address barriers to licensing relatives and
kin who can provide continuity and a safe and loving home for children
when they cannot be with their parents.
[[Page 5058]]
The Department will also issue a proposed rule to reimburse
agencies for Title IV-E Administrative Expenditures for Independent
Legal Representation in Foster Care and other Related Civil Legal
Issues. This rule would make it easier for Title IV-E agencies to
facilitate the provision of independent legal representation to a child
who is a candidate for foster care or in foster care and to a parent
preparing for participation in foster care legal proceedings. Improving
access to independent legal representation may help prevent the removal
of a child from the home or, for a child in foster care, achieve
permanence faster.
HHS--OFFICE OF THE INSPECTOR GENERAL (OIG)
Final Rule Stage
44. Amendments to Civil Monetary Penalty Law Regarding Grants,
Contracts, and Information Blocking
Priority: Other Significant.
Legal Authority: 21st Century Cures Act; Pub. L. 114-255; secs.
4004 and 5003; Bipartisan Budget Act of 2018 (BBA 2018), Pub. L. 115-
123. sec. 50412
CFR Citation: 42 CFR 1003; 42 CFR 1005.
Legal Deadline: None.
Abstract: The final regulation modifies 42 CFR 1003 and 1005 by
addressing three issues. First, the 21st Century Cures Act (Cures Act)
provision that authorizes the Department of Health and Human Services
(HHS) to impose civil monetary penalties, assessments, and exclusions
upon individuals and entities that engage in fraud and other misconduct
related to HHS grants, contracts, and other agreements. Second, the
Cures Act information blocking provisions that authorize the Office of
Inspector General to investigate claims of information blocking and
provide HHS the authority to impose CMPs for information blocking.
Third, the Bipartisan Budget Act of 2018 increases in penalty amounts
in the Civil Monetary Penalties Law.
Statement of Need: The 21st Century Cures Act (Cures Act) set forth
new authorities which need to be added to HHS's existing civil monetary
penalty authorities. This final rule seeks to add the new authorities
to the existing civil monetary penalty regulations and to set forth the
procedural and appeal rights for individuals and entities. The
Bipartisan Budget Act of 2018 (BBA) amended the Civil Monetary
Penalties Law (CMPL) to increase the amounts of certain civil monetary
penalties which requires amending the existing regulations for
conformity. The final rule seeks to ensure alignment between the
increased civil monetary penalties in the statute and the civil
monetary penalties set forth in the OIG's rules.
Summary of Legal Basis: The legal authority for this regulatory
action is found in: (1) Section 1128A(a)-(b) of the Social Security
Act, the Civil Monetary Penalties Law (42 U.S.C. 1320a-7a), which
provides for civil monetary penalty amounts; (2) section 1128A(o)-(s)
of the Social Security Act, which provides for civil monetary penalties
for fraud and other misconduct related to grants, contracts, and other
agreements; and (3) section 3022(b) of the Public Health Service Act
(42 U.S.C. 300jj-52), which provides for investigation and enforcement
of information blocking.
Alternatives: The regulations incorporate the statutory changes to
HHS' authority found in the Cures Act and the BBA. The alternative
would be to rely solely on the statutory authority and not align the
regulations accordingly. However, we concluded that the public benefit
of providing clarity by placing the new civil monetary penalties and
updated civil monetary penalty amounts within the existing regulatory
framework outweighed any burdens of additional regulations promulgated.
Anticipated Cost and Benefits: We believe that there are no
significant costs associated with these proposed revisions that would
impose any mandates on State, local, or Tribal governments or the
private sector. The regulation will provide a disincentive for
bottlenecks to the flow of health data that exist, in part, because
parties are reticent to share data across the healthcare system or
prefer not to do so. The final rule will help foster interoperability,
thus improving care coordination, access to quality healthcare, and
patients' access to their healthcare data.
Risks: We believe the risks of this regulatory action are minimal
because we are relying upon statutory authorities and placing the
regulation within our existing regulatory framework.
Timetable:
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Action Date FR Cite
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NPRM................................ 04/24/20 85 FR 22979
NPRM Comment Period End............. 06/23/20 .......................
Final Action........................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Chris Hinkle, Senior Advisor, Department of Health
and Human Services, Office of the Inspector General, 330 Independence
Avenue SW, Washington, DC 20201, Phone: 202 891-6062, Email:
[email protected].
RIN: 0936-AA09
HHS--OFFICE FOR CIVIL RIGHTS (OCR)
Proposed Rule Stage
45. Rulemaking on Discrimination on the Basis of Disability in Critical
Health and Human Services Programs or Activities (Rulemaking Resulting
From a Section 610 Review)
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: Sec. 504 of the Rehabilitation Act of 1973
CFR Citation: 45 CFR 84.
Legal Deadline: None.
Abstract: This proposed rule would revise regulations under section
504 of the Rehabilitation Act of 1973 to address unlawful
discrimination on the basis of disability in certain vital HHS-funded
health and human services programs. Covered topics include non-
discrimination in life-sustaining care, organ transplantation, suicide
prevention services, child welfare programs and services, health care
value assessment methodologies, accessible medical equipment, auxiliary
aids and services, Crisis Standards of Care and other relevant health
and human services activities.
Statement of Need: To robustly enforce the prohibition of
discrimination on the basis of disability, OCR will update the section
504 of the Rehabilitation Act regulations to clarify obligations and
address issues that have emerged in our enforcement experience
(including complaints OCR has received), caselaw, and statutory changes
under the Americans with Disabilities Act and other relevant laws, in
the forty-plus years since the regulation was promulgated. OCR has
heard from complainants and many other stakeholders, as well as federal
partners, including the National Council on Disability, on the need for
updated regulations in a number of important areas, including non-
discrimination in life-sustaining care, organ transplantation, suicide
prevention services, child welfare programs and services, health care
value assessment methodologies, accessible medical equipment, auxiliary
aids and services, Crisis Standards of Care and other
[[Page 5059]]
relevant health and human services activities.
Summary of Legal Basis: These regulations are required by law. The
current regulations have not been updated to be consistent with the
Americans with Disabilities Act, the Americans with Disabilities
Amendments Act, or the 1992 Amendments to the Rehabilitation Act, all
of which made changes that should be reflected in the HHS section 504
regulations. Under Executive Order 12250, the Department of Justice has
provided a template for HHS to update this regulation.
Alternatives: OCR considered issuing guidance, and/or investigating
individual complaints and compliance reviews. However, we concluded
that not taking regulatory action could result in continued
discrimination, inequitable treatment and even untimely deaths of
people with disabilities. OCR continues to receive complaints alleging
serious acts of disability discrimination each year. While we continue
to engage in enforcement, we believe that our enforcement and
recipients' overall compliance with the law will be better supported by
the presence of a clearly articulated regulatory framework than
continuing the status quo. Continuing to conduct case-by-case
investigations without a broader framework risks lack of clarity on the
part of providers and violations of section 504 that could have been
avoided and may go unaddressed. By issuing a proposed rule, we are
undertaking the most efficient and effective means of promoting
compliance with section 504.
Anticipated Cost and Benefits: The Department anticipates that this
rulemaking will result in significant benefits, namely by providing
clear guidance to the covered entity community regarding requirements
to administer their health programs and activities in a non-
discriminatory manner. In turn, the Department anticipates cost savings
as individuals with disabilities can access a range of health care
services. The Department expects that the rule, when finalized, will
generate some changes in action and behavior that may generate some
costs. The rule will address a wide range of issues, with varying
impacts and a comprehensive analysis is underway.
Risks: To be determined.
Timetable:
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Action Date FR Cite
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NPRM................................ 04/00/22 .......................
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Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Agency Contact: Molly Burgdorf, Section Chief, Civil Rights
Division, Department of Health and Human Services, Office for Civil
Rights, 200 Independence Avenue SW, Washington, DC 20201, Phone: 202
357-3411, Email: [email protected].
RIN: 0945-AA15
HHS--OCR
46. Confidentiality of Substance Use Disorder Patient Records
Priority: Other Significant.
Legal Authority: 42 U.S.C. 290dd-2 amended by the Coronavirus Aid,
Relief, and Economic Security Act (the CARES Act), Pub. L. 116-136,
sec. 3221 (March 27, 2020); Health Information Technology for Economic
and Clinical Health (HITECH) Act, Pub. L. 111-5, sec. 13402 and 13405
(February 17, 2009); Health Insurance Portability and Accountability
Act of 1996 (HIPAA) Pub. L. 104-191, sec. 264 (August 21, 1996); Social
Security Act, Pub. L. 74-271 (August 14, 1935) (see secs. 1171 to 1179
of the Social Security Act, 42 U.S.C. 1320d to 1320d-8)
CFR Citation: 42 CFR 2; 45 CFR 160; 45 CFR 164.
Legal Deadline: NPRM, Statutory, March 27, 2021.
The CARES Act requires the revisions to regulations with respect to
uses and disclosures of information occurring on or after the date that
is 12 months after the date of enactment of the Act (March 27, 2021);
and not later than one year after the date of enactment, an update to
the Notice of Privacy Practices (NPP) provisions of the HIPAA Privacy
Rule at 45 CFR 164.520.
Abstract: This rulemaking, to be issued in coordination with the
Substance Abuse and Mental Health Services Administration (SAMHSA),
would implement provisions of section 3221 of the CARES Act. Section
3221 amended 42 U.S.C. 290dd-2 to better harmonize the 42 CFR part 2
(part 2) confidentiality requirements with certain permissions and
requirements of the HIPAA Rules and the HITECH Act. This rulemaking
also would implement the requirement in section 3221 of the CARES Act
to modify the HIPAA Privacy Rule NPP provisions so that HIPAA covered
entities and part 2 programs provide notice to individuals regarding
part 2 records, including patients' rights and uses and disclosures
permitted or required without authorization.
Statement of Need: Rulemaking is needed to implement section 3221
of the CARES Act, which modified the statute that establishes
protections for the confidentiality of substance use disorder (SUD)
treatment records and authorizes the implementing regulations at 42 CFR
part 2 (part 2). As required by the CARES Act, this NPRM proposes
regulatory modifications to: (1) Align certain provisions of part 2
with aspects of the HIPAA Privacy, Breach Notification, and Enforcement
Rules. (2) Strengthen part 2 protections against uses and disclosures
of patients' SUD records for civil, criminal, administrative, and
legislative proceedings. (3) Require that a HIPAA Notice of Privacy
Practices address privacy practices with respect to part 2 records.
Summary of Legal Basis: Section 3221(i) of the CARES Act requires
rulemaking as may be necessary to implement and enforce section 3221.
Alternatives: HHS considered whether the CARES Act provisions could
be implemented through guidance. However, rulemaking is required
because the current part 2 regulations are inconsistent with the
authorizing statute, as amended by the CARES Act. HHS considered
whether to include the anti discrimination provisions of section
3221(g) in this rulemaking. However, because implementation of the anti
discrimination provisions implicates numerous civil rights authorities,
which require collaboration with the Department of Justice, HHS will
address the anti discrimination provisions in a separate rulemaking.
HHS considered whether to propose additional changes to part 2 that are
not required by section 3221 of the CARES Act. However, adding more
proposals would delay publication of the proposed rule and eventual
implementation of the CARES Act requirements.
Anticipated Cost and Benefits: HHS estimates that the effects of
the proposed requirements for regulated entities would result in new
costs of $16,872,779 within 12 months of implementing the final rule.
HHS estimates these first-year costs would be partially offset by
$11,182,618 of first year cost savings, followed by net savings of
$9,612,567 annually in years two through five, resulting in overall net
cost savings of $32,760,108 over 5 years.
Risks: To be determined.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM.............................. 01/00/22 .........................
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[[Page 5060]]
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Marissa Gordon-Nguyen, Senior Advisor for Health
Information Privacy Policy, Department of Health and Human Services,
Office for Civil Rights, 200 Independence Avenue SW, Washington, DC
20201, Phone: 800 368-1019, TDD Phone: 800 537-7697, Email:
[email protected].
RIN: 0945-AA16
HHS--OCR
47. Nondiscrimination in Health Programs and Activities
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: Sec. 1557 of the Patient Protection and Affordable
Care Act (42 U.S.C. 18116)
CFR Citation: 42 CFR 92.
Legal Deadline: None.
Abstract: This proposed rulemaking would propose changes to the
2020 Final Rule implementing section 1557 of the Patient Protection and
Affordable Care Act (PPACA). Section 1557 of PPACA prohibits
discrimination on the basis of race, color, national origin, sex, age,
or disability under any health program or activity, any part of which
is receiving Federal financial assistance, including credits,
subsidies, or contracts of insurance, or under any program or activity
that is administered by an Executive Agency, or any entity established
under title I of the PPACA.
Statement of Need: The Biden Administration has made advancing
health equity a cornerstone of its policy agenda. The current section
1557 implementing regulation significantly curtails the scope of
application of section 1557 protections and creates uncertainty and
ambiguity as to what constitutes prohibited discrimination in covered
health programs and activities. Issuance of a revised section 1557
implementing regulation is important because it would provide clear and
concise regulations that protect historically marginalized communities
as they seek access to health programs and activities.
Summary of Legal Basis: The Secretary of the Department is
statutorily authorized to promulgate regulations to implement section
1557. 42 U.S.C. 18116(c). The current section 1557 Final Rule is
pending litigation.
Alternatives: The Department has considered the alternative of
maintaining the section 1557 implementing regulation in its current
form; however, the Department believes it is appropriate to undertake
rulemaking given the Administration's commitment to advancing equity
and access to health care and in light of the issues raised in
litigation challenges to the current rule.
Anticipated Cost and Benefits: In enacting section 1557 of the ACA,
Congress recognized the benefits of equal access to health services and
health insurance that all individuals should have, regardless of their
race, color, national origin, sex, age, or disability. The Department
anticipates that this rulemaking will result in significant benefits,
namely by providing clear guidance to the covered entity community
regarding requirements to administer their health programs and
activities in a non-discriminatory manner. In turn, the Department
anticipates cost savings as individuals are able to access a range of
health care services that will result in decreased health disparities
among historically marginalized groups and increased health benefits.
The Department does not yet have an anticipated cost for this proposed
rulemaking; however, it is important to recognize that this NPRM
applies pre-existing nondiscrimination requirements in Federal civil
rights laws to various entities, the great majority of which have been
covered by these requirements for years.
Risks: To be determined.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Dylan Nicole de Kervor, Section Chief, Civil Rights
Division, Department of Health and Human Services, Office for Civil
Rights, 200 Independence Avenue SW, Washington, DC 20201, Phone: 800
368-1019, TDD Phone: 800 537-7697, Email: [email protected].
RIN: 0945-AA17
HHS--OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION
TECHNOLOGY (ONC)
Proposed Rule Stage
48. ONC Health IT Certification Program Updates, Health
Information Network Attestation Process for the Trusted Exchange
Framework and Common Agreement, and Enhancements To Support Information
Sharing
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 300jj-11; 42 U.S.C. 300jj-14; 42 U.S.C.
300jj-19a; 42 U.S.C. 300jj-52; 5 U.S.C. 552; Pub. L. 114-255; Pub. L.
116-260
CFR Citation: 45 CFR 170; 45 CFR 171; 45 CFR 172.
Legal Deadline: Final, Statutory, December 13, 2017, Conditions of
certification and maintenance of certification.
Final, Statutory, July 24, 2019, Publish a list of the health
information networks that have adopted the common agreement and are
capable of trusted exchange pursuant to the common agreement.
Abstract: The rulemaking implements certain provisions of the 21st
Century Cures Act, including: the Electronic Health Record Reporting
Program condition and maintenance of certification requirements under
the ONC Health IT Certification Program; a process for health
information networks that voluntarily adopt the Trusted Exchange
Framework and Common Agreement to attest to such adoption of the
framework and agreement; and enhancements to support information
sharing under the information blocking regulations. The rulemaking
would also include proposals for new standards and certification
criteria under the Certification Program related to real-time benefit
tools and electronic prior authorization and potentially other
revisions to the Certification Program.
Statement of Need: The rulemaking would implement certain
provisions of the 21st Century Cures Act, including: the Electronic
Health Record (EHR) Reporting Program condition and maintenance of
certification requirements under the (Certification Program); a process
for health information networks that voluntarily adopt the Trusted
Exchange Framework and Common Agreement to attest to such adoption of
the framework and agreement; and enhancements to support information
sharing under the information blocking regulations. The rulemaking
would also include
[[Page 5061]]
proposals for new standards and certification criteria under the
Certification Program related to real-time benefit tools and electronic
prior authorization. These proposals would fulfill statutory
requirements, provide transparency, advance interoperability, and
support the access, exchange, and use of electronic health information.
Transparency regarding health care information and activities as well
as the interoperability and electronic exchange of health information
are central to the efforts of the Department of Health and Human
Services to enhance and protect the health and well-being of all
Americans.
Summary of Legal Basis: The provisions would be implemented under
the authority of the Public Health Service Act, as amended by the
HITECH Act and the 21st Century Cures Act.
Alternatives: ONC will consider different options and measures to
improve transparency, and the interoperability and access to electronic
health information so that the benefits to providers, patients, and
payers are maximized and the economic burden to health IT developers,
providers, and other stakeholders is minimized.
Anticipated Cost and Benefits: The majority of costs for this
proposed rule would be incurred by health IT developers in terms of
meeting new requirements and continual compliance with the EHR
Reporting Program condition and maintenance of certification
requirements. We also expect that implementation of new standards and
information sharing requirements may also account for some costs. We
expect that through implementation and compliance with the regulations,
the market (particularly patients, payers, and providers) will benefit
greatly from increased transparency, interoperability, and streamlined,
lower cost access to electronic heath information.
Risks: At this time, ONC has not been able to identify any
substantial risks that would undermine likely proposals in the proposed
rule. ONC will continue to consider and deliberate regarding any
identified potential risks and will be sure to identify them for
stakeholders and seek comment from stakeholders during the comment
period for the proposed rule.
Timetable:
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Action Date FR Cite
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NPRM................................ 07/00/22
NPRM Comment Period End............. 09/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Agency Contact: Michael Lipinski, Director, Regulatory & Policy
Affairs Division, Department of Health and Human Services, Office of
the National Coordinator for Health Information Technology, Mary E.
Switzer Building, 330 C Street SW, Washington, DC 20201, Phone: 202
690-7151, Email: [email protected].
RIN: 0955-AA03
HHS--SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA)
Proposed Rule Stage
49. Treatment of Opioid Use Disorder With Buprenorphine
Utilizing Telehealth
Priority: Other Significant. Major under 5 U.S.C. 801.
Legal Authority: The Controlled Substances Act, as amended by the
Ryan Haight Act (21 U.S.C. 802(54)(G))
CFR Citation: 42 CFR 8.11(h).
Legal Deadline: None.
Abstract: In the face of an escalating overdose crisis and an
increasing need to reach remote and underserved communities, extending
the buprenorphine telehealth flexibility is of paramount importance. To
permanently continue this flexibility among OTPs after the COVID-19
public health emergency ends, SAMHSA proposes to revise OTP regulations
under 42 CFR part 8.
Statement of Need: This change will help facilitate access to
Medications for Opioid Use Disorder (MOUD) in SAMHSA-regulated opioid
treatment programs (https://www.samhsa.gov/medication-assisted-treatment/become-accredited-opioid-treatment-program). Research details
that many patients are unable to regularly access OTPs due to
unreliable transportation, geographic disparity, employment or required
activities of daily living. Providing buprenorphine via telehealth will
allow more patients to receive comprehensive treatment.
Summary of Legal Basis: To be determined.
Alternatives: In the absence of congressional action, rulemaking is
required.
Anticipated Cost and Benefits: This change will help facilitate
access to and ensure continuity of medication treatment for opioid use
disorder in SAMHSA-regulated opioid treatment programs. The change will
likely reduce long-term costs at the practice level, while also
facilitating access to treatment. However, a minority of providers may
face upfront technology costs as they scale-up the provision of
treatment via telehealth. We expect that since many providers have now
shifted in part to telehealth services during the COVID-19 Public
Health Emergency, their costs should now be related to equipment
upgrades and software updates. The cost to patients would involve
either use of Wi-Fi, data usage with their respective cellular devices
or landline telephone service. We expect that many patients already
have acquired some of these services, so the cost would be monthly
maintenance of such services.
Risks: Patients seeking this care might still be required to have
an in person visit, as specified by their provider's plan of care, so
to receive comprehensive treatment. Without this provision, there is
risk of patients receiving a lower standard of care and increased risk
of diversion of the prescribed medications.
Timetable:
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Action Date FR Cite
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NPRM................................ 09/00/22
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Dr. Neeraj Gandotra, Chief Medical Officer,
Department of Health and Human Services, Substance Abuse and Mental
Health Services Administration, 5600 Fishers Lane, 18E67, Rockville, MD
20857, Phone: 202 823-1816, Email: [email protected].
RIN: 0930-AA38
HHS--SAMHSA
50. Treatment of Opioid Use Disorder With Extended Take Home
Doses of Methadone
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Legal Authority: 21 U.S.C. 823(g)(1)
CFR Citation: 42 CFR 8.
Legal Deadline: None.
Abstract: SAMHSA will revise 42 CFR part 8 to make permanent some
regulatory flexibilities for opioid treatment programs to provide
extended take home doses of methadone. To facilitate this new treatment
paradigm, sections of 42 CFR part 8 will require updating to reflect
current treatment
[[Page 5062]]
practice. SAMHSA's changes will impact roughly 1,800 opioid treatment
programs and state opioid treatment authorities.
Statement of Need: This change will help ensure continuity of
access to Medications for Opioid Use Disorder (MOUD) in SAMHSA-
regulated opioid treatment programs (https://www.samhsa.gov/medication-assisted-treatment/become-accredited-opioid-treatment-program).
Research and stakeholder feedback details that the take home
flexibilities have been well received by treatment programs and
patients. There are very few reports of diversion or overdose, and the
provision of extended take home doses facilitates patient engagement in
activities, such as employment, that support recovery. Moreover, those
with limited access to transportation benefit from extended take home
doses since they are not required to attend the OTP almost each day of
the week to receive Methadone. In this way, making permanent the
methadone extended take home flexibility will facilitate treatment
engagement.
Summary of Legal Basis: The current OTP exemption at issue allows
OTPs to operate in a manner that is otherwise inconsistent with
existing OTP regulations, and therefore, a permanent extension of such
exemptions would necessitate revisions of the OTP regulations.
Alternatives: In the absence of congressional action, rulemaking is
required.
Anticipated Cost and Benefits: This change will help facilitate and
ensure continuity of access to medication treatment for opioid use
disorder in SAMHSA-regulated opioid treatment programs. Programs have
already incorporated this flexibility into practice and have systems in
place that support its delivery in a cost effective and patient
centered manner. This proposed rule is not expected to impart a cost to
patients. In fact, the proposed rule allows patients to engage in
employment and necessary daily activities. This supports income
generation and also recovery. The increased number of take homes
allowed may affect OTP clinic visit and thereby reduce revenue derived
from clinical encounters and medication visits. Conversely patients may
experience more convenient engagement with OTPs as the visits to clinic
would be decreased.
Risks: Patients seeking this care should still be required to have
an in-person visit at the OTP in between provision of take-home doses,
as directed by their treating physician's plan of care. Without this
provision, there is risk of patients receiving a lower standard of care
and increased risk of diversion of the prescribed medications.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: State.
Agency Contact: Dr. Neeraj Gandotra, Chief Medical Officer,
Department of Health and Human Services, Substance Abuse and Mental
Health Services Administration, 5600 Fishers Lane, 18E67, Rockville, MD
20857, Phone: 202 823-1816, Email: [email protected].
RIN: 0930-AA39
HHS--CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
Final Rule Stage
51. Requirement for Proof of Vaccination or Other Proof of
Immunity Against Quarantinable Communicable Diseases
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: secs. 215 and 311 of the Public Health Service
(PHS) Act, as amended (42 U.S.C. 216, 243); sec. 361 to 369, PHS Act,
as amended (42 U.S.C. 264 to 272)
CFR Citation: 42 CFR 71.
Legal Deadline: None.
Abstract: This Interim Final Rule (IFR) will amend current
regulations to permit CDC to require proof of vaccination or other
proof of immunity against quarantinable communicable diseases. When CDC
exercises this authority, persons arriving at a U.S. port of entry will
be required to provide proof of immunity against quarantinable
communicable diseases or proof of having been fully vaccinated against
quarantinable communicable diseases. Additionally, as a condition of
controlled free pratique under 42 CFR 71.31(b), carriers destined for
the United States must also comply with requirements of any order
issued pursuant to the IFR.
Statement of Need: In response to the COVID-19 pandemic, CDC is
amending current regulations to require proof of vaccination or other
proof of immunity against quarantinable communicable diseases for
persons arriving at a U.S. port of entry.
Summary of Legal Basis: HHS/CDC is promulgating this rule under
sections 215 and 311 of the Public Health Service Act, as amended (42
U.S.C. 216, 243); section 361 to 369, PHS Act, as amended (42 U.S.C 264
to 272).
Alternatives: An alternative considered would allow non-U.S.
nationals to submit accurate contact information, complete post-arrival
testing, and self-quarantine after arrival in the United States in lieu
of the vaccination requirement.
Anticipated Cost and Benefits: HHS/CDC believes it is likely that
this rulemaking will be determined to be economically significant under
E.O. 12866.
Risks: This rulemaking addresses the risk of introduction of
communicable diseases by international travelers into the United
States. By implementing this rulemaking, CDC can reduce the risk of
importation of new COVID-19 variants into the United States. This
rulemaking is expected to increase the number of travelers who are
fully vaccinated upon arrival and reduce the number of international
travelers arriving while infected.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Ashley C. Altenburger JD, Public Health Analyst,
Department of Health and Human Services, Centers for Disease Control
and Prevention, 1600 Clifton Road NE, MS: H 16-4, Atlanta, GA 30307,
Phone: 800 232-4636, Email: [email protected].
RIN: 0920-AA80
HHS--FOOD AND DRUG ADMINISTRATION (FDA)
Proposed Rule Stage
52. Nonprescription Drug Product With an Additional Condition for
Nonprescription Use
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 21 U.S.C. 321; 21 U.S.C. 352; 21 U.S.C. 355; 21
U.S.C. 371; 42 U.S.C. 262; 42 U.S.C. 264; . . .
[[Page 5063]]
CFR Citation: 21 CFR 201.67; 21 CFR 314.56; 21 CFR 314.81; 21 CFR
314.125; 21 CFR 314.127.
Legal Deadline: None.
Abstract: The proposed rule is intended to increase access to
nonprescription drug products. The proposed rule would establish
requirements for a drug product that could be marketed as a
nonprescription drug product with an additional condition that an
applicant must implement to ensure appropriate self-selection,
appropriate actual use, or both by consumers.
Statement of Need: Nonprescription products have traditionally been
limited to drugs that can be labeled with information for consumers to
safely and appropriately self-select and use the drug product without
supervision of a health care provider. There are certain prescription
medications that may have comparable risk-benefit profiles to over-the-
counter medications in selected populations. However, appropriate
consumer selection and use may be difficult to achieve in the
nonprescription setting based solely on information included in
labeling. FDA is proposing regulations that would establish the
requirement for a drug product that could be marketed as a
nonprescription drug product with an additional condition that an
applicant must implement to ensure appropriate self-selection or
appropriate actual use or both for consumers.
Summary of Legal Basis: FDA's proposed revisions to the regulations
regarding labeling and applications for nonprescription drug products
labeling are authorized by the FD&C Act (21 U.S.C. 321 et seq.) and by
the Public Health Service Act (42 U.S.C. 262 and 264).
Alternatives: FDA evaluated various requirements for new drug
applications to assess flexibility of nonprescription drug product
design through drug labeling for appropriate self-selection and
appropriate use.
Anticipated Cost and Benefits: The benefits of the proposed rule
would include increased consumer access to drug products, which could
translate to a reduction in under treatment of certain diseases and
conditions. Benefits to industry would arise from the flexibility in
drug product approval. The proposed rule would impose costs arising
from the development of an innovative approach to assist consumers with
nonprescription drug product self-selection or use.
Risks: None.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Chris Wheeler, Supervisory Project Manager,
Department of Health and Human Services, Food and Drug Administration,
10903 New Hampshire Avenue, Building 51, Room 3330, Silver Spring, MD
20993, Phone: 301 796-0151, Email: [email protected].
RIN: 0910-AH62
HHS--FDA
53. Nutrient Content Claims, Definition of Term: Healthy
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 21 U.S.C. 321; 21 U.S.C. 331; 21 U.S.C. 343; 21
U.S.C. 371
CFR Citation: 10 CFR 101.65 (revision).
Legal Deadline: None.
Abstract: The proposed rule would update the definition for the
implied nutrient content claim ``healthy'' to be consistent with
current nutrition science and federal dietary guidelines. The proposed
rule would revise the requirements for when the claim ``healthy'' can
be voluntarily used in the labeling of human food products so that the
claim reflects current science and dietary guidelines and helps
consumers maintain healthy dietary practices.
Statement of Need: FDA is proposing to redefine ``healthy'' to make
it more consistent with current public health recommendations,
including those captured in recent changes to the Nutrition Facts
label. The existing definition for ``healthy'' is based on nutrition
recommendations regarding intake of fat, saturated fat, and
cholesterol, and specific nutrients Americans were not getting enough
of in the early 1990s. Nutrition recommendations have evolved since
that time; recommended diets now focus on dietary patterns, which
includes getting enough of certain food groups such as fruits,
vegetables, low-fat dairy, and whole grains. Chronic diseases, such as
heart disease, cancer, and stroke, are the leading causes of death and
disability in the United States and diet is a contributing factor to
these diseases. Claims on food packages such as ``healthy'' can provide
quick signals to consumers about the healthfulness of a food or
beverage, thereby making it easier for busy consumers to make healthy
choices.
FDA is proposing to update the existing nutrient content claim
definition of ``healthy'' based on the food groups recommended by the
Dietary Guidelines for Americans and also require a food product to be
limited in certain nutrients, including saturated fat, sodium, and
added sugar, to ensure that foods bearing the claim can help consumers
build more healthful diets to help reduce their risk of diet-related
chronic disease.
Summary of Legal Basis: FDA is issuing this proposed rule under
sections 201(n), 301(a), 403(a), 403(r), and 701(a) of the Federal
Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 321(n), 331(a),
343(a), 343(r), and 371(a)). These sections authorize the agency to
adopt regulations that prohibit labeling that bears claims that
characterize the level of a nutrient which is of a type required to be
declared in nutrition labeling unless the claim is made in accordance
with a regulatory definition established by FDA. Pursuant to this
authority, FDA issued a regulation defining the ``healthy'' implied
nutrient content claim, which is codified at 21 CFR 101.65. This
proposed rule would update the existing definition to be consistent
with current federal dietary guidance.
Alternatives:
Alternative 1: Codify the policy in the current enforcement
discretion guidance.
In 2016, FDA published ``Use of the Term `Healthy' in the Labeling
of Human Food Products: Guidance for Industry.'' This guidance was
intended to advise food manufacturers of FDA's intent to exercise
enforcement discretion relative to foods that use the implied nutrient
content claim ``healthy'' on their labels which: (1) Are not low in
total fat, but have a fat profile makeup of predominantly mono and
polyunsaturated fats; or (2) contain at least 10 percent of the Daily
Value (DV) per reference amount customarily consumed (RACC) of
potassium or vitamin D.
One alternative is to codify the policy in this guidance. Although
guidance is non-binding, we assume that most packaged food
manufacturers are aware of the guidance and, over the past 2 years,
have already made any adjustments to their products or product
packaging. Therefore, we assume that this alternative would have no
costs to industry and no benefits to consumers.
Alternative 2: Extend the compliance date by 1 year.
[[Page 5064]]
Extending the anticipated proposed compliance date on the rule
updating the definition by 1 year would reduce costs to industry as
they would have more time to change products that may be affected by
the rule or potentially coordinate label changes with already scheduled
label changes. On the other hand, a longer compliance date runs the
risk of confusing consumers that may not understand whether a packaged
food product labeled ``healthy'' follows the old definition or the
updated one.
Anticipated Cost and Benefits: Food products bearing the
``healthy'' claim currently make up a small percentage (5%) of total
packaged foods. Quantified costs to manufacturers include labeling,
reformulating, and recordkeeping. Discounted at seven percent over 20
years, the mean present value of costs of the proposed rule is $237
million, with a lower bound of $110 million and an upper bound of $434
million.
Updating the definition of ``healthy'' to align with current
dietary recommendations can help consumers build more healthful diets
to help reduce their risk of diet-related chronic diseases. Discounted
at seven percent over 20 years, the mean present value of benefits of
the proposed rule is $260 million, with a lower bound estimate of $17
million and an upper bound estimate of $700 million.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Agency Contact: Vincent De Jesus, Nutritionist, Department of
Health and Human Services, Food and Drug Administration, Center for
Food Safety and Applied Nutrition, (HFS-830), Room 3D-031, 5100 Paint
Branch Parkway, College Park, MD 20740, Phone: 240 402-1774, Fax: 301
436-1191, Email: [email protected].
RIN: 0910-AI13
HHS--FDA
54. Biologics Regulation Modernization
Priority: Other Significant.
Legal Authority: 42 U.S.C. 262; 42 U.S.C. 301, et seq.
CFR Citation: 21 CFR 601.
Legal Deadline: None.
Abstract: FDA's biologics regulations will be updated to clarify
existing requirements and procedures related to Biologic License
Applications and to promote the goals associated with FDA's
implementation of the abbreviated licensure pathway created by the
Biologics Price Competition and Innovation Act of 2009.
Statement of Need: As biologics regulations were primarily drafted
in the 1970s, before passage of the BPCI Act, the regulations need to
be updated and modernized to account for the existence of biosimilar
and interchangeable biological products. The intent of this rulemaking
is to make high priority updates to FDA's biologics regulations with
the goals of (1) providing enhanced clarity and regulatory certainty
for manufacturers of both originator and biosimilar/interchangeable
products and (2) help prevent the gaming of FDA regulatory requirements
to prevent or delay competition from biosimilars and interchangeable
products.
Summary of Legal Basis: FDA's authority for this rule derives from
the biological product provisions in section 351 of the PHS Act (42
U.S.C. 262), and the provisions of the Federal Food, Drug, and Cosmetic
Act (FD&C Act) (21 U.S.C. 301, et seq.) applicable to biological
products.
Alternatives: FDA would continue to rely on guidance and one-on-one
communications with sponsors through formal meetings and correspondence
to provide clarity on existing requirements and procedures related to
Biologic License Applications, increasing the risk of potential
confusion and burden.
Anticipated Cost and Benefits: This proposed rule would impose
compliance costs on affected entities to read and understand the rule
and to provide certain information relevant to the regulation. The
provisions in this proposed rule would reduce regulatory uncertainty
for manufacturers of originator and biosimilar and interchangeable
products. This reduction of uncertainty may lead to time-savings to
industry and cost-savings to government due to better organized and
more complete BLAs and increased procedural clarity and predictability.
Risks: None.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Federalism: Undetermined.
Agency Contact: Sandra Benton, Senior Policy Coordinator,
Department of Health and Human Services, Food and Drug Administration,
10903 New Hampshire Avenue, Building 22, Room 1132, Silver Spring, MD
20993, Phone: 301 796-1042, Email: [email protected].
RIN: 0910-AI14
HHS--FDA
55. Medical Devices; Ear, Nose and Throat Devices; Establishing Over-
the-Counter Hearing Aids and Aligning Other Regulations
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 21 U.S.C. 321; 21 U.S.C. 331 to 334; 21 U.S.C. 351
and 352; 21 U.S.C. 360; 21 U.S.C. 360c to 360e; Pub. L. 115-52, 131
Stat. 1065-67; 21 U.S.C. 360i to 360k; 21 U.S.C. 360l; 21 U.S.C. 371;
21 U.S.C. 374; 21 U.S.C. 381; . . .
CFR Citation: 21 CFR 800; 21 CFR 801; 21 CFR 808; 21 CFR 874.
Legal Deadline: NPRM, Statutory, August 18, 2020.
Abstract: FDA is proposing to establish an over-the-counter
category of hearing aids to promote the availability of additional
kinds of devices that address mild to moderate hearing loss, and
proposing related amendments to the current hearing aid regulations,
the regulations codifying FDA decisions on State applications for
exemption from preemption, and the hearing aid classification
regulations.
Statement of Need: Hearing loss affects an estimated 30 million
people in the United States and can have a significant impact on
communication, social participation, and overall health and quality of
life. However, only about one-fifth of people who could benefit from a
hearing aid seek intervention. Several barriers likely impede the use
of hearing aids, and FDA is proposing rules to address some of these
concerns.
Summary of Legal Basis: The Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 301 et seq.) establishes a comprehensive system for the
regulation of devices intended for human use, and hearing aids are
subject to those provisions. Furthermore, the FDA Reauthorization Act
of 2017 (Pub. L. 115-52, 131 Stat. 1005, 1066) directs FDA to establish
by regulation a category of over-the-counter hearing aids. This
rulemaking establishes requirements for the safe and effective use of
hearing aids, including for the over-the-counter category of hearing
aids.
[[Page 5065]]
Alternatives: FDA must establish the category of over-the-counter
hearing aids as well as requirements that provide for reasonable
assurance of safety and effectiveness of these hearing aids. However,
FDA will consider different specific options to maximize the health
benefits to hearing aid users while minimizing the economic burdens of
the final rules.
Anticipated Cost and Benefits: FDA expects benefits of the rule to
include cost savings to consumers who wish to buy lower-cost hearing
aids, in part by enabling consumers to cross-compare and purchase the
devices more easily. Other benefits may include improving health
equity, especially for Americans living in rural areas, those with
limited mobility, or those with limited means. Individual benefits may
include improved health outcomes, and therefore improved social and
economic participation. FDA expects costs to include those costs to
manufacturers for changing labeling and updating existing processes.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/20/21 86 FR 58150
NPRM Comment Period End............. 01/18/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Ian Ostermiller, Regulatory Counsel, Center for
Devices and Radiological Health, Department of Health and Human
Services, Food and Drug Administration, 10903 New Hampshire Avenue, WO
66, Room 5454, Silver Spring, MD 20993, Phone: 301 796-5678, Email:
[email protected].
RIN: 0910-AI21
HHS--FDA
56. Tobacco Product Standard for Characterizing Flavors in Cigars
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 21 U.S.C. 331; 21 U.S.C. 333; 21 U.S.C. 371(a); 21
U.S.C. 387b and 387c; 21 U.S.C. 387f(d) and 387g; . . .
CFR Citation: 21 CFR 1166.
Legal Deadline: None.
Abstract: Evidence shows that flavored tobacco products appeal to
youth and also shows that youth may be more likely to initiate tobacco
use with such products. Characterizing flavors in cigars, such as
strawberry, grape, orange, and cocoa, enhance taste and make them
easier to use. Over a half million youth in the United States use
flavored cigars, placing these youth at risk for cigar-related disease
and death. This proposed rule is a tobacco product standard that would
ban characterizing flavors (other than tobacco) in all cigars. We are
taking this action with the intention of reducing the tobacco-related
death and disease associated with cigar use.
Statement of Need: The Federal Food, Drug, and Cosmetic Act (FD&C
Act), as amended by the Family Smoking Prevention and Tobacco Control
Act (Tobacco Control Act), authorizes FDA to adopt tobacco product
standards under section 907 if the Secretary finds that a tobacco
product standard is appropriate for the protection of the public
health. This product standard would ban characterizing flavors (other
than tobacco) in all cigars. Characterizing flavors in cigars, such as
strawberry, grape, cocoa, and fruit punch, increase appeal and make the
cigars easier to use, particularly among youth and young adults. This
product standard would reduce the appeal of cigars, particularly to
youth and young adults, and is intended to decrease the likelihood of
experimentation, progression to regular use, and potential for
addiction to nicotine. In addition, most of the users of flavored
cigars are from under served communities and/or at risk populations,
including racial/ethnic minorities, lesbian, gay, bisexual, transgender
and queer (LGBTQ+) persons, those of lower socioeconomic status, and
youth. As such, reducing the appeal and use of cigars by eliminating
characterizing flavors is also expected to decrease tobacco-related
disparities and promote health equity across population groups.
Summary of Legal Basis: Section 907 of the FD&C Act authorizes the
adoption of tobacco product standards if the Secretary finds that a
tobacco product standard is appropriate for the protection of the
public health. Section 907 also authorizes FDA to include in a product
standard a provision that restricts the sale and distribution of a
tobacco product to the extent that it may be restricted by a regulation
under section 906(d) of the FD&C Act. Section 701(a) of the FD&C Act
authorizes the promulgation of regulations for the efficient
enforcement of the FD&C Act.
Alternatives: In addition to the costs and benefits of the proposed
rule, FDA will assess the costs and benefits of changing the effective
date of the rule, and including pipe tobacco in the proposed standard.
Anticipated Cost and Benefits: The anticipated benefits of the
proposed rule stem from diminished exposure to tobacco smoke for users
of cigars from decreased experimentation, progression to regular use,
and consumption of cigars with characterizing flavors other than
tobacco. The diminished exposure and use is expected to reduce illness
and improve health.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 03/21/18 83 FR 12294
ANPRM Comment Period End............ 07/19/18
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Samantha LohColladom, Regulatory Counsel,
Department of Health and Human Services, Food and Drug Administration,
Center for Tobacco Products, 10903 New Hampshire Avenue, Document
Control Center, Building 71, Room G335, Silver Spring, MD 20993, Phone:
877 287-1373, Email: [email protected].
RIN: 0910-AI28
HHS--FDA
57. Conduct of Analytical and Clinical Pharmacology, Bioavailability
and Bioequivalence Studies
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 21 U.S.C. 355; 21 U.S.C. 371; 21 U.S.C. 374; 42
U.S.C. 262
CFR Citation: 21 CFR 16; 21 CFR 314; 21 CFR 320; 21 CFR 321; 21 CFR
601; . . .
Legal Deadline: None.
Abstract: FDA is proposing to amend 21 CFR 320, in certain parts,
and establish a new 21 CFR 321 to clarify FDA's study conduct
expectations for analytical and clinical pharmacology, bioavailability
(BA) and bioequivalence (BE) studies that support marketing
applications for human drug and biological products. The proposed rule
would specify needed basic study conduct requirements to enable FDA to
ensure those studies are conducted appropriately and to verify the
reliability of study data from those
[[Page 5066]]
studies. This regulation would align with FDA's other good practice
regulations, would also be consistent with current industry best
practices, and would harmonize the regulations more closely with
related international regulatory expectations.
Statement of Need: FDA receives clinical pharmacology and clinical
and analytical bioavailability (BA) and bioequivalence (BE) study data
in support of new and abbreviated new drug applications, and biological
license applications. Our ability to ensure studies supporting those
applications are reliable and valid, including data reliability and
human subject protection, is severely limited because our regulations
governing BA and BE studies at 21 CFR part 320 lack basic study conduct
requirements necessary for the Agency to verify study data reliability.
Current part 320 does not describe specific responsibilities for
persons involved in the conduct of clinical and analytical BA and BE
studies, recordkeeping and record retention requirements, standing
operating procedures, or compliance provisions. The proposed rule would
revise part 320 and establish a new part 321 to codify the Agency's
expectations, and industry best practices, for the conduct of clinical
pharmacology and clinical and analytical BA and BE studies for human
drug and biological product marketing applications.
Summary of Legal Basis: FDA's proposed revisions to the regulations
regarding the conduct of clinical pharmacology and clinical and
analytical BA and BE are authorized by the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 355, 371 and 374) and by the Public Health
Service Act (42 U.S.C. 262).
Alternatives: FDA considered providing guidance to applicants and
their contractors that conduct and submits clinical pharmacology and
clinical and analytical BA and BE studies to the Agency in support of
marketing applications.
Anticipated Cost and Benefits: The benefits of the proposed rule
would be increased clarity to industry on study conduct expectations
that should improve study quality and thereby, to the extent possible,
result in fewer study rejections due to deficiencies identified by
Agency inspections, and thus promote faster application approvals.
Also, potential benefit to patients by increasing the speed in which
new human drug and biological products are approved to market. The
costs would stem from the proposed rule establishing recordkeeping
requirements and procedures and processes requirements that applicants
and their contractors would need to meet. These proposed requirements
are in-line with current industry best practices.
Risks: The current regulatory framework does not adequately
describe FDA's expectations for the conduct clinical pharmacology and
clinical and analytical BA and BE studies to ensure industry performs
those studies in a consistent and reliable manner. The proposed rule
would establish basic study conduct expectations to ensure study
reliability, including data reliability and human subject protection.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
Agency Contact: Brian Joseph Folian, Regulatory Counsel, Department
of Health and Human Services, Food and Drug Administration, 10903 New
Hampshire Avenue, Building 51, Room 5215, Silver Spring, MD 20993-0002,
Phone: 240 402-4089, Email: [email protected].
RIN: 0910-AI57
HHS--FDA
58. Tobacco Product Standard for Menthol in Cigarettes
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 21 U.S.C. 387g
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This proposed rule is a tobacco product standard to
prohibit the use of menthol as a characterizing flavor in cigarettes.
Statement of Need: The Federal Food, Drug, and Cosmetic Act (FD&C
Act), as amended by the Family Smoking Prevention and Tobacco Control
Act (Tobacco Control Act), authorizes FDA to adopt tobacco product
standards under section 907 if the Secretary finds that a tobacco
product standard is appropriate for the protection of the public
health. This product standard would ban menthol as a characterizing
flavor in cigarettes. The standard would reduce the availability of
menthol cigarettes and thereby decrease the likelihood that nonusers
who would experiment with these products would progress to regular
cigarette smoking. In addition, among current menthol cigarette
smokers, the proposed tobacco product standard is likely to improve the
health of current menthol cigarette smokers by decreasing consumption
and increasing the likelihood of cessation.
Summary of Legal Basis: Section 907 of the FD&C Act authorizes the
adoption of tobacco product standards if the Secretary finds that a
tobacco product standard is appropriate for the protection of public
health.
Alternatives: In addition to the costs and benefits of the proposed
rule, FDA will assess the costs and benefits of extending the effective
date of the rule, creating a process by which some products may apply
for an exemption or variance from the proposed product standard, and
prohibiting menthol as an additive in cigarette products rather than
prohibiting menthol as a characterizing flavor.
Anticipated Cost and Benefits: The proposed rule is expected to
generate compliance costs on affected entities, such as one-time costs
to read and understand the rule and alter manufacturing/importing
practices. The quantified benefits of the proposed rule stem from
improved health and diminished exposure to tobacco smoke for users of
cigarettes from decreased experimentation, progression to regular use,
and consumption of menthol cigarettes. The qualitative benefits of the
proposed rule include impacts such as reduced illness for smokers.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 07/24/13 78 FR 44484
ANPRM Comment Period End............ 09/23/13 .......................
NPRM................................ 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Beth Buckler, Senior Regulatory Counsel, Department
of Health and Human Services, Food and Drug Administration, Center for
Tobacco Products, 10903 New Hampshire Avenue, Document Control Center,
Building 71, Room G335, Silver Spring, MD 20993, Phone: 877 287-1373,
Email: [email protected].
RIN: 0910-AI60
[[Page 5067]]
HHS--HEALTH RESOURCES AND SERVICES ADMINISTRATION (HRSA)
Proposed Rule Stage
59. 340B Drug Pricing Program; Administrative Dispute
Resolution
Priority: Other Significant.
Legal Authority: Not Yet Determined
CFR Citation: 42 CFR 10.
Legal Deadline: None.
Abstract: This proposed rule would replace the Administrative
Dispute Resolution (ADR) final rule currently in effect and apply to
all drug manufacturers and covered entities that participate in the
340B Drug Pricing Program (340B Program), It would establish new
requirements and procedures for the 340B Program's ADR process. This
administrative process would allow covered entities and manufacturers
to file claims for specific compliance areas outlined in the statute
after good faith efforts have been exhausted by the parties.
Statement of Need: This NPRM proposes to replace the 340B
Administrative Dispute Resolution (ADR) final rule, which was published
in December 2020 and became effective January 13, 2021. This new rule
will propose new requirements and procedures for the 340B Program's ADR
process. The proposed rule applies to drug manufacturers and covered
entities participating in the 340B Drug Pricing Program (340B Program)
by allowing these entities to file claims for specific compliance areas
outlined in the 340B statute after good faith efforts have been
exhausted by the parties. This NPRM better aligns with the President's
priorities on drug pricing, better reflects the current state of the
340B Program, and seeks to correct procedural deficiencies in the 340B
ADR process.
Summary of Legal Basis: Section 340B(d)(3) of the Public Health
Service Act (PHS Act) requires the Secretary to promulgate regulations
establishing and implementing an ADR process for certain disputes
arising under the 340B Program. Under the 340B statute, the purpose of
the ADR process is to resolve (1) Claims by covered entities that they
have been overcharged for covered outpatient drugs by manufacturers and
(2) claims by manufacturers, after a manufacturer has conducted an
audit as authorized by section 340B(a)(5)(C) of the PHS Act, that a
covered entity has violated the prohibition on diversion or duplicate
discounts.
Alternatives: N/A.
Anticipated Cost and Benefits: N/A.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Michelle Herzog, Deputy Director, Office of
Pharmacy Affairs, Department of Health and Human Services, Health
Resources and Services Administration, 5600 Fishers Lane, 08W12,
Rockville, MD 20857, Phone: 301 443-4353, Email: [email protected].
RIN: 0906-AB28
HHS--INDIAN HEALTH SERVICE (IHS)
Proposed Rule Stage
60. Catastrophic Health Emergency Fund (Chef)
Priority: Other Significant.
Legal Authority: Pub. L. 94-437, sec. 202(d), IHCI Act, as amended
by Pub. L. 111-148, sec. 10221
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: The Catastrophic Health Emergency Fund (CHEF) pays for
extraordinary medical costs associated with treatment of victims of
disasters or catastrophic illnesses. CHEF is used to reimburse PRC
programs for high cost cases (e.g., burn victims, motor vehicle
accidents, high risk obstetrics, cardiology, etc.). The proposed rule
establishes conditions and procedures for payment from the fund. During
the comment period for the NPRM, several Tribes and Tribal
Organizations expressed concern about provisions in the NRPM related to
coordination with Tribal self-insurance as an alternate resource. In
response to those concerns, the IHS engaged in additional Tribal
consultation and decided to delay moving forward with the NPRM pending
the resolution of relevant litigation. IHS intends to proceed with
developing the NPRM consistent with how Tribal self-insurance is
currently recognized in agency policy at https://www.ihs.gov/ihm/pc/part-2/chapter-3-purchased-referred-care/. On January 29, 2021, IHS
issued a Dear Tribal Leader Letter to clarify that the proposed rule
should not be relied upon and that IHS will be moving forward by
publishing a new proposed rule in the near future. A copy of the Dear
Tribal Leader Letter concerning next steps for the CHEF regulations is
available on the IHS website at: https://www.ihs.gov/sites/newsroom/themes/responsive2017/display_objects/documents/2021_Letters/DTLL_01292021.pdf.
Statement of Need: These regulations propose to (1) establish
definitions governing CHEF, including definitions of disasters and
catastrophic illnesses; (2) establish that a service unit shall not be
eligible for reimbursement for the cost of treatment from CHEF until
its cost of treating any victim of such catastrophic illness or
disaster has reached a certain threshold cost; (3) establish a
procedure for reimbursement of the portion of the costs for authorized
services that exceed such threshold costs; (4) establish a procedure
for payment from CHEF for cases in which the exigencies of the medical
circumstances warrant treatment prior to the authorization of such
treatment; and (5) establish a procedure that will ensure no payment
will be made from CHEF to a service unit to the extent that the
provider of services is eligible to receive payment for the treatment
from any other Federal, State, local, or private source of
reimbursement for which the patient is eligible.
Summary of Legal Basis: Section 202(d) of the Indian Health Care
Improvement Act (IHCIA), Public Law 94-437 (1976), as amended by the
Patient Protection and Affordable Care Act, Public Law 111-148, section
10221 (2010) requires the Secretary of the Department of Health and
Human Services, acting through the Indian Health Service (IHS), to
promulgate regulations to implement section 202(d). Section 202(d) of
the IHCIA amends the IHS Catastrophic Health Emergency Fund (CHEF) by
establishing the CHEF threshold cost to the 2000 level of $19,000;
maintains requirements in current law to promulgate regulations
consistent with the provisions of the CHEF to establish a definition of
disasters and catastrophic illnesses for which the cost of the
treatment provided under contract would qualify for payment under CHEF;
provides that a service unit shall not be eligible for reimbursement
for the cost of treatment from CHEF until its cost of treating any
victim of such catastrophic illness or disaster has reached a certain
threshold cost which the Secretary shall establish at the 2000 level of
$19,000; and for any subsequent year, not less than the threshold cost
of the previous year increased by the percentage increase in medical
care expenditure category of the consumer price index for all urban
consumers; establish a procedure that will ensure no payment will be
made from CHEF to a service unit to the extent that the provider of
services is eligible to receive payment for the treatment from any
other Federal, State,
[[Page 5068]]
local, or private source of reimbursement for which the patient is
eligible.
Alternatives: None.
Anticipated Cost and Benefits: Reducing the threshold to $19,000
will allow for more purchased/referred care cases to be eligible for
CHEF. Tribal and Federal PRC programs with limited budgets would have
more of an opportunity to access the CHEF.
Risks: The increase in cases will deplete the CHEF earlier in the
fiscal year unless CHEF funding is increased.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/26/16 81 FR 4339
NPRM Comment Period End............. 03/11/16 .......................
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Agency Contact: CAPT John E. Rael, Director, Office of Resource
Access and Partnerships, Department of Health and Human Services,
Indian Health Service, 5600 Fishers Lane, Suite 10E73, Rockville, MD
20857, Phone: 301 443-0969, Email: [email protected].
RIN: 0917-AA10
HHS--IHS
Final Rule Stage
61. Acquisition Regulations; Buy Indian Act; Procedures for Contracting
Priority: Other Significant.
Legal Authority: Transfer Act of 1954 (42 U.S.C. 2001 et seq.);
Transfer Act (42 U.S.C. 2003); 25 U.S.C. 1633; Buy Indian Act 1910;
Indian Community Economic Enhancement Act of 2020 (Pub. L. 116-261); .
. .
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: The Indian Health Service (IHS) is proposing to issue
regulations guiding implementation of the Buy Indian Act, which
provides IHS with authority to set-aside procurement contracts for
Indian-owned and controlled businesses. This rule supplements the
Federal Acquisition Regulation (FAR) and the current HHS Acquisition
Regulations (HHSAR). IHS may use the Buy Indian Act procurement
authority for acquisitions in connection with those functions. This
rule is proposed to describe administration procedures that the IHS
will use in all of its locations to encourage procurement relationships
with eligible Indian Economic Enterprises in the execution of the Buy
Indian Act. These proposed rules are intended to be consistent with Buy
Indian Act rules previously promulgated by the Department of Interior.
IHS published the proposed rule on November 10, 2020, with a 60-day
comment period ending January 11, 2021 (85 FR 71596). Comments were
received from tribes and tribal entities requesting an extension of the
comment period due to the encompassing of the holiday season during the
original comment period, as well as the disproportionately high impact
of the pandemic on Indian Country. Both of these events delayed
stakeholders from being able to perform a complete and full review and
provide comments within the initial 60-day comment period. On April 21,
2021, HHS reopened the NPRM and extended the comment period for 60
days. The comment period closed on June 21, 2021.
Statement of Need: Due to the unique legal and political
relationship with Indian Tribes, the Federal government has a number of
programs and authorities to support and expand the economic development
of tribal entities and their individual members. The Buy Indian Act of
1910 is one of these programs that allows for the Department of Health
and Human Services' IHS and the Department of the Interior's BIA to
award federal contracts to Indian-owned businesses without using the
standard competitive process. The IHS annually obligates over $1
billion in commercial contracts. Much of this can be set-aside under
the Buy Indian Act. The established use of this rule will promote the
growth and development of Indian industries and in turn, foster
economic development and sustainability in Indian Country.
Summary of Legal Basis: This rule proposes to amend the HHSAR,
which is maintained by Assistant Secretary for Financial Resources
(ASFR) pursuant to 48 CFR 301.103, to establish Buy Indian Act
acquisition policies and procedures for IHS that are consistent with
rules proposed and/or adopted by the Department of the Interior. This
rule is to provide uniform administration procedures that the IHS will
use in all of its locations to encourage procurement relationships with
Indian labor and industry in the execution of the Buy Indian Act. IHS'
current rules are codified at HHSAR, 48 CFR part 326, subpart 326.6.
The Transfer Act authorizes the Secretary of HHS to make such other
regulations as he deems desirable to carry out the provisions of the
[Transfer Act]. 42 U.S.C. 2003. The Secretary's authority to carry out
functions under the Transfer Act has been vested in the Director of the
Indian Health Service under 25 U.S.C. 1661. Because of these
authorities, use of the Buy Indian Act is reserved to IHS and is not
available for use by any other HHS component. IHS authority to use the
Buy Indian Act is further governed by 25 U.S.C.1633, which directs the
Secretary to issue regulations governing the application of the Buy
Indian Act to construction activities. Additionally, when Congress
amended the Buy Indian Act, they added a requirement to harmonize the
Buy Indian Act regulations. As such, the Secretaries shall promulgate
regulations to harmonize the procurement procedures of the Department
of the Interior and the Department of Health and Human Services, to the
maximum extent practicable.
Alternatives: There are no apparent alternatives to ensure
compliance with this law.
Anticipated Cost and Benefits: The benefits of this rule include,
policy and compliance objectives such as: Supporting procurement
relationships with Indian labor and industry as well as overall Tribal
relationships, in the execution of the Buy Indian Act; consistent IHS
use with the DOI/BIA regulations; and fostering economic development
and sustainability in Indian Country. To avoid additional costs, the
rule supports utilization of fair and reasonable price requirements,
pursuant to the Federal Acquisition Regulations (FAR). Additionally,
IHS intends to conduct all training on the Buy Indian Act in-house and/
or in collaboration with the DOI/BIA.
Risks: IHS foresees minimal risks in the implementation of this
rule. One potential risk is an increased number of Buy Indian Act
challenges to representation requirement but IHS views this more as a
benefit in ensuring Buy Indian Act set-aside commercial contracts are
appropriately awarded to confirmed Indian Economic Enterprises.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/11/20 85 FR 71596
NPRM Comment Period End............. 01/11/21 .......................
NPRM Comment Period Reopened........ 04/21/21 86 FR 20648
NPRM Comment Period Reopened End.... 06/21/21 .......................
Final Action........................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
[[Page 5069]]
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Agency Contact: Santiago Almaraz, Acting Director, Office of
Management Service, Department of Health and Human Services, Indian
Health Service, 5600 Fishers Lane, Suite 09E45, Rockville, MD 20857,
Phone: 301 443-4872, Email: [email protected].
RIN: 0917-AA18
HHS--CENTERS FOR MEDICARE & MEDICAID SERVICES (CMS)
Proposed Rule Stage
62. Streamlining the Medicaid and Chip Application, Eligibility
Determination, Enrollment, and Renewal Processes (CMS-2421)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 1302
CFR Citation: 42 CFR 431; 42 CFR 435; 42 CFR 457.
Legal Deadline: None.
Abstract: This proposed rule would streamline eligibility and
enrollment processes for all Medicaid and CHIP populations and create
new enrollment pathways to maximize enrollment and retention of
eligible individuals.
Statement of Need: Since the implementation of the Affordable Care
Act (ACA), CMS has made improvements in streamlining the Medicaid and
CHIP application, eligibility determination, enrollment, and renewal
processes. Simplifying enrollment in Medicaid and CHIP coverage is a
foundational step in efforts to address health disparities for low-
income individuals. However, gaps remain in States' ability to
seamlessly process beneficiaries' eligibility and enrollment in order
to maximize coverage. This proposed rule will provide States with the
tools they need to reduce unnecessary barriers to enrollment in
Medicaid and CHIP and to keep eligible beneficiaries covered.
Summary of Legal Basis: This rule responds to the January 28, 2021,
Executive Order on Strengthening Medicaid and the Affordable Care Act.
It addresses components of title XIX and title XXI of the Social
Security Act and several sections of the Patient Protection and
Affordable Care Act (Pub. L. 111-148) and the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111-152), which amended and revised
several provisions of the Patient Protection and Affordable Care Act.
Alternatives: In developing the policies contained in this rule, we
considered numerous alternatives to the presented proposals, including
maintaining existing requirements. These alternatives will be described
in the rule.
Anticipated Cost and Benefits: The provisions in this rule would
streamline Medicaid and CHIP enrollment processes and ensure that
eligible beneficiaries can maintain coverage. While states and the
Federal Government may incur some initial costs to implement these
changes, this rule aims to reduce administrative barriers to
enrollment, which is expected to reduce administrative costs over time.
The provisions in this rule are designed to increase access to
affordable health coverage, and we believe that the benefits will
justify any costs. Additionally, through clear and consistent
requirements for the timely renewal of eligibility for all
beneficiaries, this rule promotes program integrity, thereby protecting
taxpayer funds at both the state and federal levels. As we move toward
publication, estimates of the cost and benefits of these provisions
will be included in the rule.
Risks: We anticipate that the provisions of this rule would further
the administration's goal of strengthening Medicaid and making high-
quality health care accessible and affordable for every American. At
the same time, through clear and consistent requirements for conducting
regular renewals of eligibility, acting on changes reported by
beneficiaries and maintaining thorough recordkeeping on these
activities, this rule would reduce the risk of improper payments.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Local, State.
Agency Contact: Sarah Delone, Deputy Director, Children and Adults
Health Programs Group, Department of Health and Human Services, Centers
for Medicare & Medicaid Services, Center for Medicaid and CHIP
Services, MS: S2-01-16, 7500 Security Boulevard, Baltimore, MD 21244,
Phone: 410 786-5647, Email: [email protected].
RIN: 0938-AU00
HHS--CMS
63. Provider Nondiscrimination Requirements for Group Health Plans and
Health Insurance Issuers in the Group and Individual Markets (CMS-9910)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Pub. L. 116-260, Division BB, title I; 42 U.S.C.
300gg-5(a)
CFR Citation: Not Yet Determined.
Legal Deadline: NPRM, Statutory, January 1, 2022, Section 108 of
the No Surprises Act requires proposed rulemaking by January 1, 2022.
Abstract: This proposed rule would implement section 108 of the No
Surprises Act.
Statement of Need: Not yet determined.
Summary of Legal Basis: The Department of Health and Human Services
regulations are adopted pursuant to the authority contained in sections
2701 through 2763, 2791, 2792, 2794, 2799A-1 through 2799B-9 of the PHS
Act (42 U.S.C. 300gg-63, 300gg-91, 300gg-92, 300gg-94, 300gg-139), as
amended.
Alternatives: Not yet determined.
Anticipated Cost and Benefits: Not yet determined.
Risks: Not yet determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Federalism: Undetermined.
Agency Contact: Lindsey Murtagh, Director, Market-Wide Regulation
Division, Department of Health and Human Services, Centers for Medicare
& Medicaid Services, Center for Consumer Information and Insurance
Oversight, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 301
492-4106, Email: [email protected].
RIN: 0938-AU64
HHS--CMS
64. Assuring Access to Medicaid Services (CMS-2442)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 1302
CFR Citation: 42 CFR 438; 42 CFR 447.
[[Page 5070]]
Legal Deadline: None.
Abstract: This rule proposes to assure and monitor equitable access
in Medicaid and the Children's Health Insurance Program (CHIP). These
activities could include actions that support the implementation of a
comprehensive access strategy as well as payment specific requirements
related to particular delivery systems.
Statement of Need: In order to assure equitable access to health
care for all Medicaid and Children's Health Insurance Program (CHIP)
beneficiaries across all delivery systems, access regulations need to
be multi-factorial and focus beyond payment rates. Barriers to
accessing health care services can be as heterogeneous as Medicaid and
CHIP populations ranging from potential barriers to access which can be
measured through provider availability and provider accessibility -to-
realized or perceived access barriers which can be measured through
utilization and satisfaction with services. CMCS is developing a
comprehensive access strategy that will address not only Fee-For-
Service (FFS) payment, but also access in managed care and Home and
Community-Based Services (HCBS). The scope of this rule is unknown at
this time, but will seek to assure and monitor equitable access in
Medicaid and CHIP.
Summary of Legal Basis: At this time, the scope of the rule is
unknown. However, there are no broad access requirements specified in
the statute beyond payment: Section 1902(a)(30)(A) of the Act requires
states to ``assure that payments are consistent with efficiency,
economy, and quality of care and are sufficient to enlist enough
providers so that care and services are available under the plan at
least to the extent that such care and services are available to the
general population in the geographic area.''
Alternatives: In developing the policies contained in this rule, we
will consider numerous alternatives to the presented proposals,
including maintaining existing requirements. These alternatives will be
described in the rule.
Anticipated Cost and Benefits: This proposed rule would be expected
to result in potential costs for states to come into and remain in
compliance. Estimates for associated costs are unknown at this time and
may vary by state. Information about anticipated costs will be included
in the proposed rule.
Risks: At this time, we are still at work developing a
comprehensive access strategy. We have not yet concluded which pieces
are best done through rulemaking versus other guidance.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: State.
Federalism: Undetermined.
Agency Contact: Karen Llanos, Director, Medicaid Innovation
Accelerator Program and Strategy Support, Department of Health and
Human Services, Centers for Medicare & Medicaid Services, Center for
Medicaid and CHIP Services, MS: S2-04-28, 7500 Security Boulevard,
Baltimore, MD 21244, Phone: 410 786-9071, Email:
[email protected].
RIN: 0938-AU68
HHS--CMS
65. Implementing Certain Provisions of the Consolidated
Appropriations Act and Other Revisions to Medicare Enrollment and
Eligibility Rules (CMS-4199)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 116-260, secs. 120 & 402; 42 U.S.C 1395i-2
CFR Citation: 42 CFR 400; 42 CFR 406; 42 CFR 407; 42 CFR 408; . . .
Legal Deadline: Final, Statutory, October 1, 2022, Enrollments
under section 402 of the CAA start on 10/1/22. Final, Statutory,
January 1, 2023, Provisions under sections 120 and 402 of the CAA must
be effective 1/1/23.
Abstract: This proposed rule would implement certain Medicare-
related provisions of the Consolidated Appropriations Act, 2021 (CAA).
Specifically, section 120 of the CAA allows for Medicare coverage to
take effect earlier for people who enroll in the General Enrollment
Period (GEP) or within the last three months of their Initial
Enrollment Period (IEP). Section 120 also gives the Secretary the
authority to establish special enrollment periods for exceptional
circumstances. Section 402 of the CAA extends immunosuppressive drug
coverage for Medicare kidney transplant recipients beyond the current
law 36-month limit following a transplant by providing
immunosuppressive drug coverage under Medicare Part B for these
individuals. Separately, this rule would address enrollment in Medicare
Part A for applicants who are eligible for Social Security benefits,
but are not yet receiving them, and make certain updates related to
state payment of Medicare premiums.
Statement of Need: This rule is necessary to implement section 120
of the Consolidated Appropriations Act, 2021 (CAA) that revises
effective dates of coverage for individuals enrolling in Medicare and
gives the Secretary of the Department of Health and Human Services the
authority to establish special enrollment periods (SEPs) for
exceptional circumstances beginning January 1, 2023. This rule also
implements section 402 of the CAA that, beginning January 1, 2023,
provides for coverage of immunosuppressive drugs under part B for
certain individuals whose Medicare entitlement based on end-stage renal
disease (ESRD) would otherwise end 36-months after the month in which
they received a successful kidney transplant.
Summary of Legal Basis: The legal basis of this rule is the
Consolidated Appropriations Act, 2021 (sections 120 and 402).
Alternatives: The provisions of this rule are primarily established
in statute. Where there is discretion, alternatives will be discussed
within the text of the rule. Public comments will also be considered in
the development of the final rule.
Anticipated Cost and Benefits: We believe that this rule will have
a positive impact on health outcomes of beneficiaries because it
provides for Medicare coverage to begin earlier and provides for
coverage of immunosuppressive drugs in situations where, currently,
they are not covered.
Risks: The risks associated with not publishing this regulation
would be not establishing the regulatory authority under which
immunosuppressive drug benefits and effective dates of coverage will be
based upon beginning January 2023.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Kristy Nishimoto, Health Insurance Specialist,
Department of Health and Human Services, Centers for Medicare &
Medicaid Services, Center for Medicare, MS: 100, 7500 Security
Boulevard, Baltimore, MD 21244, Phone: 206 615-2367, Email:
[email protected].
RIN: 0938-AU85
[[Page 5071]]
HHS--CMS
66. Requirements for Rural Emergency Hospitals (CMS-3419)
(Section 610 Review)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 1395x
CFR Citation: Not Yet Determined.
Legal Deadline: Final, Statutory, January 1, 2023, Per statute,
amendments made by this section apply to items and services furnished
on or after January 1, 2023.
Abstract: This proposed rule would establish health and safety
requirements for a new provider type, Rural Emergency Hospitals, in
accordance with section 125 of the Consolidated Appropriations Act,
2021.
Statement of Need: This rule proposes health and safety standards
for Rural Emergency Hospitals (REHs).
Summary of Legal Basis: This rule addresses section 125 of the
Consolidated Appropriations Act (Pub. L. No: 116-260), which
establishes REHs as a new provider type eligible for Medicare payment.
Alternatives: We understand that the policies that will be included
in this proposed rule will have impacts on rural communities and
providers of health care services in these communities. These impacts
will be taken into consideration as we evaluate policy alternatives in
the development of this proposed rule. These alternatives will be
included in the rule.
Anticipated Cost and Benefits: This proposed rule aims to increase
access to health care services, including emergency services, to rural
communities. Many rural Americans face healthcare inequities resulting
in worse outcomes overall in rural areas. Increasing access to key
health care services in these communities will help address such
healthcare inequities. Estimates of the cost and benefits of the
developed provisions will be included in the proposed rule.
Risks: Although there are some risks associated with the potential
loss of inpatient services in rural communities as providers convert to
an REH, we anticipate that only eligible rural hospitals and critical
access hospitals with very low average daily inpatient censuses will
convert to an REH. We anticipate that the provisions of this proposed
rule would help further HHS's goal of increasing rural access to care.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Federal, Local, State.
Federalism: Undetermined.
Agency Contact: Kianna Banks, Technical Advisor, Department of
Health and Human Services, Centers for Medicare & Medicaid Services,
Center for Clinical Standards and Quality, MS: S3-02-01, 7500 Security
Boulevard, Baltimore, MD 21244, Phone: 410 786-8486, Email:
[email protected].
RIN: 0938-AU92
HHS--CMS
67. Mental Health Parity and Addiction Equity Act and the
Consolidated Appropriations Act, 2021 (CMS-9902)
Priority: Other Significant.
Legal Authority: Pub. L. 116-260, Division BB, title II; Pub. L.
110-343, secs. 511 to 512
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This rule would propose amendments to the final rules
implementing the Mental Health Parity and Addiction Equity Act, taking
into account the amendments to the law enacted by the Consolidated
Appropriations Act, 2021.
Statement of Need: There have been a number of legislative
enactments related to MHPAEA since issuance of the 2014 final rules,
including the 21st Century Cures Act, the Support Act, and the
Consolidated Appropriations Act, 2021. This rule would propose
amendments to the final rules and incorporate examples and
modifications to account for this legislation and previously issued
guidance.
Summary of Legal Basis: The Department of Health and Human Services
regulations are adopted pursuant to the authority contained in sections
2701 through 2763, 2791, 2792, 2794, 2799A-1 through 2799B-9 of the PHS
Act (42 U.S.C. 300gg-63, 300gg-91, 300gg-92, 300gg-94, 300gg-139), as
amended.
Alternatives: Not yet determined.
Anticipated Cost and Benefits: Not yet determined.
Risks: Not yet determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Lindsey Murtagh, Director, Market-Wide Regulation
Division, Department of Health and Human Services, Centers for Medicare
& Medicaid Services, Center for Consumer Information and Insurance
Oversight, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 301
492-4106, Email: [email protected].
RIN: 0938-AU93
HHS--CMS
68. Coverage of Certain Preventive Services (CMS-9903)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Pub. L. 111-148, sec. 1001
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This rule would propose amendments to the final rules
regarding religious and moral exemptions and accommodations regarding
coverage of certain preventive services under title I of the Patient
Protection and Affordable Care Act.
Statement of Need: Not yet determined.
Summary of Legal Basis: The Department of Health and Human Services
regulations are adopted pursuant to the authority contained in sections
2701 through 2763, 2791, 2792, 2794, 2799A-1 through 2799B-9 of the PHS
Act (42 U.S.C. 300gg-63, 300gg-91, 300gg-92, 300gg-94, 300gg-139), as
amended.
Alternatives: Not yet determined.
Anticipated Cost and Benefits: Not yet determined.
Risks: Not yet determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Lindsey Murtagh, Director, Market-Wide Regulation
Division, Department of Health and Human Services, Centers for Medicare
&
[[Page 5072]]
Medicaid Services, Center for Consumer Information and Insurance
Oversight, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 301
492-4106, Email: [email protected].
RIN: 0938-AU94
HHS--CMS
Final Rule Stage
69. Omnibus COVID-19 Health Care Staff Vaccination (CMS-3415)
(Section 610 Review)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 1395hh; 42 U.S.C. 1302
CFR Citation: 42 CFR 483.
Legal Deadline: None.
Abstract: This interim final rule with comment period revises the
infection control requirements that most Medicare- and Medicaid-
participating providers and suppliers must meet to participate in the
Medicare and Medicaid programs. These changes are necessary to protect
the health and safety of residents, clients, patients, and staff and
reflect lessons learned as result of the COVID-19 public health
emergency. The revisions to the infection control requirements
establish COVID-19 vaccination requirements for staff at the included
Medicare- and Medicaid-participating providers and suppliers.
Statement of Need: The rule establishes COVID-19 vaccination
requirements for staff at the included Medicare-and Medicaid-
participating providers and suppliers. These changes are necessary to
protect the health and safety of residents, clients, patients, and
staff.
Summary of Legal Basis: CMS has broad statutory authority to
establish health and safety regulations, which includes authority to
establish health and safety standards for Medicare and Medicaid
certified facilities. We believe requiring staff vaccinations for
COVID-19 is critical to safeguarding the health and safety of all
individuals seeking health care in Medicare and Medicaid certified
facilities. Sections 1102 and 1871 of the Social Security Act (the Act)
grant the Secretary of Health and Human Services authority to make and
publish such rules and regulations, not inconsistent with the Act, as
may be necessary to the efficient administration of the functions with
which the Secretary is charged under this Act.
Alternatives: In developing the policies contained in this rule, we
considered numerous alternatives to the final provisions including
limiting vaccination requirements to direct care employees, additional
requirements, and different implementation time frames. These
alternatives are discussed in further detail in the rule.
Anticipated Cost and Benefits: We estimate costs associated with
this rulemaking including those costs associated with information
collection requirements, additional recordkeeping, and costs associated
with vaccination. We anticipate benefits of the rule to include
reduction in the transmission of infections and decreases in
hospitalizations and mortality.
Risks: Although there is some uncertainty about the effects of this
rule on health care staffing, we believe that the wide application of
these requirements will reduce the likelihood of individual workers
seeking new employment in order to avoid vaccination.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 11/05/21 86 FR 61555
Interim Final Rule Effective........ 11/05/21
Interim Final Rule Comment Period 01/04/22
End.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Federal, Local, State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Kim Roche, Nurse, Department of Health and Human
Services, Centers for Medicare & Medicaid Services, Center for Clinical
Standards and Quality, MS: C2-21-16, 7500 Security Boulevard,
Baltimore, MD 21244, Phone: 410 786-3524, Email: [email protected].
RIN: 0938-AU75
HHS--ADMINISTRATION FOR CHILDREN AND FAMILIES (ACF)
Proposed Rule Stage
70. Native Hawaiian Revolving Loan Fund Eligibility Requirements
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2991
CFR Citation: 45 CFR 1336.
Legal Deadline: None.
Abstract: This regulation proposes to reduce the required Native
Hawaiian ownership or control for an eligible applicant to the Native
Hawaiian Revolving Loan Fund program under 45 CFR 1336.62.
Statement of Need: The Native Hawaiian Revolving Loan Fund (NHRLF)
was established to provide loans and loan guarantees to Native
Hawaiians who are unable to obtain loans from private sources on
reasonable terms and conditions for the purpose of promoting economic
development in the State of Hawaii. Since many Native Hawaiians reside
on leasehold interests that cannot be collateralized (Hawaiian
Homelands), the NHRLF serves as an important lender of last resort for
Native Hawaiian borrowers. Applicants for an NHRLF loan must be an
individual Native Hawaiian or a 100 percent Native Hawaiian owned
organization. To qualify for an NHRLF loan when one spouse is not
Native Hawaiian, Native Hawaiian borrowers must establish or reorganize
their business' legal structure to exclude a non-Native Hawaiian spouse
from ownership. As the 100 percent Native Hawaiian ownership
requirement prevents many Native Hawaiian family-owned businesses and
families from obtaining a loan, the Administration for Children and
Families (ACF) proposes to reduce the eligibility requirement to
maximize loan funds and spur further economic development. This
proposed change will likely increase the applicant pool and
availability of loan proceeds to small Native Hawaiian-owned businesses
and families whose credit would be deemed too risky for traditional
lenders as businesses recover from the COVID-19 pandemic. As a lender
of last resort, this revolving loan fund has filled and will continue
to fill a unique credit niche for Native Hawaiian-owned businesses.
Summary of Legal Basis: This NPRM is under the authority granted by
section 803A of Native Americans Programs Act. That section directed
ACF's Administration for Native Americans (ANA) to develop the
regulations that set forth the procedures and criteria for making loans
under the NHRLF. Section 803A also permits the ANA Commissioner to
prescribe any other regulations that the Commissioner determines are
necessary to carry out the purposes of NHRLF.
Alternatives: ACF reviewed alternatives to providing greater
flexibility to NHRLF applicants that directly respond to barriers for
accessing loans and other viable options were not identified.
Anticipated Cost and Benefits: ANA does not provide loans directly
to entities but does so through the regulated entity, the State of
Hawaii's
[[Page 5073]]
Office of Hawaiian Affairs. The rule does not create additional
requirements but provides flexibility by expanding eligibility and
availability of loan proceeds to small entities.
Risks: It is possible that this proposed change will increase
business loan demand. There is also the possibility that businesses may
act strategically to qualify for NHLRF loans by adding Native Hawaiian
ownership. This restructuring may still benefit Native Hawaiians as
more Native Hawaiians could become business partners with non-Native
Hawaiians. Expansion of the program to more Native Hawaiian families is
consistent with the policy goal of the statute which is promoting
economic development among Native Hawaiians in Hawaii.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Mirtha Beadle, Senior Policy Advisor, Department of
Health and Human Services, Administration for Children and Families,
330 C Street SW, Washington, DC 20201, Phone: 202 401-6506, Email:
[email protected].
RIN: 0970-AC84
HHS--ACF
71. Paternity Establishment Percentage Performance Relief
Priority: Other Significant.
Legal Authority: Sec. 1102 of the Social Security Act
CFR Citation: 45 CFR 305.
Legal Deadline: None.
Abstract: This regulation proposes to modify the Paternity
Establishment Percentage performance requirements in child support
regulations under 45 CFR part 305, to provide relief from financial
penalties to states impacted by the COVID-19 pandemic.
Statement of Need: The COVID-19 pandemic has had a debilitating
effect on state child support programs, disrupting administrative and
judicial operations and limiting states' ability to provide services
and maintain performance. Without regulatory relief, 20 out of the 54
child support programs (title IV-D under the Act) will be subject to
financial penalties associated with their failure to achieve
performance for the Paternity Establishment Percentage (PEP) described
in section 409(a)(8) and 452(g) of the Social Security Act (the Act)
and child support regulations under 45 CFR part 305. PEP-related
financial penalties, which are imposed as reductions in the state's
Temporary Assistance for Needy Families (TANF) program funding, place
an undue burden on state budgets and threaten funding that supports the
very families who are most in need during this time of crisis.
Summary of Legal Basis: This proposed rule is published under the
authority granted to the Secretary of Health and Human Services by
section 1102 of the Social Security Act (the Act) (42 U.S.C. 1302).
Section 1102 of the Act authorizes the Secretary to publish
regulations, not inconsistent with the Act, as may be necessary for the
efficient administration of the functions with which the Secretary is
responsible under the Act. The proposed relief from the Paternity
Establishment Percentage performance penalty under this NPRM is based
on statutory authority granted under section 452(g)(3)(A) of the Act
(42 U.S.C. 652(g)(3)(A)).
Alternatives: Because PEP performance measures and penalties are
required by statute and regulation, relief can only be provided through
regulation or legislation. The PEP performance requirement is
established under 452(g) of the Social Security Act and 45 CFR 305.40.
Section 452(a)(4)(C)(i) of the Act requires the Secretary to determine
whether State-reported data used to determine the performance levels
are complete and reliable. Additionally, section 409(a)(8)(A) of the
Act and 45 CFR 305.61(a)(1) provides for a financial penalty if there
is a failure to achieve the required level of performance or an audit
determines that the data is incomplete or unreliable.
Anticipated Cost and Benefits: This proposed rule, if finalized,
will ensure that penalties are not imposed against a state's TANF
grant, during a time when public assistance funds are critically
needed. The financial penalties against states are estimated at $3.5
million of penalties for 3 states that did not meet PEP performance
levels in FY 2019 and FY 2020 and $83 million for 18 states that did
not meet performance levels in FY 2020 and FY 2021 PEP.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/19/21 86 FR 57770
NPRM Comment Period End............. 11/18/21
Final Action........................ 10/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Yvette Riddick, Director, Division of Policy,
Office of Child Support Enforcement, Department of Health and Human
Services, Administration for Children and Families, 330 C Street SW,
Washington, DC 20201, Phone: 202 401-4885, Email:
[email protected].
RIN: 0970-AC86
HHS--ACF
72. ANA Non-Federal Share Emergency Waivers
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 2991
CFR Citation: 45 CFR 1336.
Legal Deadline: None.
Abstract: This regulation proposes to streamline the process for
Administration for Native Americans (ANA) grant program applicants to
request a waiver for non-federal share for the 20 percent match
required by statute for ANA grants. The regulation will also propose
the ability for current grantees to request an emergency waiver for the
non-federal share match.
Statement of Need: The Native American Programs Act of 1974, as
amended, (NAPA) requires projects awarded funding through sections 803,
804, and 805 provide a 20 percent match of the total cost of the
project, unless a waiver is obtained through objective criteria as
outlined in ANA's regulations. The current regulations outline the
requirements and criteria for applicants to request a waiver for non-
federal share (NFS) at 45 CFR part 1336.50 at time of application for a
new or continuation award. The COVID-19 pandemic had a detrimental
impact on the economies and financial resources of ANA's Native
American recipients, most of whom had to close their borders to protect
their citizens. Many tribal enterprises were forced to close, and
tourism revenues became non-existent. Partnerships and vendors were no
longer able to contribute previously committed resources for NFS.
During this time, many recipients grew concerned that they would be
unable to fully meet their NFS of their grant award. ANA explored the
possibility of providing emergency NFS waivers to ANA grantees.
Unfortunately, ANA learned that it does not currently have the
authority to issue emergency NFS waivers, as neither emergency waiver
authority nor a process to approve such
[[Page 5074]]
requests exists in ANA's regulations. Current regulations require
waiver requests to be submitted at the time of application or during
the non-competitive continuation process. This request to update ANA's
regulation would provide a new provision for recipients to request an
emergency NFS waiver in the event of a natural or man-made emergency
such as a public health pandemic.
Summary of Legal Basis: The Native American Programs Act of 1974,
as amended, (NAPA) requires projects awarded funding through sections
803, 804, and 805 provide a 20 percent match of the cost of the
project, unless a waiver is obtained through objective criteria as
outlined in ANA's regulations. Current regulations outline the
requirements and criteria to request a waiver at 45 CFR part 1336.50 at
time of application for a new or continuation award. However, there is
no existing regulations or criteria to provide an emergency waiver for
NFS to recipients experience a natural or man-made disaster or public
health emergency such as COVID-19.
Alternatives: The alternative would be to not offer the emergency
waiver.
Anticipated Cost and Benefits: There are no known costs to the
program by issuing this rule. Benefits--This proposed rule is
responsive to the President's Executive Order 13995: Ensuring an
Equitable Pandemic Response and Recovery and the Executive Order on
Economic Relief Related to the COVID-19 Pandemic and also responsive to
the needs of Native American communities. Existing regulations states
that ANA must determine that approval of an NFS waiver will not prevent
the award of other grants at levels it believes are desirable for the
purposes of the program. Approval of this emergency waiver regulation
will also decrease the potential audit findings of entities not meeting
the required NFS. In addition, it reduces further harm to recipients
that are impacted by an emergency situation which caused unforeseen and
additional financial hardships.
Risks: There are no known risks to the program by issuing this
rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Mirtha Beadle, Senior Policy Advisor, Department of
Health and Human Services, Administration for Children and Families,
330 C Street SW, Washington, DC 20201, Phone: 202 401-6506, Email:
[email protected].
RIN: 0970-AC88
HHS--ACF
73. Foster Care Legal Representation
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Sec. 474(a)(3) of the Social Security Act; sec.
1102 of the Social Security Act
CFR Citation: 45 CFR 1356.60(c).
Legal Deadline: None.
Abstract: This regulation proposes to allow a title IV-E agency to
claim Federal financial participation for the administrative cost of
providing independent legal representation to a child who is either a
candidate for foster care or in foster care, and his/her parent to
prepare for and participate in judicial determinations in foster care
and other related civil legal proceedings.
Statement of Need: Allowing title IV-E agencies to claim Federal
reimbursement for independent legal representation in legal proceedings
that are necessary to carry out the requirements in the agency's title
IV-E plan, including civil proceedings, may help prevent the need to
remove a child from the home or, for a child in foster care, achieve
permanence faster. Research demonstrates that some of the circumstances
bringing families into contact with the child welfare system (poverty,
educational neglect, inadequate housing, failure to provide adequate
nutrition, and failure to safeguard mental health due to domestic
violence) can be addressed before a child enters foster care by
providing legal representation early in foster care legal proceedings
and in civil legal matters. When children are removed from the home,
studies show having access to legal representation for civil legal
issues earlier in a case can improve the rate of reunification, nearly
double the speed to legal guardianship or adoption, and result in more
permanent outcomes for children and families.
Summary of Legal Basis: Section 474(a)(3) of the Act authorizes
Federal reimbursement for title IV-E administrative costs, which are
defined as costs found necessary by the Secretary for the provision of
child placement services and for the proper and efficient
administration of the State [title IV-E] plan. Section 1102 of the Act
authorizes the Secretary to publish regulations, not inconsistent with
the Act, as may be necessary for the efficient administration of the
functions with which the Secretary is responsible under the Act.
Alternatives: If this NPRM is not published, agencies may continue
to claim FFP for administrative costs of independent legal
representation provided by attorneys representing children in title IV-
E foster care, children who are candidates for title IV-E foster care,
and the child's parents in all stages of foster care legal proceedings
(Child Welfare Policy Manual (CWPM) 8.1B #30, 31 and 32).
Anticipated Cost and Benefits: This final rule impacts state and
tribal title IV-E (child welfare) agencies. ACF estimates that the
proposed regulatory change would cost the federal government $141
million in FFP per year within 5 years of implementation. This proposal
does not impose a burden or cost on the title IV-E agency. The title
IV-E agency has discretion to provide allowable independent legal
representation to families.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Kathleen McHugh, Director, Division of Policy,
Children's Bureau, ACYF/ACF/HHS, Department of Health and Human
Services, Administration for Children and Families, 370 L'Enfant
Promenade SW, Washington, DC 20447, Phone: 202 401-5789, Fax: 202 205-
8221, Email: [email protected].
RIN: 0970-AC89
HHS--ACF
74. Separate Licensing Standards for Relative or Kinship
Foster Family Homes
Priority: Other Significant.
Legal Authority: 42 U.S.C. 620 et seq.; 42 U.S.C. 670 et seq.; 42
U.S.C. 1302
CFR Citation: 45 CFR 1355.20.
Legal Deadline: None.
Abstract: This regulation proposes to allow title IV-E agencies to
adopt separate licensing standards for relative or kinship foster
family homes.
Statement of Need: Currently, the regulation provides that in order
to claim title IVE, all foster family homes must meet the same
licensing standards, regardless of whether the foster family
[[Page 5075]]
home is a relative or non-relative placement. This Notice of Proposed
Rulemaking (NPRM) allows a title IV-E agency to adopt licensing or
approval standards for all relative foster family homes that are
different from the licensing standards used for non-related foster
family homes. This will remove a barrier to licensing relatives, many
of whom are older, more likely to be single, more likely to be African
American, more likely to live in poverty, and less well educated.
Summary of Legal Basis: This NPRM is published under the authority
granted to the Secretary of Health and Human Services by section 1102
of the Social Security Act (Act), 42 U.S.C. 1302. Section 1102 of the
Act authorizes the Secretary to publish regulations, not inconsistent
with the Act, as may be necessary for the efficient administration of
the functions for which the Secretary is responsible pursuant to the
Act. Section 472 of the Act authorizes federal reimbursement for a FCMP
for an otherwise eligible child when the child is placed in a fully
licensed or approved foster family home.
Alternatives: There are no satisfactory alternatives to publishing
this NPRM. This change cannot be made in sub-regulatory guidance.
Anticipated Cost and Benefits: This NPRM impacts state and tribal
title IV-E agencies and does not impose a burden. The title IV-E agency
has discretion to develop separate licensing standards for relatives
and non-relatives and if they do so, they may claim title IV-E funding.
ACF estimates that the proposed regulatory change would cost the
Federal Government $3.085 billion in title IV-E foster care federal
financial participation over 10 years.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Kathleen McHugh, Director, Division of Policy,
Children's Bureau, ACYF/ACF/HHS, Department of Health and Human
Services, Administration for Children and Families, 370 L'Enfant
Promenade SW, Washington, DC 20447, Phone: 202 401-5789, Fax: 202 205-
8221, Email: [email protected].
RIN: 0970-AC91
HHS--ADMINISTRATION FOR COMMUNITY LIVING (ACL)
Proposed Rule Stage
75. National Institute for Disability, Independent Living, and
Rehabilitation Research Notice of Proposed Rulemaking
Priority: Other Significant.
Legal Authority: 29 U.S.C. 29--Labor; Chapter 16--Vocational
Rehabilitation and Other Rehabilitation Services Subchapter II--
Research and Training; sec. 762--National Institute on Disability,
Independent Living, and Rehabilitation Research
CFR Citation: 45 CFR 1330.24.
Legal Deadline: None.
Abstract: The proposed rule will amend subsection 24 of the
National Institute for Disability, Independent Living and
Rehabilitation Research (NIDILRR) regulation (45 CFR 1330.24), which
would make revisions to advance equity in the peer review criteria that
NIDILRR uses to evaluate disability research applications across all of
its research programs, as well as emphasize the need for engineering
research and development activities within NIDILRR's Rehabilitation
Engineering Research Centers (RERC) program.
Statement of Need: There is a need for increased representation of
people with disabilities among the research teams of NIDILRR grantees
to help ensure rigor and relevance of sponsored research. There is a
separate need for increased emphasis on engineering R&D in NIDILRR's
Rehabilitation Engineering Research Centers program.
Summary of Legal Basis: (1) An update of 45 CFR 1330.24 will
strengthen NIDILRR's ability to meet goals described in the Executive
Orders on Advancing Equity. Updating this regulation will also better
address one of NIDILRR's core statutory purposes: To increase
opportunities for researchers who are members of traditionally
underserved populations, including researchers who are members of
minority groups and researchers who are individuals with disabilities
(29 U.S.C. 760(7)). (2) NIDILRR's statute calls for a Rehabilitation
Engineering Research Centers program (29 U.S.C. 764(b)(3)(A)), but
related peer review criteria in 45 CFR 1330.24 do not currently
emphasize the importance of engineering Research & Development methods.
Alternatives: None.
Anticipated Cost and Benefits: ACL anticipates little to no cost
associated with this refinement of existing regulation. The benefits
include the potential for greater representation of people with
disabilities and other underrepresented populations among NIDILRR-
sponsored researchers. The regulation update also will incite grantees
of the NIDILRR Rehabilitation Engineering Research Centers program to
include engineering Research & Development methods in their funded
research projects.
Risks: NIDILRR is addressing significant risks that (1) The
research it sponsors may not address the needs and experiences of the
full diversity of people with disabilities, and (2) NIDILRR
Rehabilitation Engineering Research Centers are not optimally
emphasizing engineering R&D methods.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Richard Nicholls, Chief of Staff and Executive
Secretary, Department of Health and Human Services, Administration for
Community Living, 330 C Street SW, Room 1004B, Washington, DC 20201,
Phone: 202 795-7415, Fax: 202 205-0399, Email:
[email protected].
RIN: 0985-AA16
BILLING CODE 4150-03-P
DEPARTMENT OF HOMELAND SECURITY (DHS)
Fall 2021 Statement of Regulatory Priorities
The Department of Homeland Security (DHS or Department) was
established in 2003 pursuant to the Homeland Security Act of 2002,
Public Law 107-296. The DHS mission statement contains these words:
``With honor and integrity, we will safeguard the American people, our
homeland, and our values.''
DHS was created in the aftermath of the horrific attacks of 9/11,
and its distinctive mission is defined by that commitment. The phrase
``homeland security'' refers to the security of the American people,
the homeland (understood in the broadest sense), and the nation's
defining values. A central part of the mission of protecting ``our
values'' includes fidelity to law and the rule of law, reflected above
all in the Constitution of the United States, and also in statutes
enacted by Congress, including the Administrative Procedure Act. That
commitment is also associated
[[Page 5076]]
with a commitment to individual dignity. Among other things, the
attacks of 9/11 were attacks on that value as well.
The regulatory priorities of DHS are founded on insistence on the
rule of law--and also on a belief that individual dignity, symbolized
and made real by the opening words of the Constitution (``We the
People''), the separation of powers, and the Bill of Rights (including
the Due Process Clause), helps to define our mission.
Fulfilling that mission requires the dedication of more than
240,000 employees in jobs that range from aviation and border security
to emergency response, from cybersecurity analyst to chemical facility
inspector, from the economist seeking to identify the consequences of
our actions to the scientist and policy analyst seeking to make the
nation more resilient against flooding, drought, extreme heat, and
wildfires. Our duties are wide-ranging, but our goal is clear: Keep
America safe.
Six overarching homeland security missions make up DHS's strategic
plan: (1) Counter terrorism and homeland security threats; (2) secure
U.S. borders and approaches; (3) secure cyberspace and critical
infrastructure; (4) preserve and uphold the Nation's prosperity and
economic security; (5) strengthen preparedness and resilience
(including resilience from risks actually or potentially aggravated by
climate change); and (6) champion the DHS workforce and strengthen the
Department. See also 6 U.S.C. 111(b)(1) (identifying the primary
mission of the Department). In promoting these goals, we attempt to
evaluate our practices by reference to evidence and data, not by
hunches and guesswork, and to improve them in real time. We also
attempt to deliver our multiple services in a way that, at once,
protects the American people and does not impose excessive or
unjustified barriers and burdens on those who use them.
In achieving those goals, we are committed to public participation
and to listening carefully to the American people (and to noncitizens
as well). We are continually strengthening our partnerships with
communities, first responders, law enforcement, and Government
agencies--at the Federal, State, local, tribal, and international
levels. We are accelerating the deployment of science, technology, and
innovation in order to make America more secure against risks old and
new--and to perform our services better. We are becoming leaner,
smarter, and more efficient, ensuring that every security resource is
used as effectively as possible. For a further discussion of our
mission, see the DHS website at https://www.dhs.gov/mission.
The regulations we have summarized below in the Department's Fall
2021 Regulatory Plan and Agenda support the Department's mission. We
are committed to continuing evaluation of our regulations, consistent
with Executive Order 13563, and Executive Order 13707, and in a way
that improves them over time. These regulations will improve the
Department's ability to accomplish its mission. In addition, these
regulations respond to and implement legislative initiatives such as
those found in the Implementing Recommendations of the 9/11 Commission
Act of 2007 (9/11 Act), FAA Extension, Safety, and Security Act of
2016, and the Synthetics Trafficking and Overdose Prevention Act of
2018 (STOP Act). We emphasize here our commitments (1) To fidelity to
law; (2) to treating people with dignity and respect; (3) to increasing
national resilience against multiple risks and hazards, including those
actually or potentially associated with climate change; (4) to
modernization of existing requirements; and (5) to reducing unjustified
barriers and burdens, including administrative burdens.
DHS strives for organizational excellence and uses a centralized
and unified approach to managing its regulatory resources. The Office
of the General Counsel manages the Department's regulatory program,
including the agenda and regulatory plan. In addition, DHS senior
leadership reviews each significant regulatory project in order to
ensure that the project fosters and supports the Department's mission.
The Department is committed to ensuring that all of its regulatory
initiatives are aligned with its guiding principles to protect civil
rights and civil liberties, integrate our actions, listen to those
affected by our actions, build coalitions and partnerships, eliminate
unjustified burdens and barriers, develop human resources, innovate,
and be accountable to the American public.
DHS is strongly committed to the principles described in Executive
Orders 13563 and 12866 (as amended). Both Executive Orders direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits. Executive Order 13563 emphasizes
the importance of quantifying both costs and benefits, of reducing
costs, of harmonizing rules, and of promoting flexibility. Executive
Order 13563 explicitly draws attention to human dignity and to equity.
Finally, the Department values public involvement in the
development of its regulatory plan, agenda, and regulations. It is
particularly concerned with the impact its regulations have on small
businesses and startups, consistent with its commitment to promoting
economic growth. Consistent with President Biden's Executive Order on
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government (E.O. 13985). DHS is also concerned to ensure
that its regulations are equitable, and that they do not have
unintended or adverse effects on (for example) women, disabled people,
people of color, or the elderly. Its general effort to modernize
regulations, and to remove unjustified barriers and burdens, is meant
in part to avoid harmful effects on small businesses, startups, and
disadvantaged groups of multiple sorts. DHS and its components continue
to emphasize the use of plain language in our regulatory documents to
promote a better understanding of regulations and to promote increased
public participation in the Department's regulations. We want our
regulations to be transparent and ``navigable,'' so that people are
aware of how to comply with them (and in a position to suggest
improvements).
The Fall 2021 regulatory plan for DHS includes regulations from
multiple DHS components, including U.S. Citizenship and Immigration
Services (USCIS), the U.S. Coast Guard (the Coast Guard), U.S. Customs
and Border Protection (CBP), Transportation Security Administration
(TSA), the U.S. Immigration and Customs Enforcement (ICE), the Federal
Emergency Management Agency (FEMA), and the Cybersecurity and
Infrastructure Security Agency (CISA). We next describe the regulations
that comprise the DHS fall 2021 regulatory plan.
Federal Emergency Management Agency
The Federal Emergency Management Agency (FEMA) is the government
agency responsible for helping people before, during, and after
disasters. FEMA supports the people and communities of our Nation by
providing experience, perspective, and resources in emergency
management. FEMA is particularly focused on national resilience in the
face of the risks of flooding, drought, extreme heat, and wildfire; it
is acutely aware that these risks, and others, are actually or
potentially aggravated by climate change. FEMA seeks to ensure, to the
extent possible, that changing weather
[[Page 5077]]
conditions do not mean a more vulnerable nation. FEMA is also focused
on individual equity, and it is aware that administrative burdens and
undue complexity might produce inequitable results in practice.
Consistent with President Biden's Executive Order on Climate
Related Financial Risk (E.O. 14030), FEMA will propose a regulation
titled National Flood Insurance Program: Standard Flood Insurance
Policy, Homeowner Flood Form. The National Flood Insurance Program
(NFIP), established pursuant to the National Flood Insurance Act of
1968, is a voluntary program in which participating communities adopt
and enforce a set of minimum floodplain management requirements to
reduce future flood damages. This proposed rule would revise the
Standard Flood Insurance Policy by adding a new Homeowner Flood Form
and five accompanying endorsements. The new Homeowner Flood Form would
replace the Dwelling Form as a source of coverage for one-to-four
family residences. Together, the new Form and endorsements would more
closely align with property and casualty homeowners' insurance and
provide increased options and coverage in a more user-friendly and
comprehensible format.
FEMA will also propose a regulation titled Individual Assistance
Program Equity to further align with Executive Order 13895. Climate
change results in more frequent and/or intense extreme weather events
like severe storms, flooding and wildfires, disproportionately
impacting the most vulnerable in society. FEMA will propose to amend
its Individual Assistance (IA) regulations to increase equity and ease
of entry to the IA Program. To provide a full opportunity for
underserved communities to participate, FEMA will propose to amend
application of ``safe, sanitary, and functional'' for IA repair
assistance; re-evaluate the requirement to apply for a Small Business
Administration loan prior to receipt of Other Needs Assistance; add
eligibility criteria for its Serious Needs & Displacement Assistance;
amend its requirements for Continued Temporary Housing Assistance; re-
evaluate its approach to insurance proceeds; and amend its appeals
process. FEMA will also propose revisions to reflect changes to
statutory authority that have not yet been implemented in regulation,
to include provisions for utility and security deposit payments, lease
and repair of multi-family rental housing, childcare assistance, and
maximum assistance limits.
FEMA will issue a regulation titled Amendment to the Public
Assistance Program's Simplified Procedures Large Project Threshold. It
will revise its regulations governing the Public Assistance program to
update the monetary threshold at or below which FEMA will obligate
funding based on an estimate of project costs, and above which FEMA
will obligate funding based on actual project costs. This rule will
ensure FEMA and recipients can more efficiently process unobligated
Project Worksheets for COVID-19 declarations, which continue to fund
important pandemic-related work, while avoiding unnecessary confusion
and administrative burden by not affecting previous project size
determinations.
On October 12, 2021, FEMA issued a Request for Information to
receive the public's input on revising the NFIP's floodplain management
standards for land management and use regulations to better align with
the current understanding of flood risk and flood risk reduction
approaches, as directed by Executive Order 14030. FEMA seeks input on
the floodplain management standards that communities should adopt to
result in safer, stronger, and more resilient communities.
Additionally, FEMA seeks input on how the NFIP can better promote
protection of and minimize any adverse impact to threatened and
endangered species, and their habitats.
United States Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) is the government
agency that administers the nation's lawful immigration system,
safeguarding its integrity and promise by efficiently and fairly
adjudicating requests for immigration benefits while protecting
Americans, securing the homeland, and honoring our values. USCIS is
committed to taking the necessary steps to reduce barriers to legal
immigration, increase access to immigration benefits (consistent with
law), and reinvigorate the size and scope of humanitarian relief. In
the coming year, USCIS intends to pursue several regulatory actions
that support these goals while balancing our fiscal stability.
Asylum Reforms. This Administration is focused on pursuing
regulations to rebuild and streamline the asylum system, consistent
with President Biden's Executive Order on Creating a Comprehensive
Regional Framework to Address the Causes of Migration, to Manage
Migration Throughout North and Central America, and to Provide Safe and
Orderly Processing of Asylum Seekers at the United States Border (E.O.
14010). On August 20, 2021, DHS/USCIS and DOJ/Executive Office of
Immigration Review (EOIR) jointly proposed regulatory amendments that
aim to accelerate the adjudication process for individuals in expedited
removal proceedings who are seeking asylum, withholding of removal, or
protection under the Convention Against Torture. The current system in
place has resulted in unsustainable backlogs that span many years.
USCIS and EOIR will seek to issue a final rule that makes concrete and
lasting improvements in the processing of those cases after considering
public input received on the proposed rule. (Procedures for Credible
Fear Screening and Consideration of Asylum, Withholding of Removal, and
CAT Protection Claims by Asylum Officers). In addition, USCIS will
propose regulations to remove barriers to affirmative asylum claims,
while also proposing processing timeframes for initial application for
employment authorization applications filed by pending asylum
applicants that reflect the operational capabilities of USCIS.
(Rescission of ``Asylum Application, Interview, & Employment
Authorization'' Rule and Change to ``Removal of 30-Day Processing
Provision for Asylum Applicant Related Form I-765 Employment
Authorization''). USCIS and EOIR will also take steps to remove or
modify regulatory provisions that have created unnecessary hurdles in
the asylum system, many of which are currently enjoined by various
courts. (Bars to Asylum Eligibility and Procedures; Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review). Finally, USCIS and EOIR will jointly propose updates to their
regulations to clarify eligibility for asylum and withholding, and
better describe the circumstances in which a person should be
considered a member of a ``particular social group.'' (Asylum and
Withholding Definitions).
Review of the Public Charge of Inadmissibility Ground. On August
23, 2021, USCIS published an Advance Notice of Proposed Rulemaking
(ANPRM) to gather input from interested and impacted stakeholders on
how USCIS should implement the public charge ground of inadmissibility.
This action was the first step taken in response to President Biden's
Executive Order on Restoring Faith in Our Legal Immigration Systems and
Strengthening Integration and Inclusion Efforts for New Americans (E.O.
14012). USCIS will propose regulations to define the
[[Page 5078]]
term ``public charge'' and to identify considerations relevant to the
public charge inadmissibility determination, while recognizing that we
must continue to be a Nation of opportunity and of welcome, and that we
must provide due consideration to the confusion, fear, and negative
public health consequences that may result from public charge policies.
(Inadmissibility on Public Charge Grounds).
Deferred Action for Childhood Arrivals (DACA). On September 28,
2021, USCIS issued a proposed rule that establishes specified
guidelines for considering requests for deferred action submitted by
certain individuals who entered the United States many years ago as
children. The proposed rule invites public comments on a number of
issues relating to DACA, including issues identified in a recent
decision of the U.S. District Court for the Southern District of Texas
court regarding DHS's authority to maintain the DACA policy, and
possible alternatives. In keeping with President Biden's Presidential
Memorandum: Preserving and Fortifying Deferred Action for Childhood
Arrivals (DACA), USCIS will consider public comments and seek to
finalize the proposed rule in the coming months (Deferred Action for
Childhood Arrivals).
Improvements to the Overall Immigration System. After performing
the required biennial fee review, USCIS will propose adjustments to
certain immigration and naturalization benefit request fees to ensure
that fees recover full costs borne by the agency. In doing so, USCIS
will adhere to the ideals described in Executive Orders 14010 and 14012
of removing barriers and promoting access to the immigration system;
improving and expanding naturalization processing; and meeting the
administration's humanitarian priorities. (U.S. Citizenship and
Immigration Services Fee Schedule).
United States Coast Guard
The Coast Guard is a military, multi-mission, maritime service of
the United States and the only military organization within DHS. It is
the principal Federal agency responsible for maritime safety, security,
and stewardship in U.S. ports and waterways.
Effective governance in the maritime domain hinges upon an
integrated approach to safety, security, and stewardship. The Coast
Guard's policies and capabilities are integrated and interdependent,
delivering results through a network of enduring partnerships with
maritime stakeholders. Consistent standards of universal application
and enforcement, which encourage safe, efficient, and responsible
maritime commerce, are vital to the success of the maritime industry.
The Coast Guard's ability to field versatile capabilities and highly
trained personnel is one of the U.S. Government's most significant and
important strengths in the maritime environment.
America is a maritime nation, and our security, resilience, and
economic prosperity are intrinsically linked to the oceans. Safety,
efficient waterways, and freedom of transit on the high seas are
essential to our well-being. The Coast Guard is leaning forward, poised
to meet the demands of the modern maritime environment. The Coast Guard
creates value for the public through solid prevention and response
efforts. Activities involving oversight and regulation, enforcement,
maritime presence, and public and private partnership foster increased
maritime safety, security, and stewardship.
The statutory responsibilities of the Coast Guard include ensuring
marine safety and security, preserving maritime mobility, protecting
the marine environment, enforcing U.S. laws and international treaties,
and performing search and rescue. The Coast Guard supports the
Department's overarching goals of mobilizing and organizing our Nation
to secure the homeland from terrorist attacks, natural disasters, and
other emergencies. These goals include protection against the risks
associated with climate change, and the Coast Guard seeks to obtain
scientific information to assist in that task, while also acting to
promote resilience and adaptation.
The Coast Guard highlights the following regulatory actions:
Shipping Safety Fairways Along the Atlantic Coast. The Coast Guard
published an ANPRM on June 19, 2020. The Coast Guard is reviewing
comments to help develop a proposed rule that would establish shipping
safety fairways (fairways) along the Atlantic Coast of the United
States. Fairways are marked routes for vessel traffic. They facilitate
the direct and unobstructed transit of ships. The proposed fairways
will be based on studies about vessel traffic along the Atlantic Coast.
The Coast Guard is taking this action to ensure that obstruction-free
routes are preserved to and from U.S. ports and along the Atlantic
coast and to reduce the risk of collisions, allisions and grounding, as
well as alleviate the chance of increased time and expenses in transit.
Electronic Chart and Navigation Equipment Carriage Requirements.
The Coast Guard will seek comment on the modification of its chart and
navigational equipment regulations. We plan to publish an ANPRM that
outlines the Coast Guard's strategy to revise the chart and
navigational equipment requirements for all commercial U.S.-flagged
vessels and foreign-flagged vessels operating in the waters of the
United States to fulfill the electronic chart use requirements as
required by statute. Acceptable standards and capabilities need to be
clarified before paper charts are discontinued and replaced by digital
electronic navigation charts. The ANPRM should provide us with
information on how widely electronic charts are used, who is using
them, the appropriate equipment requirements for different vessel
classes, and where they operate. The public comments should better
enable us to tailor proposed electronic charts requirements to vessel
class and location.
MARPOL Annex VI; Prevention of Air Pollution from Ships. The Coast
Guard is proposing regulations to carry out the provisions of Annex VI
of the MARPOL Protocol, which is focused on the prevention of air
pollution from ships. The Act to Prevent Pollution from Ships has
already given direct effect to most provisions of Annex VI, and the
Coast Guard and the Environmental Protection Agency have carried out
some Annex VI provisions through previous rulemakings. This proposed
rulemaking would fill gaps in the existing framework for carrying out
the provisions of Annex VI. Chapter 4 of Annex VI contains shipboard
energy efficiency measures that include short-term measures reducing
carbon emissions linked to climate change and supports Administration
goals outlined in Executive Order 14008 titled Tackling the Climate
Crisis at Home and Abroad. This proposed rulemaking would apply to
U.S.-flagged ships. It would also apply to foreign-flagged ships
operating either in U.S. navigable waters or in the U.S. Exclusive
Economic Zone.
United States Customs and Border Protection
Customs and Border Protection (CBP) is the Federal agency
principally responsible for the security of our Nation's borders, both
at and between the ports of entry into the United States. CBP must
accomplish its border security and enforcement mission without stifling
the flow of legitimate trade and travel. The primary mission of CBP is
its homeland security mission, that is, to
[[Page 5079]]
prevent terrorists and terrorist weapons from entering the United
States. An important aspect of this mission involves improving security
at our borders and ports of entry, but it also means extending our zone
of security beyond our physical borders.
CBP is also responsible for administering laws concerning the
importation of goods into the United States and enforcing the laws
concerning the entry of persons into the United States. This includes
regulating and facilitating international trade; collecting import
duties; enforcing U.S. trade, immigration and other laws of the United
States at our borders; inspecting imports; overseeing the activities of
persons and businesses engaged in importing; enforcing the laws
concerning smuggling and trafficking in contraband; apprehending
individuals attempting to enter the United States illegally; protecting
our agriculture and economic interests from harmful pests and diseases;
servicing all people, vehicles, and cargo entering the United States;
maintaining export controls; and protecting U.S. businesses from theft
of their intellectual property.
In carrying out its mission, CBP's goal is to facilitate the
processing of legitimate trade and people efficiently without
compromising security. Consistent with its primary mission of homeland
security, CBP intends to issue several regulations that are intended to
improve security at our borders and ports of entry. During the upcoming
year, CBP will also work on various projects to streamline CBP
processing, reduce duplicative processes, reduce various burdens on the
public, and automate various paper forms. Below, CBP provides
highlights of certain planned actions for the coming fiscal year.
Implementation of the Electronic System for Travel Authorization
(ESTA) at U.S. Land Borders--Automation of CBP Form I-94W. CBP intends
to amend existing regulations to implement the ESTA requirements under
the Implementing Recommendations of the 9/11 Commission Act of 2007 for
noncitizens who intend to enter the United States under the Visa Waiver
Program (VWP) at land ports of entry. Currently, noncitizens from VWP
countries must provide certain biographic information to U.S. CBP
officers at land ports of entry on a paper form. Under this rule, these
VWP travelers would instead provide this information to CBP
electronically through ESTA prior to application for admission to the
United States. In addition to fulfilling a statutory mandate, this rule
will strengthen national security through enhanced traveler vetting,
will streamline the processing of visitors, will reduce inadmissible
traveler arrivals, and will save time for both travelers and the
government. (Note: There is no associated Regulatory Plan entry for
this rule because this rule is non-significant under Executive Order
12866. There is an entry, however, in the Unified Agenda.)
Automation of CBP Form I-418 for Vessels. CBP intends to amend
existing regulations regarding the submission of Form I-418, Passenger
List--Crew List. Currently, the master or agent of every commercial
vessel arriving in the United States, with limited exceptions, must
submit a paper Form I-418 to CBP at the port where immigration
inspection is performed. Most commercial vessel operators are also
required to submit a paper Form I-418 to CBP at the final U.S. port
prior to departing for a foreign port. Under this rule, most vessel
operators would be required to electronically submit the data elements
on Form I-418 to CBP through the National Vessel Movement Center in
lieu of submitting a paper form. This rule would eliminate the need to
file the paper Form I-418 in most cases. This rule is included in this
narrative because it reduces administrative and paperwork burdens on
the regulated public. (Note: There is no associated Regulatory Plan
entry for this rule because this rule is non-significant under
Executive Order 12866. There is an entry, however, in the Unified
Agenda.)
Advance Passenger Information System: Electronic Validation of
Travel Documents. CBP intends to amend current Advance Passenger
Information System (APIS) regulations to incorporate additional carrier
requirements that would further enable CBP to determine whether each
passenger is traveling with valid, authentic travel documents prior to
the passenger boarding the aircraft. The proposed regulation would
require commercial air carriers to receive a second message from CBP
that would state whether CBP matched the travel documents of each
passenger to a valid, authentic travel document recorded in CBP's
databases. The proposed regulation would also require air carriers to
transmit additional data elements regarding contact information through
APIS for all commercial aircraft passengers arriving in the United
States to support border operations and national security. CBP expects
that the collection of these elements would enable CBP to further
support the Center for Disease Control and Prevention's (CDC's) mission
in monitoring and tracing the contacts for persons involved in health
incidents (e.g., COVID-19). This action will result in time savings to
passengers and cost savings to CBP, carriers, and the public.
In addition to the regulations that CBP issues to promote DHS's
mission, CBP issues regulations related to the mission of the
Department of the Treasury. Under section 403(1) of the Homeland
Security Act of 2002, the former-U.S. Customs Service, including
functions of the Secretary of the Treasury relating thereto,
transferred to the Secretary of Homeland Security. As part of the
initial organization of DHS, the Customs Service inspection and trade
functions were combined with the immigration and agricultural
inspection functions and the Border Patrol and transferred into CBP.
The Department of the Treasury retained certain regulatory authority of
the U.S. Customs Service relating to customs revenue function. In the
coming year, CBP expects to continue to issue regulatory documents that
will facilitate legitimate trade and implement trade benefit programs.
For a discussion of CBP regulations regarding the customs revenue
function, see the regulatory plan of the Department of the Treasury.
Transportation Security Administration
The Transportation Security Administration (TSA) protects the
Nation's transportation systems to ensure freedom of movement for
people and commerce. TSA applies an intelligence-driven, risk-based
approach to all aspects of its mission. This approach results in layers
of security to mitigate risks effectively and efficiently. TSA seeks to
ensure ever-improving ``customer service'' so as to improve the
experience of the many millions of travelers whom it serves. In fiscal
year 2022, TSA is prioritizing the following actions that are required
to meet statutory mandates and that are necessary for national
security.
Vetting of Certain Surface Transportation Employees. TSA will
propose a rule that requires security threat assessments for security
coordinators and other frontline employees of certain public
transportation agencies (including rail mass transit and bus systems),
railroads (freight and passenger), and over-the-road bus owner/
operators. The NPRM will also propose provisions to implement TSA's
statutory requirement to recover its cost of vetting user fees. While
many stakeholders conduct background checks on their employees, their
actions are limited based upon the data they can access. Through this
rule,
[[Page 5080]]
TSA will be able to conduct a more thorough check against terrorist
watch-lists of individuals in security-sensitive positions.
Flight Training Security. In 2004, TSA published an Interim Final
Rule (IFR) that requires flight schools to notify TSA when noncitizens,
and other individuals designated by TSA, apply for flight training or
recurrent training. TSA subsequently issued exemptions and
interpretations in response to comments on the IFR, questions raised
during operation of the program since 2004, and a notice extending the
comment period on May 18, 2018. Based on the comments and questions
received, TSA is finalizing the rule with modifications. TSA is
considering modifications that would change the frequency of security
threat assessments from a high-frequency event-based interval to a
time-based interval, clarify the definitions and other provisions of
the rule, and enable industry to use TSA-provided electronic
recordkeeping systems for all documents required to demonstrate
compliance with the rule.
Indirect Air Carrier Security. Current regulations for Indirect Air
Carriers (IACs) require annual renewal of the IAC's security program
and prompt notification to TSA of any changes to operations related to
information previously provided to TSA. This rule will propose a three-
year renewal schedule, rather than annual renewal. This change will
align the security program renewal requirement with those applicable to
other regulated entities within the air cargo industry. These changes
will not have a negative impact on security as TSA will maintain the
requirement to notify the agency of changes to operations and will
continue its robust inspection and compliance program. TSA believes
this action will reduce burdens on an industry affected by the COVID-19
public health crisis and enhance the industry's ability to focus
limited human resources on the core tasks of moving air cargo.
Cybersecurity Requirements for Certain Surface Owner/Operators. On
July 28, 2021, the President issued the National Security Memorandum on
Improving Cybersecurity for Critical Infrastructure Control Systems.
Consistent with that Memorandum and in response to the ongoing
cybersecurity threat to pipeline systems, TSA issued security
directives to owners and operators of TSA-designated critical pipelines
that transport hazardous liquids and natural gas. The security
directives implement urgently needed protections against cyber
intrusions. The first directive, issued in May 2021, requires critical
owner/operators to (1) Report confirmed and potential cybersecurity
incidents to DHS's Cybersecurity and Infrastructure Security Agency
(CISA); (2) designate a Cybersecurity Coordinator to be available 24
hours a day, seven days a week; (3) review current cybersecurity
practices; and (4) identify any gaps and related remediation measures
to address cyber-related risks and report the results to TSA and CISA
within 30 days of issuance of the security directive. A second security
directive, issued in July 2021, requires these owners and operators to
(1) implement specific mitigation measures to protect against
ransomware attacks and other known threats to information technology
and operational technology systems; (2) develop and implement a
cybersecurity contingency and recovery plan; and (3) conduct a
cybersecurity architecture design review. TSA is committed to enhancing
and sustaining cybersecurity in transportation and intends to issue a
rulemaking to codify these and other requirements for certain surface
transportation owner-operators.
Amending Vetting Requirements for Employees with Access to a
Security Identification Display Area. The FAA Extension, Safety, and
Security Act of 2016 mandates that TSA consider modifications to the
list of disqualifying criminal offenses and criteria, develop a waiver
process for approving the issuance of credentials for unescorted
access, and propose an extension of the look back period for
disqualifying crimes. Based on these requirements, and current
intelligence pertaining to the ``insider threat,'' TSA is developing a
proposed rule. The rule would revise current vetting requirements to
enhance eligibility and disqualifying criminal offenses for individuals
seeking or having unescorted access to any Security Identification
Display Area of an airport.
United States Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement (ICE) is the principal
criminal investigative arm of DHS and one of the three Department
components charged with the criminal and civil enforcement of the
Nation's immigration laws. Its primary mission is to protect national
security, public safety, and the integrity of our borders through the
criminal and civil enforcement of Federal law governing border control,
customs, trade, and immigration. During the coming fiscal year, ICE
will focus rulemaking efforts on regulations pertaining to adjusting
fees, including the rule mentioned below.
Fee Adjustment for U.S. Immigration and Customs Enforcement Form I-
246, Application for a Stay of Deportation or Removal. ICE will propose
a rule that would adjust the fee for adjudicating and handling Form I-
246, Application for a Stay of Deportation or Removal. The Form I-246
fee was last adjusted in 1989. After a comprehensive fee review, ICE
has determined that the current Form I-246 fee does not recover the
full costs of processing and adjudicating Form I-246. The rule will
also clarify the availability of Form I-246 fee waivers.
Cybersecurity and Infrastructure Security Agency
The Cybersecurity and Infrastructure Security Agency (CISA) is
responsible for leading the national effort to develop cybersecurity
and critical infrastructure security programs, operations, and
associated policy to enhance the security and resilience of physical
and cyber infrastructure.
Ammonium Nitrate Security Program. This rule implements a 2007
amendment to the Homeland Security Act. The amendment requires DHS to
``regulate the sale and transfer of ammonium nitrate facility . . . to
prevent the misappropriation or use of ammonium nitrate in an act of
terrorism.'' CISA published a Notice of Proposed Rulemaking in 2011.
CISA is planning to issue a Supplemental Notice of Proposed Rulemaking.
A more detailed description of the priority regulations that
comprise the DHS regulatory plan follows.
DHS--U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
Proposed Rule Stage
76. Procedures for Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Review
Priority: Other Significant.
Legal Authority: 8 U.S.C. 1158; 8 U.S.C. 1225; 8 U.S.C. 1231 and
1231 (note)
CFR Citation: 8 CFR 235; 8 CFR 208; 8 CFR 1208.
Legal Deadline: None.
Abstract: On December 11, 2020, the Department of Justice and the
Department of Homeland Security (collectively, ``the Departments'')
published a final rule titled Procedures for Asylum and Withholding of
Removal; Credible Fear and Reasonable Fear Review (RINs 1125-AA94 and
1615-AC42) to amend the regulations governing credible fear
determinations so that individuals found to have such
[[Page 5081]]
a fear will have their claims for asylum, withholding of removal under
section 241(b)(3) of the Immigration and Nationality Act (``INA'' or
``the Act'') (``statutory withholding of removal''), or protection
under the regulations issued pursuant to the legislation implementing
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT''), adjudicated by an immigration judge
within the Executive Office for Immigration Review (``EOIR'') in
separate proceedings (rather than in proceedings under section 240 of
the Act), and to specify what standard of review applies in such
proceedings. The final rule amended the regulations regarding asylum,
statutory withholding of removal, and withholding and deferral of
removal under the CAT regulations. The final rule also made changes to
the standards for adjudication of applications for asylum and statutory
withholding. The Departments are planning to rescind or modify the
December 2020 rule, in several rulemaking efforts. The Departments have
proposed to rescind certain portions of the final rule (including
regulations related to credible fear screenings) as part of the
rulemaking action described in RIN 1615-AC67.The Departments will also
propose to rescind or modify the remaining portions of the December
2020 rule under this RIN, 1615-AC42.
Statement of Need: The Departments are reviewing the regulatory
changes made in the final rule in light of the issuance of Executive
Order 14010 and Executive Order 14012. This rule is needed to ensure
that the regulations align with the goals and principles outlined in
Executive Order 14010 and Executive Order 14012.
Anticipated Cost and Benefits: DHS is still currently considering
the specific cost and benefit impacts associated with the proposal to
rescind or modify the December 2020 rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/15/20 85 FR 36264
NPRM Comment Period End............. 07/15/20 .......................
Final Rule.......................... 12/11/20 85 FR 80274
Final Rule; Correction.............. 01/11/21 86 FR 1737
Final Rule Effective................ 01/11/21 .......................
Second NPRM......................... 08/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Andria Strano, Chief, Humanitarian Affairs
Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
Related RIN: Related to 1125-AA94, Related to 1125-AB14, Related to
1615-AC65.
RIN: 1615-AC42
DHS--USCIS
77. Deferred Action for Childhood Arrivals
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 6 U.S.C. 101 et seq.; 8 U.S.C. 1101 et seq.
CFR Citation: 8 CFR 106; 8 CFR 236; 8 CFR 274a.
Legal Deadline: None.
Abstract: On June 15, 2012, the DHS established the DACA policy.
The policy directed USCIS to create a process to defer removal of
certain noncitizens who years earlier came to the United States as
children, meet other criteria, and do not present other circumstances
that would warrant removal. On January 20, 2021, President Biden
directed DHS, to take all appropriate actions to preserve and fortify
DACA, consistent with applicable law. On July 16, 2021, the U.S.
District Court for the Southern District of Texas vacated the June 2012
Memorandum that created the DACA policy and permanently enjoined DHS
from ``administering the DACA program and from reimplementing DACA
without compliance with the APA.'' However, the district court
temporarily stayed its vacatur and injunction with respect to most
individuals granted deferred action under DACA on or before July 16,
2021, including with respect to their renewal requests. The district
court's vacatur and injunction were based, in part, on its conclusion
that the June 2012 Memorandum announced a legislative rule that
required notice-and-comment rulemaking. The district court further
remanded the DACA policy to DHS for further consideration. DHS has
announced its intent to appeal the district court's decision.
Consistent with the Presidential Memorandum, DHS intends to engage in
notice- and-comment rulemaking to consider all issues regarding DACA,
including those identified by the district court relating to the
policy's substantive legality.
Statement of Need: The Secretary proposes in this rule to establish
specified guidelines for considering requests for deferred action
submitted by certain individuals who entered the United States many
years ago as children. This proposed rule will also address the
availability of employment authorization for persons who receive
deferred action under the rule, as well as the issue of lawful
presence. The Secretary will invite public comments on a number of
issues relating to DACA, including issues identified by the district
court regarding the authority of DHS to maintain the DACA policy, and
possible alternatives.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/28/21 86 FR 53736
NPRM Comment Period End............. 11/29/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Andria Strano, Chief, Humanitarian Affairs
Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
RIN: 1615-AC64
DHS--USCIS
78. Asylum and Withholding Definitions
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 8 U.S.C. 1101(a)(42); 8 U.S.C. 1158; 8 U.S.C.
1225; 8 U.S.C. 1231 and 1231 (note); E.O. 14010; 86 FR 8267 (Feb. 2,
2021)
CFR Citation: 8 CFR 2; 8 CFR 208; 8 CFR 1208.
Legal Deadline: None.
Abstract: This rule proposes to amend Department of Homeland
Security (DHS) and Department of Justice (DOJ) regulations that govern
eligibility for asylum and withholding of removal. The amendments focus
on portions of the regulations that deal with the definitions of
membership in a particular social group, the requirements for failure
of State
[[Page 5082]]
protection, and determinations about whether persecution is on account
of a protected ground. This rule is consistent with Executive Order
14010 of February 2, 2021, which directs the Departments to, within 270
days, promulgate joint regulations, consistent with applicable law,
addressing the circumstances in which a person should be considered a
member of a particular social group.
Statement of Need: This rule provides guidance on a number of key
interpretive issues of the refugee definition used by adjudicators
deciding asylum and withholding of removal (withholding) claims. The
interpretive issues include whether persecution is inflicted on account
of a protected ground, the requirements for establishing the failure of
State protection, and the parameters for defining membership in a
particular social group. This rule will aid in the adjudication of
claims made by applicants whose claims fall outside of the rubric of
the protected grounds of race, religion, nationality, or political
opinion. One example of such claims which often fall within the
particular social group ground concerns people who have suffered or
fear domestic violence. This rule is expected to consolidate issues
raised in a proposed rule in 2000 and to address issues that have
developed since the publication of the proposed rule. This rule should
provide greater stability and clarity in this important area of the
law. This rule will also provide guidance to the following
adjudicators: USCIS asylum officers, Department of Justice Executive
Office for Immigration Review (EOIR) immigration judges, and members of
the EOIR Board of Immigration Appeals (BIA).
Furthermore, on February 2, 2021, President Biden issued Executive
Order 14010 that directs DOJ and DHS within 270 days of the date of
this order, [to] promulgate joint regulations, consistent with
applicable law, addressing the circumstances in which a person should
be considered a member of a `particular social group,' as that term is
used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol.
Summary of Legal Basis: The purpose of this rule is to provide
guidance on certain issues that have arisen in the context of asylum
and withholding adjudications. The 1951 Geneva Convention relating to
the Status of Refugees contains the internationally accepted definition
of a refugee. United States immigration law incorporates an almost
identical definition of a refugee as a person outside his or her
country of origin ``who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.'' Section 101(a)(42) of
the Immigration and Nationality Act.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Ronald W. Whitney, Deputy Chief, Refugee and Asylum
Law Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Chief Counsel, 20 Massachusetts Avenue
NW, Washington, DC 20529, Phone: 415 293-1244, Fax: 415 293-1269,
Email: [email protected].
Related RIN: Related to 1615-AC42, Related to 1125-AB13, Related to
1125-AA94.
RIN: 1615-AC65
DHS--USCIS
79. Rescission of ``Asylum Application, Interview, & Employment
Authorization'' Rule and Change to ``Removal of 30 Day Processing
Provision for Asylum Applicant Related Form I-765 Employment
Authorization''
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 8 U.S.C. 1158(d)(2); 8 U.S.C. 1101 and 1103 ; Pub.
L. 103-322; 8 U.S.C. 1105a; 8 U.S.C. 1151, 1153 and 1154; 8 U.S.C.
1182; 8 U.S.C. 1186a; 8 U.S.C. 1255; Pub. L. 113-4; 5 U.S.C. 801
CFR Citation: 8 CFR 208.3; 8 CFR 208.4; 8 CFR 208.7; 8 CFR 208.9; 8
CFR 208.10; 8 CFR 274a.12; 8 CFR 274a.13; 8 CFR 274a.14.
Legal Deadline: None.
Abstract: DHS plans to issue a notice of proposed rulemaking that
would rescind or substantively revise two final rules related to
employment authorization for asylum applicants. On August 25, 2020, the
Department of Homeland Security (DHS) published a final rule that
modified DHS's regulations governing asylum applications, interviews,
and eligibility for employment authorization based on a pending asylum
application. (85 FR 38532). On August 21, 2020, the Department of
Homeland Security (DHS) published a final rule that removed a
Department of Homeland Security (DHS) regulatory provision stating that
U.S. Citizenship and Immigration Services (USCIS) has 30 days from the
date an asylum applicant files the initial Form I-765, Application for
Employment Authorization, to grant or deny that initial employment
authorization application. (85 FR 37502).
Statement of Need: The proposed change is intended to help ensure
the eligibility requirements for employment authorization for asylum
applicants and processing times established in the DHS regulations are
reasonable.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Andria Strano, Chief, Humanitarian Affairs
Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
Related RIN: Related to 1615-AC19, Related to 1615-AC27.
RIN: 1615-AC66
DHS--USCIS
80. U.S. Citizenship and Immigration Services Fee Schedule
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 8 U.S.C. 1356(m), (n)
CFR Citation: 8 CFR 103; 8 CFR 106.
Legal Deadline: None.
Abstract: DHS will propose to adjust the fees charged by U.S.
Citizenship and Immigration Services (USCIS) for
[[Page 5083]]
immigration and naturalization benefit requests. On August 3, 2020, DHS
adjusted the fees USCIS charges for immigration and naturalization
benefit requests, imposed new fees, revised certain fee waiver and
exemption policies, and changed certain application requirements via
the rule ``USCIS Fee Schedule & Changes to Certain Other Immigration
Benefit Request Requirements.'' DHS has been preliminarily enjoined
from implementing that rule by court order. This rule would rescind and
replace the changes made by the August 3, 2020, rule and establish new
USCIS fees to recover USCIS operating costs.
Statement of Need: USCIS projects that its costs of providing
immigration adjudication and naturalization services will exceed the
financial resources available to it under its existing fee structure.
DHS proposes to adjust the USCIS fee structure to ensure that USCIS
recovers the costs of meeting its operational requirements.
The CFO Act requires each agency's chief financial officer to
``review, on a biennial basis, the fees, royalties, rents, and other
charges imposed by the agency for services and things of value it
provides, and make recommendations on revising those charges to reflect
costs incurred by it in providing those services and things of value.''
Summary of Legal Basis: INA 286(m) and (n), 8 U.S.C. 1356(m) and
(n) authorize the Attorney General and Secretary of Homeland Security
to recover the full cost of providing immigration adjudication and
naturalization services by establishing and collecting fees deposited
into the Immigration Examinations Fee Account.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: None.
Agency Contact: Kika M. Scott, Chief Financial Officer, Department
of Homeland Security, U.S. Citizenship and Immigration Services, 5900
Capital Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone:
202 721-3000.
RIN: 1615-AC68
DHS--USCIS
81. Bars to Asylum Eligibility and Procedures
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Homeland Security Act of 2002, Pub. L. 107-296,
116 Stat. 2135, sec. 1102, as amended; 8 U.S.C. 1103(a)(1); 8 U.S.C.
1103(a)(3); 8 U.S.C. 1103(g); 8 U.S.C. 1225(b); 8 U.S.C. 1231(b)(3) and
1231 (note); 8 U.S.C. 1158
CFR Citation: 8 CFR 208; 8 CFR 235; 8 CFR 1003; 8 CFR 1208; 8 CFR
1235.
Legal Deadline: None.
Abstract: In 2020, the Department of Homeland Security and
Department of Justice (collectively, the Departments) published final
rules amending their respective regulations governing bars to asylum
eligibility and procedures, including the Procedures for Asylum and
Bars to Asylum Eligibility, (RINs 1125-AA87 and 1615-AC41), 85 FR 67202
(Oct. 21, 2020), Asylum Eligibility and Procedural Modifications, (RINs
1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17, 2020) and Security Bars
and Processing, (RINs 1125-AB08 and 1615-AC57), 85 FR 84160, (Dec. 23,
2020) final rules. The Departments propose to modify or rescind the
regulatory changes promulgated in these three final rules consistent
with Executive Order 14010 (Feb. 2, 2021).
Statement of Need: The Departments are reviewing these regulations
in light of the issuance of Executive Order 14010 and Executive Order
14012. This rule is needed to restore and strengthen the asylum system
and to address inconsistencies with the goals and principles outlined
in the Executive Order 14010 and Executive Order 14012.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Andria Strano, Chief, Humanitarian Affairs
Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
Related RIN: Related to 1125-AA87, Split from 1615-AC41, Related to
1125-AA91, Related to 1615-AC44, Related to 1125-AB08, Related to 1615-
AC57.
RIN: 1615-AC69
DHS--USCIS
82. Inadmissibility on Public Charge Grounds
Priority: Other Significant.
Legal Authority: 6 U.S.C. 101 et seq.; 8 U.S.C. 1101 et seq.
CFR Citation: 8 CFR 212; 8 CFR 245; . . .
Legal Deadline: None.
Abstract: Section 4 of Executive Order 14012 of February 2, 2021
(86 FR 8277) directed DHS and other federal agencies to immediately
review agency actions related to the public charge grounds of
inadmissibility and deportability for noncitizens at sections 212(a)(4)
and 237(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C.
1182(a)(4), 1227(a)(5)).
DHS intends to proceed with rulemaking to define the term public
charge and identify considerations relevant to the public charge
inadmissibility determination. DHS will conduct the rulemaking
consistent with section 212(a)(4) of the INA and consistent with the
principles described in Executive Order 14012. Such principles include
recognizing our character as a Nation of opportunity and of welcome and
of providing due consideration to the confusion, fear, and negative
public health consequences that may result from public charge policies.
Consistent with section 6 of Executive Order 12866 (58 FR 51735)
and section 2 of Executive Order 13563 (76 FR 3821), and in
consideration of the significant public interest in this rulemaking
proceeding, DHS published an advance notice of proposed rulemaking and
notice of virtual public listening sessions on August 23, 2021. There
is a 60-day public comment period and the listening sessions are
scheduled for September 14 and October 5, 2021.
Statement of Need: DHS published an advance notice of proposed
rulemaking seeking broad public feedback on the public charge ground of
inadmissibility to inform DHS's development of a future regulatory
proposal. DHS intends to use this feedback to develop a proposed rule
that will be fully consistent with law; that will reflect empirical
evidence to the extent relevant and available; that will be clear,
fair, and comprehensible for officers as well as for noncitizens
[[Page 5084]]
and their families; that will lead to fair and consistent adjudications
and thus avoid unequal treatment of the similarly situated; and that
will not otherwise unduly impose barriers on noncitizens seeking
admission to or adjustment of status in the United States. DHS also
intends to ensure that its regulatory proposal does not cause undue
fear among immigrant communities or present other obstacles to
immigrants and their families accessing public services available to
them, particularly in light of the COVID-19 pandemic and the resulting
long-term public health and economic impacts in the United States.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 08/23/21 86 FR 47025
ANPRM Comment Period End............ 10/22/21 .......................
NPRM................................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Mark Phillips, Residence and Naturalization
Division Chief, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
RIN: 1615-AC74
DHS--USCIS
Final Rule Stage
83. Procedures for Credible Fear Screening and Consideration of Asylum,
Withholding of Removal and Cat Protection Claims by Asylum Officers
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: INA sec. 103(a)(1); INA sec. 103(a)(3); 8 U.S.C.
1103(a)(1); 8 U.S.C. 1103(a)(3); INA sec. 235(b)(1)(B); 8 U.S.C.
1225(b)(1)(B); The Refugee Act of 1980 (``Refugee Act'') (Pub. L. 96-
212, 94 Stat. 102)
CFR Citation: 8 CFR 208; 8 CFR 235; 8 CFR 1003; 8 CFR 1208; 8 CFR
1235.
Legal Deadline: None.
Abstract: On August 20, 2021 the Department of Justice (DOJ) and
the Department of Homeland Security (DHS) (collectively, the
Departments) published a Notice of Proposed Rulemaking (NPRM) to amend
the regulations governing the determination of certain protection
claims raised by individuals subject to expedited removal and found to
have a credible fear of persecution or torture. Under the proposed
rule, such individuals would have their claims for asylum, withholding
of removal under section 241(b)(3) of the Immigration and Nationality
Act (INA or the Act) (statutory withholding of removal), or protection
under the regulations issued pursuant to the legislation implementing
U.S. obligations under Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
initially adjudicated by an asylum officer within U.S. Citizenship and
Immigration Services (USCIS). Such individuals who are denied
protection would be able to seek prompt, de novo review with an
immigration judge (IJ) in the DOJ Executive Office for Immigration
Review (EOIR), with appeal available to the Board of Immigration
Appeals (BIA). These changes are intended to improve the Departments'
ability to consider the asylum claims of individuals encountered at or
near the border more promptly while ensuring fundamental fairness.
In conjunction with the above changes, the Departments are
proposing to return the regulatory framework governing the credible
fear screening process so as to once more apply the longstanding
``significant possibility'' screening standard to all protection
claims, but not apply the mandatory bars to asylum and withholding of
removal (with limited exception) at this initial screening stage. The
Departments also propose that, if an asylum officer makes a positive
credible fear determination, the documentation the USCIS asylum officer
creates from the individual's sworn testimony during the credible fear
screening process would serve as an initial asylum application, thereby
improving efficiency in the asylum adjudication system. Lastly, the
Departments are proposing to allow, when detention is unavailable or
impracticable, for the consideration of parole prior to a positive
credible fear determination of an individual placed into expedited
removal who makes a fear claim. The Departments are reviewing the
public comments received and plan to issue a final rule.
Statement of Need: There is wide agreement that the system for
dealing with asylum and related protection claims at the southwest
border has long been overwhelmed and in desperate need of repair. As
the number of such claims has skyrocketed over the years, the system
has proven unable to keep pace, resulting in large backlogs and lengthy
adjudication delays. A system that takes years to reach a result delays
justice and certainty for those who need protection, and it encourages
abuse by those who will not qualify for protection and smugglers who
exploit the delay for profit. The aim of this rule is to begin
replacing the current system, within the confines of the law, with a
better and more efficient one that will adjudicate protection claims
fairly and expeditiously.
Anticipated Cost and Benefits: DHS estimated the resource cost
needed to implement and operationalize the rule along a range of
possible future credible fear volumes. The average annualized costs
could range from $179.5 million to $995.8 million at a 7 percent
discount rate. At a 7 percent discount factor, the total ten-year costs
could range from $1.3 billion to $7.0 billion, with a midrange of $3.2
billion.
There could also be cost-savings related to Forms I-589 and I-765
filing volume changes. In addition, some asylum applicants may realize
potential early labor earnings, which could constitute a transfer from
workers in the U.S. labor force to certain asylum applicants, as well
as tax impacts. Qualitative benefits include, but may not be limited
to: (i) Beneficiaries of new parole standards may not have to wait
lengthy times for a decision on whether their asylum claims will
receive further consideration; (ii) some individuals could benefit from
de novo review by an IJ of the asylum officer's denial of their asylum;
(iii) DOJ-EOIR may focus efforts on other priority work and reduce its
substantial current backlog; (iv) as some applicants may be able to
earn income earlier than they otherwise could currently, burdens to the
support network of the applicant may be lessened.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/20/21 86 FR 46906
NPRM Correction..................... 10/18/21 86 FR 57611
NPRM Comment Period End............. 10/19/21
Final Action........................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
International Impacts: This regulatory action will be likely to
have
[[Page 5085]]
international trade and investment effects, or otherwise be of
international interest.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Andria Strano, Chief, Humanitarian Affairs
Division, Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
Related RIN: Related to 1125-AB20.
RIN: 1615-AC67
DHS--U.S. COAST GUARD (USCG)
Prerule Stage
84. Electronic Chart and Navigation Equipment Carriage
Requirements
Priority: Other Significant.
Legal Authority: 46 U.S.C. 3105
CFR Citation: 33 CFR 164 ; 46 CFR 25 and 26 ; 46 CFR 28; 46 CFR 32;
46 CFR 35; 46 CFR 77 and 78; 46 CFR 96 and 97; 46 CFR 108 and 109; 46
CFR 121; 46 CFR 130; 46 CFR 140; 46 CFR 167; 46 CFR 169; 46 CFR 184; 46
CFR 195 and 196.
Legal Deadline: None.
Abstract: The Coast Guard seeks comments regarding the modification
of the chart and navigational equipment requirements in titles 33 and
46 of the Code of Federal Regulations. This advance notice of proposed
rulemaking (ANPRM) outlines the Coast Guard's broad strategy to revise
the chart and navigational equipment requirements for all commercial
U.S.-flagged vessels and foreign-flagged vessels operating in the
waters of the United States to fulfill the electronic chart use
requirements as required by statute. This ANPRM is necessary to obtain
additional information from the public before issuing a notice of
proposed rulemaking. It will allow us to verify the extent of the
requirements for the rule, such as how widely electronic charts are
used, who is using them, the appropriate equipment requirements for
different vessel classes, and where they operate, allowing us to tailor
electronic charts requirements to vessel class and location.
Statement of Need: In this ANPRM, we are seeking information on how
widely electronic charts are used, which types of vessels are using
them, and where the vessels operate, as well as views on the
appropriate equipment requirements for different vessel classes.
Issuing this ANPRM to obtain information from the public before
drafting a proposed rule should enable us to issue a proposed rule that
better tailors electronic charts requirements to vessel class and
location.
Alternatives: The Coast Guard will use the information solicited
from the ANPRM to shape regulatory language and alternatives.
Anticipated Cost and Benefits: The Coast Guard will use the ANPRM
to solicit public input to help develop estimates of the costs and
benefits of any proposed regulation.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information: Docket number USCG-2021-0291.
Agency Contact: John Stone, Program Manager, Department of Homeland
Security, U.S. Coast Guard, Office of Navigation Systems (CG-NAV), 2703
Martin Luther King Jr. Avenue SE, STOP 7418, Washington, DC 20593-7418,
Phone: 202 372-1093, Email: [email protected].
RIN: 1625-AC74
DHS--USCG
Proposed Rule Stage
85. Shipping Safety Fairways Along the Atlantic Coast
Priority: Other Significant.
Legal Authority: 46 U.S.C. 70003
CFR Citation: 33 CFR 166.
Legal Deadline: None.
Abstract: The Coast Guard seeks comments regarding the possible
establishment of shipping safety fairways (fairways) along the Atlantic
Coast of the United States. Fairways are marked routes for vessel
traffic in which any obstructions are prohibited. The proposed fairways
are based on two studies about vessel traffic along the Atlantic Coast.
The Coast Guard is coordinating this action with the Bureau of Offshore
Energy Management (BOEM) to minimize the impact on potential offshore
energy leases.
Statement of Need: This rulemaking would establish shipping safety
fairways along the Atlantic coast of the United States to facilitate
the direct and unobstructed transits of ships. The establishment of
fairways would ensure that obstruction-free routes are preserved to and
from U.S. ports and along the Atlantic coast. This will reduce the risk
of collision, allision and grounding, as well as alleviate the chance
of increased time and expenses in transit.
Summary of Legal Basis: Section 70003 of title 46 United States
Code (46 U.S.C. 70003) directs the Secretary of the department in which
the Coast Guard resides to designate necessary fairways that provide
safe access routes for vessels proceeding to and from U.S. ports.
Alternatives: The ANPRM outlined the Coast Guard's plans for
fairways along the Atlantic Coast and requested information and data
associated with the regulatory concepts. The Coast Guard will use this
information and data to shape regulatory language and alternatives and
assess the associated impacts in the NPRM.
Anticipated Cost and Benefits: The fairways are intended to
preserve traditional vessel navigation routes and are not mandatory.
The Coast Guard anticipates the proposed fairways to improve
navigational safety.
Risks: The Bureau of Ocean Energy Management (BOEM) is leasing
offshore areas that could affect customary shipping routes. Expeditious
pursuit of this rulemaking is intended to prevent conflict between
customary shipping routes and areas that may be leased by BOEM.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 06/19/20 85 FR 37034
ANPRM Comment Period End............ 08/18/20
NPRM................................ 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information: Docket number USCG-2019-0279.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: John Stone, Program Manager, Department of Homeland
Security, U.S. Coast Guard, Office of Navigation Systems (CG-NAV), 2703
Martin Luther King Jr. Avenue SE, STOP 7418, Washington, DC 20593-7418,
Phone: 202 372-1093, Email: [email protected].
RIN: 1625-AC57
[[Page 5086]]
DHS--USCG
86. Marpol Annex VI; Prevention of Air Pollution From Ships
Priority: Other Significant.
Legal Authority: 33 U.S.C. 1903
CFR Citation: 33 CFR 151.
Legal Deadline: None.
Abstract: The Coast Guard is proposing regulations to carry out the
provisions of Annex VI of the MARPOL Protocol, which is focused on the
prevention of air pollution from ships. The Act to Prevent Pollution
from Ships has already given direct effect to most provisions of Annex
VI, and the Coast Guard and the Environmental Protection Agency have
carried out some Annex VI provisions through previous rulemakings. This
proposed rulemaking would fill gaps in the existing framework for
carrying out the provisions of Annex VI. Chapter 4 of Annex VI contains
shipboard energy efficiency measures that include short-term measures
reducing carbon emissions linked to climate change and supports
Administration goals outlined in Executive Order 14008 titled Tackling
the Climate Crisis at Home and Abroad. This proposed rulemaking would
apply to U.S.-flagged ships. It would also apply to foreign-flagged
ships operating either in U.S. navigable waters or in the U.S.
Exclusive Economic Zone.
Statement of Need: The Coast Guard is proposing regulations to
carry out the provisions of Annex VI of the MARPOL Protocol, which is
focused on the prevention of air pollution from ships. The Act to
Prevent Pollution from Ships has already given direct effect to most
provisions of Annex VI, and the Coast Guard and the Environmental
Protection Agency have carried out some Annex VI provisions through
previous rulemakings. This proposed rule would fill gaps in the
existing framework for carrying out the provisions of Annex VI and
explain how the United States has chosen to carry out certain
discretionary aspects of Annex VI. This proposed rule would apply to
U.S.-flagged ships. And it would also apply to foreign-flagged ships
operating in U.S. navigable waters or in the U.S. Exclusive Economic
Zone.
Summary of Legal Basis: Section 4 of the Act to Prevent Pollution
from Ships (Pub. L. 96-478, Oct. 21, 1980, 94 Stat 2297), as reflected
in 33 U.S.C. 1903, directs the Secretary of Homeland Security to
prescribe any necessary or desired regulations to carry out the
provisions of the MARPOL Protocol. The ``MARPOL Protocol'' is defined
in 33 U.S.C. 1901 and includes Annex VI of the International Convention
for the Prevention of Pollution from Ships, 1973.
Alternatives:
Alternative 1--No Action. USCG considered taking no action, but 33
U.S.C. 1903 (c)(1) directs the DHS Secretary to prescribe any
regulations necessary to implement Annex VI. We have determined that it
is necessary for the Coast Guard to issue regulations to implement
Annex VI. Therefore, if we take no action, the Coast Guard having been
delegated this rulemaking authority from the DHS Secretary would not
fulfill its mandate from Congress to implement Annex VI.
Alternative 2--USCG considered not pursuing a rulemaking and
allowing the Annex VI International Air Pollution Prevention (IAPP)
certificate provision (Regulation 6) to be a mechanism to ensure
compliance with Annex VI. We did not follow this alternative because
not all ships subject to Annex VI would be required to obtain an IAPP
certificate.
Alternative 3--USCG considered issuing only regulations that were
required to explain how the United States planned to exercise its
discretion under Annex VI, but we determined that additional
regulations were necessary to clarify how we would be implementing
Annex VI. The intent of these clarifying regulations (e.g., how will a
vessel that does not have a GT ITC measurement know if it will be
subject to surveys under Regulation 5.1) is not to impose any
additional burden--for it is APPS that requires compliance with Annex
VI, but to make implementation of Annex VI more effective, efficient,
and transparent.
Anticipated Cost and Benefits: USCG anticipates the costs for the
proposed rule to come primarily from additional labor for 5
requirements including overseeing surveys; developing and maintaining a
fuel-switching procedure; recording various data during each fuel
switching; developing and managing a Volatile organic compounds (VOC)
management plan; crew member to calculate and report the attained
Energy Efficient Design Index (EEDI) of the vessel, and crew member to
develop and maintain the Ship Energy Efficiency Management Plan
(SEEMP). USCG estimates that the requirement will total approximately
$2 million over a ten year period.
USCG expects the proposed rule to have unquantified benefits from
reduction in fatalities and injuries due to pollutant in engine
emissions, and also reduced risk of retaliation due to breaching
international agreement.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Federalism: Undetermined.
Agency Contact: Frank Strom, Chief, Systems Engineering Division
(CG-ENG-3), Department of Homeland Security, U.S. Coast Guard, Office
of Design and Engineering Standards, 2703 Martin Luther King Jr. Avenue
SE, Washington, DC 20593, Phone: 202 372-1375, Email:
[email protected].
RIN: 1625-AC78
DHS--U.S. CUSTOMS AND BORDER PROTECTION (USCBP)
Proposed Rule Stage
87. Advance Passenger Information System: Electronic Validation of
Travel Documents
Priority: Other Significant.
Legal Authority: 49 U.S.C. 44909; 8 U.S.C. 1221
CFR Citation: 19 CFR 122.
Legal Deadline: None.
Abstract: U.S. Customs and Border Protection (CBP) regulations
require commercial air carriers to electronically transmit passenger
information to CBP's Advance Passenger Information System (APIS) prior
to an aircraft's arrival in or departure from the United States. CBP
proposes to amend these regulations to incorporate additional carrier
requirements that will enable CBP to validate each passenger's travel
documents prior to the passenger boarding the aircraft. This proposed
rule would also require air carriers to transmit additional data
elements through APIS for all commercial aircraft passengers arriving
in the United States in order to support border operations and national
security. The collection of additional data elements will support the
efforts of the Centers for Disease Control, within the Department of
Health and Human Services, to monitor and contract-trace health
incidents.
Statement of Need: Current regulations require U.S. citizens and
foreign travelers entering and leaving the United States via air travel
to submit travel documents containing biographical information, such as
a passenger's name and date of birth. For security purposes, CBP
compares the information on passengers' documents to various databases
and the terrorist watch list through APIS and recommends that air
carriers deny boarding to those deemed inadmissible.
[[Page 5087]]
To further improve CBP's vetting processes with respect to identifying
and preventing passengers with fraudulent or improper documents from
traveling or leaving the United States, CBP proposes to require
carriers to receive from CBP a message that would state whether CBP
matched the travel documents of each passenger to a valid, authentic
travel document prior to departure to the United States from a foreign
port or place or departure from the United States. The proposed rule
also would require carriers to submit passenger contact information
while in the United States to CBP through APIS. Submission of such
information would enable CBP to identify and interdict individuals
posing a risk to border, national, and aviation safety and security
more quickly. Collecting these additional data elements would also
enable CBP to further assist CDC to monitor and trace the contacts of
those involved in serious public health incidents upon CDC request.
Additionally, the proposed rule would allow carriers to include the
aircraft tail number in their electronic messages to CBP and make
technical changes to conform with current practice.
Anticipated Cost and Benefits: The proposed rule would result in
additional opportunity costs of time to CBP, air carriers, and
passengers for coordination required to resolve a passenger's status
should there be a security issue. In addition, CBP has incurred costs
for technological improvements to its systems. CBP, air carriers, and
passengers would benefit from reduced passenger processing times during
customs screening. Unquantified benefits would result from greater
efficiency in passenger processing pre-flight, improved national
security, and fewer penalties for air carriers following entry denial
of a passenger.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Robert Neumann, Program Manager, Office of Field
Operations, Department of Homeland Security, U.S. Customs and Border
Protection, 1300 Pennsylvania Avenue NW, Washington, DC 20229, Phone:
202 412-2788, Email: [email protected].
RIN: 1651-AB43
DHS--USCBP
Final Rule Stage
88. Automation of CBP Form I-418 for Vessels
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 8 U.S.C. 1101 and 1103; 8 U.S.C.
1182; 8 U.S.C. 1221; 8 U.S.C. 1281 and 1282; 19 U.S.C. 66; 19 U.S.C.
1431; 19 U.S.C. 1433; 19 U.S.C. 1434; 19 U.S.C. 1624; 19 U.S.C. 2071
note; 46 U.S.C. 501; 46 U.S.C. 60105
CFR Citation: 8 CFR 251.1; 8 CFR 251.3; 8 CFR 251.5; 8 CFR 258.2;
19 CFR 4.7 and 4.7a; 19 CFR 4.50; 19 CFR 4.81; 19 CFR 4.85; 19 CFR
4.91.
Legal Deadline: None.
Abstract: This rule amends the Department of Homeland Security's
regulations regarding the submission of U.S. Customs and Border
Protection Form I-418, Passenger List--Crew List (Form I-418).
Currently, the master or agent of every commercial vessel arriving in
the United States, with limited exceptions, must submit a paper Form I-
418, along with certain information regarding longshore work, to CBP at
the port where immigration inspection is performed. Most commercial
vessel operators are also required to submit a paper Form I-418 to CBP
at the final U.S. port prior to departing for a foreign port. Under
this rule, most vessel operators would be required to electronically
submit the data elements on Form I-418 to CBP through the National
Vessel Movement Center in lieu of submitting a paper form. This rule
would eliminate the need to file the paper Form I-418 in most cases.
This will result in an opportunity cost savings for vessel operators as
well as a reduction in their printing and storage costs. CBP no longer
needs this information as it is receiving it from the Coast Guard.
Statement of Need: Currently, the master or agent of every
commercial vessel arriving in the United States, with limited
exceptions, must submit Form I-418, along with certain information
regarding longshore work, in paper form to CBP at the port where
immigration inspection is performed. Most commercial vessel operators
are also required to submit a paper Form I-418 to CBP at the final U.S.
port prior to departing for a foreign place. Alternative, most vessel
operators are required to electronically submit the same information to
the U.S. Coast Guard (USCG) prior to arrival into a U.S. port. Under
this rule, vessel operators will be required to electronically submit
the data elements on Form I-418 to CBP through an electronic data
interchange system (EDI) approved by CBP in lieu of submitting a paper
form. This rule will streamline vessel arrival and departure processes
by providing for the electronic submission of the information collected
on the Form I-418, eliminating redundant data submissions, simplifying
vessel inspections, and automating recordkeeping.
Anticipated Cost and Benefits: This rule will automate the Form I-
418 process for all commercial vessel operators and eliminate the
regulatory guidelines in place regarding the submission and retention
of paper Form I-418s. These changes will generally not introduce new
costs to commercial vessel operators, but they will introduce some
costs to CBP. If vessel operators request a copy of their stamped and
annotated electronic Form I-418, which they receive by paper now for
CBP processing, they will incur negligible costs to do so. CBP will
incur technology and printing costs from the Form I-418 Automation
regulatory program, including costs to maintain mobile devices for
real-time, electronic processing, and to print the paper Form I-418
until the admissibility inspection process is completely paperless.
However, this rule will provide considerable benefits and cost
savings to both vessel operators and CBP. Following this rule's
implementation, vessel operators will enjoy cost savings from forgone
paper Form I-418 submissions and form printing. CBP will experience a
cost savings from the rule's avoided printing, streamlined mobile post-
inspection processing and electronic recordkeeping. In turn, CBP may
dedicate these cost savings to other agency mission areas, such as
improving border security or facilitating trade.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Brian Sale, Branch Chief, Manifest & Conveyance
Security Division, Cargo & Conveyance, Office of Field Operation,
Department of Homeland Security, U.S. Customs and Border Protection,
1300 Pennsylvania Avenue NW, Washington, DC 20229, Phone: 202 325-3338,
Email: [email protected]; [email protected].
RIN: 1651-AB18
[[Page 5088]]
DHS--TRANSPORTATION SECURITY ADMINISTRATION (TSA)
Proposed Rule Stage
89. Vetting of Certain Surface Transportation Employees
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 49 U.S.C. 114; Pub. L. 110-53, secs. 1411, 1414,
1512, 1520, 1522, and 1531
CFR Citation: Not Yet Determined.
Legal Deadline: Other, Statutory, August 3, 2008, Background and
immigration status check for all public transportation frontline
employees is due no later than 12 months after date of enactment.
Sections 1411 and 1520 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (121
Stat. 266, Aug. 3, 2007), require background checks of frontline public
transportation and railroad employees not later than one year from the
date of enactment. Requirement will be met through regulatory action.
Abstract: The 9/11 Act requires vetting of certain railroad, public
transportation, and over-the-road bus employees. Through this
rulemaking, the Transportation Security Administration (TSA) intends to
propose the standards and procedures to conduct the required vetting.
This regulation is related to 1652-AA55, Security Training for Surface
Transportation Employees.
Statement of Need: Employee vetting is an important and effective
tool for averting or mitigating potential attacks by those with
malicious intent who may target surface transportation and plan or
perpetrate actions that may cause significant injuries, loss of life,
or economic disruption.
Anticipated Cost and Benefits: TSA is in the process of determining
the costs and benefits of this rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Victor Parker, Transportation Security Specialist,
Department of Homeland Security, Transportation Security
Administration, Policy, Plans and Engagement, 6595 Springfield Center
Drive, Springfield, VA 20598-6028, Phone: 571 227-3664, Email:
[email protected].
Alex Moscoso, Chief Economist, Economic Analysis Branch-
Coordination & Analysis Division, Department of Homeland Security,
Transportation Security Administration, Policy, Plans, and Engagement,
6595 Springfield Center Drive, Springfield, VA 20598-6028, Phone: 571
227-5839, Email: [email protected].
Christine Beyer, Senior Counsel, Regulations and Security
Standards, Department of Homeland Security, Transportation Security
Administration, Chief Counsel's Office, 6595 Springfield Center Drive,
Springfield, VA 20598-6002, Phone: 571 227-3653, Email:
[email protected].
Related RIN: Related to 1652-AA55, Related to 1652-AA56.
RIN: 1652-AA69
DHS--TSA
90. Indirect Air Carrier Security
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 49 U.S.C. 114; 49 U.S.C. 5103; 49 U.S.C. 40113; 49
U.S.C. 44901 to 44905; 49 U.S.C. 4491 to 44914; 49 U.S.C. 44916 to
44917; 49 U.S.C. 44932; 49 U.S.C. 449354 to 44936; 49 U.S.C. 46105; . .
.
CFR Citation: 49 CFR 1548.
Legal Deadline: None.
Abstract: The Transportation Security Administration (TSA) is
reducing the frequency of renewal applications for indirect air
carriers (IACs). Currently, these entities must submit an application
to renew their security program each year. Following a review of TSA's
regulatory requirements seeking to reduce the cost of compliance, TSA
determined that the duration of the security program for these entities
can be increased from one year to three years without having a negative
impact on transportation security.
Statement of Need: Consistent with Executive Order 12866 and OMB
Circular A-4, TSA identified portions of air cargo regulations that may
be tailored to impose a lesser burden on society and that may improve
government processes. Under 49 CFR 1548 indirect air carriers are
required to renew their security programs each year. TSA's robust
inspection and compliance requirements make the annual renewal
requirement unnecessary.
Anticipated Cost and Benefits: TSA is in the process of determining
the costs and benefits of this rulemaking. Cost savings are expected to
arise from time saved due to a less frequent security program renewal
cycle.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule.......................... 09/16/09 74 FR 47705
NPRM................................ 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Ronoy Varghese, Section Chief, Department of
Homeland Security, Transportation Security Administration, 6595
Springfield Center Drive, Springfield, VA 20598-6028, Phone: 571 227-
2230, Email: [email protected].
Related RIN: Related to 1652-AA23.
RIN: 1652-AA72
DHS--TSA
Final Rule Stage
91. Flight Training Security
Priority: Other Significant.
Legal Authority: 6 U.S.C. 469(b); 49 U.S.C. 114; 49 U.S.C. 44939;
49 U.S.C. 46105
CFR Citation: 49 CFR 1552.
Legal Deadline: Final, Statutory, February 10, 2004, sec. 612(a) of
Vision 100 requires the Transportation Security Administration (TSA) to
issue an interim final rule within 60 days of enactment of Vision 100.
Requires the TSA to establish a process to implement the
requirements of section 612(a) of Vision 100-Century of Aviation
Reauthorization Act (Pub. L. 108-176, 117 Stat. 2490, Dec. 12, 2003),
including the fee provisions, not later than 60 days after the
enactment of the Act.
Abstract: An Interim Final Rule (IFR) published and effective on
September 20, 2004, created a new part 1552, Flight Schools, in title
49 of the Code of Federal Regulations (CFR). This IFR applies to flight
schools and to individuals who apply for or receive flight training.
Flight schools are required to notify TSA when noncitizens, and other
individuals designated by TSA, apply for flight training or recurrent
training. TSA subsequently issued exemptions and interpretations in
response to comments on the IFR, questions raised during operation of
the program since 2004, and a notice extending the comment
[[Page 5089]]
period on May 18, 2018. Based on the comments and questions received,
TSA is finalizing the rule with modifications, and considering
modifications that would change the frequency of security threat
assessments from a high-frequency event-based interval to a time-based
interval, clarify the definitions and other provisions of the rule, and
enable industry to use TSA-provided electronic recordkeeping systems
for all documents required to demonstrate compliance with the rule.
Statement of Need: In the years since TSA published the IFR,
members of the aviation industry, the public, and Federal oversight
organizations have identified areas where the Flight Training Security
Program (formerly the Alien Flight Student Program) could be improved.
TSA's internal procedures and processes for vetting applicants also
have improved and advanced. Publishing a final rule that addresses
external recommendations and aligns with modern TSA vetting practices
would streamline the Flight Training Security Program application,
vetting, and recordkeeping process for all parties involved.
Anticipated Cost and Benefits: TSA is considering revising the
requirements of the Flight Training Security Program to reduce costs
and industry burden. One action TSA is considering is an electronic
recordkeeping platform where all flight providers would upload certain
information to a TSA-managed website. Also at industry's request, TSA
is considering changing the interval for a security threat assessment
of each noncitizen flight student, eliminating the requirement for a
security threat assessment for each separate training event. This
change would result in an annual savings, although there may be
additional start-up and record retention costs for the agency as a
result of these revisions. The benefits of these actions would be
immediate cost savings to flight schools and noncitizen students
without compromising the security profile.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule; Request for 09/20/04 69 FR 56324
Comments.
Interim Final Rule Effective........ 09/20/04 .......................
Interim Final Rule; Comment Period 10/20/04 .......................
End.
Notice-Information Collection; 60- 11/26/04 69 FR 68952
Day Renewal.
Notice-Information Collection; 30- 03/30/05 70 FR 16298
Day Renewal.
Notice-Information Collection; 60- 06/06/08 73 FR 32346
Day Renewal.
Notice-Information Collection; 30- 08/13/08 73 FR 47203
Day Renewal.
Notice-Alien Flight Student Program 04/13/09 74 FR 16880
Recurrent Training Fees.
Notice-Information Collection; 60- 09/21/11 76 FR 58531
Day Renewal.
Notice-Information Collection; 30- 01/31/12 77 FR 4822
Day Renewal.
Notice-Information Collection; 60- 03/10/15 80 FR 12647
Day Renewal.
Notice-Information Collection; 30- 06/18/15 80 FR 34927
Day Renewal.
IFR; Comment Period Reopened........ 05/18/18 83 FR 23238
IFR; Comment Period Reopened End.... 06/18/18 .......................
Notice-Information Collection; 60- 07/06/18 83 FR 31561
Day Renewal.
Notice-Information Collection; 30- 10/31/18 83 FR 54761
Day Renewal.
Final Rule.......................... 09/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Johannes Knudsen, Program Manager, Alien Flight
Student Program, Department of Homeland Security, Transportation
Security Administration, Intelligence and Analysis, 6595 Springfield
Center Drive, Springfield, VA 20598-6010, Phone: 571 227-2188, Email:
[email protected].
Alex Moscoso, Chief Economist, Economic Analysis Branch--
Coordination & Analysis Division, Department of Homeland Security,
Transportation Security Administration, Policy, Plans, and Engagement,
6595 Springfield Center Drive, Springfield, VA 20598-6028, Phone: 571
227-5839, Email: [email protected].
David Ross, Attorney-Advisor, Regulations and Security Standards,
Department of Homeland Security, Transportation Security
Administration, Chief Counsel's Office, 6595 Springfield Center Drive,
Springfield, VA 20598-6002, Phone: 571 227-2465, Email:
[email protected].
Related RIN: Related to 1652-AA61.
RIN: 1652-AA35
DHS--TSA
Long-Term Actions
92. Surface Transportation Cybersecurity Measures
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 49 U.S.C. 114
CFR Citation: 49 CFR 1570.
Legal Deadline: None.
Abstract: On July 28, 2021, the President issued the National
Security Memorandum on Improving Cybersecurity for Critical
Infrastructure Control Systems. Consistent with this priority of the
Administration and in response to the ongoing cybersecurity threat to
pipeline systems, TSA used its authority under 49 U.S.C. 114 to issue
security directives to owners and operators of TSA-designated critical
pipelines that transport hazardous liquids and natural gas to implement
a number of urgently needed protections against cyber intrusions. The
first directive, issued in May 2021, requires critical owner/operators
to (1) Report confirmed and potential cybersecurity incidents to the
Cybersecurity and Infrastructure Agency (CISA); (2) designate a
Cybersecurity Coordinator to be available 24 hours a day, seven days a
week; (3) review current cybersecurity practices; and (4) identify any
gaps and related remediation measures to address cyber-related risks
and report the results to TSA and CISA within 30 days of issuance of
the SD. A second security directive issued in July requires these
owners and operators to (1) Implement specific mitigation measures to
protect against ransomware attacks and other known threats to
information technology and operational technology systems; (2) develop
and implement a cybersecurity contingency and recovery plan; and (3)
conduct a cybersecurity architecture design review. TSA is committed to
enhancing and sustaining cybersecurity and intends to issue a
rulemaking that will codify certain requirements with respect to
pipeline and certain other surface modes.
Statement of Need: This rulemaking is necessary to address the
ongoing cybersecurity threat to U.S. transportation modes.
Anticipated Cost and Benefits: TSA is in the process of determining
the costs and benefits of this rulemaking.
[[Page 5090]]
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ To Be Determined
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Scott Gorton, Executive Director, Surface Policy
Division, Department of Homeland Security, Transportation Security
Administration, Policy, Plans, and Engagement, 6595 Springfield Center
Drive, Springfield, VA 20598-6002, Phone: 571 227-1251, Email: [email protected].
RIN: 1652-AA74
DHS--U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (USICE)
Proposed Rule Stage
93. Fee Adjustment for U.S. Immigration and Customs Enforcement Form I-
246, Application for a Stay of Deportation or Removal
Priority: Other Significant.
Legal Authority: 8 U.S.C. 1231; 8 U.S.C. 1356(m); 8 U.S.C. 1356(n)
CFR Citation: 8 CFR 103.
Legal Deadline: None.
Abstract: The Department of Homeland Security, U.S. Immigration and
Customs Enforcement (ICE) will propose to adjust the fee for ICE Form
I-246, Application for a Stay of Deportation or Removal. ICE has
determined that the current fee does not fully recover the costs
incurred to perform the full range of activities associated with
determining if a noncitizen ordered deported or removed from the United
States is eligible to obtain a stay of deportation or removal.
Statement of Need: ICE has determined that the current fee for Form
I-246 does not fully recover the costs incurred to perform the full
range of activities associated with determining if a foreign national
ordered deported or removed from the United States is eligible to
obtain a stay of deportation or removal.
Anticipated Cost and Benefits: ICE is in the process of assessing
the impacts of this rule. The rule would increase the fee for foreign
nationals applying for a stay of deportation or removal with the Form
I-246. The fee adjustment would result in an increase in transfers from
foreign nationals to ICE.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Agency Contact: Sharon Hageman, Acting Deputy Assistant Director,
Department of Homeland Security, U.S. Immigration and Customs
Enforcement, 500 12th Street SW, Mail Stop 5006, Washington, DC 20536,
Phone: 202 732-6960, Email: [email protected].
RIN: 1653-AA82
DHS--FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)
Prerule Stage
94. RFI National Flood Insurance Program's Floodplain
Management Standards for Land Management & Use, & an Assessment of the
Program's Impact on Threatened and Endangered Species & Their Habitats
Priority: Other Significant.
Legal Authority: 42 U.S.C. 4001 et seq.
CFR Citation: 44 CFR 59.1; 44 CFR 60.3(d)(3); 44 CFR 64.3(a)(1).
Legal Deadline: None.
Abstract: The Federal Emergency Management Agency (FEMA) is issuing
this Request for Information to receive the public's input on two
topics. First, FEMA seeks the public's input on revising the National
Flood Insurance Program's (NFIP) floodplain management standards for
land management and use regulations to better align with the current
understanding of flood risk and flood risk reduction approaches.
Specifically, FEMA is seeking input from the public on the floodplain
management standards that communities should adopt to result in safer,
stronger, and more resilient communities. Additionally, FEMA seeks
input on how the NFIP can better promote protection of and minimize any
adverse impact to threatened and endangered species, and their
habitats.
Statement of Need: FEMA is issuing this Request for Information to
seek information from the public on the agency's current floodplain
management standards to ensure the agency receives public input as part
of the agency's regular review of programs, regulations, and policies,
and to inform any action to revise the NFIP minimum floodplain
management standards. FEMA also plans to re-evaluate the implementation
of the NFIP under the Endangered Species Act at the national level to
complete a revised Biological Evaluation re-examining how NFIP actions
influence land development decisions; the potential for such actions to
have adverse effects on threatened and endangered species and critical
habitats; and to identify program changes that would prevent jeopardy
to threatened and endangered species, and/or destruction or adverse
modification of designated critical habitats, as well as to promote the
survival and recovery of threatened and endangered species. As a
result, FEMA also requests input from the public on what measures the
NFIP can take to further protect and minimize any adverse impacts to
threatened and endangered species and their habitat.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information............. 10/12/21 86 FR 56713
Announcement of Public Meetings..... 10/28/21 86 FR 59745
Announcement of Additional Public 11/22/21 86 FR 66329
Meeting; Extension of Comment
Period.
Request for Information Comment 01/27/22 .......................
Period End.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Additional Information: Docket ID FEMA-2021-0024.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Rachel Sears, Federal Insurance and Mitigation
Administration, Department of Homeland Security, Federal Emergency
Management Agency, 400 C Street SW, Washington, DC 20472, Phone: 202
646-2977, Email: [email protected].
RIN: 1660-AB11
DHS--FEMA
Proposed Rule Stage
95. National Flood Insurance Program: Standard Flood Insurance Policy,
Homeowner Flood Form
Priority: Other Significant. Major under 5 U.S.C. 801.
[[Page 5091]]
Legal Authority: 42 U.S.C. 4001 et seq.
CFR Citation: 44 CFR 61.
Legal Deadline: None.
Abstract: The National Flood Insurance Program (NFIP), established
pursuant to the National Flood Insurance Act of 1968, is a voluntary
program in which participating communities adopt and enforce a set of
minimum floodplain management requirements to reduce future flood
damages. This proposed rule would revise the Standard Flood Insurance
Policy by adding a new Homeowner Flood Form and five accompanying
endorsements. The new Homeowner Flood Form would replace the Dwelling
Form as a source of coverage for one-to-four family residences.
Together, the new Form and endorsements would more closely align with
property and casualty homeowners' insurance and provide increased
options and coverage in a more user-friendly and comprehensible format.
Statement of Need: The National Flood Insurance Act requires FEMA
to provide by regulation the general terms and conditions of
insurability applicable to properties eligible for flood insurance
coverage. 42 U.S.C. 4013(a). To comply with this requirement, FEMA
adopts the Standard Flood Insurance Policy (SFIP) in regulation, which
sets out the terms and conditions of insurance. See 44 CFR part 61,
Appendix A. FEMA must use the SFIP for all flood insurance policies
sold through the NFIP. See 44 CFR 61.13.
The SFIP is a single-peril (flood) policy that pays for direct
physical damage to insured property. There are currently three forms of
the SFIP: The Dwelling Form, the General Property Form, and the
Residential Condominium Building Association Policy (RCBAP) Form. The
Dwelling Form insures a one-to-four family residential building or a
single-family dwelling unit in a condominium building. See 44 CFR part
61, Appendix A(1). Policies under the Dwelling Form offer coverage for
building property, up to $250,000, and personal property up to
$100,000. The General Property Form ensures a five-or-more family
residential building or a non-residential building. See 44 CFR part 61,
Appendix A(2). The General Property Form offers coverage for building
and contents up to $500,000 each. The RCBAP Form insures residential
condominium association buildings and offers building coverage up to
$250,000 multiplied by the number of units and contents coverage up to
$100,000 per building. See 44 CFR part 61, appendix A(3). RCBAP
contents coverage insures property owned by the insured condominium
association. Individual unit owners must purchase their own Dwelling
Form policy in order to insure their own contents.
FEMA last substantively revised the SFIP in 2000. See 65 FR 60758
(Oct. 12, 2000). In 2020, FEMA published a final rule that made non-
substantive clarifying and plain language improvements to the SFIP. See
85 FR 43946 (July 20, 2020). However, many policyholders, agents, and
adjusters continue to find the SFIP difficult to read and interpret
compared to other, more modern, property and casualty insurance
products found in the private market. Accordingly, FEMA proposes to
adopt a new Homeowner Flood Form.
The new Homeowner Flood Form, which FEMA proposes to add to its
regulations at 44 CFR 61 appendix A(4), would protect property owners
in a one-to-four family residence. Upon adoption, the Homeowner Flood
Form would replace the Dwelling Form as a source of coverage for this
class of residential properties. FEMA would continue to use the
Dwelling Form to insure landlords, renters, and owners of mobile homes,
travel trailers, and condominium units. Compared to the current
Dwelling Form, the new Homeowner Flood Form would clarify coverage and
more clearly highlight conditions, limitations, and exclusions in
coverage as well as add and modify coverages and coverage options. FEMA
also proposes adding to its regulations five endorsements to accompany
the new Form: Increased Cost of Compliance Coverage, Actual Cash Value
Loss Settlement, Temporary Housing Expense, Basement Coverage, and
Builder's Risk. These endorsements, which FEMA proposes to codify at 44
CFR 61 appendices A(101)-(105), respectively, would give policyholders
the option of amending the Homeowner Flood Form to modify coverage with
a commensurate adjustment to premiums charged. Together, the Homeowner
Flood Form and accompanying endorsements would increase options and
coverage for owners of one-to-four family residences.
FEMA intends that this new Form will be more user-friendly and
comprehensible. As a result, the new Homeowner Flood Form and its
accompanying endorsements would provide a more personalized,
customizable product than the NFIP has offered during its 50 years. In
addition to aligning with property and casualty homeowners' insurance,
the result would increase consumer choice and simplify coverage.
Anticipated Cost and Benefits: FEMA estimates that this rulemaking
would result in an increase in transfer payments from policyholders to
FEMA and insurance providers in the form of flood insurance premiums,
and from FEMA to policyholders in the form of claims payments.
Additionally, this rulemaking would result in benefits to
policyholders, insurance providers, and FEMA, mostly through cost
savings due to increased clarity and expanded coverage options. It
would also help the NFIP better signal risk through premiums, reduce
the need for Federal assistance, and increase resilience by enhancing
mitigation efforts. Lastly, one increase in costs for FEMA will be for
expenditures on implementation and familiarization of the rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Christine Merk, Lead Management and Program
Analyst, Department of Homeland Security, Federal Emergency Management
Agency, Insurance Analytics and Policy Branch, 400 C Street SW,
Washington, DC 20472, Phone: 202 735-6324, Email:
[email protected].
RIN: 1660-AB06
DHS--FEMA
Final Rule Stage
96. Amendment to the Public Assistance Program's Simplified
Procedures Large Project Threshold
Priority: Other Significant.
Legal Authority: 42 U.S.C. 5189
CFR Citation: 44 CFR 206.203(c)(1); 44 CFR 206.203(c)(2).
Legal Deadline: Final, Statutory, February 26, 2014, Every 3 years,
the President, acting through the Administrator, shall review the
threshold for eligibility under section 422 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act.
Abstract: The Federal Emergency Management Agency (FEMA) is
revising its regulations governing the Public Assistance program to
update the monetary threshold at or below which FEMA will obligate
funding based on an estimate of project costs, and above which FEMA
will obligate funding based on actual project costs. This rule will
ensure FEMA and recipients can more efficiently process unobligated
[[Page 5092]]
Project Worksheets for COVID-19 declarations, which continue to fund
important pandemic-related work, while avoiding unnecessary confusion
and administrative burden by not affecting previous project size
determinations.
Statement of Need: FEMA's Public Assistance (PA) program provides
grants to State, local, Tribal, and Territorial governments, as well as
eligible private nonprofit (PNP) organizations, for debris removal,
emergency protective measures, and the repair, replacement, or
restoration of disaster-damaged facilities after a Presidentially-
declared major disaster. FEMA categorizes each grant award as either a
small or large project, which is determined by a monetary threshold set
each year by FEMA pursuant to statute. (See section 422 of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, codified at
42 U.S.C. 5189). FEMA obligates money for a small project based on an
estimate of the project costs, and FEMA obligates money for a large
project based on actual project costs as the project progresses and
cost documentation is provided to FEMA. This expedites FEMA's
processing of PA grant funding by eliminating much of the
administrative burden that FEMA experiences when awarding projects at
or above the threshold (i.e., large projects). Ultimately, this reduces
FEMA's cost of administering PA funding and allows FEMA to expedite its
provision of Federal disaster assistance.
In 2013, the Sandy Recovery Improvement Act amended section 422(b)
of the Stafford Act and required FEMA to complete an analysis to
determine whether an increase in the large project threshold was
appropriate. Following this analysis, in 2014 FEMA updated the maximum
threshold from $68,500 to $120,000 and continued to adjust the
threshold annually to reflect changes in the Consumer Price Index, as
required under section 422(b)(2). Section 422(b)(3) requires FEMA to
review the threshold every three years. FEMA conducted an analysis in
2017 and recommended no change to the threshold at that time. As a
result, the maximum threshold for Fiscal Year (FY) 2021 is currently
set at $132,800.
Since FEMA's analysis in 2017, the U.S. has seen increased disaster
activity either due to, or amplified or aggravated by, the climate
crisis. For example, in 2017, Hurricanes Harvey, Irma, and Maria caused
a combined total of $293.6 billion in damages. Damages from wildfires
in that year and the next totaled approximately $61 billion. In 2020,
FEMA responded to 22 one billion-dollar events the highest in its
history which included a record number of tropical storms in the
Atlantic and the Nation's most active wildfire year recorded. The
estimated damages from these 22 events totaled approximately $95
billion. In addition to increased natural disasters, in 2020 FEMA also
issued an unprecedented 57 major disaster declarations in response to
COVID-19, including for every State, 5 territories, the Seminole Tribe
of Florida, and the District of Columbia. In FY 2020 declarations,
FEMA's funding under the PA program is over $32 billion. Although costs
for COVID-19 accounted for 94 percent of this funding, FEMA expects
climate change to make natural disasters more frequent and more
destructive, requiring greater spending on recovery in the future.
As a result, in 2020, FEMA conducted another analysis to ensure
that FEMA is maximizing the benefits of simplified procedures in light
of its more recent disaster spending. Based on this analysis, FEMA
determined that it should increase the threshold to $1,000,000, with
continued annual adjustment for inflation based on the Consumer Price
Index.
Anticipated Cost and Benefits: FEMA estimates that this rulemaking
would result in transfers from FEMA to PA recipients and
familiarization costs for PA applicants. Additionally, this rule would
reduce the administrative burden and improve program efficiency for PA
recipients, subrecipients, and FEMA, resulting in cost savings to FEMA
and PA recipients/subrecipients.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule.......................... 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State, Tribal.
Agency Contact: Valerie Boulet, Program Administration Section,
Public Assistance Division, Department of Homeland Security, Federal
Emergency Management Agency, 500 C Street SW, Washington, DC 20472-
3100, Phone: 202 538-3860, Email: [email protected].
RIN: 1660-AB10
DHS--FEMA
Long-Term Actions
97. Individual Assistance Program Equity
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 5155; 42 U.S.C. 5174; 42 U.S.C. 5189a
CFR Citation: 44 CFR 206.101; 44 CFR 206.110 to 206.115; 44 CFR
206.117 to 206.119; 44 CFR 206.191.
Legal Deadline: None.
Abstract: As climate change results in more frequent and/or intense
extreme weather events like severe storms, flooding and wildfires,
disproportionately impacting the most vulnerable in society and in
furtherance of E.O. 13895, the Federal Emergency Management Agency
(FEMA) proposes to amend its Individual Assistance (IA) regulations to
increase equity and ease of entry to the IA Program. To provide a full
opportunity for underserved communities to participate, FEMA proposes
to amend application of `safe, sanitary, and functional' for IA repair
assistance; re-evaluate the requirement to apply for a Small Business
Administration loan prior to receipt of Other Needs Assistance; add
eligibility criteria for its Serious Needs & Displacement Assistance;
amend its requirements for Continued Temporary Housing Assistance; re-
evaluate its approach to insurance proceeds; and amend its appeals
process. FEMA also proposes revisions to reflect changes to statutory
authority that have not yet been implemented in regulation, to include
provisions for utility and security deposit payments, lease and repair
of multi-family rental housing, childcare assistance, and maximum
assistance limits.
Statement of Need: FEMA's Individuals and Households Program (IHP)
regulations have not had a major review and update since section 206 of
the Disaster Mitigation Act of 2000 replaced the Individual and Family
Grant Assistance Program with the current IHP. Some minor changes to
Repair Assistance were completed in 2013, but Congress has passed
multiple other laws that have superseded portions of the regulations
and created other programs or forms of assistance with no supporting
regulations. FEMA proposes an update to the IHP regulations now to
bring them up to date and address other lessons learned through the
course of implementing the IHP in disasters much larger than any
[[Page 5093]]
previously addressed at the time the regulations were first developed.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Kristina McAlister, Supervisory Emergency
Management Specialist (Recovery), Department of Homeland Security,
Federal Emergency Management Agency, Individual Assistance Division
Recovery Directorate, 500 C Street SW, Washington, DC 20472, Phone: 202
604-8007, Email: [email protected].
RIN: 1660-AB07
DHS--CYBERSECURITY AND INFRASTRUCTURE SECURITY AGENCY (CISA)
Proposed Rule Stage
98. Ammonium Nitrate Security Program
Priority: Other Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
PL 104-4.
Legal Authority: 6 U.S.C. 488 et seq.
CFR Citation: 6 CFR 31.
Legal Deadline: NPRM, Statutory, May 26, 2008, Publication of
Notice of Proposed Rulemaking. Final, Statutory, December 26, 2008,
Publication of Final Rule.
Abstract: The Cybersecurity and Infrastructure Security Agency
(CISA) is proposing a rulemaking to implement the December 2007
amendment to the Homeland Security Act titled ``Secure Handling of
Ammonium Nitrate.'' This amendment requires the Department of Homeland
Security to ``regulate the sale and transfer of ammonium nitrate by an
ammonium nitrate facility . . . to prevent the misappropriation or use
of ammonium nitrate in an act of terrorism.'' CISA previously issued a
Notice of Proposed Rulemaking (NPRM) on August 3, 2011. CISA is
planning to issue a Supplemental Notice of Proposed Rulemaking (SNPRM).
Statement of Need: A Federal regulation governing the sale and
transfer of ammonium nitrate is statutorily mandated. The statute
requires that purchasers of ammonium nitrate and owners of ammonium
nitrate facilities register with the Department of Homeland Security
and be vetted against the Terrorist Screening Database. The statute
further requires that information about transactions of ammonium
nitrate be recorded and kept. Given the widespread use of ammonium
nitrate in many sectors of the economy, including industrial,
agricultural, and consumer uses, the Department is exploring ways to
reduce the threat of terrorism posed by ammonium nitrate while
remaining sensitive to the impacts on the supply chain and legitimate
users.
Summary of Legal Basis: This regulation is statutorily mandated by
6 U.S.C. 488 et seq.
Anticipated Cost and Benefits: In the 2011 NPRM, CISA estimated
cost of this proposed rule would range from $300 million to $1,041
million over 10 years at a 7 percent discount rate. In the intervening
years, CISA has adjusted its approach to this rulemaking and has made
significant changes to the way we estimate the costs associated with
this SNPRM. At this time CISA is still developing the cost estimates
for and substantive contents of this SNPRM.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 10/29/08 73 FR 64280
ANPRM Correction.................... 11/05/08 73 FR 65783
ANPRM Comment Period End............ 12/29/08 .......................
NPRM................................ 08/03/11 76 FR 46908
Notice of Public Meetings........... 10/07/11 76 FR 62311
Notice of Public Meetings........... 11/14/11 76 FR 70366
NPRM Comment Period End............. 12/01/11 .......................
Notice of Availability.............. 06/03/19 84 FR 25495
Notice of Availability Comment 09/03/19 .......................
Period End.
Supplemental NPRM................... 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Ryan Donaghy, Deputy Branch Chief for Chemical
Security Policy, Rulemaking, and Engagement, Department of Homeland
Security, Cybersecurity and Infrastructure Security Agency, 245 Murray
Lane SW, Mail Stop 0610, Arlington, VA 20528, Phone: 571 532-4127,
Email: [email protected].
Related RIN: Previously reported as 1601-AA52.
RIN: 1670-AA00
BILLING CODE 9110-9B-P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Statement of Regulatory Priorities for Fiscal Year 2022
Introduction
The Regulatory Plan for the Department of Housing and Urban
Development (HUD) for Fiscal Year (FY) 2022 highlights the most
significant regulations and policy initiatives that HUD seeks to
complete during the upcoming fiscal year. As the Federal agency that
serves as the nation's housing agency, HUD is committed to addressing
the housing needs of all Americans by creating strong, sustainable,
inclusive communities, and quality affordable homes for all. As a
result, HUD plays a significant role in the lives of families and in
communities throughout America.
HUD is currently working to strengthen the housing market to
bolster the economy and protect consumers; meet the need for quality
affordable rental homes; utilize housing as a platform for improving
quality of life; build inclusive and sustainable communities free from
discrimination and transform the way HUD does business. Under the
leadership of Secretary Marcia L. Fudge, HUD is dedicated to
implementing the Administration's priorities by setting forth
initiatives related to recovery from the COVID-19 pandemic, providing
economic relief to those HUD serves, advancing racial equity and civil
rights, and tackling the climate emergency.
Since the beginning of the Administration, HUD has taken a number
of actions to advance equity in its programs and secure equal access to
housing opportunity for all. For example, on February 11, 2021, HUD
issued a memorandum directing its Office of Fair Housing and Equal
Opportunity and organizations that enter into agreements with the
Department to carry out fair housing laws and activities to fully
enforce the Fair Housing Act to prohibit discrimination based on sexual
orientation and gender identity; on April 26, 2021, HUD issued a plan
of action the Department will take to
[[Page 5094]]
strengthen Nation-to-Nation relations and improve HUD-wide Tribal
consultation; on June 10, 2021, HUD published an interim final rule to
restore certain definitions and certifications to its regulations
implementing the Fair Housing Act's requirement to affirmatively
further fair housing (AFFH) (86 FR 30779); and on June 25, 2021, HUD
published a proposed rule to reinstate HUD's discriminatory effects
standard (86 FR 33590).
The rules highlighted in HUD's regulatory plan for FY 2022 reflect
HUD's efforts to continue its work in meeting the needs of underserved
communities and providing for equal access to housing opportunities. In
addition, it reflects HUD's efforts to strengthen the housing market
and protect consumers, and to aid in recovery from the COVID-19
pandemic. Additionally, HUD notes that the FY 2022 Semiannual
Regulatory Agenda includes additional rules that advance the
Administration's priorities, including, rules to advance equity by
ensuring non-discrimination based on disability in HUD programs, and a
rule to help address the climate emergency by improving the resilience
of HUD-assisted or financed projects to the effect of climate change.
Affirmatively Furthering Fair Housing
Executive Order 13985, ``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government,'' (86 FR 7009,
January 20, 2021) requires each agency to consider whether new
policies, regulations, or guidance documents may be necessary to
advance equity in agency actions and programs. Further, on January 26,
2021 (86 FR 7487), President Biden issued a ``Memorandum on Redressing
Our Nation's and the Federal Government's History of Discriminatory
Housing Practices and Policies,'' which explained that the Federal
Government will work with communities to, among other things, end
housing discrimination, lift barriers that restrict housing and
neighborhood choice, promote diverse and inclusive communities, and to
secure equal access to housing opportunity for all.
As noted above, on June 10, 2021, HUD published an interim final
rule to restore certain definitions and certifications to its
regulations implementing the Fair Housing Act's requirement. HUD will
build on that rule and issue an AFFH proposed rule that seeks to ensure
that HUD and its grantees are sufficiently effective in fulfilling the
purposes and policies of the Fair Housing Act. HUD's proposed rule will
provide HUD and its program participants with a more effective Fair
Housing Planning Process as a means to meet their duty to affirmatively
further the Fair Housing Act. Currently, HUD funding recipients must
certify compliance with their duty to AFFH on an annual basis and HUD
itself has a continuous statutory obligation to ensure that the Fair
Housing Act's AFFH obligations are followed.
For decades, courts have held that the AFFH obligation imposes a
duty on HUD and its grantees to affirmatively further the purposes of
the Fair Housing Act. These courts have held that for funding
recipients to meet their AFFH obligations they must, at a minimum, make
decisions informed by preexisting racial and socioeconomic residential
segregation. The courts have further held that, informed by such
information, funding recipients must strive to dismantle historic
patterns of racial segregation; preserve integrated housing that
already exists; and otherwise take meaningful steps to further the Fair
Housing Act's purposes beyond merely refraining from taking
discriminatory actions and banning others from such discrimination.
Through this proposed rule, HUD plans to implement the AFFH mandate and
work towards a more equitable future for all by developing a Fair
Housing Planning Process that reduces burdens for program participants
and achieves material, positive change that affirmatively furthers fair
housing. Specifically, HUD is focused on advancing equity and providing
access to opportunity for underserved populations in a manner that is
more effective in achieving measurable improvements while avoiding
unnecessary burden.
Aggregate Costs and Benefits
Executive Order 12866, as amended, requires the agency to provide
its best estimate of the combined aggregate costs and benefits of all
regulations included in the agency's Regulatory Plan that will be
pursued in FY 2022. HUD expects that the neither the total economic
costs nor the total efficiency gains will exceed $100 million. HUD
grantees are already familiar with the AFFH compliance process as
instituted by the 2015 rule and the 2021 interim final rule. Having
learned from prior rulemakings, HUD believes that the rule will create
the right balance of analysis so that grantees will have the available
data necessary to help them in completing any analytical requirements
without adding the same level of costs associated with the 2015
rulemaking.
Statement of Need
The rule is needed to conform HUD regulations with statutory
standards and judicial interpretations of those standards, and to
ensure consistency in fair housing certifications across HUD programs.
This proposed rule would consider HUD's AFFH rule published on July 16,
2015 (80 FR 42272) (2015 AFFH rule) but improve upon its framework and
impose less regulatory burden.
Alternatives: Alternatives to promulgating this rule involve
finalizing the interim rule, ``Restoring Affirmatively Furthering Fair
Housing Definitions and Certifications,'' without taking further action
or repromulgating the 2015 AFFH rule without considering changes that
could reduce regulatory burden and enable a more meaningful fair
housing planning process. If HUD were to finalize the interim rule
without taking further action, there would be inconsistency in fair
housing certifications across different jurisdictions, as the interim
rule does not require that jurisdictions submit fair housing plans in
any particular form, such as an Analysis of Impediments, or an
Assessment of Fair Housing, as was previously required. If HUD were to
repromulgate the 2015 AFFH rule without considering changes, HUD would
miss an opportunity to improve upon that rule and reduce the
significant regulatory burdens resulting from that rule. HUD believes
neither of those options are better than providing for a new
certification process that will undergo new public comment.
Risks: Previous iterations of the AFFH rule have resulted in an
amount of burden on grantees that made implementation challenging. HUD
must balance the use of data and the depth of analysis that is required
of differing sized grantees to ensure that grantees can implement the
affirmatively furthering fair housing mandate while continuing to
fulfill their programmatic requirements. In promulgating this rule, HUD
will attempt to secure support from as many stakeholders as possible to
ensure maximum compliance with the duty to AFFH.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Proposed Rule....................... 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Governmental jurisdictions.
Government Levels Affected: Yes.
Federalism Affected: No.
Energy Affected: No.
[[Page 5095]]
International Impacts: No.
Increased Forty-Year Term for Loan Modifications
Executive Order 14002, ``Economic Relief Related to the COVID-19
Pandemic'' (Jan. 22, 2021), directs federal agencies to ``promptly
identify actions they can take within existing authorities to address
the current economic crisis resulting from the [COVID 19] pandemic.''
In response to this Executive Order and in support of the goal of
achieving broad economic recovery following the COVID-19 pandemic, HUD
has established expanded COVID-19 Loss Mitigation Options to address
the impacts many Americans are experiencing in recovering financially
from the long-lasting effects of the pandemic. HUD continues to
evaluate both the effects of the pandemic on its portfolio as well as
the economic indicators of the broader recovery.
This proposed rule would amend HUD's current regulation to allow
for mortgagees to recast the total unpaid loan and other eligible costs
for a new term not exceeding 480 months. HUD anticipates that this
would allow mortgagees greater ability to assist defaulted borrowers,
including borrowers affected by the COVID-19 pandemic, with avoiding
foreclosure.
HUD's current regulations allow mortgagees to modify a Federal
Housing Administration (FHA) insured mortgage by recasting the total
unpaid loan and other eligible costs for a term limited to 360 months
to cure a borrower's default. Mortgagees are required to consider
utilizing deeds in lieu of foreclosure, pre-foreclosure sales, partial
claims, assumptions, special forbearance, and recasting of
mortgages.\1\ One of these options allows mortgagees to modify a
mortgage for the purpose of changing the amortization provisions and
recasting the total unpaid loan and other eligible costs for a term not
exceeding 360 months from the date of the modification.\2\
---------------------------------------------------------------------------
\1\ 24 CFR 203.501.
\2\ 24 CFR 203.616
---------------------------------------------------------------------------
Allowing mortgagees to provide a 40-year loan modification would
support HUD's mission of fostering homeownership by assisting more
borrowers with retaining their homes after a default episode while
mitigating losses to FHA's Mutual Mortgage Insurance (MMI) Fund. For
many borrowers who have become delinquent, a lowered monthly payment is
key to their ability to bring the mortgage current, prevent re-default,
and ultimately retain their home and build wealth through
homeownership. The difference between the monthly payment provided
under a 40-year loan modification and a 30-year loan modification may
be significant for a borrower and their ability to afford the modified
payment.
Aggregate Costs and Benefits
Executive Order 12866, as amended, requires the agency to provide
its best estimate of the combined aggregate costs and benefits of all
regulations included in the agency's Regulatory Plan that will be
pursued in FY 2021. HUD expects that neither the total economic costs
nor the total efficiency gains will exceed $100 million. This proposed
rule would increase available loss mitigation options for borrowers and
enable more borrowers to avoid foreclosure and remain in their homes.
HUD also anticipates that this would have a positive effect on the FHA
Mutual Mortgage Insurance Fund by lowering defaults.
Statement of Need
Borrowers impacted by the COVID-19 pandemic, including those who
may re-default in the future after having received a loss mitigation
option under HUD's COVID-19 policies, may need a 40-year loan
modification to provide a monthly payment that they can afford. It is
vital that these borrowers receive any loss mitigation options at HUD's
disposal and for which they are eligible to avoid foreclosure whenever
possible and to mitigate the impact of the COVID-19 pandemic.
Additionally, given the large number of FHA-insured mortgages that
have been originated or refinanced in the past few years in a
historically low interest rate environment, simply extending out the
term of a mortgage in default for another 30 years at a similar
interest rate would not provide a substantial reduction to a borrower's
monthly mortgage payment. Therefore, providing this option for relief
for all borrowers and originators is prudent for all FHA-insured
mortgages.
Alternatives
HUD has considered other loss mitigation options which would allow
borrowers to avoid foreclosure in response to the COVID-19 pandemic.
HUD has made many of these options available through mortgagee letter.
HUD does not view these options as alternatives, as different
circumstances may call for different forms of loss mitigation.
Additionally, HUD finds that this new option should not be limited only
in response to the COVID-19 pandemic, but should be available in all
circumstances where it could help individuals keep their homes.
Risks
Although the impact of introducing a 40-year loan modification
option for borrowers on the MMI Fund will needed to be modeled, HUD
anticipates a favorable impact through reduced utilization of other,
more costly loss mitigation options and foreclosure prevention.
Additionally, HUD anticipates that the effect on FHA-insured
mortgagors will be minor. HUD recognizes that a 40-year mortgage would
cost the borrower in the form of greater interest paid over time and
slower equity building. However, HUD notes that the average life of an
FHA-insured mortgage is approximately seven years, and HUD anticipates
that a borrower would similarly refinance a 40-year mortgage. Any
additional interest and slowed equity build that a borrower might pay
with a 40-year modified loan compared to a 30-year modified loan,
especially when looked at over the life of an average FHA-insured
mortgage, would not impose a significant burden to borrowers and would
be outweighed by the benefits to a borrower of being able to retain
their home.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Proposed rule....................... 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Federalism Affected: No.
Energy Affected: No.
International Impacts: No.
HUD--OFFICE OF HOUSING (OH)
Proposed Rule Stage
99. Increased 40-Year Term for Loan Modifications (FR-6263)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 12 U.S.C. 1707, 1709, 1710, 1715b, 1715z-16,
1715u, and 1715z-21; 15 U.S.C. 1639c; 42 U.S.C. 3535(d)
CFR Citation: 24 CFR 203.
Legal Deadline: None.
Abstract: This would amend the current regulation at 24 CFR 203.616
to permit the modification of an FHA-insured mortgage for a maximum
term not to exceed 480 months, or 40 years. The current regulation
allows a
[[Page 5096]]
mortgagee to modify a loan to cure a default by recasting the total
unpaid amount due and other eligible costs for a term not exceeding 360
months, or 30 years. Increasing the term length of a modified loan
would provide borrowers with a deeper reduction to their monthly
mortgage payments as the outstanding principal would be spread over a
longer time frame. This change would provide more FHA borrowers with
the ability to retain their homes after default, including borrowers
who have exhausted their partial claim allocation, as well as provide
more affordable housing payments. This change would also align FHA with
modifications available to borrowers with mortgages backed by Fannie
Mae or Freddie Mac, which currently provide a 40-year loan modification
option.
Statement of Need: HUD anticipates that this would allow mortgagees
greater ability to assist defaulted borrowers, including mortgagees
affected by the COVID-19 pandemic, with avoiding foreclosure. It is
vital that borrowers receive any loss mitigation options at HUD's
disposal and for which they are eligible to avoid foreclosure whenever
possible and to mitigate the impact of a loss of job or other financial
strains such as those resulting from the COVID-19 pandemic.
Additionally, given the large number of FHA-insured mortgages that
have been originated or refinanced in the past few years in a
historically low interest rate environment, simply extending out the
term of a mortgage in default for another 30 years at a similar
interest rate would not provide a substantial reduction to a borrower's
monthly mortgage payment. Therefore, providing this option for relief
for all borrowers and originators is prudent for all FHA-insured
mortgages.
Summary of Legal Basis: Executive Order 14002, Economic Relief
Related to the COVID-19 Pandemic (Jan. 22, 2021), directs federal
agencies to promptly identify actions they can take within existing
authorities to address the current economic crisis resulting from the
[COVID 19] pandemic. In response to this Executive Order and in support
of the goal of achieving broad economic recovery following the COVID-19
pandemic, HUD has established expanded COVID-19 Loss Mitigation Options
to address the impacts many Americans are experiencing in recovering
financially from the long-lasting effects of the pandemic.
Alternatives: HUD has considered other loss mitigation options
which would allow borrowers to avoid foreclosure in response to the
COVID-19 pandemic. HUD has made many of these options available through
mortgagee letter. HUD does not view these options as alternatives, as
different circumstances may call for different forms of loss
mitigation. Additionally, HUD finds that this new option should not be
limited only in response to the COVID-19 pandemic, but should be
available in all circumstances where it could help individuals keep
their homes.
Anticipated Cost and Benefits: Executive Order 12866, as amended,
requires the agency to provide its best estimate of the combined
aggregate costs and benefits of all regulations included in the
agency's Regulatory Plan that will be pursued in FY 2021. HUD expects
that neither the total economic costs nor the total efficiency gains
will exceed $100 million. This proposed rule would increase available
loss mitigation options for borrowers and enable more borrowers to
avoid foreclosure and remain in their homes. HUD also anticipates that
this would have a positive effect on the FHA Mutual Mortgage Insurance
Fund by lowering defaults.
Risks: Although the impact of introducing a 40-year loan
modification option for borrowers on the MMI Fund will needed to be
modeled, HUD anticipates a favorable impact through reduced utilization
of other, more costly loss mitigation options and foreclosure
prevention.
Additionally, HUD anticipates that the effect on FHA-insured
mortgagors will be minor. HUD recognizes that a 40-year mortgage would
cost the borrower in the form of great interest paid over time and
slower equity building. However, HUD notes that the average life of an
FHA-insured mortgage is approximately seven years, and HUD anticipates
that a borrower would similarly refinance a 40-year mortgage. Any
additional interest and slowed equity build that a borrower might pay
with a 40-year modified loan compared to a 30-year modified loan,
especially when looked at over the life of an average FHA-insured
mortgage, would not impose a significant burden to borrowers and would
be outweighed by the benefits to a borrower of being able to retain
their home.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Elissa Saunders, Acting Director, Office of Single
Family Asset Management, Department of Housing and Urban Development,
Office of Housing, 451 Seventh Street SW, Washington, DC 20410, Phone:
202 708-2121.
RIN: 2502-AJ59
HUD--OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY (FHEO)
Proposed Rule Stage
100. Affirmatively Furthering Fair Housing (FR-6250)
Priority: Other Significant.
Legal Authority: 42 U.S.C. 3608(e)(5); 42 U.S.C. 5304; 42 U.S.C.
12705(b); 42 U.S.C. 1437c-1; 42 U.S.C. 3535(d); 42 U.S.C. 3600 to 3620
CFR Citation: 24 CFR 5, 91, 92, 570, 574, 576, and 903.
Legal Deadline: None.
Abstract: Through this proposed rule, HUD seeks to provide HUD and
its program participants with a more effective means to affirmatively
further the purposes and policies of the Fair Housing Act. The current
procedures for affirmatively furthering fair housing carried out by
program participants are not sufficiently effective to fulfill the
purposes and policies of the Fair Housing Act. HUD will be seeking
public comment on a new proposed rule that is focused on advancing
equity and providing access to opportunity for underserved populations
in a manner that is more effective in achieving measurable improvements
while avoiding unnecessary burden.
Statement of Need: The rule is needed to conform HUD regulations
with statutory standards and judicial interpretations of those
standards, and to ensure consistency in fair housing certifications
across HUD programs. This proposed rule would consider HUD's AFFH rule
published on July 16, 2015 (80 FR 42272) (2015 AFFH rule) but improve
upon its framework and impose less regulatory burden.
Summary of Legal Basis: Executive Order 13985, Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government, (86 FR 7009, January 20, 2021) requires each agency to
consider whether new policies, regulations, or guidance documents may
be necessary to advance equity in agency actions and programs. Further,
on January 26, 2021 (86 FR 7487), President Biden issued a Memorandum
on Redressing Our Nation's and the Federal Government's History of
Discriminatory Housing Practices and Policies, which explained
[[Page 5097]]
that the Federal Government will work with communities to, among other
things, end housing discrimination, lift barriers that restrict housing
and neighborhood choice, promote diverse and inclusive communities, and
secure equal access to housing opportunity for all.
Alternatives: Alternatives to promulgating this rule involve
finalizing the interim rule, Restoring Affirmatively Furthering Fair
Housing Definitions and Certifications, without taking further action
or repromulgating the 2015 AFFH rule without considering changes that
could reduce regulatory burden and enable a more meaningful fair
housing planning process. If HUD were to finalize the interim rule
without taking further action, there would be inconsistency in fair
housing certifications across different jurisdictions, as the interim
rule does not require that jurisdictions submit fair housing plans in
any particular form, such as an Analysis of Impediments or an
Assessment of Fair Housing, as was previously required. If HUD were to
repromulgate the 2015 AFFH rule without considering changes, HUD would
miss an opportunity to improve upon that rule and reduce the
significant regulatory burdens resulting from that rule. HUD believes
neither of those options are better than providing for a new
certification process that will undergo new public comment.
Anticipated Cost and Benefits: Executive Order 12866, as amended,
requires the agency to provide its best estimate of the combined
aggregate costs and benefits of all regulations included in the
agency's Regulatory Plan that will be pursued in FY 2022. HUD expects
that the neither the total economic costs nor the total efficiency
gains will exceed $100 million. HUD grantees are already familiar with
the AFFH compliance process as instituted by the 2015 rule and the 2021
interim final rule. Having learned from prior rulemakings, HUD believes
that the rule will create the right balance of analysis so that
grantees will have the available data necessary to help them in
completing any analytical requirements without adding the same level of
costs associated with the 2015 rulemaking.
Risks: Previous iterations of the AFFH rule have resulted in an
amount of burden on grantees that made implementation challenging. HUD
must balance the use of data and the depth of analysis that is required
of differing sized grantees to ensure that grantees can implement the
affirmatively furthering fair housing mandate while continuing to
fulfill their programmatic requirements. In promulgating this rule, HUD
will attempt to secure support from as many stakeholders as possible to
ensure maximum compliance with the duty to AFFH.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, Local, State.
Agency Contact: Demetria McCain, Principal Deputy Assistant
Secretary for Fair Housing and Equal Opportunity, Department of Housing
and Urban Development, Office of Fair Housing and Equal Opportunity,
451 Seventh Street, Washington, DC 20410, Phone: 202 402-5188.
RIN: 2529-AB05
BILLING CODE 4210-67-P
UNITED STATES DEPARTMENT OF THE INTERIOR
Fall 2021 Regulatory Plan
Introduction
The U.S. Department of the Interior (Department) is the principal
steward of our Nation's public lands and resources, including many of
our cultural treasures. The Department serves as trustee to Native
Americans, Alaska Natives, and Federally-Recognized Tribes and is
responsible for our ongoing relationships with the island territories
under U.S. jurisdiction and the freely associated states. Among the
Department's many responsibilities is managing more than 500 million
surface acres of Federal land, which constitutes approximately 20
percent of the Nation's land area, as well as approximately 700 million
subsurface acres of Federal mineral estate, and more than 2.5 billion
acres of submerged lands on the Outer Continental Shelf (OCS).
In addition, the Department protects and recovers endangered
species; protects natural, historic, and cultural resources; provides
scientific and other information about those resources; and manages
water projects that are an essential lifeline and economic engine for
many communities.
Hundreds of millions of people visit Department-managed lands each
year to take advantage of a wide range of recreational pursuits--
including camping, hiking, hunting, fishing, and various other forms of
outdoor recreation--and to learn about our Nation's history. Each of
these activities supports local communities and their economies. The
Department also provides access to Federal lands and offshore areas for
the development of energy, minerals, and other natural resources that
generate billions of dollars in revenue.
In short, the Department of the Interior plays a central role in
how the United States stewards its public lands, ensures environmental
protections, pursues environmental justice, honors the nation-to-nation
relationship with tribes and the special relationships with other
indigenous people and the insular areas.
Regulatory and Deregulatory Priorities
To help advance the Secretary of the Interior's (Secretary)
commitment to honoring the Nation's trust responsibilities and to
conserve and manage the Nation's natural resources and cultural
heritage, the Department's regulatory and deregulatory priorities in
the coming fiscal year (FY) will focus on:
Tackling the Climate Crisis, Strengthening Climate
Resiliency, and Facilitating the Transition to Renewable Energy;
Upholding Trust Responsibilities to Federally-Recognized
American Indian and Alaska Native Tribes Restoring Tribal Lands, and
Protecting Natural and Cultural Resources Advancing Equity and
Supporting Underserved Communities;
Investing in Healthy Lands, Waters and Local Economies and
Strengthening Conservation, and Protecting Endangered Species and their
Habitat
Tackling the Climate Crisis, Strengthening Climate Resiliency, and
Facilitating the Transition to Renewable Energy
In one of his first official actions after taking the oath of
office on January 20, 2021, President Biden signed Executive Order
(E.O.) 13990, entitled ``Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis.'' This Executive
order established the Biden-Harris administration's policy to ``improve
public health and protect our environment, to ensure access to clean
air and water, to reduce greenhouse gas emissions and to bolster
resilience of the impacts of climate change.'' An accompanying
document, entitled ``Fact Sheet: List of Agency Actions for Review,''
directed several Federal agencies, including the Department, to review
various regulations in accordance with E.O. 13990, and that review will
continue for FY 2022.
[[Page 5098]]
To help implement the commitment to tackling the climate crisis,
Secretary Haaland signed her first Secretary's Order (SO), SO 3398,
entitled ``Revocation of Secretary's Orders Inconsistent with
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis.'' SO 3398 implements the review of
Departmental actions mandated by Executive Order 13990. Foundational to
this process is the commitment to science and transparency and a pledge
``to conserve and restore our land, water, and wildlife; to reduce
greenhouse gas emissions; to create jobs through a growing clean energy
economy; and to bolster resilience to the impacts of climate change.''
SO 3398 revoked 12 SOs that were issued between March 29, 2017, and
December 22, 2020, and directed the Department to conduct reviews and
take appropriate actions on certain regulations. The SO further
directed Bureaus and Offices to review all policies and guidance
documents that may warrant further action to be consistent with
Executive Order 13990.
Recognizing the ongoing threat that climate change poses to our
Nation and to the world, on January 27, 2021, President Biden also
issued Executive Order 14008 entitled, ``Tackling the Climate Crisis at
Home and Abroad.'' Executive Order 14008 directed Federal agencies to
take a government-wide approach to the climate crisis and established a
National Climate Task Force to facilitate the organization and
deployment of such an approach.
To implement the directives in Executive Order 14008, on April 16,
2021, Secretary Haaland issued SO 3399, which directs a ``Department-
Wide Approach to the Climate Crisis and Restoring Transparency and
Integrity to the Decision-Making Process.'' SO 3399 established a
Departmental Climate Task Force charged with developing a strategy to
reduce climate pollution; improving and increasing adaptation and
resilience to the impacts of climate change; addressing current and
historic environmental injustice; protecting public health; and
conserving Department-managed lands.
In accordance with Executive Orders 13990 and 14008, a number of
bureaus in the Department are pursuing regulatory actions to implement
these administration priorities. The Bureau of Land Management (BLM),
for example, is proposing rules to ensure the responsible development
of oil and gas on public lands, including ``Waste Prevention,
Production Subject to Royalties, and Resource Conservation 43 CFR parts
3160 and 3170'' (1004-AE79), known as the Waste Prevention Rule, and
``Revision of Existing Regulations Pertaining to Fossil Fuel Leases and
Leasing Process 43 CFR parts 3100 and 3400'' (1004-AE80), known as the
Fossil Fuel Rule. The Waste Prevention Rule would reduce methane
emissions in the oil and gas sector and mitigate impacts of climate
change. The Fossil Fuel Rule would update BLM's process for leasing to
ensure the protection and proper stewardship of the public lands,
including potential climate and other impacts associated with fossil
fuel activities. Also, to comply with Executive Order 14008, BLM plans
to complete a comprehensive review and reconsideration of Federal
fossil fuel leasing practices considering BLM's broad stewardship
responsibilities over the public lands, including potential climate and
other impacts associated with fossil fuel activities on public lands.
Similarly, the Bureau of Ocean Energy Management (BOEM) is also
undertaking a comprehensive review and reconsideration of offshore
Federal oil and gas permitting and leasing practices, including
potential climate and other impacts associated with offshore oil and
gas activities. The BOEM will evaluate the sources and impacts of
climate change on the OCS, working in consultation with the Secretary
of Agriculture, the Secretary of Commerce, through the National Oceanic
and Atmospheric Administration, and the Secretary of Energy. Given the
Secretary's Outer Continental Shelf Lands Act (OCSLA) mandate to
conserve the natural resources on the OCS, this initiative will
evaluate the causes and effects of climate change and determine what
appropriate measures BOEM should take to further control emissions of
greenhouse gasses, including whether to adjust royalties associated
with coal, oil, and gas resources extracted from public lands and
offshore waters, develop regulations, or to take other action to
account for corresponding climate costs.
One of the explicit directions in Executive Order 14008 provides
that the Secretary, in consultation with the heads of other relevant
agencies, will review siting and permitting processes on public lands
and in offshore waters to identify steps that can be taken, consistent
with applicable law, to increase renewable energy production. The
Department is committed to fully facilitating the development of
renewable energy on public lands and waters, as well as supporting
tribal and territorial efforts to develop renewable energy, including
deploying 30 gigawatts (GW) of offshore wind by 2030 and 25GW of
onshore renewable energy by 2025. This mandate is to be undertaken
while also ensuring appropriate protection of public lands, waters, and
biodiversity and creating good jobs.
As part of these efforts in FY 2022, BOEM will propose a rule
entitled, ``Renewable Energy Modernization Rule'' (1010-AE04), that
will substantially update the existing renewable energy regulations to
facilitate responsible development of renewable energy resources more
rapidly on the OCS and promote U.S. energy independence. This rule
would also significantly reduce costs to developers for expanding
renewable energy development in an environmentally sound manner.
Similarly, BLM plans to update its regulations for onshore rights-of-
way, leasing, and operations related to all activities associated with
renewable energy and transmission lines (1004-AE78). This proposed rule
would improve permitting activities and processes to facilitate
increased renewable energy production on public lands.
Upholding Trust Responsibilities to Federally-Recognized American
Indian and Alaska Native Tribes Restoring Tribal Lands, and Protecting
Natural and Cultural Resources
Among the Department's most important responsibilities is its
commitment to honor the nation-to-nation relationship between the
Federal Government and Tribes. Secretary Haaland is strongly committed
to strengthening how the Department carries out its trust
responsibilities and to increasing economic development opportunities
for Tribes and other historically underserved communities.
As part of these efforts, on April 27, 2021, Secretary Haaland
signed SO 3400 entitled, ``Delegation of Authority for Non-Gaming Off-
Reservation Fee-to-Trust Acquisitions.'' SO 3400 is intended to ensure
that off-reservation fee-to-trust applications are effectively and
efficiently processed. As Secretary Haaland noted upon signing the SO,
``At Interior, we have an obligation to work with Tribes to protect
their lands and ensure that each Tribe has a homeland where its
citizens can live together and lead safe and fulfilling lives . . . Our
actions today will help us meet that obligation and will help empower
Tribes to determine how their lands are used--from conservation to
economic development projects.''
To advance the Department's trust responsibilities, the Bureau of
Indian
[[Page 5099]]
Affairs (BIA) is currently identifying opportunities to promote Tribal
economic growth and development. For example, BIA is working to remove
barriers to the development of renewable energy and other resources in
Indian country. During FY 2021, BIA finalized a rule that removed
several required items from Tribal Energy Resource Agreement (TERA)
applications and offered a new economic development option for Tribal
Energy Development Organizations (TEDOs) (1076-AF65) (86 FR 40147, July
27, 2021).
In consultation with Tribes, BIA has been engaged in efforts to
update and improve its regulations governing how it manages land held
in trust or in restricted status for Tribes and individual Indians.
This year, BIA published a final rule that modernizes the way the BIA
Land Title and Records Office (LTRO) maintains title to Indian trust
land and streamlines the process for probating estates that contain
trust property to reduce delays (1076-AF56) (86 FR 45631, August 16,
2021). The bureau has also launched a broader review to determine
whether any regulatory reforms are needed to facilitate restoration of
Tribal lands and safeguard natural and cultural resources. The BIA has
preliminarily identified as a candidate for revision the regulations
governing leases of Indian land for agricultural purposes, which are
found at 25 CFR part 162 (1076-AF66).
The BIA is also committed to improving regulations meant to protect
sacred and cultural resources. The BIA is working with the National
Park Service (NPS) to consult with Tribes on updates to regulations
implementing the Native American Graves and Repatriation Act (NAGPRA),
43 CFR 10 (1024-AE19). These regulations would provide a systematic
process for the disposition and repatriation of Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony. The updates are intended to simplify and improve the
regulatory process for repatriation, rectify provisions in the current
regulations that inhibit and effectively prevent respectful
repatriation, and remove the burden on Indian Tribes and Native
Hawaiian organizations to initiate the process and add a requirement
for museums and Federal agencies to complete the process.
Advancing Equity and Supporting Underserved Communities
The Biden-Harris administration and Secretary Haaland recognize and
support the goals of advancing equity and addressing the needs of
underserved communities. In January 2021, the President signed
Executive Order 13985 entitled, ``Advancing Racial Equity and Support
for Underserved Communities Through the Federal Government.'' This
Executive order directs all Federal agencies to pursue a comprehensive
approach to advancing equity for all, including people of color and
others who have been historically underserved, marginalized, and
adversely affected by persistent poverty and inequality. In FY 2022,
the Department will undertake a number of regulatory actions that will
assist people who reside in underserved communities.
The BLM (1004-AE60), FWS (1018-BD78), and NPS (1024-AE75), are
proposing right-of-way (ROW) rules that would improve efficiencies in
the communications programs, including plans and agreements for
electric transmission, distribution facilities and broadband
facilities. These rules are intended to increase services, such as
broadband connectivity, with resulting benefits to underserved
communities and visitors to Departmental lands and promote good
governance.
Investing in Healthy Lands, Waters and Local Economies and
Strengthening Conservation, and Protecting Endangered Species and Their
Habitat
The Department's FY 2022 regulatory agenda will continue to advance
the goals of investing in healthy lands, waters, and local economies
across the country. These regulatory efforts, which are consistent with
the Biden-Harris administration's ``America the Beautiful'' Initiative,
include expanding opportunities for outdoor recreation, including
hunting and fishing, for all Americans; enhancing conservation
stewardship; and improving the management of species and their habitat.
For example, the U.S. Fish and Wildlife Service (FWS) opened, for
the first time, seven national wildlife refuges (NWRs), totaling 2.1
million acres of public lands, that were previously closed to hunting
and sport fishing. Hunters and anglers are among the most ardent
conservationists. The FWS opened or expanded hunting and sport fishing
at 81 other NWRs and added pertinent station-specific regulations for
other NWRs that pertain to migratory game bird hunting, upland game
hunting, big game hunting, and sport fishing for the 2021-2022 season.
The FWS also opened hunting or sport fishing on one unit of the
National Fish Hatchery System (NFH), adding pertinent station-specific
regulations for migratory game bird hunting, upland game hunting, big
game hunting, and sport fishing at this NFH for the 2021-2022 season.
Finally, FWS made regulatory changes to existing station-specific
regulations to reduce the regulatory burden on the public, increase
access for hunters and anglers on FWS lands and waters, and comply with
a Presidential mandate for plain language standards. By responsibly
expanding these opportunities, the Department is enhancing the lives of
millions of Americans, promoting conservation stewardship, and
stimulating the national economy (86 FR 48822, August 31, 2021).
The NPS is also pursuing several regulatory actions under the
Department's direction and in accordance with these goals. These
regulatory actions would authorize recreational activities, such as
off-road vehicle use, snowmobiling, the use of motorized and non-
motorized vessels, personal watercraft, and bicycling, within
appropriate, designated areas of certain National Park System units.
These regulations would benefit local economies as well as promote
healthy lands and waters.
The Biden-Harris administration and Secretary Haaland are strongly
committed to strengthening conservation and improving conservation
partnerships. Through this regulatory plan, the Department affirms the
importance of the Endangered Species Act (ESA) in providing a broad and
flexible framework to facilitate conservation with a variety of
stakeholders. The Department, through FWS, is committed to working with
diverse Federal, Tribal, state, and industry partners to not only
protect and recover America's imperiled wildlife but to ensure the ESA
is helping meet 21st century challenges.
In FY 2022, FWS will continue its reviews of several ESA rules that
were finalized prior to January 20, 2021, to continue improving the
implementation of the ESA so that it is clearly and consistently
applied, helps recover listed species, and provides the maximum degree
of certainty possible to all parties. For example, FWS and the National
Marine Fisheries Service (NMFS) are reviewing the final rule that
became effective on January 15, 2021, entitled, ``Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat,'' that established a regulatory definition of ``habitat.'' FWS
is also reviewing the final rule entitled, ``Endangered and Threatened
Wildlife and Plants; Regulations for Designating Critical Habitat,''
that became effective on
[[Page 5100]]
January 19, 2021. That rule set forth a process for excluding areas of
critical habitat under section 4(b)(2) of the ESA, which mandates our
consideration of the impacts of designating critical habitat and
permits exclusions of particular areas following a discretionary
exclusion analysis. Finally, FWS and NMFS are reviewing the final rule
entitled, ``Endangered and Threatened Wildlife and Plants; Regulations
for Interagency Cooperation'' to determine whether and how the rule
should be revised or rescinded.
Bureaus and Offices Within the Department of the Interior
The following is an overview of some of the major regulatory and
deregulatory priorities of the Department's Bureaus and Offices.
Bureau of Indian Affairs
The BIA enhances the quality of life, promotes economic
opportunity, and protects and improves the trust assets of
approximately 1.9 million American Indians, Indian Tribes, and Alaska
Natives. The BIA maintains a government- to-government relationship
with the 574 Federally-Recognized Indian Tribes. The BIA also
administers and manages 55 million acres of surface land and 57 million
acres of subsurface minerals held in trust by the United States for
American Indians and Indian Tribes.
Regulatory and Deregulatory Actions
In FY 2021, BIA finalized a rule that removed several required
items from TERA applications and offers a new economic development
option for TEDOs (86 FR 40147, July 27, 2021).
The BIA also published a final rule that modernizes the manner in
which the BIA LTRO maintains title to Indian trust land and streamlines
the process for adjudicating probates of estates containing trust
property to reduce delays (86 FR 45631, August 16, 2021).
The BIA intends to prioritize the following rulemakings in FY 2022:
Tribal Transportation Program: Allowable Lengths of Access Roads (1076-
AF48)
This rule would change the allowable length of access roads in the
National Tribal Transportation Facilities Inventory, as determined by
25 CFR 170.447, to increase the 15-mile limits on the length of access
roads and create parity among all Tribes, regardless of land base or
remoteness of location.
Trust Fund Accounts for Tribes and Individual Indians--Supervised
Accounts (1076-AF57)
This rule would update the qualifications required for Indian
Affairs personnel who conduct reviews of supervised individual Indian
Money (IIM) accounts to ensure that personnel have appropriate
accounting skills and make other changes to reflect the transition of
duties from social services providers to IIM account specialists in the
newly established Bureau of Trust Funds Administration (BTFA).
Leasing of Osage Reservation Lands for Oil and Gas Mining (1076-AF59)
The regulations in 25 CFR part 226 would be revised because they
are outdated; do not reflect current oil and gas operations within the
Osage Mineral Estate or the industry at large; and are inconsistent
with Departmental regulations governing oil and gas exploration and
development throughout the rest of Indian country. The last substantive
revision to the regulations in 25 CFR part 226 occurred in 1974, with
many provisions remaining unchanged since well before then.
105(l) Leases Under the Indian Self-Determination and Education
Assistance Act (ISDEAA) (1076-AF60)
The current regulations governing 105(l) leases at 25 CFR 900,
subpart H, allow Tribes to be compensated for a broad range of expenses
ranging from rent to depreciation and ``other reasonable expenses.''
The revisions would establish sideboards on what costs the Department
will pay Tribes for 105(l) leases including, for examples, more
specific direction on the timing and scope of future 105(l) leases.
Self-Governance PROGRESS Act Regulations (1076-AF62)
This rule would implement the requirements of the PROGRESS Act
requiring updates to BIA's regulations governing Tribal Self-
Governance. The PROGRESS Act amends subchapter I of the Indian Self-
Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et
seq., which addresses Indian Self-Determination, and subchapter IV of
the ISDEAA which addresses the Department's Tribal Self-Governance
Program. The PROGRESS Act calls for a negotiated rulemaking committee
to be established under 5 U.S.C. 565, with membership consisting only
of representatives of Federal and Tribal governments, with the Office
of Self-Governance serving as the lead agency for the Department. The
PROGRESS Act also authorizes the Secretary to adapt negotiated
rulemaking procedures to the unique context of self-governance and the
government-to-government relationship between the United States and
Indian Tribes.
Indian Business Incubators Program (1076-AF63)
This rule would establish the structure for the Office of Indian
Energy and Economic Development (IEED) to implement the Native American
Business Incubators Program, which was established by statute in
October 2020. The rule will establish how IEED will provide competitive
grants to eligible applicants to establish and operate business
incubators that serve Tribal reservation communities. The business
incubators will provide tailored business incubation services to Native
businesses and Native entrepreneurs to overcome the unique obstacles
they confront in offering products and services to reservation
communities.
Agricultural Leasing of Indian Land (1076-AF66)
This rule would update provisions addressing leasing of trust or
restricted land (Indian land) for agricultural purposes to reflect
updates that have been made to business and residential leasing
provisions and address outdated provisions.
Federal Recognition of Tribes Under Alaska IRA (1076-AF51)
This rule will establish criteria and procedures for groups seeking
recognition as Tribes under the Alaska Indian Reorganization Act
(Alaska IRA), which is separate and distinct from the Indian
Reorganization Act of 1934, which has its own set of regulations for
seeking recognition as Tribes. The Alaska IRA provides that groups of
Indians in Alaska having a common bond of occupation, or association,
or residence within a well-defined neighborhood, community, or rural
district may organize to adopt constitutions and bylaws and receive
charters of incorporation and Federal loans. This rule will also
establish what documents are required to apply. To date, there has been
no regulatory process or criteria established for seeking recognition
under the Alaska IRA.
Elections of Osage Minerals Council (1076-AF58)
Current BIA regulations address how BIA conducts elections of
offices of the Osage Tribe, including provisions addressing nominating
conventions and
[[Page 5101]]
petitions, election notices, opening and closing of polls, ballots, and
contesting elections. This rule will remove outdated and unnecessary
provisions. . Statutory changes and the Osage Nation Constitution have
significantly pared down the role of BIA in the Tribe's elections. The
only remaining portion that will be included in this rule states that
BIA will provide, at the Osage Nation's request, a list of voters and
their headright interests to the Osage Minerals Council Election Board.
Bureau of Indian Education
The Bureau of Indian Education (BIE) mission is to provide students
at BIE-funded schools with a culturally relevant, high-quality
education that prepares students with the knowledge, skills, and
behaviors needed to flourish in the opportunities of tomorrow, become
healthy and successful individuals, and lead their communities and
sovereign nations to a thriving future that preserves their unique
cultural identities. The BIE is the preeminent provider of culturally
relevant educational services and supports provided by highly effective
educators to students at BIE-funded schools to foster lifelong
learning.
Regulatory and Deregulatory Actions
As BIE continues its work to fulfill its mission while keeping
students and school staff safe and healthy, BIE finalized a new
regulation in FY 2021 that will allow individual BIE-operated schools
to retain the funding received through leasing their lands and
facilities to third-parties, and direct that funding back into the
school (86 FR 34943, July 1, 2021). The new regulation will also allow
individual BIE-operated schools to retain fundraising proceeds and use
those proceeds for the benefit of the school.
Appeals From Administrative Actions (1076-AF64)
This rule would clarify the processes for appeals of actions taken
by officials in the Office of the Assistant Secretary Indian Affairs,
BIA, BIE, and BTFA (collectively, Indian Affairs).
Bureau of Land Management
The BLM manages more than 245 million acres of public land, known
as the National System of Public Lands, primarily located in 12 Western
states, including Alaska. The BLM also administers 700 million acres of
sub-surface mineral estate throughout the Nation. The agency's mission
is to sustain the health, diversity, and productivity of America's
public lands for the use and enjoyment of present and future
generations.
Regulatory and Deregulatory Actions
The BLM has identified the following priority rulemaking actions
for FY 2022:
Livestock Grazing (1004-AE82)
This proposed rule would revise BLM's grazing regulations to
improve resource management and increase efficiency by streamlining and
clarifying grazing processes and improving coordination among Federal,
State, and local government entities. The proposed rule would revise
the regulations at 43 CFR parts 4100, 1600, and 1500. These revisions
and additions would help to provide the public and land managers with
accurate and reliable information regarding grazing administration on
public lands.
Update of the Communications Uses Program, Right-of-Way Cost Recovery
Fee Schedules, and Section 512 of FLPMA for Rights-of-Way (1004-AE60)
The BLM is proposing amendments to its existing ROW regulations to
streamline and improve efficiencies in the communications uses program,
update the cost recovery fee schedules for ROW work activities, and
include provisions governing the development and approval of operating
plans and agreements for ROWs for electric transmission and
distribution facilities. Communications uses, such as broadband, are a
subset of ROW activities authorized under the Federal Land Policy and
Management Act of 1976 (FLPMA), as amended. Cost recovery fees apply to
most ROW activities authorized under either FLPMA or the Mineral
Leasing Act of 1920, as amended. This proposed rule would also
implement vegetation management requirements included in the
Consolidated Appropriations Act, 2018 (codified at 43 U.S.C. 1772) to
address fire risk from and to power-line ROWs on public lands and
national forests. The regulatory amendments would also codify
legislated agency requirements regarding review and approval of
utilities maintenance plans, liability limitations, and definitions of
hazard trees and emergency conditions.
Bonding (1004-AE68)
This proposed rule would update the bonding procedures for ROWs on
BLM-managed public land. The proposed rule would revise the bonding
portion of the BLM's ROW regulations to make them clearer and easier to
understand, which would facilitate efficient bond calculations.
Rights-of-Way, Leasing and Operations For Renewable Energy and
Transmission Lines 43 CFR Parts 2800, 2880, 3200 (1004-AE78)
This proposed rule would revise BLM's regulations for ROWs,
leasing, and operations related to all activities associated with
renewable energy and transmission lines. The Energy Act of 2020 and
E.O. 14008 prioritize the Department's need to improve permitting
activities and processes to facilitate increased renewable energy
production on public lands.
Waste Prevention, Production Subject to Royalties, and Resource
Conservation 43 CFR Parts 3160 and 3170 (1004-AE79)
This proposed rule would update BLM's regulations governing the
waste of natural gas through venting, flaring, and leaks on onshore
Federal and Indian oil and gas leases. The proposed rule would address
the priorities associated with Executive Order 14008. In addition, in
accordance with Executive Order 13990, this proposed rule would reduce
methane emissions in the oil and gas sector and mitigate impacts of
climate change.
Revision of Existing Regulations Pertaining to Fossil Fuel Leases and
Leasing Process 43 CFR Parts 3100 and 3400 (1004-AE80)
This proposed rule would revise BLM's fossil fuel regulations to
update the fees, rents, royalties, and bonding requirements related to
oil and gas leasing, development, and production. The proposed rule
would also update BLM's process for leasing to ensure the protection
and proper stewardship of the public lands, including potential climate
and other impacts associated with fossil fuel activities.
Revision of Existing Regulations Retaining to Leasing and Operations of
Geothermal 43 CFR Part 3200 (1004-AE84)
This proposed rule would update and codify BLM's Geothermal
Resource Orders into regulation, including common geothermal standard
practices, and inspection requirements and procedures.
Protection, Management, and Control of Wild Horses and Burros 43 CFR
Part 4700 (1004-AE83)
This proposed rule would address wild horse and burro management
challenges by adding regulatory tools that better reflect BLM's current
statutory authorities. For example, the existing regulations do not
address certain management authorities that Congress has provided since
1986 to
[[Page 5102]]
control wild horse and burro populations, such as the BLM's authority
to sell excess wild horses and burros. Updating the regulations would
also facilitate management strategies and priorities that were not
utilized when the regulations were originally promulgated, such as the
application of fertility control vaccines, managing for nonreproducing
herds, and feeding and caring for unsold and unadopted animals at off-
range corrals and pastures. The proposed rule would also clarify
ambiguities and management limitations in the existing regulations.
Bureau of Ocean Energy Management
The mission of BOEM is to manage development of U.S. OCS energy and
mineral resources in an environmentally and economically responsible
way. The BOEM is responsible for stewardship of U.S. OCS energy and
mineral resources, as well as protecting the environment that the
development of those resources may impact. The resources we manage
belong to the American people and future generations of Americans; wise
use of and fair return for these resources are foremost in our
management efforts.
In accordance with its statutory mandate under OCSLA, BOEM is
committed to implementing its dual mission of promoting the expeditious
and orderly development of the Nation's energy resources while
simultaneously protecting the marine, human, and coastal environment of
the OCS State submerged lands and the coastal communities. Consistent
with the policy outlined by the administration in E.O. 14008, BOEM is
reevaluating all of its programs related to the offshore development of
energy and mineral resources offshore. The BOEM is working with the
Department as a whole to review options for expanding renewable energy
production while evaluating alternatives to better protect the lands,
waters, and biodiversity of species located within the U.S. exclusive
economic zone.
Regulatory and Deregulatory Actions
In FY 2022, the BOEM plans to prioritize the following rulemaking
actions:
Renewable Energy Modernization Rule (1010-AE04)
The BOEM's most important regulatory initiative is focused on
expanding offshore wind energy's role in strengthening U.S. energy
security and independence, create jobs, provide benefits to local
communities, and further develop the U.S. economy. The BOEM's renewable
energy program has matured over the past 10 years, a time in which BOEM
has conducted numerous auctions and issued and managed multiple
commercial leases. Based on this experience, BOEM has identified
multiple opportunities to update its regulations to better facilitate
the development of renewable energy resources and to promote U.S.
energy independence.
The BOEM is proposing a rule that would update the existing
renewable energy regulations to help facilitate the timely and
responsible development of renewable energy resources on the OCS and
promote U.S. energy independence. This proposed rule contains reforms
identified by BOEM and recommended by industry, including proposals for
incremental funding of decommissioning accounts; more flexible
geophysical and geotechnical survey submission requirements;
streamlined approval of meteorological buoys; revised project
verification procedures; and greater clarity regarding safety
requirements. This rule advances the administration's energy policies
in a safe and environmentally sound manner that provides a fair return
to the American taxpayer while, at the same time, significantly
reducing industry development.
Air Quality Rule (1010-AE09)
In accordance with the administration's renewed commitment to
ensure the robust protection for the lands, waters, and biodiversity of
the United States, BOEM is reevaluating the entirety of its air quality
regulatory program and will propose further enhancements. The BOEM and
the Department are proposing a new offshore air quality rule to tighten
pollution standards for offshore operations and require improved
pollution control technology. The proposed rule would amend regulations
for air quality measurement, evaluation, and control for offshore oil
and gas operations. The goal of this new proposed rule would be to
improve the ambient air quality of the coastal States and their
corresponding State submerged lands by addressing a number of issues
that were not addressed by BOEM's prior final air quality rule. The
BOEM expects to revisit a number of the topics that were originally
reviewed in 2016.
Bureau of Safety and Environmental Enforcement
The Bureau of Safety and Environmental Enforcement's (BSEE) mission
is to promote safety, protect the environment, and conserve resources
offshore through vigorous regulatory oversight and enforcement. The
BSEE is the lead Federal agency charged with improving safety and
ensuring environmental protection related to conventional and renewable
energy activities on the U.S. OCS.
Regulatory and Deregulatory Actions
The BSEE has identified the following rulemaking priorities for FY
2022:
Oil-Spill Response Requirements for Facilities Located Seaward of the
Coast Line Proposed Rule (1014-AA44)
The Oil Spill Response Requirements regulations in 30 CFR part 254
were last updated over 20 years ago (62 FR 13996, Mar. 25, 1997). This
proposed rule would update the existing regulations in order to
incorporate the latest advancements in spill response and preparedness
policies and technologies, as well as lessons learned and
recommendations from reports related to the Deepwater Horizon explosion
and subsequent oil spill.
Revisions to Subpart J--Pipelines and Pipeline Rights-of-Way Proposed
Rule (1014-AA45)
This proposed rule would revise specific provisions of the current
Pipelines and Pipeline ROW regulations under 30 CFR 250 subpart J in
order to bring those regulations up to date with current technology and
state-of-the-art safety equipment and procedures, primarily through the
incorporation of industry standards.
Outer Continental Shelf Lands Act; Operating in High-Pressure and/or
High-Temperature (HPHT) Environments (1014-AA49)
Currently, BSEE has no regulations specific to high pressure and/or
high temperature (HPHT) projects, requiring BSEE to issue multiple
guidance documents clarifying the specific HPHT information prospective
operators should submit to BSEE to support the Bureau's programmatic
reviews and approvals of such projects. This proposed rule would
formally codify BSEE's existing process for reviewing and approving
projects in HPHT environments.
Oil and Gas and Sulfur Operations in the Outer Continental Shelf-
Blowout Preventer Systems and Well Control Revisions (1014-AA52)
The BSEE is revising existing regulations for well control and
blowout preventer systems.
[[Page 5103]]
Bureau of Ocean Energy Management, and Bureau of Safety and
Environmental Enforcement Renewable Energy Split Final Rule (1082-AA03)
The BOEM currently has authority over all renewable energy
activities on the OCS under regulations at 30 CFR part 585. The BOEM
and BSEE are in the process of amending the Department's Manual
chapters to transfer the safety, environmental enforcement, and
compliance functions relevant to renewable energy activities from BOEM
to BSEE. Consistent with that effort, BSEE and BOEM would amend their
respective regulations to reflect the split of functions between the
two Bureaus.
Office of the Chief Information Officer
The Office of the Chief Information Officer (OCIO) provides
leadership to the Department and its Bureaus in all areas of
information management and technology. To successfully serve the
Department's multiple missions, the OCIO applies modern Information
Technology tools, approaches, systems, and products. Effective and
innovative use of technology and information resources enables
transparency and accessibility of information and services to the
public.
For FY 2022, OCIO is working on these priority rules:
Network Security System of Records (1090-AB14)
This rule would revise the Department's Privacy Act regulations at
43 CFR 2.254 to claim Privacy Act exemptions for certain records in the
DOI-49, Network Security, system of records from one or more provisions
of the Privacy Act pursuant to 5 U.S.C 552a(j) and (k), because of
criminal, civil, and administrative law enforcement requirements.
Insider Threat Program System of Records (1090-AB15)
This rule would revise the Department's Privacy Act regulations at
43 CFR 2.254 to claim Privacy Act exemptions for certain records in the
DOI-50, Insider Threat Program, system of records from one or more
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k),
because of criminal, civil, and administrative law enforcement
requirements.
Personnel Security Files System of Records (1090-AB16)
This rule would revise the Department's Privacy Act regulations at
43 CFR 2.254 to claim Privacy Act exemptions for certain records in the
DOI-45, Personnel Security Files, system of records from one or more
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k), because of
criminal, civil, and administrative law enforcement requirements.
Social Security Number Fraud Prevention Act of 2017 Implementation
(1090-AB24)
This direct final rule will amend 43 CFR part 2 to add subpart M to
implement the Social Security Number Fraud Prevention Act of 2017,
which directs Federal agencies to issue regulations that prohibit the
inclusion of an individual's Social Security number (SSN) on any
document sent through the mail unless the Secretary deems it necessary.
The regulations also include requirements for protecting documents with
SSNs sent through postal mail.
Office of Environmental Policy and Compliance
The Office of Environmental Policy and Compliance (OEPC) serves as
a leader in conservation stewardship and the sustainable development
and use of Department-managed resources for the benefit of the public.
The office fosters partnerships to enhance resource use and protection,
as well as to expand public access to safe and clean lands under the
Department's jurisdiction. The office also strives to continually
streamline environmental policies and procedures to increase management
effectiveness and efficiency, reduce duplicative practices, and realize
cost savings.
For FY 2022, OEPC will publish in the Federal Register:
Implementation of the National Environmental Policy Act (NEPA) of 1969
(1090-AB18)
This rule would develop regulations to streamline OEPC's NEPA
process and comply with E.O. 13990 and SO 3399.
Office of Grants Management
The Office of Grants Management is responsible for providing
executive leadership, oversight, and policy for the financial
assistance across the Department.
Financial Assistance Interior Regulation (1090-AB23)
This rule will align the Department's regulations with new
regulatory citations and requirements adopted by the Office of
Management and Budget (OMB). On August 13, 2020, OMB published a
revision to sections of Title 2 of the Code of Federal Regulations,
Guidance for Grants and Agreements. The revision was an administrative
simplification and did not make any substantive changes to 2 CFR part
200 policies and procedures. This rule will codify these changes in the
Department's financial assistance regulations located in 2 CFR part
1402. (86 FR 57529, October 18, 2021).
Office of Hearings and Appeals
The Office of Hearings and Appeals (OHA) exercises the delegated
authority of the Secretary to conduct hearings and decide appeals from
decisions of the Bureaus and Offices of the Department. The OHA
provides an impartial forum for parties who are affected by the
decisions of the Department's Bureaus and Offices to obtain independent
review of those decisions. The OHA also handles the probating of Indian
trust estates, ensuring that individual Indian interests in allotted
lands, their proceeds, and other trust assets are conveyed to the
decedents' rightful heirs and beneficiaries.
Updates to American Indian Probate Regulations (1094-AA55)
This final rule will make regulatory changes relating to efficiency
and streamlining of probate processes, ensuring that the Department
meets its trust obligations, and helping achieve the American Indian
Probate Reform Act/statutory goal of reducing fractionalization of
trust property interests.
Practices Before the Department of Interior (1094-AA56)
This direct final rule will amend existing regulations to keep up
to date office addresses for hearings and appeals purposes, to allow
for the OHA Director to issue interim orders in emergency
circumstances, and to allow for the OHA Director to issue standing
orders that will improve OHA's service to the public and the parties by
modernizing its processes.
Office of Natural Resources Revenue
The Office of Natural Resources Revenue (ONRR) continues to
collect, account for, and disburse revenues from Federal offshore
energy and mineral leases and from onshore mineral leases on Federal
and Indian lands. The ONRR operates nationwide and is primarily
responsible for the timely and accurate collection, distribution, and
accounting of revenues associated with mineral and energy production.
ONRR 2020 Valuation Reform and Civil Penalty Rule: Final Withdrawal
Rule (1012-AA27)
The ONRR is withdrawing the ONRR 2020 Valuation Reform and Civil
[[Page 5104]]
Penalty Rule (86 FR 54045, September 30, 2021).
Amendments to ONRR's Mail Addresses Listed in Tiltle30 CFR, Chapter XII
(1012-AA28)
This rule will amend mailing addresses listed in parts of Title 30
CFR, Chapter XII due to ONRR's main building renovation, which changed
the organizations mailing addresses.
Civil Monetary Penalty Rates Inflation Adjustments for Calendar Year
2022 (1012-AA31)
This rule will adjust the maximum civil monetary penalty rates for
inflation and announces the rates applicable to calendar year 2022.
Office of Small and Disadvantaged Business Utilization
The Office of Small and Disadvantaged Business Utilization advises
the Secretary on small business issues and collaborates with leadership
to maximize small business opportunities. The office implements
policies, procedures, and training programs for the Department to
emphasize its commitment to contracting with small businesses. The
mission also includes outreach to small and disadvantaged business
communities, including Indian economic enterprises, small
disadvantaged, women-owned, veteran-owned, service-disabled veteran
owned, small businesses located in historically underutilized business
zones areas, and the Ability One Program.
Department of the Interior Acquisition Regulations, Buy Indian Act
Acquisition Regulations (1090-AB21)
This rule would revise regulations implementing the Buy Indian Act,
which provides the Department with authority to set aside procurement
contracts for Indian-owned and controlled businesses. These revisions
would eliminate barriers to Indian Economic Enterprises from competing
on certain construction contracts, expand Indian Economic Enterprises'
ability to subcontract construction work consistent with other socio-
economic set-aside programs, and give greater preference to Indian
Economic Enterprises when a deviation from the Buy Indian Act is
necessary, among other updates (86 FR 59338, October 27, 2021).
Office of Surface Mining Reclamation and Enforcement
The Office of Surface Mining Reclamation and Enforcement (OSMRE)
was created by the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The OSMRE works with States and Tribes to ensure that citizens
and the environment are protected during coal mining and that the land
is restored to beneficial use when mining is finished. The OSMRE and
its partners are also responsible for reclaiming and restoring lands
and water degraded by mining operations before 1977. The OSMRE focuses
on overseeing the state programs and developing new tools to help the
states and tribes get the job done.
The OSMRE also works with colleges and universities and other State
and Federal agencies to further the science of reclaiming mined lands
and protecting the environment, including initiatives to promote
planting more trees and establishing much-needed wildlife habitat.
Regulatory and Deregulatory Actions
The OSMRE does not currently expect to finalize any significant
regulatory actions during FY 2022. The OSMRE does anticipate
publishing:
Ten Day Notices (1029-AC81)
This rule would reexamine OSMRE's regulations on the ten-day
notices rule that went into effect on December 24, 2020.
Emergency Preparedness for Impoundments (1029-AC82)
This rule would incorporate certain aspects of the Federal
Guidelines for Dam Safety (FGDS) into OSMRE's existing regulations.
These regulations relate to emergency preparedness for impoundments and
propose to incorporate the FGDS Emergency Action Plans (EAP) and After-
Action Reports (AAR). The proposed rule may result in revisions to
OSMRE's regulations at 30 CFR 701.5, 780.25, 784.16, 816.49, 817.49,
816.84, and 817.84. Also, OSMRE may add new provisions to the
regulations to explain the EAP and AAR requirements and align the
classification of impoundments with industry and other Government
agency standards.
U.S. Fish and Wildlife Service
The mission of FWS is to work with others to conserve, protect, and
enhance fish, wildlife, and plants and their habitats for the
continuing benefit of the American people. The FWS also provides
opportunities for Americans to enjoy the outdoors and our shared
natural heritage. The FWS also promotes and encourages the pursuit of
recreational activities such as hunting and fishing and wildlife
observation.
The FWS manages a network of 567 NWRs, with at least one refuge in
each U.S. State and territory, and with more than 100 refuges close to
major urban centers. The Refuge System plays an essential role in
providing outdoor recreation opportunities to the American public. In
2019, more than 59 million visitors went to refuges to hunt, fish,
observe or photograph wildlife, or participate in environmental
education or interpretation.
The FWS fulfills its responsibilities through a diverse array of
programs that:
Protect and recover endangered and threatened species;
Monitor and manage migratory birds;
Restore nationally significant fisheries;
Enforce Federal wildlife laws and regulate international
trade;
Conserve and restore wildlife habitat such as wetlands;
Manage and distribute over a billion dollars each year to
States, territories, and Tribes for fish and wildlife conservation;
Help foreign governments conserve wildlife through
international conservation efforts; and
Fulfill our Federal Tribal trust responsibility.
Regulatory and Deregulatory Actions
The FWS has identified the following priority rulemaking actions
for FY 2022:
Regulations Under the Endangered Species Act (ESA):
The FWS will promulgate multiple regulatory actions under the ESA
to prevent the extinction of and facilitate the recovery of both
domestic and foreign animal and plant species. Accordingly, FWS will
add species to, remove species from, and reclassify species on the
Lists of Endangered and Threatened Wildlife and Plants and designate
critical habitat for certain listed species, in accordance with the
National Listing Workplan. The Workplan enables FWS to prioritize
workloads based on the needs of candidate and petitioned species, while
providing greater clarity and predictability about the timing of
listing determinations to State wildlife agencies, nonprofit
organizations, and other stakeholders and partners. The Workplan
represents the conservation priorities of FWS based on its review of
scientific information. The goal is to encourage proactive conservation
so that Federal protections are not needed in the first place. The FWS
also plans to promulgate several species-specific rules to protect
threatened species under section 4(d) of the ESA.
[[Page 5105]]
The Unified Agenda includes rulemaking actions pertaining to these
issues:
Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Northern Spotted Owl (1018-BF01)
This rule revised the designated critical habitat for the northern
spotted owl (Strix occidentalis caurina) under the ESA. After a review
of the best available scientific and commercial information, FWS
withdrew the January 15, 2021, final rule that would have excluded
approximately 3.4 million acres of designated critical habitat for the
northern spotted owl. Instead, FWS revised the species' designated
critical habitat by excluding approximately 204,294 acres (82,675
hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson,
Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook,
Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the
Act (86 FR 62606, November 10, 2021).
Endangered and Threatened Wildlife and Plants; Listing Determination
and Critical Habitat Designation for the Monarch Butterfly (1018-BE30)
This rule would list the monarch butterfly under the ESA in FY
2024, if listing is still warranted at that time. FWS would also
propose to designate critical habitat for the species, if prudent and
determinable.
Endangered and Threatened Wildlife and Plants; Revision of the
Regulations for Listing Endangered and Threatened Species and
Designation of Critical Habitat (1018-BE69)
The FWS and the National Marine Fisheries Service propose to
rescind the final rule titled ``Regulations for Listing Endangered and
Threatened Species and Designating Critical Habitat'' that was
published on December 16, 2020, and became effective on January 15,
2021. The proposed rescission, if finalized, would remove the
regulatory definition of ``habitat'' established by that rule.
Endangered and Threatened Wildlife and Plan; Revision of the
Regulations for Designating Critical Habitat (1018-BD84)
The FWS proposes to rescind the final rule titled ``Endangered and
Threatened Wildlife and Plants; Regulations for Designating Critical
Habitat'' that published on December 18, 2020, and became effective
January 19, 2021. The proposed rescission, if finalized, would remove
the regulations established by that rule.
Endangered and Threatened Wildlife and Plants; Regulations for Listing
Endangered and Threatened Species and Designating Critical Habitat
(1018-BF95)
This joint Departments of Commerce and the Interior (the
Departments) rule would review the previous rulemaking action with the
title ``Endangered and Threatened Wildlife and Plants; Regulations for
Listing Species and Designating Critical Habitat,'' (84 FR 45020;
August 27, 2019), in which we revised the regulations for adding and
removing species from the Lists of Endangered and Threatened Wildlife
and Plants and clarified procedures for designation of critical
habitat. The Departments' review will determine whether and how that
rule should be revised.
Endangered and Threatened Wildlife and Plants; Revisiting the
Interagency Cooperation Final Rule (1018-BF96)
This joint rule by the Departments of Commerce and the Interior
would review Endangered and Threatened Wildlife and Plants; Regulations
for Interagency Cooperation (84 FR 44976; August 27, 2019) to determine
whether and how the rule should be revised or rescinded.
Endangered and Threatened Wildlife and Plants; Compensatory Mitigation
Mechanisms Under the Endangered Species Act (1018-BF63):
This rulemaking action would address section 329 of the National
Defense Authorization Act for Fiscal Year 2021, Objectives, Performance
Standards, and Criteria for Use of Wildlife Conservation Banking
Programs. This law requires FWS to publish an advance notice of
proposed rulemaking (ANPRM) by January 1, 2022. The purpose of the
ANPRM is to inform FWS's development of regulations related to wildlife
conservation banking to ensure opportunities for Department of Defense
participation in wildlife conservation banking programs pursuant to
section 2694c of title 10, United States Code.
Regulations Governing Take of Migratory Birds (1018-BD76):
On January 7, 2021, the FWS published a final rule defining the
scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct
resulting in the injury or death of migratory birds protected by the
MBTA. We are now revoking that rule. The effect of this rule is a
return to implementing the MBTA as prohibiting incidental take and
applying enforcement discretion, consistent with judicial precedent.
Protection of Migratory Birds; Definitions and Authorizations (1018-
BF71)
This rule would amend FWS regulations by providing definitions to
terms used in the MBTA. This proposed rule would clarify that the
MBTA's prohibitions on taking and killing migratory birds includes
foreseeable, direct taking and killing that is incidental to other
activities. The rule would also propose to establish authorizations for
compliance with MBTA prohibitions.
Eagle Permits; Incidental Take (1018-BE70)
This rule would provide potential approaches for further expediting
and simplifying the permit process authorizing incidental take of
eagles. The new process would improve and make more efficient the
permitting process for incidental take of eagles in a manner that is
compatible with the preservation of bald and golden eagles.
Possession of Eagle Specimens for Religious Purposes (1018-BB88)
This rule would propose extending legal access to bald and golden
eagle parts and feathers for religious use to persons other than
enrolled members of federally recognized Tribes.
2021-2022 Station-Specific Hunting and Sport Fishing Regulations (1018-
BF09)
The FWS opens, for the first time, seven National Wildlife Refuges
(NWRs) that are currently closed to hunting and sport fishing. In
addition, the Service opens or expands hunting and sport fishing at 81
other NWRs and adds pertinent station-specific regulations for other
NWRs that pertain to migratory game bird hunting, upland game hunting,
big game hunting, and sport fishing for the 2021-2022 season. The
Service also opens hunting or sport fishing on one unit of the National
Fish Hatchery System (NFH). We add pertinent station-specific
regulations that pertain to migratory game bird hunting, upland game
hunting, big game hunting, and sport fishing at this NFH for the 2021-
2022 season. Finally, we make regulatory changes to existing station-
specific regulations in order to reduce the regulatory burden on the
public, increase access for hunters and anglers on Service lands and
waters, and comply with a Presidential mandate for plain language
standards (86 FR 48822, August 31, 2021).
[[Page 5106]]
Revision of Regulations Implementing the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES); Updates
Following the Eighteenth Meeting of the Conference of the Parties
(CoP18) to CITES (1018-BF14)
The FWS is taking direct final action to revise regulations that
implement the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES or Treaty) by incorporating certain non-
controversial provisions adopted at the sixteenth through eighteenth
meetings of the Conference of the Parties (CoP16-CoP18) to CITES and
clarifying and updating certain other provisions. These changes will
bring U.S. regulations in line with certain revisions adopted at the
three most recent meetings of the CoP, which took place in March 2013
(CoP16), September-October 2016 (CoP17), and August 2019 (CoP18). The
revised regulations will help FWS more effectively promote species
conservation, help us continue to fulfill our responsibilities under
the Treaty, and help those affected by CITES to understand how to
conduct lawful international trade.
National Park Service
The National Park Service (NPS) preserves the natural and cultural
resources and values within 423 units of the National Park System
encompassing more than 85 million acres of lands and waters for the
enjoyment, education, and inspiration of this and future generations.
The NPS also cooperates with partners to extend the benefits of
resource conservation and outdoor recreation throughout the United
States and the world.
Regulatory and Deregulatory Actions
The following are the NPS's rulemaking priorities during FY 2022
year:
Native American Graves Protection and Repatriation Act Regulations
(1024-AE19)
This rule would revise the NAGPRA implementing regulations. The
rule would eliminate ambiguities, correct inaccuracies, simplify
excessively burdensome and complicated requirements, clarify timelines,
and remove offensive terminology in the existing regulations that have
inhibited the respectful repatriation of most Native American human
remains. This rule would simplify and improve the regulatory process
for repatriation and thereby advance the goals of racial justice,
equity, and inclusion.
Colonial National Historical Park; Vessels and Commercial Passenger-
Carrying Motor Vehicles (1024-AE39)
This final rule will amend the special regulations for Colonial
National Historical Park. This rule will remove a regulation that
prevents the Superintendent from designating sites within the park for
launching and landing private vessels. The rule will also remove
outdated permit and fee requirements for commercial passenger-carrying
vehicles.
Visitor Experience Improvements Authority Contracts (1024-AE47)
This proposed rule would implement the Visitor Experience
Improvements Authority (VEIA) given to NPS by Congress in title VII of
the National Park Service Centennial Act. This authority allows the NPS
to award and administer commercial services contracts for the operation
and expansion of commercial visitor facilities and visitor services
programs in units of the National Park System. The VEIA supplements but
does not replace the existing authority granted to the NPS in the
Concessions Management Improvement Act of 1988 to enter into concession
contracts.
Whiskeytown National Recreation Area; Bicycling (1024-AE52)
This rule would allow bicycles on approximately 75 miles of trails
throughout Whiskeytown National Recreation Area; 17 miles of trail will
be newly constructed. Bicycling is an established use at the recreation
area that has never been properly authorized under NPS bicycle
regulations.
Pictured Rocks National Lakeshore; Snowmobiles (1024-AE53)
This final rule will clarify where snowmobiles may be used within
the boundaries of the Lakeshore by replacing general language allowing
snowmobiles on unplowed roads and the shoulders of plowed roads with a
comprehensive list of designated snowmobile routes.
Gulf Islands National Seashore; Personal Watercraft (1024-AE55)
This final rule will amend special regulations for Gulf Island
National Seashore that govern the use of personal watercraft (PWC)
within the National Seashore in Mississippi and Florida. NPS
regulations only allow for the operation of PWCs in park areas were
authorized by special regulation.
Commercial Visitor Services; Concession Contracts (1024-AE57)
This final rule will revise regulations that govern the
solicitation, award, and administration of concessions contracts to
provide commercial visitor services at National Park System units under
the Concessions Management Improvement Act of 1998. This rule would
reduce administrative burdens and expand sustainable, high quality, and
contemporary concessioner-provided visitor services in national parks.
Curation of Federally-Owned and Administered Archeological Collections
(1024-AE58)
This final rule will amend the regulations for the curation of
federally-owned and administered archeological collections to establish
definitions, standards, and procedures to dispose of particular
material remains that are determined to be of insufficient
archaeological interest. This rule will promote more efficient and
effective curation of these archeological collections.
Ozark National Scenic Riverways; Motorized Vessels (1024-AE62)
This rule would amend special regulations for Ozark National Scenic
Riverways. The rule would modify regulations governing the use of
motorized vessels within the Riverways to help accommodate a variety of
desired river conditions and recreational uses, promote high quality
visitor experiences, promote visitor safety, and minimize conflicts
among different user groups. The rule would implement a management
action that represents a compromise between user groups and was the
result of a long planning process with robust community engagement.
Mount Rainier National Park; Fishing (1024-AE66)
This rule would revise special regulations for Mount Rainier
National Park to remove all fishing closures and restrictions from 36
CFR 7.5. Instead, the NPS would manage fishing though administrative
orders in the Superintendent's Compendium. This action would help
implement a 2018 Fish Management Plan that aims to conserve native fish
populations and restore aquatic ecosystems by reducing or eliminating
nonnative fish.
Bureau of Reclamation
The Bureau of Reclamation's Reclamation mission is to manage,
develop, and protect water and related resources in an environmentally
and economically sound manner in the interest of the American public.
To accomplish this mission, Reclamation employs management,
engineering, and
[[Page 5107]]
science to achieve effective and environmentally sensitive solutions.
Reclamation's projects provide: Irrigation water service; municipal
and industrial water supply; hydroelectric power generation; water
quality improvement; groundwater management; fish and wildlife
enhancement; outdoor recreation; flood control; navigation; river
regulation and control; system optimization; and related uses. In
addition, Reclamation continues to provide increased security at its
facilities.
Regulatory and Deregulatory Actions
Reclamation's rulemaking priorities for FY 2022 include the
following:
Public Conduct on Bureau of Reclamation Facilities, Lands and
Waterbodies (1006-AA58)
This proposed update to an existing rule would revise existing
definitions for the use of aircraft, the possession of firearms,
camping, swimming, and winter recreation for the wide range of
circumstances found across Reclamation and would clarify the permitting
of memorials and correct inconsistencies found within this part.
Departmental
For FY 2022, the Department intends to publish in the Federal
Register:
Paleontological Resources Preservation. (1093-AA25)
This rule addresses the management, collection, and curation of
paleontological resources on or from Federal lands administered by the
Department using scientific principles and expertise, including
collection in accordance with permits; curation in an approved
repository; and maintenance of confidentiality of specific locality
data.
BILLING CODE 4334-63-P
DEPARTMENT OF JUSTICE (DOJ)--FALL 2021
Statement of Regulatory Priorities
The mission of the Department of Justice is to uphold the rule of
law, to protect the public against foreign and domestic threats, to
provide Federal leadership in preventing and controlling crime, and to
ensure equal justice under the law for all. In carrying out this
mission, the Department is guided by the core values of integrity,
fairness, and commitment to promoting the impartial administration of
justice--including for those in historically underserved, vulnerable,
or marginalized communities. Consistent with its mission and values,
the Department is prioritizing activities that strengthen enforcement
of civil rights laws, defend against domestic and international
terrorism, combat gun violence, and reform criminal justice systems.
Because the Department of Justice is primarily a law enforcement
agency, not a regulatory agency, it carries out its principal
investigative, prosecutorial, and other enforcement activities through
means other than the regulatory process.
The regulatory priorities of the Department include initiatives in
the areas of immigration, criminal justice reform, and gun violence
reduction. Those initiatives, as well as regulatory initiatives by
several other components carrying out key law enforcement priorities,
are summarized below.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
ATF issues regulations to enforce the Federal laws relating to the
manufacture, importation, sale, and other commerce in firearms and
explosives. ATF's mission and regulations are designed to, among other
objectives: (1) Curb illegal traffic in, and criminal use of, firearms
and explosives; and (2) assist State, local, and other Federal law
enforcement agencies in reducing violent crime. ATF will continue, as a
priority during fiscal year 2021, to seek modifications to its
regulations governing commerce in firearms and explosives in
furtherance of these important goals.
ATF plans to finalize regulations regarding definitions of firearm,
firearm frame or receiver, gunsmith, complete weapon, complete muffler
or silencer device, privately made firearm, and readily, and finalize
regulations on marking and recordkeeping that are necessary to
implement these new or amended definitions (RIN 1140-AA54). The intent
of this rulemaking is to consider technological developments and modern
terminology in the firearms industry, and to enhance public safety by
helping to stem the proliferation of unmarked, privately made firearms
that have increasingly been recovered at crime scenes. Further, ATF
plans to finalize regulations to implement certain provisions of Public
Law 105-277, Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999 (RIN 1140-AA10), and to set forth factors
considered when evaluating firearms with an attached stabilizing brace
to determine whether they are considered firearms under the National
Firearms Act and/or the Gun Control Act (RIN 1140-AA55). This second
rule would make clear that all weapons that fall under the National
Firearms Act, however they are made, are subject to its heightened
regulations--including registration and background check requirements.
ATF also has begun a rulemaking process that amends 27 CFR part 447 to
update the terminology in ATF's import control regulations based on
similar terminology amendments made by the Department of State on the
U.S. Munitions List in the International Traffic in Arms Regulations,
and the Department of Commerce on the Commerce Control List in the
Export Administration Regulations (RIN 1140-AA49).
Bureau of Prisons (BOP)
BOP issues regulations to enforce the Federal laws relating to its
mission: To protect public safety by ensuring that federal offenders
serve their sentences of imprisonment in facilities that are safe,
humane, cost-efficient, and appropriately secure, and to provide
reentry programming to ensure their successful return to the community.
Over the past year, the Bureau has successfully implemented its
Incident Action Plan, developed in response to 2020 pandemic conditions
to facilitate continuity of operations, supplies, inmate movement,
visitation, staff training, and official staff travel. As pandemic
conditions continue to evolve, BOP plans to continue to employ and
improve its Incident Action Plan, currently comprised of BOP's approved
Pandemic Influenza Plan; its Incident Command System (ICS) framework;
and guidance and directives from the World Health Organization (WHO),
the Centers for Disease Control and Prevention (CDC), the Office of
Personnel Management (OPM), DOJ, and the Office of the Vice President.
In the near future, BOP plans to finalize procedures for eligible
inmates to earn FSA Time Credits, as authorized by the First Step Act
of 2018 (FSA), Public Law 115-391, 132 Stat. 5194 (2018). The FSA
provides that eligible inmates earn FSA Time Credits towards prerelease
custody or early transfer to supervised release for successfully
completing approved Evidence-Based Recidivism Reduction (EBRR) Programs
or Productive Activities (PAs) assigned to each inmate based on the
inmate's risk and needs assessment.
BOP will also finalize regulations implementing additional
legislative changes enacted in the FSA to broaden the Good Conduct Time
Credit system, revise inmate disciplinary regulations, and provide
effective literacy programming which serves both general and
specialized inmate needs.
[[Page 5108]]
Civil Rights Division (CRT)
CRT works to uphold the civil and constitutional rights of all
Americans, particularly some of the most vulnerable members of our
society. Consistent with this mission, CRT plans to engage in three
separate rulemakings under the Americans with Disabilities Act (ADA).
First, CRT plans to amend its current regulations under section 504
of the Rehabilitation Act of 1973, which prohibits discrimination based
on disability in programs and activities conducted by an Executive
agency, to bring them up to date. Second, the Department plans to
publish a new ANPRM seeking public input on possible revisions to its
ADA regulations to ensure the accessibility of equipment and furniture
in public entities and public accommodations programs and services.
Third, the Department of Justice intends to propose requirements for
the construction and alteration of pedestrian facilities covered by
subtitle A of title II of the ADA that are consistent with the Access
Board's minimum ``Accessibility Guidelines for Pedestrian Facilities in
the Public Right-of-Way.'' These requirements would ensure that
sidewalks and other pedestrian facilities in the public right-of-way
are accessible to and usable by individuals with disabilities.
Drug Enforcement Administration (DEA)
DEA is the primary agency responsible for coordinating the drug law
enforcement activities of the United States and assists in the
implementation of the President's National Drug Control Strategy. DEA
implements and enforces titles II and III of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 and the Controlled Substances
Import and Export Act (21 U.S.C. 801-971), as amended, collectively
referred to as the Controlled Substances Act (CSA). DEA's mission is to
enforce the CSA and its regulations and bring to the criminal and civil
justice system those organizations and individuals involved in the
growing, manufacture, or distribution of controlled substances and
listed chemicals appearing in or destined for illicit traffic in the
United States. The CSA and its implementing regulations are designed to
prevent, detect, and eliminate the diversion of controlled substances
and listed chemicals into the illicit market while providing for the
legitimate medical, scientific, research, and industrial needs of the
United States.
Pursuant to its statutory authority, DEA intends to propose a
regulation that allows practitioners, subject to certain limitations,
to supply up to a three-day supply of buprenorphine or other
medications for maintenance and detoxification treatment of opioid use
disorder, as instructed by Congress in Public Law 116-215 (RIN-1117-
AB73). The intent of this rulemaking is to ensure patients with opioid
use disorder have access to needed medications while longer-term
treatment is being coordinated. DEA also anticipates finalizing a
rulemaking action clarifying the procedures a registrant must follow in
the event a suspicious order for controlled substances is received (RIN
1117-AB47).
Executive Office for Immigration Review (EOIR)
EOIR's primary mission is to adjudicate immigration cases by
fairly, expeditiously, and uniformly interpreting and administering the
Nation's immigration laws. Under delegated authority from the Attorney
General, EOIR conducts immigration court proceedings, appellate
reviews, and administrative hearings. Immigration judges in EOIR's
Office of the Chief Immigration Judge adjudicate cases to determine
whether noncitizens should be ordered removed from the United States or
should be granted some form of protection or relief from removal. The
Board of Immigration Appeals (BIA) has jurisdiction over appeals from
the decisions of immigration judges, as well as other matters.
Accordingly, the Department of Justice has a significant role in the
administration of the Nation's immigration laws. The Attorney General
also is responsible for civil litigation and criminal prosecutions
relating to the immigration laws.
Consistent with Executive Order 14010, EOIR is developing numerous
regulations related to the asylum system. Specifically, EOIR is working
with the Department of Homeland Security (DHS) to finalize a recently
proposed rule to amend the procedures for the processing of asylum
claims in expedited removal proceedings (RIN 1125-AB20). In addition,
EOIR and DHS intend to propose a rule to address the circumstances in
which an individual would be considered a member of a ``particular
social group'' (RIN 1125-AB13). Similarly, EOIR and DHS intend to
propose a rule to rescind bars to asylum implemented by three prior
rules: RIN 1125-AA87 related to an applicant's criminal activity, RIN
1125-AA91 related to an applicant's transit through third countries,
and RIN 1125-AB08 related to public health concerns. Moreover, EOIR
intends to issue a rule to rescind or revise previous regulatory
amendments regarding the time allowed for filing applications for
asylum and withholding of removal by individuals in proceedings before
EOIR (RIN 1125-AB15). EOIR is developing a proposed rule that would
require immigration judges to conduct a hearing in which the applicant
may provide testimony on his or her application for asylum and
withholding of removal before the judge could deny the application (RIN
1125-AB22).
Finally, EOIR is also working to revise and update the regulations
relating to immigration proceedings to increase efficiencies and
productivity, while also safeguarding due process. EOIR is in the
process of publishing a final rule regarding its new EOIR Case and
Appeals System, which provides for greatly expanded electronic filing
and calendaring for cases before EOIR's immigration courts and the BIA
(RIN 1125-AA81). In addition, EOIR is drafting a proposed rule that
would codify administrative closure procedures before the immigration
courts and the BIA and make other revisions to ensure that BIA
adjudications appropriately balance due process and efficiency
considerations (RIN 1125-AB18). Further, EOIR is planning to finalize a
rule that would establish procedures for practitioners to provide
individual document assistance without triggering the full obligations
required of practitioners engaging in full representation of a
noncitizen in EOIR proceedings (RIN 1125-AA83)
Federal Bureau of Investigation (FBI)
The Federal Bureau of Investigation is responsible for protecting
and defending the United States against terrorist and foreign
intelligence threats, upholding and enforcing the criminal laws of the
United States, and providing leadership and criminal justice services
to Federal, State, municipal, and international agencies and partners.
Only in limited contexts does the FBI rely on rulemaking. For example,
the FBI is currently drafting a rule that establishes the criteria for
use by a designated entity in deciding fitness as described under the
Child Protection Improvements Act (CPIA), 34 U.S.C. 40102, Public Law
115-141, div. S. title I, section 101(a)(1), Mar. 23, 2018, 132 Stat.
1123.
The CPIA requires that the Attorney General shall, by rule,
establish the criteria for use by designated entities in making a
determination of fitness described in subsection (b)(4) of the Act
concerning whether the provider has been convicted of, or is under
pending indictment for, a crime that bears upon
[[Page 5109]]
the provider's fitness to have responsibility for the safety and
wellbeing of children, the elderly, or individuals with disabilities
and shall convey that determination to the qualified entity. Such
criteria shall be based on the criteria established pursuant to section
108(a)(3)(G)(i) of the Prosecutorial Remedies and Other Tools to end
the Exploitation of Children Today Act of 2003 (34 U.S.C. 40102 note)
and section 658H of the Child Care and Development Block Grant Act of
1990 (42 U.S.C. 9858f).
Office of Justice Programs (OJP)
OJP provides innovative leadership to Federal, State, local, and
tribal justice systems by disseminating state-of-the-art knowledge and
practices and providing financial assistance for the implementation of
crime fighting strategies.
OJP published a notice of proposed rulemaking for the Office of
Juvenile Justice and Delinquency Prevention (OJJDP) Formula Grant
Program on August 8, 2016, and in early 2017 published a final rule
addressing some of those provisions. For other provisions included in
the proposed rule, OJJDP received many comments that require additional
time for OJJDP to consider. OJP published an additional final rule
removing certain provisions of the regulations that are no longer
legally supported, and to make technical corrections, in June 2021.
OJJDP now plans to publish a second notice of proposed rulemaking
addressing amendments to the Juvenile Justice and Delinquency
Prevention Act included in the Juvenile Justice Reform Act signed into
law on December 21, 2018, and the remaining changes that OJJDP intends
to make to the formula grant program regulation.
DOJ--CIVIL RIGHTS DIVISION (CRT)
Prerule Stage
101. Nondiscrimination on the Basis of Disability by State and
Local Governments and Places of Public Accommodation; Equipment and
Furniture
Priority: Other Significant.
Legal Authority: 42 U.S.C. 12101 et seq.
CFR Citation: 28 CFR 35; 28 CFR 36.
Legal Deadline: None.
Abstract: The ADA requires State and local governments and public
accommodations to provide programs, activities, and services in a
manner that is accessible to people with disabilities, including non-
fixed equipment and furniture that is used in the delivery of programs,
activities, and services. The ADA also requires that covered entities
communicate effectively with people with disabilities and provide
appropriate auxiliary aids and services.
While some types of fixed equipment and furniture are explicitly
covered by the 2010 Standards for Accessible Design, there are no
specific provisions in the ADA regulations that include standards for
the accessibility of equipment and furniture that are not fixed. See,
e.g., 28 CFR 36.406(b) (the 1991 and 2010 Standards apply to fixed or
built-in elements of buildings and structures). Because the 2010 ADA
Standards include accessibility requirements for some types of fixed
equipment (e.g., ATMs, washing machines, dryers, tables, benches, and
vending machines), the Department plans to look to these standards for
guidance, where applicable, when it proposes accessibility standards
for equipment and furniture that is not fixed.
The Department plans to publish an ANPRM seeking public input on
possible revisions to its ADA regulations to ensure the accessibility
of equipment and furniture in public entities' and public
accommodations' programs and services.
Statement of Need: The Department's Americans with Disabilities Act
(ADA) regulations contain the ADA Standards for Accessible Design (the
ADA Standards) which provide accessibility standards for some types of
fixed or built-in equipment and furniture. However, there are no
specific provisions in the ADA Standards or the ADA regulations
governing the accessibility of equipment and furniture that are not
fixed or built in. Changes in technology have resulted in the
development and improved availability of accessible equipment and
furniture that benefit individuals with disabilities, and accessible
equipment and furniture is often critical to an entity's ability to
provide an individual with a disability equal access to its services.
This rule is necessary to ensure that inaccessible equipment and
furniture do not prevent people with disabilities from accessing State
and local governments and public accommodations' programs and services.
Summary of Legal Basis: The summary of the legal basis for this
regulation is set forth in the above abstract.
Alternatives: There are no appropriate alternatives to issuing this
ANPRM. The Architectural and Transportation Barriers Compliance Board
(Access Board) may issue minimum standards on equipment and furniture,
but these standards only become binding when the Department adopts the
Access Board's standards through a rulemaking. Alternatively, the
Department may create its own technical standards and implement them
through a rulemaking.
Anticipated Cost and Benefits: The Department anticipates costs to
covered entities, including State and local governments and places of
public accommodation. Entities may need to acquire new equipment or
furniture or retrofit existing equipment and furniture to meet
technical standards that the Department includes in its regulations.
Risks: Failure to implement technical standards to ensure that
people with disabilities have access to equipment and furniture in
public entities' and public accommodations' programs and services will
make some of these programs and services inaccessible to people with
disabilities.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 09/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Local, State.
Federalism: Undetermined.
Agency Contact: Rebecca Bond, Chief, Disability Rights Section,
Department of Justice, Civil Rights Division, 4 Constitution Square,
150 M Street NE, Washington, DC 20002, Phone: 202 305-2952.
RIN: 1190-AA76
DOJ--CRT
Proposed Rule Stage
102. Implementation of the ADA AMendments Act of 2008: Federally
Conducted (Section 504 of the Rehabilitation Act of 1973)
Priority: Other Significant.
Legal Authority: Pub. L. 110-325; 29 U.S.C. 794 (sec. 504 of the
Rehab. Act of 1973); E.O. 12250 (45 FR 72855)
CFR Citation: 28 CFR 39.
Legal Deadline: None.
Abstract: Section 504 of the Rehabilitation Act of 1973, as amended
(29 U.S.C. 794), prohibits discrimination on the basis of disability in
programs and activities conducted by an Executive agency. The
Department plans to revise its 504 Federally conducted regulation at 28
CFR part 39
[[Page 5110]]
to incorporate amendments to the statute, including the changes in the
meaning and interpretation of the applicable definition of disability
required by the ADA Amendments Act of 2008, Public Law 110-325, 122
Stat. 3553 (Sep. 25, 2008); incorporate requirements and defenses
stemming from judicial decisions; and make other non-substantive
clarifying edits, including updating outdated terminology and
references.
Statement of Need: This rule is necessary to bring the Department's
prior section 504 Federally conducted regulation, which has not been
updated in three decades, into compliance with judicial decisions
establishing rights and defenses under section 504, as well as
statutory amendments to the Rehabilitation Act, including the new
definition of disability provided by the ADA Amendments Act of 2008,
which became effective on January 1, 2009. Additionally, following the
passage of the Americans with Disabilities Act (ADA), amendments to the
Rehabilitation Act sought to ensure that the same precepts and values
embedded in the ADA were also reflected in the Rehabilitation Act. To
ensure the intended parity between the two laws, it also necessary to
update the Federally conducted regulation to align it with the relevant
provisions of Title II of the ADA. An updated Federally conducted
regulation would consolidate the existing Section 504 requirements in
one place for easy reference.
Summary of Legal Basis: The summary of the legal basis of authority
for this regulation is set forth above in the abstract.
Alternatives: There are no appropriate alternatives to issuing this
NPRM since it implements requirements and defenses arising from the
statute and judicial decisions.
Anticipated Cost and Benefits: Because the NPRM would incorporate
existing legal requirements and defenses in the Department's section
504 Federally conducted regulation, the Department does not anticipate
any costs from this rule.
Risks: Failure to update the Department's section 504 Federally
conducted regulation to conform to legal requirements and defenses
provided under statute and judicial decisions will interfere with the
Department's ability to meet its non-discrimination requirements under
section 504.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
NPRM Comment Period End............. 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Additional Information: Transferred from RIN 1190-AA60.
Agency Contact: Rebecca Bond, Chief, Disability Rights Section,
Department of Justice, Civil Rights Division, 4 Constitution Square,
150 M Street NE, Washington, DC 20002, Phone: 202 305-2952.
RIN: 1190-AA73
DOJ--CRT
103. Nondiscrimination on the Basis of Disability by State and
Local Governments; Public Right-of-Way
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 12134(a); 42 U.S.C. 12134(c)
CFR Citation: 28 CFR 35.
Legal Deadline: None.
Abstract: The Department of Justice anticipates issuing a Notice of
Proposed Rulemaking that would establish accessibility requirements to
ensure that sidewalks and other pedestrian facilities in the public
right-of-way are accessible to and usable by individuals with
disabilities.
The Americans with Disabilities Act (ADA) directs the Architectural
and Transportation Barriers Compliance Board (Access Board) to issue
minimum guidelines to ensure that buildings, facilities, rail passenger
cars, and vehicles are accessible, in terms of architecture and design,
transportation, and communication, to individuals with disabilities.
The Access Board intends to issue minimum accessibility guidelines for
pedestrian facilities in the public right-of-way, called the
Accessibility Guidelines for Pedestrian Facilities in the Public Right-
of-Way.
The ADA directs the Department of Justice to promulgate regulations
implementing subtitle A of title II of the ADA. The ADA further directs
that the Department of Justice's regulations include standards that are
consistent with the minimum ADA guidelines issued by the Access Board.
Accordingly, the Department of Justice intends to propose requirements
for the construction and alteration of pedestrian facilities covered by
subtitle A of Title II of the ADA that are consistent with the Access
Board's minimum Accessibility Guidelines for Pedestrian Facilities in
the Public Right-of-Way.
Statement of Need: This rule is necessary to ensure that pedestrian
facilities in the public right-of-way are accessible to and usable by
individuals with disabilities. The Access Board intends to issue
minimum accessibility guidelines for pedestrian facilities in the
public right-of-way, and the ADA requires the Department of Justice to
include standards in its regulations implementing subtitle A of title
II of the ADA that are consistent with the minimum ADA guidelines
issued by the Access Board. Accordingly, the Department of Justice
intends to propose requirements for the construction and alteration of
pedestrian facilities covered by subtitle A of title II of the ADA that
are consistent with the Access Board's minimum Accessibility Guidelines
for Pedestrian Facilities in the Public Right-of-Way. These
requirements would ensure that people with disabilities have access to
sidewalks, curb ramps, pedestrian street crossings, and other
pedestrian facilities in the public right-of-way.
Summary of Legal Basis: The summary of the legal basis for this
regulation is set forth in the above abstract.
Alternatives: There are no appropriate alternatives to issuing this
NPRM because the ADA requires the Department of Justice to include
standards in its regulations implementing subtitle A of title II of the
ADA that are consistent with the minimum ADA guidelines issued by the
Access Board. The Access Board's accessibility guidelines will only
become binding when the Department of Justice adopts them as legally
enforceable requirements through rulemaking.
Anticipated Cost and Benefits: The Department anticipates costs to
state and local governments given that this rule would require that the
construction and alteration of pedestrian facilities in the public
right-of-way comply with the Department's accessibility requirements
under subtitle A of title II of the ADA.
Risks: Failure to adopt requirements for the construction and
alteration of pedestrian facilities covered by subtitle A of title II
of the ADA that are consistent with the Access Board's minimum
Accessibility Guidelines for Pedestrian Facilities in the Public Right-
of-Way would mean that such Access Board guidelines would remain
nonbinding and unenforceable. It would also mean that the Department
would not be complying with its obligation to
[[Page 5111]]
ensure that the standards in its regulations are consistent with the
minimum ADA guidelines issued by the Access Board.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Governmental Jurisdictions.
Government Levels Affected: Local, State.
Federalism: Undetermined.
Agency Contact: Rebecca Bond, Chief, Disability Rights Section,
Department of Justice, Civil Rights Division, 4 Constitution Square,
150 M Street NE, Washington, DC 20002, Phone: 202 305-2952.
RIN: 1190-AA77
DOJ--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (ATF)
Final Rule Stage
104. Definition of ``Frame or Receiver'' and Identification of Firearms
Priority: Other Significant.
Legal Authority: 18 U.S.C. 921 to 931; 22 U.S.C. 2778; 26 U.S.C.
5812; 26 U.S.C. 5822; 26 U.S.C. 7801 and 7805
CFR Citation: 27 CFR 447; 27 CFR 478; 27 CFR 479.
Legal Deadline: None.
Abstract: The Department of Justice proposes amending Bureau of
Alcohol, Tobacco, Firearms, and Explosives regulations to provide new
regulatory definitions of firearm frame or receiver and frame or
receiver because they are outdated. The Department also proposes
amending ATF's definitions of firearm and gunsmith to clarify the
meaning of those terms, and to add new regulatory terms such as
complete weapon, complete muffler or silencer device, privately made
firearm, and readily for purposes of clarity given advancements in
firearms technology. Further, the Department proposes amendments to
ATF's regulations on marking and recordkeeping that are necessary to
implement these new or amended definitions.
Statement of Need: This rule is intended to clarify the definition
of firearm and to provide a more comprehensive definition of frame or
receiver so that those definitions more accurately reflect firearm
configurations not explicitly captured under the existing definitions
in 27 CFR 478.11 and 479.11. Further, this NPRM proposes new terms and
definitions to take into account technological developments and modern
terminology in the firearms industry, as well as amendments to the
marking and recordkeeping requirements that would be necessary to
implement these definitions.
Summary of Legal Basis: The Attorney General has express authority
pursuant to 18 U.S.C. 926 to prescribe rules and regulations necessary
to carry out the provisions of chapter 44, title 18, United States
Code. The detailed legal analysis supporting the amendments in this
rule are expressed in the abstract for the rule itself.
Alternatives: There are no feasible alternatives to the proposed
rule that would allow ATF to maximize benefits.
Anticipated Cost and Benefits: The rule will not be economically
significant; however, it is a significant regulatory action under
section 3(f)(4) of Executive Order 12866 because this rule raises novel
legal or policy issues arising out of legal mandates. ATF estimates
that the costs for this proposed rule is minimal. The total 10-year
undiscounted cost of this proposed rule is estimated to be $1.3
million. The total 10-year discounted cost of the rule is $1.0 million
and $1.2 million at 7 percent and 3 percent respectively. The
annualized cost of this proposed rule would be $147,048 and $135,750,
also at 7 percent and 3 percent, respectively. This rule provides for
updated definitions to account for technological advances, ensures
traceability regardless of age of firearm, and makes consistent marking
requirements
Risks: Without this rule, public safety will continue to be
threatened by the lack of traceability of firearms.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/21/21 86 FR 27720
NPRM Comment Period End............. 08/19/21 .......................
Final Action........................ 06/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Vivian Chu, Department of Justice, Bureau of
Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue NE,
Washington, DC 20226, Phone: 202 648-7070.
RIN: 1140-AA54
DOJ--ATF
105. Factoring Criteria for Firearms With an Attached Stabilizing Brace
Priority: Other Significant.
Legal Authority: 18 U.S.C 921 to 931; 26 U.S.C 5812; 26 U.S.C 5822;
26 U.S.C. 7801; 26 U.S.C. 7805
CFR Citation: 27 CFR 478; 27 CFR 479.
Legal Deadline: None.
Abstract: The Department of Justice is planning to propose to amend
the regulations of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives to set forth factors considered when evaluating firearms
with an attached stabilizing brace to determine whether they are
considered firearms under the National Firearms Act and/or the Gun
Control Act.
Statement of Need: This rule is intended to clarify when a rifle is
intended to be fired from the shoulder and to set forth factors that
ATF considers when evaluating firearms with an attached purported
stabilizing brace to determine whether these are rifles under the GCA
or NFA, and therefore whether they are firearms subject to the NFA. It
amends the definition of rifle in 27 CFR 478.11 and 479.11,
respectively, by adding a sentence at the end of each definition. The
new sentence would clarify that the term rifle includes any weapon with
a rifled barrel and equipped with an attached stabilizing brace that
has objective design features and characteristics that indicate that
the firearm is designed to be fired from the shoulder, as indicated on
ATF Worksheet 4999.
Summary of Legal Basis: The Attorney General has express authority
pursuant to 18 U.S.C. 926 to prescribe rules and regulations necessary
to carry out the provisions of chapter 44, title 18, United States
Code. The detailed legal analysis supporting the amendments in this
rule are expressed in the abstract for the rule itself.
Alternatives: There are no feasible alternatives to the proposed
rule that would allow ATF to maximize benefits.
Anticipated Cost and Benefits: The rule is a significant regulatory
action that is economically significant under section 3(f) of Executive
Order 12866, because the rule will have an annual effect on the economy
of $100 million or more. The annualized cost of this proposed rule
would be $114.7 million and $125.7 million, at 3 percent and 7 percent,
respectively. This proposed rule would affect attempts by manufacturers
and individuals to circumvent the requirements of the NFA and would
affect the criminal use of
[[Page 5112]]
weapons with a purported stabilizing brace.
Risks: Without this rule, public safety will continue to be
threatened by the criminal use of such firearms, which are easily
concealable from the public and first responders.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/10/21 86 FR 30826
NPRM Comment Period End............. 09/08/21 .......................
Final Action........................ 08/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Denise Brown, Regulations Writer, Department of
Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New
York Avenue NE, Washington, DC 20226, Phone: 202 648-7070.
RIN: 1140-AA55
DOJ--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR)
Proposed Rule Stage
106. Bars to Asylum Eligibility and Procedures
Priority: Other Significant.
Legal Authority: Homeland Security Act of 2002, Pub. L. 107-296,
116 Stat. 2135, sec. 1102, as amended; 8 U.S.C. 1103(a)(1), (a)(3),
(g); 8 U.S.C. 1225(b); 8 U.S.C. 1231(b)(3) and 1231 note; 8 U.S.C.
1158; E. O. 14010, 86 FR 8267 (Feb. 2, 2021)
CFR Citation: 8 CFR 208; 8 CFR 235; 8 CFR 1208; 8 CFR 1235; 8 CFR
1003.
Legal Deadline: None.
Abstract: In 2020, the Department of Homeland Security and
Department of Justice (collectively, the Departments) published final
rules amending their respective regulations governing bars to asylum
eligibility and procedures, including the Procedures for Asylum and
Bars to Asylum Eligibility, (RINs 1125-AA87 and 1116-AC41), 85 FR 67202
(Oct. 21, 2020), Asylum Eligibility and Procedural Modifications, (RINs
1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17, 2020), and Security
Bars and Processing, (RINs 1125-AB08 and 1615-AC57), 85 FR 84160 (Dec.
23, 2020), final rules. The Departments propose to modify or rescind
the regulatory changes promulgated in these three final rules,
consistent with Executive Order 14010 (Feb. 2, 2021).
Statement of Need: The Departments are reviewing these regulations
in light of the issuance of Executive Order 14010 and Executive Order
14012. This rule is needed to restore and strengthen the asylum system
and to address inconsistencies with the goals and principles outlined
in the Executive Order 14010 and Executive Order 14012.
Summary of Legal Basis: The Attorney General has general authority
under 8 U.S.C. 1103(g) to establish regulations related to the
immigration and naturalization of noncitizens. More specifically, under
8 U.S.C. 1158(b)(2)(C) and (d)(5)(B), the Attorney General has
authority to provide by regulation additional conditions and
limitations consistent with the INA for asylum eligibility. Thus, this
proposed rule utilizes such authority to propose revisions to the
regulations related to processing procedures for asylum and withholding
of removal claims.
Alternatives: Unless the Departments rely on the pending litigation
to enjoin Asylum and Bars to Asylum Eligibility, 85 FR 67202, and
Asylum Eligibility and Procedural Modifications, 85 FR 82260, there are
no other alternatives to revise those two rules. As for Security Bars
and Processing, 85 FR 84160 (Dec. 23, 2020), because it relies on the
framework for applying bars to asylum during credible fear processing
that was established in an enjoined rule titled Procedures for Asylum
and Withholding of Removal; Credible Fear and Reasonable Fear Review,
85 FR 80274, the only alternative is to wait for the outcome of that
litigation before making changes to the regulation. Relying on
litigation to address these rules could be extremely time-burdensome
and may introduce confusion as to effectiveness of the regulations.
Thus, the Departments consider this alternative to be a burdensome and
inadvisable course of action and therefore not feasible.
Anticipated Cost and Benefits: DOJ and DHS are currently
considering the specific cost and benefit impacts of the proposed
provisions.
Risks: Without this rulemaking, regulations related to Procedures
for Asylum and Bars to Asylum Eligibility, 85 FR 67202, and Asylum
Eligibility and Procedural Modifications, 85 FR 82260, will remain
enjoined pending litigation. This is inadvisable, as litigation
typically takes much time to resolve. Moreover, the implementation of
Security Bars and Processing, 85 FR 80274, will not be viable (as
described in the Alternatives section). Thus, the Department strongly
prefers proactively addressing the regulations through this proposed
rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
Related RIN: Related to 1615-AC69, Related to 1125-AB08.
RIN: 1125-AB12
DOJ--EOIR
107. Asylum and Withholding Definitions
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 8 U.S.C. 1101(a)(42); 8 U.S.C. 1158; 8 U.S.C.
1225; 8 U.S.C. 1231 and 1231 note; Executive Order 14010, 86 FR 8267
(Feb. 2, 2021)
CFR Citation: 8 CFR 2; 8 CFR 208; 8 CFR 1208.
Legal Deadline: None.
Abstract: This rule proposes to amend Department of Homeland
Security (DHS) and Department of Justice (DOJ) regulations that govern
eligibility for asylum and withholding of removal. The amendments focus
on portions of the regulations that deal with the definitions of
membership in a particular social group, the requirements for failure
of State protection, and determinations about whether persecution is on
account of a protected ground.
This rule is consistent with Executive Order 14010 of February 2,
2021, which directs the Departments to, within 270 days, promulgate
joint regulations, consistent with applicable law, addressing the
circumstances in which a person should be considered a member of a
particular social group.
Statement of Need: This rule provides guidance on a number of key
interpretive issues of the refugee definition used by adjudicators
deciding
[[Page 5113]]
asylum and withholding of removal (withholding) claims. The
interpretive issues include whether persecution is inflicted on account
of a protected ground, the requirements for establishing the failure of
State protection, and the parameters for defining membership in a
particular social group. This rule will aid in the adjudication of
claims made by applicants whose claims fall outside of the rubric of
the protected grounds of race, religion, nationality, or political
opinion. One example of such claims which often fall within the
particular social group ground concerns people who have suffered or
fear domestic violence. This rule is expected to consolidate issues
raised in a proposed rule in 2000 and to address issues that have
developed since the publication of the proposed rule. This rule should
provide greater stability and clarity in this important area of the
law. This rule will also provide guidance to the following
adjudicators: USCIS asylum officers, Department of Justice Executive
Office for Immigration Review (EOIR) immigration judges, and members of
the EOIR Board of Immigration Appeals (BIA).
Furthermore, on February 2, 2021, President Biden issued Executive
Order 14010 that directs DOJ and DHS within 270 days of the date of
this order, [to] promulgate joint regulations, consistent with
applicable law, addressing the circumstances in which a person should
be considered a member of a ``particular social group,'' as that term
is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol.
Summary of Legal Basis: The purpose of this rule is to provide
guidance on certain issues that have arisen in the context of asylum
and withholding adjudications. The 1951 Geneva Convention relating to
the Status of Refugees contains the internationally accepted definition
of a refugee. United States immigration law incorporates an almost
identical definition of a refugee as a person outside his or her
country of origin ``who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.'' Section 101(a)(42) of
the Immigration and Nationality Act.
Alternatives: Because this rulemaking is mandated by executive
order to be completed within a short timeframe, there are no feasible
alternatives at this time.
Anticipated Cost and Benefits: DOJ and DHS are currently
considering the specific cost and benefit impacts of the proposed
provisions.
Risks: Without this rulemaking, the circumstances by which a person
is considered a member of a particular social group will continue to be
subject to judicial and agency interpretation, which may differ by
circuit and changes in administration.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
Related RIN: Related to 1125-AA94, Related to 1615-AC65, Related to
1615-AC42.
RIN: 1125-AB13
DOJ--EOIR
108. Procedures for Asylum and Withholding of Removal
Priority: Other Significant.
Legal Authority: 8 U.S.C. 1103(g); 8 U.S.C. 1229a(c)(4)(B); 8
U.S.C. 1158(d)(5)(B)
CFR Citation: 8 CFR 1003.10; 8 CFR 1208; 8 CFR 1235; 8 CFR 1240.
Legal Deadline: None.
Abstract: On December 16, 2020, by the rule titled Procedures for
Asylum and Withholding of Removal (RIN 1125-AA93) the Department of
Justice (Department) amended the regulations governing asylum and
withholding of removal, including changes to what must be included with
an application for it to be considered complete and the consequences of
filing an incomplete application, and changes related to the 180-day
asylum adjudications clock. To revise the regulations related to
adjudicatory procedures for asylum and withholding of removal, the
Department is planning to rescind or modify the regulatory revisions
made by that rule under this RIN.
Statement of Need: This proposed rule will revise the regulations
related to adjudicatory procedures for asylum and withholding of
removal. On December 16, 2020, the Department of Justice (Department)
amended the regulations governing asylum and withholding of removal,
including changes to what must be included with an application for it
to be considered complete and the consequences of filing an incomplete
application, and changes related to the 180-day asylum adjudications
clock. Procedures for Asylum and Withholding of Removal, 85 FR 81698
(RIN 1125-AA93). In light of Executive Orders 14010 and 14012, 86 FR
8267 (Feb. 2, 2021) and 86 FR 8277 (Feb. 2, 2021), the Department
reconsidered its position on those matters and now issues this proposed
rule to revise the regulations accordingly.
Summary of Legal Basis: The Attorney General has general authority
under 8 U.S.C. 1103(g) to establish regulations related to the
immigration and naturalization of noncitizens. More specifically, under
8 U.S.C. 1158(d)(5)(B), the Attorney General has authority to provide
by regulation additional conditions and limitations consistent with the
INA for the consideration of asylum applications. Thus, this proposed
rule utilizes such authority to propose revisions to the regulations
related to adjudicatory procedures for asylum and withholding of
removal pursuant, in part, to 8 U.S.C. 1229a(c)(4)(B).
Alternatives: Unless the Department relies on litigation to
permanently enjoin the December 2020 rule, 85 FR 81698 (Dec. 16, 2020),
there are no other alternatives to revise the regulations. Relying on
litigation could be extremely time-burdensome and may introduce
confusion as to effectiveness of the regulations. Thus, the Department
considers this alternative to be an inadequate and inadvisable course
of action.
Anticipated Cost and Benefits: The Department believes this
proposed rule will not be economically significant. The Department
believes the costs to the public will be negligible, if any, given that
costs will revert to those established prior to the December 2020 rule.
This proposed rule imposes no new additional costs to the Department or
to respondents: Respondents have always been required to submit
complete asylum applications in order to have them adjudicated, and
[[Page 5114]]
immigration judges have always maintained the authority to set
deadlines. In addition, this proposed rule proposes no new fees. The
Department believes that this proposed rule would impose only minimal,
if any, direct costs on the public. Any new minimal cost would be
limited to the cost of the public familiarizing itself with proposed
rule, although, as previously stated, the proposed rule reinstates most
of the regulatory language to that which was in effect before the
December 2020 rule. Further, an immigration judge's ability to set
filing deadlines is already established by regulation, and filing
deadlines for both applications and supporting documents are already
well-established aspects of immigration court proceedings guided by
regulations and the OCIJ Practice Manual. Thus, the Department expects
little in the proposed rule to require extensive familiarization.
Risks: Without this rulemaking, the regulations will remain
enjoined pending litigation (as described in the Alternatives section).
This is inadvisable, as litigation typically takes an inordinate time
to resolve. The Department highly prefers proactively addressing the
regulations through this proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Additional Information: Related to EOIR Docket No. 19-0010.
URL For More Information: http://www.regulations.gov.
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
Related RIN: Related to 1125-AA93.
RIN: 1125-AB15
DOJ--EOIR
109. Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101; 8
U.S.C. 1103; 8 U.S.C. 1154-1155; 8 U.S.C. 1158; 8 U.S.C. 1182; 8 U.S.C.
1226; 8 U.S.C. 1229; 8 U.S.C. 1229a; 8 U.S.C. 1229b; 8 U.S.C. 1229c; 8
U.S.C. 1231; 8 U.S.C. 1254a; 8 U.S.C. 1255; 8 U.S.C. 1324d; 8 U.S.C.
1330; 8 U.S.C. 1361-1362; 28 U.S.C. 509-510; 28 U.S.C. 1746; sec. 2
Reorg. Plan No. 2 of 1950, 3 CFR 1949-1953, Comp. p. 1002; sec. 203 of
Pub. L. 105-100, 111 Stat. 2196-200; secs. 1506 and 1510 of Pub. L.
106-386, 114 Stat. 1527-29, 1531-32; sec. 1505 of Pub. L. 106-554, 114
Stat. 2763A-326 to -328
CFR Citation: 8 CFR 1003.1; 8 CFR 1003.2; 8 CFR 1003.3; 8 CFR
1003.10.
Legal Deadline: None.
Abstract: On December 16, 2020, by a rule titled Appellate
Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure (RIN 1125-AA96) the Department of Justice
(Department) amended its regulations regarding appellate procedures to
ensure that immigration proceeding appeals are adjudicated in an
efficient manner and to eliminate unnecessary remands by the Board of
Immigration Appeals. The Department also amended its regulations to
promote the final disposition of cases at both the immigration court
and appellate levels. The Department is planning to modify or rescind
those regulations under this RIN.
Statement of Need: On December 16, 2020, the Department of Justice
(Department) amended the regulations related to processing of appeals
and administrative closure. Appellate Procedures and Decisional
Finality in Immigration Proceedings; Administrative Closure, 85 FR
81588 (RIN 1125-AA96). In light of Executive Orders 14010 and 14012, 86
FR 8267 (Feb. 2, 2021) and 86 FR 8277 (Feb. 2, 2021), the Department
reconsidered its position on those matters and now issues this proposed
rule to revise the regulations accordingly and make other related
amendments. This proposed rule clarifies immigration judge and Board of
Immigration Appeals (BIA) authority, including providing general
administrative closure authority and the ability to sua sponte reopen
and reconsider cases. The proposed rule also revises BIA standards
involving adjudication timelines, briefing schedules, self-
certification, remands, background checks, administrative notice, and
voluntary departure. Lastly, the proposed rule removes the EOIR
Director's authority to issue decisions in certain cases, removes the
ability of immigration judges to certify cases for quality assurance,
and revises procedures for the forwarding of the record on appeal, as
well as other minor revisions.
Summary of Legal Basis: The Attorney General has general authority
under 8 U.S.C. 1103(g) to establish regulations related to the
immigration and naturalization of noncitizens. Thus, this proposed rule
utilizes such authority to propose revisions to the regulations
regarding immigration appeals processing and administrative closure.
Alternatives: Unless the Department relies on litigation to
permanently enjoin the December 2020 rule, 85 FR 81588 (Dec. 16, 2020),
there are no other alternatives to revise the regulations. Relying on
litigation could be extremely time-burdensome and may introduce
confusion as to effectiveness of the regulations. Thus, the Department
considers this alternative to be an inadequate and inadvisable course
of action.
Anticipated Cost and Benefits: The Department is largely
reinstating the briefing schedules that the December 2020 rule revised.
As stated in the December 2020 rule, 85 FR at 81650, the basic briefing
procedures have remained across rules; thus, the Department believes
the costs to the public will be negligible, if any, given that costs
will revert back to those established for decades prior to the December
2020 rule. The proposed rule imposes no new additional costs, as much
of the proposed rule involves internal case processing. For those
provisions that constitute more than simple internal case processing
measures, such as the amendments to the BIA's administrative closure
authority, they likewise would not impose significant costs to the
public. Indeed, such measures would generally reduce costs, as they
facilitate and reintroduce various mechanisms for fair, efficient case
processing.
Risks: Without this rulemaking, the regulations will remain
enjoined pending litigation (as described in the Alternatives section).
This is inadvisable, as litigation typically takes an inordinate time
to resolve. The Department highly prefers proactively addressing the
regulations through this proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Additional Information: Related to EOIR Docket No. 19-0022.
URL For More Information: http://www.regulations.gov.
[[Page 5115]]
URL For Public Comments: http://www.regulations.gov.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
Related RIN: Related to 1125-AA96.
RIN: 1125-AB18
DOJ--EOIR
Final Rule Stage
110. Professional Conduct for Practitioners--Rules and Procedures, and
Representation and Appearances
Priority: Other Significant.
Legal Authority: 8 U.S.C. 1103; 8 U.S.C. 1326
CFR Citation: 8 CFR 1003.
Legal Deadline: None.
Abstract: This rule amends Department of Justice regulations
addressing the assistance of individuals with the writing or filing of
documents in proceedings before the Executive Office for Immigration
Review. The rule also proposes to make minor technical revisions and to
amend outdated references to the former Immigration and Naturalization
Service.
Statement of Need: This rule would establish procedures for
practitioners to provide individual document assistance without
triggering the full obligations required of practitioners engaging in
full representation of a noncitizen in EOIR proceedings.
Summary of Legal Basis: The Attorney General has general authority
under 8 U.S.C. 1103(g) to establish regulations related to the
immigration and naturalization of noncitizens. Thus, this proposed rule
utilizes such authority to propose revisions to the regulations
regarding the procedures for practitioners to assist noncitizens in
removal proceedings.
Alternatives: There are no feasible alternatives that will make the
necessary changes to the representation requirement.
Anticipated Cost and Benefits: EOIR expects the costs resulting
from this rule to be de minimis, as it does not impose new or
additional costs on EOIR, practitioners, or noncitizens. Additionally,
the number of practitioners impacted by this rule would be
insignificant because most practitioners do not solely provide
preparation of a filing and are already required to file a Notice of
Entry of Appearance as an Attorney or Representative with EOIR.
Risks: Without this rulemaking, noncitizens may be at risk of being
defrauded by unqualified individuals offering assistance with
immigration documents. Additionally, without assistance from a
practitioner, noncitizens may be at risk of failing to obtain benefits
for which they are otherwise eligible.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 03/27/19 84 FR 11446
ANPRM Comment Period End............ 04/26/19 .......................
NPRM................................ 09/30/20 85 FR 61640
NPRM Comment Period End............. 10/30/20 .......................
Final Action........................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
RIN: 1125-AA83
DOJ--EOIR
111. Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal and CAT Protection Claims by Asylum
Officers
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 8 U.S.C. 1103(g); 8 U.S.C. 1158(b)(2)(C); 8 U.S.C.
1158(d)(5)(B); 8 U.S.C. 1225; 8 U.S.C. 1231(b)(3)
CFR Citation: 8 CFR 208; 8 CFR 235; 8 CFR 1003; 8 CFR 1208; 8 CFR
1235.
Legal Deadline: None.
Abstract: The Department of Justice and the Department of Homeland
Security (DHS) propose to amend the regulations so that individuals
found to have a credible fear can have their claims for asylum,
withholding of removal under section 241(b)(3) of the Immigration and
Nationality Act (statutory withholding of removal), or protection under
the regulations issued pursuant to the legislation implementing the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, initially adjudicated by an asylum officer
within DHS with administrative review of the decision by the Executive
Office for Immigration Review.
Statement of Need: There is wide agreement that the system for
dealing with asylum and related protection claims at the southwest
border has long been overwhelmed and in desperate need of repair. As
the number of such claims has skyrocketed over the years, the system
has proven unable to keep pace, resulting in large backlogs and lengthy
adjudication delays. A system that takes years to reach a result delays
justice and certainty for those who need protection, and it encourages
abuse by those who will not qualify for protection and smugglers who
exploit the delay for profit. The aim of this rule is to begin
replacing the current system, within the confines of the law, with a
better and more efficient one that will adjudicate protection claims
fairly and expeditiously.
Summary of Legal Basis: The Attorney General has general authority
under 8 U.S.C. 1103(g) to establish regulations related to the
immigration and naturalization of noncitizens. More specifically, under
8 U.S.C. 1158(b)(2)(C) and (d)(5)(B), the Attorney General has
authority to provide by regulation additional conditions and
limitations consistent with the INA for the consideration of asylum
applications. Thus, this proposed rule utilizes such authority to
propose revisions to the regulations related to processing procedures
for asylum and withholding of removal claims pursuant to 8 U.S.C. 1225
and 1231.
Alternatives: There are no feasible alternatives that make
similarly impactful changes to the system without a more widespread
overhaul of the entire system in one rulemaking.
Anticipated Cost and Benefits: DHS estimated the resource cost
needed to implement and operationalize the rule along a range of
possible future credible fear volumes. The average annualized costs
could range from $179.5 million to $995.8 million at a 7 percent
discount rate. At a 7 percent discount factor, the total ten-year costs
could range from $1.3 billion to $7.0 billion, with a midrange of $3.2
billion.
There could also be cost-savings related to Forms I-589 and I-765
filing volume changes. In addition, some asylum applicants may realize
potential early labor earnings, which could constitute a transfer from
workers in the U.S. labor force to certain asylum applicants, as well
as tax impacts. Qualitative benefits include, but may not be limited
to: (i) Beneficiaries of new parole standards may not have to wait
lengthy times for a decision on whether their asylum claims will
[[Page 5116]]
receive further consideration; (ii) some individuals could benefit from
de novo review by an IJ of the asylum officer's denial of their asylum;
(iii) DOJ-EOIR may focus efforts on other priority work and reduce its
substantial current backlog; (iv) as some applicants may be able to
earn income earlier than they otherwise could currently, burdens to the
support network of the applicant may be lessened.
Risks: Without this rulemaking, the current system will remain
status quo. The backlogs and delays will continue to grow, and
potential for abuse will remain. Most importantly, noncitizens in need
of protection will continue to experience delays in the adjudication of
their claims.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/20/21 86 FR 46906
NPRM Comment Period End............. 10/19/21 .......................
Final Action........................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Additional Information: Joint rule with DHS 1616-AC67.
URL For More Information: http://regulations.gov.
URL For Public Comments: http://regulations.gov.
Agency Contact: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, Department of Justice,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041, Phone: 703 305-0289, Email:
[email protected].
RIN: 1125-AB20
BILLING CODE 4410-BP-P
U.S. DEPARTMENT OF LABOR
Fall 2021 Statement of Regulatory Priorities
Introduction
The Department's Fall 2021 Regulatory Agenda continues to advance
the Department's mission to foster, promote, and develop the welfare of
wage earners, job seekers, and retirees; improve working conditions;
advance opportunities for profitable employment; and assure work-
related benefits and rights. These rules will strengthen protections
for some of the Nation's most vulnerable workers, empower and support
opportunities for advancement, secure our safety nets and advance
equity and economic security.
In just the first months of the Biden Administration, the
Department of Labor has begun historic rulemakings on issues central to
workers in the United States and their families, including worker
safety, protections from discrimination, fair wages, and retirement
security and health care. These include the following rulemakings:
We issued an Emergency Temporary Standard to help protect
millions of frontline healthcare workers from exposure and spread of
COVID-19, a virus that has already claimed the lives of over 750,000
people in the U.S. We also issued an Emergency Temporary Standard on
Vaccination and Testing to protect more than 84 million additional
workers from the consequences of COVID-19 exposure on the job. These
science-based standards outline workplace safety protocols and will
help save thousands of lives and prevents hundreds of thousands of
hospitalizations.
We finalized Interim Final Rules with the U.S. Department
of Health and Human Services, the U.S. Department of Treasury, and the
Office of Personnel Management to implement the No Surprises Act and
protect people from unexpected medical expenses. Surprise billing can
cause economic devastation for patients. This rule puts patients first
by providing safeguards to keep families from financial ruin when they
need medical care.
We have also expeditiously withdrawn or rescinded rules as
necessary to protect and strengthen workers' economic security,
including withdrawing the Independent Contractor Rule and rescinding
the Joint Employer Rule.
The 2021 Regulatory Plan highlights the Labor Department's most
noteworthy and significant rulemaking efforts, with each addressing the
top priorities of its regulatory agencies: Employee Benefits Security
Administration (EBSA), Employment and Training Administration (ETA),
Mine Safety and Health Administration (MSHA), Office of Federal
Contract Compliance Programs (OFCCP), Occupational Safety and Health
Administration (OSHA), Office of Workers' Compensation Programs (OWCP),
and Wage and Hour Division (WHD). These regulatory priorities exemplify
the Secretary's agenda to empower all workers morning, noon, and night,
including:
Investing in and valuing the nation's care economy;
Building a safe, modern, inclusive workforce; and
Supporting a lifetime of worker empowerment.
Under Secretary Walsh's leadership, the Department is committed to
ensuring that equity, a strong foundation of evidence, and extensive
stakeholder outreach are integral to all of our regulatory efforts. Our
Regulatory Agenda additionally reflects our ongoing commitment to the
Biden Administration's prioritization of economic relief, raising
wages, and addressing the threat of climate change, while embedding
equity across the department's agencies, policies, and programs.
Investing In and Valuing the Nation's Care Economy
The Department's regulatory priorities reflect the Secretary's
focus on care infrastructure to ensure workers have the opportunity and
support to thrive in their jobs. That means ensuring workers can care
for their families without risking their jobs, stay home when they're
sick or when they need to care for a sick family member, and have
access to the resources they need to manage their mental health.
EBSA's rulemaking implementing the Mental Health Parity
and Addiction Equity Act (MHPAEA) will strengthen health enforcement by
clarifying plan and issuer obligations, promote compliance and address
amendments to the Act from the Consolidated Appropriations Act of 2021.
In addition, OSHA will supplement its outreach and enforcement with
rulemaking that protects employees in the care economy. Enhancing our
care infrastructure starts with making sure our frontline care
providers are safe on the job.
OSHA will propose an Infectious Diseases rulemaking to
protect employees in healthcare and other high risk environments from
exposure to and transmission of persistent and new infectious diseases,
ranging from ancient scourges such as tuberculosis to newer threats
such as Severe Acute Respiratory Syndrome (SARS), the 2019 Novel
Coronavirus (COVID-19), and other diseases.
OSHA will initiate small business consultations as its
first step in developing a Workplace Violence rulemaking, to provide
protections for healthcare and other care economy workers, who are the
most frequent victims of violence on the job.
Building a Safe, Modern, Inclusive Workforce
The Department's regulatory priorities reflect the Secretary's
focus on ensuring people can have a good job and
[[Page 5117]]
opportunity for advancement. That means people can have a job that is
safe, a job that pays a fair wage, a job that does not discriminate and
that has opportunities for advancement. And that means a job where
workers have a seat at the table and have a say in their work.
The Department's health and safety regulatory proposals are aimed
at eliminating preventable workplace injuries, illnesses and
fatalities. Workplace safety also protects workers' economic security,
ensuring that illness and injury do not force families into poverty.
Our efforts will prevent workers from having to choose between their
lives and their livelihood.
OSHA will propose a rulemaking on heat illness prevention.
Increased temperatures are posing a serious threat to workers laboring
outdoors and in non-climate controlled indoor settings. Exposure to
excessive heat is not only a hazard in itself, causing heat illness and
even death; it is also an indirect hazard linked to the loss of
cognitive skills which can also lead to workplace injuries and worker
deaths. OSHA will develop a standard to protect workers from these heat
hazards in the workplace, helping to save lives while we confront the
growing threat of climate change.
MSHA will propose a new silica standard to effectively
assess health concerns with a goal of ensuring that all miners are safe
at their work places.
MSHA will promulgate a rule establishing that mine
operators must develop and implement a written safety program for
surface mobile equipment used at surface mines and surface areas of
underground mines, in order to provide safe environments for miners.
The Department's regulatory agenda prioritizes workers' economic
security; ensures they receive a fair day's pay for a fair day's work,
and do not face discrimination in hiring, employment, or benefits on
the basis of race, gender, religion, disability, national origin,
veteran's status, sexual orientation, or gender identity. ETA, OFCCP
and WHD will focus on regulatory changes that will have significant
impact on workers of color, immigrant workers, and workers with
disabilities.
OFCCP is proposing to rescind certain provisions related
to the religious exemption for federal contractors and subcontractors,
ensuring that the religious exemption contained in Executive Order
11246 is applied consistently with nondiscrimination principles of
Title VII of the Civil Rights Act of 1964, as amended.
OFCCP will issue a proposal to modify the procedures for
resolving potential employment discrimination, which is creating
hurdles to effective enforcement.
WHD issued regulations to implement President Biden's
executive order requiring federal contractors to pay a $15 minimum wage
to hundreds of thousands of workers who are working on federal
contracts. This will eliminate subminimum wages paid to some tipped
workers and workers with disabilities, improve the economic security of
families and make progress toward reversing decades of income
inequality.
WHD is proposing to update and modernize the regulations
implementing the Davis Bacon and Related Acts to provide greater
clarity and ensure workers are truly paid local prevailing wages on
federal construction contracts.
WHD will propose updates to the overtime regulations to
ensure that middle class jobs pay middle class wages, extending
important overtime pay protections to millions of workers and raising
their pay.
WHD engaged in rulemaking to ensure the economic security
of tipped workers.
ETA will ensure fair wages and strengthen protections for
foreign and U.S. workers under the H-1B/H-2A visa programs through
regulatory changes.
The Department is committed to ensuring workers have opportunities
for employment and training and advancement in their jobs.
ETA will ensure job-seekers can more easily get the
support they need by proposing changes to the Wagner-Peyser Employment
Service regulations.
ETA is focused on ensuring high-quality apprenticeship
programs, and as part of this, has proposed rescinding Industry
Recognized Apprenticeship Programs (IRAP) rules and suspending further
application review efforts for new IRAP Standard Recognition Entities
in order to renew focus on Registered Apprenticeship.
The Department is committed to ensuring workers have a seat at the
table and furthering this Administration's support for unions and
workers who are organizing unions, which are critical to achieving
economic fairness and racial and gender justice.
Supporting a Lifetime of Worker Empowerment
We are focused on making sure people do not have to worry that the
loss of a job or need for medical care will destroy their financial
well-being. People should be able to save for retirement, access health
care, and have the support they need to get through a personal or
family crisis or when they become injured or ill on the job.
EBSA will support the administration's agenda to address
the threat of climate change by implementing two executive orders that
increase transparency in climate-related financial investment options.
To carry out Executive Order 13990 ``Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis,'' and
Executive Order 14030, ``Climate-Related Financial Risks,'' EBSA is
proposing to remove provisions of the current regulation that
inappropriately discourage consideration of environmental, social, and
governance issues by fiduciaries in making investment and proxy voting
decisions, and provide further clarity that would help safeguard the
interests of participants and beneficiaries in the plan benefits.
DOL--OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP)
Proposed Rule Stage
112. Proposal To Rescind Implementing Legal Requirements Regarding the
Equal Opportunity Clause's Religious Exemption
Priority: Other Significant.
Legal Authority: E.O. 11246
CFR Citation: 41 CFR 60-1.
Legal Deadline: None.
Abstract: The Office of Federal Contract Compliance Programs is
proposing to rescind the December 8, 2020, final rule, ``Implementing
Legal Requirements Regarding the Equal Opportunity Clause's Religious
Exemption'' (85 FR 79324), which would include the removal of certain
definitions at 41 CFR 60-1.3 related to the religious exemption and 41
CFR 60-1.5(e) and (f). The rescission would ensure that the religious
exemption contained in section 204(c) of Executive Order 11246 is
consistent with nondiscrimination principles of Title VII of the Civil
Rights Act of 1964, as amended. The notice of proposed rescission was
published on November 9, 2021.
Statement of Need: The Office of Federal Contract Compliance
Programs issued a proposal to rescind the regulations established in
the final rule titled Implementing Legal Requirements Regarding the
Equal Opportunity Clause's Religious Exemption and returning to the
agency's traditional approach, which applies Title VII principles and
applicable case law and thus will promote clarity and consistency in
the application of the religious exemption.
[[Page 5118]]
Summary of Legal Basis: Executive Order 11246 (as amended).
Alternatives: OFCCP considered the alternative of engaging in
affirmative rulemaking to replace the 2020 rule rather than rescinding
it.
Anticipated Cost and Benefits: The Department prepared estimates of
the anticipated costs and discussed benefits associated with the
proposed rule.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/15/19 84 FR 41677
NPRM Comment Period End............. 09/16/19 .......................
Final Rule.......................... 12/09/20 85 FR 79324
Final Rule Effective................ 01/08/21 .......................
Notification of Proposed Rescission. 11/09/21 86 FR 62115
Notification of Proposed Rescission 12/09/21 .......................
Comment Period End.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
URL For Public Comments: https://www.regulations.gov/document/OFCCP-2021-0001-0001.
Agency Contact: Tina Williams, Director, Division of Policy and
Program Development, Department of Labor, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW, Room C-3325,
Washington, DC 20210, Phone: 202 693-0104, Email:
[email protected].
RIN: 1250-AA09
DOL--OFCCP
113. Modification of Procedures To Resolve Potential Employment
Discrimination
Priority: Other Significant.
Legal Authority: E.O. 11246; 29 U.S.C. 793; 38 U.S.C. 4216
CFR Citation: 41 CFR 60-1, 60-2, 60-4, 60-20, 60-30; 41 CFR 60-40,
60-50, 60-300, 60-741.
Legal Deadline: None.
Abstract: This proposal would modify certain provisions set forth
in the November 10, 2020 final rule, Nondiscrimination Obligations of
Federal Contractors and Subcontractors: Procedures To Resolve Potential
Employment Discrimination (85 FR 71553) and make other related changes
to the pre-enforcement notice and conciliation process. The proposal
will promote effective enforcement through OFCCP's regulatory
procedures.
Statement of Need: The Office of Federal Contract Compliance
Programs intends to issue a Proposed Rule to modify regulations that
delineate procedures and standards the agency follows when issuing pre-
enforcement notices and securing compliance through conciliation. This
proposal would support OFCCP in fulfilling its mission to ensure equal
employment opportunity.
Summary of Legal Basis: Executive Order 11246 (as amended), section
503 of the Rehabilitation Act (as amended), and the Vietnam Era
Veterans' Readjustment Assistance Act (as amended).
Alternatives: To be determined.
Anticipated Cost and Benefits: The Department will prepare
estimates of the anticipated costs and discuss benefits associated with
the proposed rule.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Tina Williams, Director, Division of Policy and
Program Development, Department of Labor, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW, Room C-3325,
Washington, DC 20210, Phone: 202 693-0104, Email:
[email protected].
RIN: 1250-AA14
DOL--WAGE AND HOUR DIVISION (WHD)
Proposed Rule Stage
114. Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 29 U.S.C. 201 et seq.; 29 U.S.C. 213
CFR Citation: 29 CFR 541.
Legal Deadline: None.
Abstract: WHD is reviewing the regulations at 29 CFR 541, which
implement the exemption of bona fide executive, administrative, and
professional employees from the Fair Labor Standards Act's minimum wage
and overtime requirements.
Statement of Need: One of the primary goals of this rulemaking
would be to update the salary level requirement of the section 13(a)(1)
exemption. A salary level test has been part of the regulations since
1938 and it has been long recognized that the best single test of the
employer's good faith in attributing to the employee's services is the
amount he pays for them. In prior rulemakings, the Department explained
its commitment to update the standard salary level and Highly
Compensated Employees (HCE) total compensation levels more frequently.
Regular updates promote greater stability, avoid disruptive salary
level increases that can result from lengthy gaps between updates and
provide appropriate wage protection.
Summary of Legal Basis: Section 13(a)(1) of the FLSA, codified at
29 U.S.C. 213(a)(1), exempts any employee employed in a bona fide
executive, administrative, or professional capacity or in the capacity
of outside salesman (as such terms are defined and delimited from time
to time by regulations of the Secretary, subject to the provisions of
the [Administrative Procedure Act.]) The FLSA does not define the terms
executive, administrative, professional, or outside salesman. However,
pursuant to Congress' grant of rulemaking authority, the Department
issued regulations at 29 CFR part 541, defining the scope of the
section 13(a)(1) exemptions. Congress explicitly delegated to the
Secretary of Labor the power to define and delimit the specific terms
of the exemptions through notice-and-comment rulemaking.
Alternatives: Alternatives will be developed in considering
proposed revisions to the current regulations. The public will be
invited to provide comments on the proposed revisions and possible
alternatives.
Anticipated Cost and Benefits: The Department will prepare
estimates of the anticipated costs and benefits associated with the
proposed rule.
Risks: This action does not affect public health, safety, or the
environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Federal, Local, State, Tribal.
[[Page 5119]]
Federalism: Undetermined.
Agency Contact: Amy DeBisschop, Director of the Division of
Regulations, Legislation, and Interpretation, Department of Labor, Wage
and Hour Division, 200 Constitution Avenue NW, FP Building, Room S-
3502, Washington, DC 20210, Phone: 202 693-0406.
RIN: 1235-AA39
DOL--WHD
115. Modernizing the Davis-Bacon and Related Acts Regulations
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 40 U.S.C. 3141 et seq.; 40 U.S.C. 3145
CFR Citation: 29 CFR 1; 29 CFR 3; 29 CFR 5; 29 CFR 6; 29 CFR 7.
Legal Deadline: None.
Abstract: The Davis-Bacon Act (DBA) was enacted in 1931 and amended
in 1935 and 1964. The DBA requires the payment of locally prevailing
wages and fringe benefits to laborers and mechanics as determined by
the Department of Labor. The DBA applies to direct Federal contracts
and District of Columbia contracts in excess of $2,000 for the
construction, alteration, or repair of public buildings or public
works. Congress has included DBA prevailing wage requirements in
numerous statutes (referred to as Related Acts) under which Federal
agencies assist construction projects through grants, loans,
guarantees, insurance, and other methods. Covered contractors and
subcontractors must pay their laborers and mechanics employed under the
contract no less than the locally prevailing wage rates and fringe
benefits as required by the applicable wage determination. The
Department proposes to update and modernize the regulations
implementing the Davis-Bacon and Related Acts to provide greater
clarity and enhance their usefulness in the modern economy.
Statement of Need: The Department proposes to update and modernize
the regulations implementing the Davis-Bacon and Related Acts to
provide greater clarity and enhance their usefulness in the modern
economy.
Summary of Legal Basis: These regulations are authorized by Title
40, sections 3141-3148. Minimum wages are defined as those determined
by the Secretary to be (a) prevailing; (b) in the locality of the
project; (c) for similar craft and skills; (d) on comparable
construction work. See section 3142.
Alternatives: Alternatives will be developed in considering
proposed revisions to the current regulations. The public will be
invited to provide comments on the proposed revisions and possible
alternatives.
Anticipated Cost and Benefits: The Department will prepare
estimates of the anticipated costs and benefits associated with the
proposed rule.
Risks: This action does not affect public health, safety, or the
environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: Undetermined.
Agency Contact: Amy DeBisschop, Director of the Division of
Regulations, Legislation, and Interpretation, Department of Labor, Wage
and Hour Division, 200 Constitution Avenue NW, FP Building, Room S-
3502, Washington, DC 20210, Phone: 202 693-0406.
RIN: 1235-AA40
DOL--WHD
Final Rule Stage
116. Tip Regulations Under the Fair Labor Standards Act (FLSA)
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
Public Law 104-4.
Legal Authority: Fair Labor Standards Act; 29 U.S.C. 201 et seq.;
29 U.S.C. 203(m); Pub. L. 115-141
CFR Citation: 29 CFR 531; 29 CFR 10; 29 CFR 516; 29 CFR 578; 29 CFR
579; 29 CFR 580.
Legal Deadline: None.
Abstract: In the Consolidated Appropriations Act of 2018 (``CAA''),
Congress amended section 3(m) of the Fair Labor Standards Act
(``FLSA'') to prohibit employers from keeping tips received by their
employees, regardless of whether the employers take a tip credit under
section 3(m). Congress also amended section 16(e) of the FLSA to allow
the Department to impose civil money penalties (``CMPs'') when
employers unlawfully keep employees' tips. On December 30, 2020, the
Wage and Hour Division (``WHD'') published Tip Regulations Under the
Fair Labor Standards Act (the ``2020 Tip final rule'') in the Federal
Register to address these amendments and to codify guidance regarding
the FLSA tip credit's application to employees who perform tipped and
non-tipped duties. The effective date of the 2020 Tip final rule was
March 1, 2021, but the Department extended that date until April 30,
2021, in accordance with the Presidential directive as expressed in the
memorandum of January 20, 2021, from the Assistant to the President and
Chief of Staff. The Department further delayed three portions of the
2020 Tip final rule until December 31, 2021: Two portions addressing
the assessment of CMPs and the portion addressing the application of
the FLSA tip credit to tipped employees who perform tipped and non-
tipped duties. The Department proposed to withdraw these three portions
of the 2020 Tip final rule and proposed new language addressing these
three issues. On September 24, 2021, a Department final rule (CMP final
rule) was published in the Federal Register, which among other things,
adopted language upholding the Department's statutorily-granted
discretion with regard to section 3(m)(2)(B) CMPs, and aligned the
Department's regulations with the FLSA's statutory text. On June 23,
2021, the Department published an NPRM (Dual Jobs NPRM) in the Federal
Register, 86 FR 32818, proposing to withdraw and repropose the portion
of the 2020 Tip final rule addressing when a tipped employee performs
both tipped and non-tipped duties under the FLSA. The comment period
closed on August 23, 2021. The Department published a final rule on
October 29, 2021 to finalize its proposal to withdraw one portion of
the Tip Regulations Under the FLSA (2020 Tip final rule) and finalize
its proposed revisions related to the determination of when a tipped
employee is employed in dual jobs. Specifically, the Department amended
its regulations to clarify that an employer may only take a tip credit
when its tipped employees perform work that is part of the employee's
tipped occupation.
Statement of Need: Upon review of the portion of the 2020 Tip final
rule addressing when a tipped employee performs both tipped and non-
tipped duties under the FLSA, the Department was concerned that the
lack of clear guidelines in the rule regarding when a tipped employee
who is performing non-tipped duties is still engaged in a tipped
occupation, such that an employer can continue to take a tip credit for
the time the tipped employee spends on such non-tipped work failed
[[Page 5120]]
to achieve its goal of providing certainty for employers and created
the potential for the misuse of the FLSA tip credit. Among other
things, the 2020 Tip final rule would have permitted an employer to
take a tip credit for time that an employee in a tipped occupation
spends performing related, non-tipped duties contemporaneously with
tipped duties, or for a reasonable time immediately before or after
performing the tipped duties. The Department believes that because the
2020 Tip final rule did not define these key terms, the 2020 Tip final
rule will invite rather than limit litigation in this area, and thus
may not support one of the rule's stated justifications for departing
from established guidance. The Dual Jobs final rule clarifies that an
employer may only take a tip credit when its tipped employees perform
work that is part of the employee's tipped occupation.
Summary of Legal Basis: The Fair Labor Standards Act (FLSA or Act)
generally requires covered employers to pay employees at least the
federal minimum wage, which is currently $7.25 per hour. See 29 U.S.C.
206(a)(1). Section 3(m) of the FLSA allows an employer that meets
certain requirements to take a credit toward its minimum wage
obligations of a limited amount, currently up to $5.12 per hour, of the
tips received by employees (known as a tip credit). See 29 U.S.C.
203(m)(2)(A). Section 3(t) of the FLSA defines a tipped employee for
whom an employer may take a tip credit under section 3(m) as any
employee engaged in an occupation in which he customarily and regularly
receives more than $30 a month in tips. See 29 U.S.C. 203(t). The FLSA
regulations addressing tipped employment are codified at 29 CFR 531.50
through 531.60. See also 29 CFR 10.28 (establishing a tip credit for
federal contractor employees covered by Executive Order 13658 who are
tipped employees under section 3(t) of the FLSA).
Alternatives: The Department issued this final rule upon a reasoned
determination that its benefits justify its costs; and that it is
tailored to impose the least burden on society, consistent with
obtaining the regulatory objectives; and that, in choosing among
alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. Executive Order 13563 recognizes
that some costs and benefits are difficult to quantify and provides
that, when appropriate and permitted by law, agencies may consider and
discuss qualitatively values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and distributive
impacts. The analysis in the final rule outlines the impacts that the
Department anticipates may result from this rule.
Anticipated Cost and Benefits: The Department believes that the
revisions to its regulations regarding when a tipped employee is
employed in dual jobs provides increased clarity to employers and
workers and ensures workers are paid the wages they are owed. In the
Dual Jobs final rule, the Department estimated that these changes would
lead to costs for Year 1 that will consist of rule familiarization
costs, adjustment costs, and management costs, and would be
$224,882,399 ($23,827,236 + $23,827,236 + $177,227,926). For the
following years, the Department estimates that costs will only consist
of management costs and would be $177,227,926. Additionally, the
Department estimated average annualized costs of this rule over 10
years. Over 10 years, it will have an average annual cost of $183.6
million calculated at a 7 percent discount rate ($151.1 million
calculated at a 3 percent discount rate). All costs are in 2019
dollars.
Risks: This action does not affect public health, safety, or the
environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/05/17 82 FR 57395
NPRM Comment Period Extended........ 12/15/17 82 FR 59562
NPRM Comment Period Extended End.... 02/05/18 .......................
NPRM; and Withdrawal of NPRM dated 10/08/19 84 FR 53956
12/05/2017 (82 FR 57395).
NPRM Comment Period End............. 12/09/19 .......................
NPRM Comment Period Extension....... 12/11/19 84 FR 67681
NPRM Comment Period Extension End... 12/11/19 .......................
Final Rule (2020 Tip final rule).... 12/30/20 85 FR 86756
Proposed Delay of Final Rule 02/05/21 86 FR 8325
Effective Date (to 4/30/21).
Proposed Delay of Final Rule 02/17/21 .......................
Effective Date Comment Period End.
Final Rule Delay of Effective Date 02/26/21 86 FR 11632
(to 4/30/21).
Final Rule Delay of Effective Date 04/30/21 .......................
Effective.
NPRM; Partial Withdrawal (CMP NPRM). 03/25/21 86 FR 15817
NPRM; Partial Withdrawal (CMP NPRM) 05/24/21 .......................
Comment Period End.
NPRM; Proposed Delay of Effective 03/25/21 86 FR 15811
Date (to 12/31/2021).
NPRM; Proposed Delay of Effective 04/14/21 .......................
Date Comment Period End (to 12/31/
21).
Final Rule; Delay of Effective Date 04/29/21 86 FR 22597
(to 12/31/21).
Final Rule; Partial Withdrawal (CMP 09/24/21 86 FR 52973
Final Rule).
Final Rule; Partial Withdrawal (CMP 11/23/21 .......................
Final Rule) Effective.
NPRM; Partial Withdrawal (Dual Jobs 06/23/21 86 FR 32818
NPRM).
NPRM; Partial Withdrawal (Dual Jobs 08/23/21 .......................
NPRM) Comment Period End.
Final Rule; Partial Withdrawal (Dual 10/29/21 86 FR 60114
Jobs Final Rule).
Final Rule; Partial Withdrawal (Dual 12/28/21 .......................
Jobs Final Rule) Effective.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Amy DeBisschop, Director of the Division of
Regulations, Legislation, and Interpretation, Department of Labor, Wage
and Hour Division, 200 Constitution Avenue NW, FP Building, Room S-
3502, Washington, DC 20210, Phone: 202 693-0406.
RIN: 1235-AA21
[[Page 5121]]
DOL--WHD
117. E.O. 14026, Increasing the Minimum Wage for Federal Contractors
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
Public Law 104-4.
Legal Authority: E.O. 14026
CFR Citation: 29 CFR 23; 29 CFR 10.
Legal Deadline: None.
Abstract: On April 27, 2021, President Joseph Biden issued E.O.
14026, Increasing the Minimum Wage for Federal Contractors to promote
economy and efficiency in procurement by increasing the hourly minimum
wage rate paid by parties that contract with the Federal Government to
$15.00 for those employees working on or in connection with a Federal
Government contract. These regulations will implement the Executive
Order.
Statement of Need: President Biden issued Executive Order 14026
pursuant to his authority under the Constitution and the laws of the
United States, expressly including the Federal Property and
Administrative Services Act (Procurement Act), 40 U.S.C. 101 et seq. 86
FR 22835. The Executive order directs the Secretary to issue
regulations by November 24, 2021, consistent with applicable law, to
implement the order's requirements.
Summary of Legal Basis: The Procurement Act authorizes the
President to prescribe policies and directives that the President
considers necessary to carry out the statutory purposes of ensuring
economical and efficient government procurement and administration of
government property. 40 U.S.C. 101, 121(a). Executive Order 14026
delegates to the Secretary the authority to issue regulations to
implement the requirements of this order. 86 FR 22836. The Secretary
has delegated his authority to promulgate these regulations to the
Administrator of the WHD and to the Deputy Administrator of the WHD if
the Administrator position is vacant. Secretary's Order 01-2014 (Dec.
19, 2014), 79 FR 77527 (published Dec. 24, 2014); Secretary's Order 01-
2017 (Jan. 12, 2017), 82 FR 6653 (published Jan. 19, 2017).
Alternatives: The Department noted that due to the prescriptive
nature of Executive Order 14026, the Department does not have the
discretion to implement alternatives that would violate the text of the
Executive order, such as the adoption of a higher or lower minimum wage
rate, or continued exemption of recreational businesses. However, the
Department considered several alternatives to discretionary proposals
set forth in this final rule. In the final rule, the Department
proposed to define the term United States, when used in a geographic
sense, to mean the 50 States, the District of Columbia, Puerto Rico,
the Virgin Islands, Outer Continental Shelf lands as defined in the
Outer Continental Shelf Lands Act, American Samoa, Guam, the
Commonwealth of the Northern Mariana Islands, Wake Island, and Johnston
Island.
The Department considered defining the term United States to
exclude contracts performed in the territories listed above, consistent
with the discretionary decision made in the Department's prior
rulemaking implementing Executive Order 13658. Such an alternative
would result in fewer contracts covered by Executive Order 14026 and
fewer workers entitled to an initial $15 hourly minimum wage for work
performed on or in connection with such contracts. This alternative was
rejected because the Department has further examined the issue since
its prior rulemaking in 2014 and consequently determined that the
Federal Government's procurement interests in economy and efficiency
would be promoted by extending the Executive Order 14026 minimum wage
to workers performing on or in connection with covered contracts.
A second alternative the Department considered in the final rule
was raising (or eliminating) the 20 percent threshold for an exclusion
for FLSA-covered workers performing in connection with covered
contracts. If the Department were to omit this exclusion, more workers
would be covered by the rule, and contractors would be required to pay
more workers the applicable minimum wage rate (initially $15 per hour)
for time spent performing in connection with covered contracts. This
would result in greater income transfers to workers. Conversely, if the
Department were to raise the 20 percent threshold, fewer workers would
be covered by the rule, resulting in a smaller income transfer to
workers.
The Department rejected this regulatory alternative because having
an exclusion for FLSA-covered workers performing in connection with
covered contracts based on a 20 percent of hours worked in a week
standard is a reasonable interpretation.
Anticipated Cost and Benefits: In the final rule, the Department
estimated the number of employees who would, as a result of the
Executive order and the proposed rule, see an increase in their hourly
wage, i.e., affected employees. The Department estimates there will be
327,300 affected employees in the first year of implementation (Table 1
of final rule). During the first 10 years the rule is in effect,
average annualized direct employer costs are estimated to be $2.4
million (Table 1 of final rule) assuming a 7 percent real discount rate
(hereafter, unless otherwise specified, average annualized values will
be presented using a 7 percent real discount rate). This estimated
annualized cost includes $1.9 million for regulatory familiarization
and $538,500 for implementation costs. Other potential costs are
discussed qualitatively.
The direct transfer payments associated with this rule are
transfers of income from employers to employees in the form of higher
wage rates. Estimated average annualized transfer payments are $1.75
billion per year over 10 years.
The Department expects that increasing the minimum wage of Federal
contract workers will generate several important benefits. However, due
to data limitations, these benefits are not monetized. As noted in the
Executive order, the NPRM will promote economy and efficiency.
Specifically, the proposed rule discusses benefits from improved
government services, increased morale and productivity, reduced
turnover, reduced absenteeism, and reduced poverty and income
inequality for Federal contract workers.
Risks: This action does not affect public health, safety, or the
environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/23/21 86 FR 38816
NPRM Comment Period Extension....... 08/04/21 86 FR 41907
NPRM Comment Period Extension End... 08/27/21 .......................
Final Rule.......................... 11/24/21 86 FR 67126
Final Rule Effective Date........... 01/30/22 .......................
Final Rule Applicability Date....... 01/30/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Amy DeBisschop, Director of the Division of
Regulations, Legislation, and Interpretation, Department of Labor, Wage
and Hour Division, 200 Constitution Avenue NW, FP Building, Room S-
3502, Washington, DC 20210, Phone: 202 693-0406.
RIN: 1235-AA41
[[Page 5122]]
DOL--EMPLOYMENT AND TRAINING ADMINISTRATION (ETA)
Proposed Rule Stage
118. Wagner-Peyser Act Staffing
Priority: Other Significant.
Legal Authority: Wagner-Peyser Act
CFR Citation: 20 CFR 651; 20 CFR 652; 20 CFR 653; 20 CFR 658.
Legal Deadline: None.
Abstract: The Department proposes to revise the Wagner-Peyser Act
regulations regarding Employment Services (ES) staffing to require that
states use state merit staff to provide ES services, including Migrant
and Seasonal Farmworker (MSFW) services, and to improve service
delivery for migrant and seasonal farmworkers (MSFW).
Statement of Need: The Department has identified areas of the
regulation that should be changed to create a uniform standard of ES
services provision for all States.
Summary of Legal Basis: The Department is undertaking this
rulemaking pursuant to its authority under the Wagner-Peyser Act.
Alternatives: Two alternatives will be considered, and the public
will have the opportunity to comment on these alternatives after
publication of the NPRM.
Anticipated Cost and Benefits: The proposed rule is expected to
have one-time rule familiarization costs of $4,205 in 2020 dollars, as
well as unknown transition costs. The proposed rule is also expected to
have annual transfer payments of $9.6 million for three of the five
States that currently have non-State merit staff providing some labor
exchange services. In the NPRM, the Department will solicit comments
from stakeholders and the public on the unknown transition costs, plus
transfer payments that would be incurred by the two additional States
with some non-State merit staff providing labor exchange services.
Risks: This action does not affect the public health, safety, or
the environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: State.
Agency Contact: Kimberly Vitelli, Administrator, Office of
Workforce Investment, Department of Labor, Employment and Training
Administration, 200 Constitution Avenue NW, FP Building, Room C-4526,
Washington, DC 20210, Phone: 202 693-3980, Email:
[email protected].
RIN: 1205-AC02
DOL--ETA
119. Apprenticeship Programs, Labor Standards for Registration,
Amendment of Regulations
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: The National Apprenticeship Act, as amended (50
Stat. 664) 29 U.S.C. 50
CFR Citation: 29 CFR 29.
Legal Deadline: None.
Abstract: On February 17, 2021, the President signed an Executive
Order: (1) Revoking Executive Order 13801 (issued on June 15, 2017);
and (2) directing federal departments and agencies to consider taking
steps promptly to rescind any orders, rules, regulations, guidelines or
policies implementing Executive Order 13801. The Department is
considering amending its apprenticeship regulations to rescind subpart
B of title 29 CFR part 29, Labor Standards for the Registration of
Apprenticeship Programs, including the status of those Standards
Recognition Entities and Industry Recognized Apprenticeship Programs
(IRAPs) that previously received recognition under the provisions of 29
CFR part 29, subpart B, and to make additional conforming edits in
subpart A as appropriate.
Statement of Need: Executive Order 14016 (86 FR 11089), issued by
the President on February 17, 2021, directed Federal agencies to
promptly consider taking steps to rescind any orders, rules,
regulations, guidelines, or policies implementing E.O. 13801. In
response to E.O. 14016, the Department has reviewed the IRAP system and
has determined that, because the IRAP system has fewer quality training
and worker protection standards than the Registered Apprenticeship
system and results in a duplicative system of apprenticeship, it will
issue a proposed regulation to rescind subpart B of title 29 CFR part
29, Labor Standards for the Registration of Apprenticeship Programs.
Summary of Legal Basis: The National Apprenticeship Act of 1937
(NAA), 29 U.S.C. 50, authorizes the Secretary of Labor (Secretary) to:
(1) Formulate and promote the use of labor standards necessary to
safeguard the welfare of apprentices and to encourage their inclusion
in apprenticeship contracts; (2) bring together employers and labor for
the formulation of programs of apprenticeship; and (3) cooperate with
State agencies engaged in the formulation and promotion of standards of
apprenticeship.
Alternatives: Alternatives were proposed in the NPRM that is open
for public comment.
Anticipated Cost and Benefits: The Department's preliminary
estimates is anticipated cost savings of $8.9 million over the first 10
years of the proposed rule (2022-2031). Details for costs and benefits
will be prepared.
Risks: This action does not affect the public health, safety, or
the environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/15/21 86 FR 62966
NPRM Comment Period End............. 01/14/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: John V. Ladd, Administrator, Office of
Apprenticeship, Department of Labor, Employment and Training
Administration, 200 Constitution Avenue NW, FP Building, Room C-5311,
Washington, DC 20210, Phone: 202 693-2796, Fax: 202 693-3799, Email:
[email protected].
RIN: 1205-AC06
DOL--EMPLOYEE BENEFITS SECURITY ADMINISTRATION (EBSA)
Proposed Rule Stage
120. Prudence and Loyalty in Selecting Plan Investments and Exercising
Shareholder Rights
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 29 U.S.C. 1104; 29 U.S.C. 1135
CFR Citation: 29 CFR 2550.
Legal Deadline: None.
Abstract: This rulemaking implements Executive Order 13990 of
January 20, 2021, titled Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis, and Executive Order
14030 of May 20, 2021, titled Climate-Related Financial Risks. Among
other things, these Executive Orders direct Federal agencies to review
existing regulations promulgated, issued, or adopted between January
20, 2017, and January 20, 2021, that are or may be inconsistent with,
or present obstacles to, the
[[Page 5123]]
policies set forth in section 1 of the orders 86 FR 7037 (January 25,
2021); 86 FR 27967 (May 25, 2021). Such policies include the promotion
and protection of public health and the environment and ensuring that
agency activities are guided by the best science and protected by
processes that ensure the integrity of Federal decision-making, and to
advance consistent, clear, intelligible, comparable, and accurate
disclosure of climate-related financial risk, including both physical
and transition risks. Section 2 of E.O. 13990 provides that for any
such regulatory actions identified by the agencies, the heads of
agencies shall, as appropriate and consistent with applicable law,
consider suspending, revising, or rescinding the agency actions.
Section 4 of E.O. 14030 directs the Secretary of Labor to consider
publishing, by September 2021, for notice and comment a proposed rule
to suspend, revise, or rescind ``Financial Factors in Selecting Plan
Investments,'' 85 FR 72846 (November 13, 2020), and ``Fiduciary Duties
Regarding Proxy Voting and Shareholder Rights,'' 85 FR 81658 (December
16, 2020). The Department of Labor's Employee Benefits Security
Administration therefore will undertake a review of regulations under
title I of the Employee Retirement Income Security Act in accordance
with these orders, including ``Financial Factors in Selecting Plan
Investments,'' 85 FR 72846 (November 13, 2020), and ``Fiduciary Duties
Regarding Proxy Voting and Shareholder Rights,'' 85 FR 81658 (December
16, 2020).
Statement of Need: The Department of Labor's Employee Benefits
Security Administration undertook a review of the ``Financial Factors
in Selecting Plan Investments'' and the ``Fiduciary Duties Regarding
Proxy Voting and Shareholder Rights,'' final rules in accordance with
Executive Order 13990 and Executive Order 14030. Those final rules were
intended to provide clarity and certainty regarding the scope and
application of ERISA fiduciary duties to plan investment decisions and
to the exercise of shareholder rights, including proxy voting.
Stakeholder reactions to the 2020 rules, however, suggest that the
rules may have caused more confusion than clarity. Many interested
stakeholders have expressed concerns that the terms and tone of the
rules and related preambles have increased uncertainty about the extent
to which plan fiduciaries may take into account environmental, social,
or governance (ESG) considerations, including climate-related financial
risk, in their investment and proxy voting decisions, and that the
final rules have and will continue to have chilling effects contrary to
the financial interests of ERISA plans and their participants and
beneficiaries. The NPRM is needed to address these concerns and
negative impacts.
Summary of Legal Basis: The Department is proposing the amendments
pursuant to ERISA sections 404 (29 U.S.C. 1104) and 505 (29 U.S.C.
1135), and Executive Order 14030 (86 FR 27967 (May 25, 2021)) and
Executive Order 13990 (86 FR 7037 (January 25, 2021)).
Alternatives: The Department considered various alternatives,
including leaving the current regulations in place without change,
rescinding the Financial Factors in Selecting Plan Investments and
Fiduciary Duties Regarding Proxy Voting and Shareholder Rights final
rules, and revising the current regulation by, in effect, reverting it
to its form before the 2020 final rules.
Anticipated Cost and Benefits:
Anticipated Benefits--The primary benefit of the proposal is
clarification of legal standards, which should empower fiduciaries to
take proper account of ESG factors when making investment decisions and
exercising proxy voting rights on behalf of plan participants. The
Department has heard from stakeholders that the current regulation, and
investor confusion about it, has already had a chilling effect on
appropriate integration of ESG factors in investment decisions, and
could deter plan fiduciaries from taking into account ESG factors even
when they are material to a risk-return analysis. Stakeholders also
indicated that confusion surrounding the current regulation could
discourage proxy voting and other exercises of shareholder rights even
when doing so is in the plan's best interest. A significant benefit of
this proposal would be to ensure that plans do not inappropriately
avoid considering material ESG factors when selecting investments or
exercising shareholder rights, as they might otherwise be inclined to
do under the current regulation. Acting on material ESG factors in
these contexts, and in a manner consistent with the proposal, will
redound, in the first instance, to employee benefit plans covered by
ERISA and their participants and beneficiaries, and secondarily and
indirectly, to society more broadly but without any sacrifices by the
participants and beneficiaries in ERISA plans. Further, by ensuring
that plan fiduciaries would not sacrifice investment returns or take on
additional investment risk to promote unrelated goals, this proposal
would lead to increased investment returns over the long run. The
proposal would also make certain that ERISA regulation would not chill
or otherwise discourage proxy voting by plans governed by the economic
interests of the plan and its participants. This would promote
management accountability to shareholders, including the affected
shareholder plans. These benefits, while difficult to quantify, are
anticipated to outweigh the costs.
Anticipated Costs--By reversing aspects of the current regulation,
this proposal would facilitate certain activities among plan
fiduciaries in their investment decisions, including potential changes
in asset management strategies and proxy voting behavior, that these
plan fiduciaries otherwise likely would not take under the current
regulation. The precise impact of this proposal on such behavior is
uncertain. Therefore, a precise quantification of all costs similarly
is not possible. To the extent that the proposal changes investment-
related behavior among ERISA plans, its benefits are expected to
outweigh the costs. Overall, the costs of the proposal are expected to
be relatively small, in part because the Department assumes most plan
fiduciaries are complying with the pre-2020 interpretive bulletins to
the extent relevant to costs (specifically Interpretive Bulletin 2016-1
and 2015-1), and it is expected that the proposal would track that
guidance to a very large extent. Known incremental costs of the
proposal would be minimal on a per-plan basis.
Risks: The risk of not pursuing this rulemaking is that, if the
current regulation is not amended, it could have a) a negative impact
on plans' financial performance as they avoid materially sound ESG
investments or integration of material ESG considerations in investment
analysis, b) a negative impact on plans' financial performance as they
shy away from economically relevant considerations in proxy voting and
from exercising shareholder rights on material issues, and c) broader
negative economic/societal impacts (e.g., negative impacts on climate
change and on corporate managers' accountability to the shareholders
who own the companies they serve).
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/14/21 86 FR 57272
NPRM Comment Period End............. 12/13/21
[[Page 5124]]
Analyze Comments.................... 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Jeffrey J. Turner, Deputy Director, Office of
Regulations and Interpretations, Department of Labor, Employee Benefits
Security Administration, 200 Constitution Avenue NW, FP Building, Room
N-5655, Washington, DC 20210, Phone: 202 693-8500.
RIN: 1210-AC03
DOL--EBSA
121. Mental Health Parity and Addiction Equity Act and the
Consolidated Appropriations Act, 2021
Priority: Other Significant.
Legal Authority: Pub. L. 116-260, Division BB, Title II; Pub. L.
110-343, secs. 511-512
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This rule would propose amendments to the final rules
implementing the Mental Health Parity and Addiction Equity Act
(MHPAEA). The amendments would clarify plans' and issuers' obligations
under the law, promote compliance with MHPAEA, and update requirements
to take into account experience with MHPAEA in the years since the
rules were finalized as well as amendments to the law recently enacted
as part of the Consolidated Appropriations Act, 2021.
Statement of Need: There have been a number of legislative
enactments related to MHPAEA since issuance of the 2014 final rules,
including the 21st Century Cures Act, the Support Act, and the
Consolidated Appropriations Act, 2021. This rule would propose
amendments to the final rules and incorporate examples and
modifications to account for this legislation and previously issued
guidance and to take into account experience with MHPAEA in the years
since the rules were finalized.
Summary of Legal Basis: The Department of Labor regulations would
be adopted pursuant to the authority contained in 29 U.S.C. 1002, 1135,
1182, 1185d, 1191a, 1191b, and 1191c; Secretary of Labor's Order 1-
2011, 77 FR 1088 (Jan. 9, 2012).
Alternatives: Not yet determined.
Anticipated Cost and Benefits: Not yet determined.
Risks: Not yet determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Amber Rivers, Director, Office of Health Plan
Standards and Compliance Assistance, Department of Labor, Employee
Benefits Security Administration, 200 Constitution Avenue NW,
Washington, DC 20210, Phone: 202 693-8335, Email: [email protected].
RIN: 1210-AC11
DOL--EBSA
Final Rule Stage
122. Requirements Related to Surprise Billing, Part 1
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 116-260, Division BB, Title I and Title II
CFR Citation: Not Yet Determined.
Legal Deadline: NPRM, Statutory, July 1, 2021, Statutory Deadline
for Rulemaking.
Abstract: This interim final rule with comment would implement
certain protections against surprise medical bills under the No
Surprises Act, including requirements on group health plans, issuers
offering group or individual health insurance coverage, providers,
facilities, and providers of air ambulance services.
Statement of Need: Surprise bills can cause significant financial
hardship and cause individuals to forgo care. The No Surprises Act
provides federal protections against surprise billing and limits out-
of-network cost sharing under many of the circumstances in which
surprise medical bills arise most frequently. These interim final rules
fulfill a rulemaking requirement under the No Surprises Act and protect
individuals from surprise medical bills for emergency services, air
ambulance services furnished by nonparticipating providers, and non-
emergency services furnished by nonparticipating providers at
participating facilities in certain circumstances.
Summary of Legal Basis: The Department of Labor regulations are
adopted pursuant to the authority contained in 29 U.S.C. 1002, 1135,
1182, 1185d, 1191a, 1191b, and 1191c; Secretary of Labor's Order 1-
2011, 77 FR 1088 (Jan. 9, 2012).
Alternatives: In developing the interim final rules, the
Departments considered various alternative approaches, including
whether cost-sharing should be based on the recognized amount in
circumstances where the billed charge is lower, whether plans and
issuer should take into account the number of claims paid at the
contracted rate when calculating the qualifying payment amount, and
many others.
Anticipated Cost and Benefits: The provisions in these interim
final rules will ensure that participants, beneficiaries, and enrollees
with health coverage are protected from surprise medical bills.
Individuals with health coverage will gain peace of mind, experience a
reduction in out-of-pocket expenses, be able to meet their deductible
and out-of-pocket maximum limits sooner, and may experience increased
access to care. Plans, issuers, health care providers, facilities, and
providers of air ambulance services will incur costs to comply with the
requirements in these interim final rules.
Risks: The risk of not pursuing this rulemaking is that the
Department would fail to meet its statutory obligations to issue
regulations, group health plans would lack guidance needed to comply
with the statutory requirements, and individuals would continue to be
burdened by surprise medical bills.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 07/13/21 86 FR 36872
Interim Final Rule Comment Period 09/07/21
End.
Interim Final Rule Effective 09/13/21
(Applicability Date 1/1/2022).
Analyze Comments.................... 11/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Amber Rivers, Director, Office of Health Plan
Standards and Compliance Assistance, Department of Labor, Employee
Benefits Security Administration, 200 Constitution Avenue NW,
Washington,
[[Page 5125]]
DC 20210, Phone: 202 693-8335, Email: [email protected].
RIN: 1210-AB99
DOL--EBSA
123. Requirements Related to Surprise Billing, Part 2
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 116-260, Division I BB, Title I and Title
II
CFR Citation: Not Yet Determined.
Legal Deadline: NPRM, Statutory, October 1, 2021, Statutory
Deadline for Rulemaking.
Abstract: This interim final rule with comment would implement
additional protections against surprise medical bills under the No
Surprises Act, including provisions related to the independent dispute
resolution processes.
Statement of Need: Surprise bills can cause significant financial
hardship and cause individuals to forgo care. The No Surprises Act
provides federal protections against surprise billing and limits out-
of-network cost sharing under many of the circumstances in which
surprise medical bills arise most frequently. These interim final rules
implement provisions of the No Surprises Act related to the independent
dispute resolution process for settling payment disputes and protect
individuals from surprise medical bills for emergency services, air
ambulance services furnished by nonparticipating providers, and non-
emergency services furnished by nonparticipating providers at
participating facilities in certain circumstances.
Summary of Legal Basis: The Department of Labor regulations are
adopted pursuant to the authority contained in 29 U.S.C. 1002, 1135,
1182, 1185d, 1191a, 1191b, and 1191c; Secretary of Labor's Order 1-
2011, 77 FR 1088 (Jan. 9, 2012).
Alternatives: In developing the interim final rules, the
Departments considered various alternative approaches, including how to
select a certified independent dispute resolution (IDR) entity if the
parties fail to do so. The Department considered alternative
approaches, including whether the Department should consider the
specific fee of the certified IDR entity, or look to other factors,
such as how often the certified IDR entity chooses the amount closest
to the qualifying payment amount.
Anticipated Cost and Benefits: These interim final rules will
ensure that consumers are protected from out-of-network medical costs
by creating a process for plans and issuers and nonparticipating
providers and facilities to resolve disputes on out-of-network rates.
The Departments expect a significant reduction in the incidence of
surprise billing, resulting in significant savings for consumers. There
may be a potential transfer from providers, including air ambulance
providers and facilities, to the participant, beneficiary, or enrollee
if the out-of-network rate collected is lower than what would have been
collected had the provider or facility balance billed the participant,
beneficiary, or enrollee. Overall, these interim final rules provide a
mechanism to effectively resolve disputes between issuers and
providers, while protecting patients.
Risks: The risk of not pursuing this rulemaking is that group
health plans would lack guidance needed to comply with the statutory
requirements, plans and health care providers would not be able to
resolve payment disputes, and individuals would continue to be burdened
by surprise medical bills.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 10/07/21 86 FR 55980
Interim Final Rule Effective........ 10/07/21
Interim Final Rule Comment Period 12/06/21
End.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Agency Contact: Amber Rivers, Director, Office of Health Plan
Standards and Compliance Assistance, Department of Labor, Employee
Benefits Security Administration, 200 Constitution Avenue NW,
Washington, DC 20210, Phone: 202 693-8335, Email: [email protected].
RIN: 1210-AC00
DOL--MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
Proposed Rule Stage
124. Respirable Crystalline Silica
Priority: Other Significant.
Legal Authority: 30 U.S.C. 811; 30 U.S.C. 813(h); 30 U.S.C. 957
CFR Citation: 30 CFR 56; 30 CFR 57; 30 CFR 60; 30 CFR 70; 30 CFR
71; 30 CFR 72; 30 CFR 75; 30 CFR 90.
Legal Deadline: None.
Abstract: Many miners are exposed to respirable crystalline silica
(RCS) in respirable dust. These miners can develop lung diseases such
as chronic obstructive pulmonary disease, and various forms of
pneumoconiosis, such as silicosis, progressive massive fibrosis, and
rapidly progressive pneumoconiosis. These diseases are irreversible and
may ultimately be fatal. MSHA's existing standards limit miners'
exposures to RCS. MSHA will publish a proposed rule to address the
existing permissible exposure limit of RCS for all miners and to update
the existing respiratory protection standards under 30 CFR 56, 57, and
72.
Statement of Need: Many miners are exposed to respirable
crystalline silica (RCS) in respirable dust, which can result in the
onset of diseases such as silicosis and rapidly progressive
pneumoconiosis. These lung diseases are irreversible and may ultimately
be fatal. MSHA is examining the existing limit on miners' exposures to
RCS to safeguard the health of America's miners. Based on MSHA's
experience with existing standards and regulations, as well as OSHA's
RCS standards and NIOSH research, MSHA will develop a rule applicable
to metal, nonmetal, and coal operations.
Summary of Legal Basis: Sections 101(a), 103(h), and 508 of the
Federal Mine Safety and Health Act of 1977 (Mine Act), as amended (30
U.S.C. 811(a), 813(h), and 957).
Alternatives: MSHA will examine one or two different levels of
miners' RCS exposure limit and assess the technological and economic
feasibility of such option(s).
Anticipated Cost and Benefits: To be determined.
Risks: Miners face impairment risk of health and functional
capacity due to RCS exposures. MSHA will examine the existing RCS
standard and determine ways to reduce the health risks associate with
RCS exposure.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 08/29/19 84 FR 45452
RFI Comment Period End.............. 10/28/19
NPRM................................ 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: Local, State.
Agency Contact: Jessica Senk, Director, Office of Standards,
Regulations, and Variances, Department of Labor, Mine Safety and Health
Administration, 201 12th Street S, Suite
[[Page 5126]]
401, Arlington, VA 22202, Phone: 202 693-9440.
RIN: 1219-AB36
DOL--MSHA
125. Safety Program for Surface Mobile Equipment
Priority: Other Significant. Major under 5 U.S.C. 801.
Legal Authority: 30 U.S.C. 811; 30 U.S.C. 813(h); 30 U.S.C. 957
CFR Citation: 30 CFR 56; 30 CFR 57; 30 CFR 77.
Legal Deadline: None.
Abstract: MSHA would require mine operators to establish a written
safety program for mobile equipment and powered haulage equipment
(except belt conveyors) used at surface mines and surface areas of
underground mines. Under this proposal, mine operators would be
required to assess hazards and risks and identify actions to reduce
accidents related to surface mobile equipment. The operators would have
flexibility to develop and implement a safety program that would work
best for their mining conditions and operations. This proposed rule is
to reduce fatal and nonfatal injuries involving surface mobile
equipment used at mines and to improve miner safety and health.
Statement of Need: Although mine accidents are declining, accidents
involving mobile and powered haulage equipment are still a leading
cause of fatalities in mining. To reduce fatal and nonfatal injuries
involving surface mobile equipment used at mines, MSHA is proposing a
regulation that would require mine operators employing six or more
miners to develop a written safety program for mobile and powered
haulage equipment (excluding belt conveyors) at surface mines and
surface areas of underground mines. The written safety program would
include actions mine operators would take to identify hazards and risks
to reduce accidents, injuries, and fatalities related to surface mobile
equipment.
Summary of Legal Basis: Sections 101(a), 103(h), and 508 of the
Federal Mine Safety and Health Act of 1977 (Mine Act), as amended (30
U.S.C. 811(a), 813(h), and 957).
Alternatives: MSHA considered requiring all mines, regardless of
size, to develop and implement a written safety program for surface
mobile equipment. Based on the Agency's experience, MSHA concluded that
a mine operator with five or fewer miners would generally have a
limited inventory of surface mobile equipment. These operators would
also have less complex mining operations, with fewer mobile equipment
hazards that would necessitate a written safety program. Thus, these
mine operators are not required to have a written safety program,
although MSHA would encourage operators with five or fewer miners to
have safety programs. MSHA will consider comments and suggestions
received on alternatives or best practices that all mines might use to
develop safety programs (whether written or not) for surface mobile
equipment.
Anticipated Cost and Benefits: The proposed rule would not be
economically significant, and it would have some net benefits.
Risks: Miners operating mobile and powered haulage equipment or
working nearby face risks of workplace injuries, illnesses, or deaths.
The proposed rule would allow a flexible approach to reducing hazards
and risks specific to each mine so that mine operators would be able to
develop and implement safety programs that work for their operation,
mining conditions, and miners.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 06/26/18 83 FR 29716
Notice of Public Stakeholder 07/25/18 83 FR 35157
Meetings.
Stakeholder Meeting--Birmingham, AL. 08/07/18
Stakeholder Meeting--Dallas, TX..... 08/09/18
Stakeholder Meeting (Webinar)-- 08/16/18
Arlington, VA.
Stakeholder Meeting--Reno, NV....... 08/21/18
Stakeholder Meeting--Beckley, WV.... 09/11/18
Stakeholder Meeting--Albany, NY..... 09/20/18
Stakeholder Meeting--Arlington, VA.. 09/25/18
RFI Comment Period End.............. 12/24/18
NPRM................................ 09/09/21 86 FR 50496
NPRM Comment Period End............. 11/08/21
Final Rule.......................... 10/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Jessica Senk, Director, Office of Standards,
Regulations, and Variances, Department of Labor, Mine Safety and Health
Administration, 201 12th Street S, Suite 401, Arlington, VA 22202,
Phone: 202 693-9440.
RIN: 1219-AB91
DOL--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)
Prerule Stage
126. Prevention of Workplace Violence in Health Care and Social
Assistance
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 29 U.S.C. 655(b); 5 U.S.C. 609
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: The Request for Information (RFI) (published on December
7, 2016 81 FR 88147)) provides OSHA's history with the issue of
workplace violence in health care and social assistance, including a
discussion of the Guidelines that were initially published in 1996, a
2014 update to the Guidelines, the agency's use of 5(a)(1) in
enforcement cases in health care. The RFI solicited information
primarily from health care employers, workers and other subject matter
experts on impacts of violence, prevention strategies, and other
information that will be useful to the agency. OSHA was petitioned for
a standard preventing workplace violence in health care by a broad
coalition of labor unions, and in a separate petition by the National
Nurses United. On January 10, 2017, OSHA granted the petitions. OSHA is
preparing for SBREFA.
Statement of Need: Workplace violence is a widespread problem, and
there is growing recognition that workers in healthcare and social
service occupations face unique risks and challenges. In 2018, the rate
of serious workplace violence incidents (those requiring days off for
an injured worker to recuperate) was more than five times greater in
these occupations than in private industry on average, with both the
number and share of incidents rising faster in these professions than
among other workers.
Healthcare and social services account for nearly as many serious
violent injuries as all other industries combined. Workplace violence
comes at a high cost. It harms workers often both physically and
emotionally and makes it more difficult for them to do their jobs.
Workers in some medical and social service settings are more at
risk than others. According to the Bureau of Labor Statistics, in 2018
workers at psychiatric and substance abuse hospitals
[[Page 5127]]
experienced the highest rate of violent injuries that resulted in days
away from work, at approximately 125 injuries per 10,000 full-time
employees (FTEs). This is about 6 times the rate for workers at nursing
and residential care facilities (21.1/10,000). But even workers
involved in ambulatory care, while less likely than other healthcare
workers to experience violent injuries, were 1.5 times as likely as
workers outside of healthcare to do so.
Summary of Legal Basis: The Occupational Safety and Health Act of
1970 authorizes the Secretary of Labor to set mandatory occupational
safety and health standards to assure safe and healthful working
conditions for working men and women (29 U.S.C. 651).
Alternatives: One alternative to proposed rulemaking would be to
take no regulatory action. As OSHA develops more information, it will
also make decisions relating to the scope of the standard and the
requirements it may impose.
Anticipated Cost and Benefits: The estimates of costs and benefits
are still under development.
Risks: Analysis of risks is still under development.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 12/07/16 81 FR 88147
RFI Comment Period End.............. 04/06/17 .......................
Initiate SBREFA..................... 12/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Local, State.
Agency Contact: Andrew Levinson, Deputy Director, Directorate of
Standards and Guidance, Department of Labor, Occupational Safety and
Health Administration, 200 Constitution Avenue NW, FP Building, Room N-
3718, Washington, DC 20210, Phone: 202 693-1950, Email:
[email protected].
RIN: 1218-AD08
DOL--OSHA
127. Heat Illness Prevention in Outdoor and Indoor Work Settings
Priority: Other Significant.
Legal Authority: Not Yet Determined
CFR Citation: None.
Legal Deadline: None.
Abstract: Heat is the leading weather-related killer, and it is
becoming more dangerous as 18 of the last 19 years were the hottest on
record. Excessive heat can cause heat stroke and even death if not
treated properly. It also exacerbates existing health problems like
asthma, kidney failure, and heart disease. Workers in agriculture and
construction are at highest risk, but the problem affects all workers
exposed to heat, including indoor workers without climate-controlled
environments. Essential jobs where employees are exposed to high levels
of heat are disproportionately held by Black and Brown workers.
Heat stress killed 815 US workers and seriously injured more than
70,000 workers from 1992 through 2017, according to the Bureau of Labor
Statistics. However, this is likely a vast underestimate, given that
injuries and illnesses are under reported in the US, especially in the
sectors employing vulnerable and often undocumented workers. Further,
heat is not always recognized as a cause of heat-induced injuries or
deaths and can easily be misclassified, because man of the symptoms
overlap with other more common diagnoses.
To date, California, Washington, Minnesota, and the US military
have issued heat protections. OSHA currently relies on the general duty
clause (OSH Act Section 5(a))(1)) to protect workers from this hazard.
Notably, from 2013 through 2017, California used its heat standard to
conduct 50 times more inspections resulting in a heat-related violation
than OSHA did nationwide under its general duty clause. It is likely to
become even more difficult to protect workers from heat stress under
the general duty clause in light of the 2019 Occupational Safety and
Health Review Commission's decision in Secretary of Labor v. A.H.
Sturgill Roofing, Inc.
OSHA was petitioned by Public Citizen for a heat stress standard in
2011. The Agency denied this petition in 2012, but was once again
petitioned by Public Citizen, on behalf of approximately 130
organizations, for a heat stress standard in 2018 and 2019. Most
recently in 2021, Public Citizen petitioned OSHA to issue an emergency
temporary standard on heat stress. OSHA is still considering these
petitions and has neither granted nor denied to date. In 2019 and 2021,
some members of the Senate also urged OSHA to initiate rulemaking to
address heat stress.
Given the potentially broad scope of regulatory efforts to protect
workers from heat hazards, as well as a number of technical issues and
considerations with regulating this hazard (e.g., heat stress
thresholds, heat acclimatization planning, exposure monitoring, medical
monitoring), a Request for Information would allow the agency to begin
a dialogue and engage with stakeholders to explore the potential for
rulemaking on this topic.
Statement of Need: Heat stress killed more than 900 US workers, and
caused serious heat illness in almost 100 times as many, from 1992
through 2019, according to the Bureau of Labor Statistics. However,
this is likely a vast underestimate, given that injuries and illnesses
are underreported in the US, especially in the sectors employing
vulnerable and often undocumented workers. Further, heat is not always
recognized as a cause of heat-induced illnesses or deaths, which are
often misclassified, because many of the symptoms overlap with other
more common diagnoses. Moreover, climate change is increasing the heat
hazard throughout the nation: 2020 was either the hottest or the second
hottest year on record, with 2021 on track to be even hotter. Although
official figures are not yet available, we already know that in many
states heat related deaths are higher are far higher than normal this
year.
Summary of Legal Basis: The Occupational Safety and Health Act of
1970 authorizes the Secretary of Labor to set mandatory occupational
safety and health standards to assure safe and healthful working
conditions for working men and women (29 U.S.C. 651).
Alternatives: One alternative to proposed rulemaking would be to
take no regulatory action. As OSHA develops more information, it will
also make decisions relating to the scope of the standard and the
requirements it may impose.
Anticipated Cost and Benefits: The estimates of costs and benefits
are still under development.
Risks: Analysis of risks is still under development.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 10/27/21 86 FR 59309
ANPRM Comment Period End............ 12/27/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Andrew Levinson, Deputy Director, Directorate of
Standards and Guidance, Department of Labor, Occupational Safety and
Health
[[Page 5128]]
Administration, 200 Constitution Avenue NW, FP Building, Room N-3718,
Washington, DC 20210, Phone: 202 693-1950, Email:
[email protected].
RIN: 1218-AD39
DOL--OSHA
Proposed Rule Stage
128. Infectious Diseases
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 5 U.S.C. 533; 29 U.S.C. 657 and 658; 29 U.S.C.
660; 29 U.S.C. 666; 29 U.S.C. 669; 29 U.S.C. 673
CFR Citation: 29 CFR 1910.
Legal Deadline: None.
Abstract: Employees in health care and other high-risk environments
face long-standing infectious disease hazards such as tuberculosis
(TB), varicella disease (chickenpox, shingles), and measles, as well as
new and emerging infectious disease threats, such as Severe Acute
Respiratory Syndrome (SARS), the 2019 Novel Coronavirus (COVID-19), and
pandemic influenza. Health care workers and workers in related
occupations, or who are exposed in other high-risk environments, are at
increased risk of contracting TB, SARS, Methicillin-Resistant
Staphylococcus Aureus (MRSA), COVID-19, and other infectious diseases
that can be transmitted through a variety of exposure routes. OSHA is
examining regulatory alternatives for control measures to protect
employees from infectious disease exposures to pathogens that can cause
significant disease. Workplaces where such control measures might be
necessary include: Health care, emergency response, correctional
facilities, homeless shelters, drug treatment programs, and other
occupational settings where employees can be at increased risk of
exposure to potentially infectious people. A standard could also apply
to laboratories, which handle materials that may be a source of
pathogens, and to pathologists, coroners' offices, medical examiners,
and mortuaries.
Statement of Need: Employees in health care and other high-risk
environments face long-standing infectious disease hazards such as
tuberculosis (TB), varicella disease (chickenpox, shingles), and
measles, as well as new and emerging infectious disease threats, such
as Severe Acute Respiratory Syndrome (SARS), the 2019 Novel Coronavirus
(COVID-19), and pandemic influenza. Health care workers and workers in
related occupations, or who are exposed in other high-risk
environments, are at increased risk of contracting TB, SARS,
Methicillin-Resistant Staphylococcus Aureus (MRSA), COVID-19, and other
infectious diseases that can be transmitted through a variety of
exposure routes.
Summary of Legal Basis: The Occupational Safety and Health Act of
1970 authorizes the Secretary of Labor to set mandatory occupational
safety and health standards to assure safe and healthful working
conditions for working men and women (29 U.S.C. 651).
Alternatives: One alternative is to take no regulatory action. OSHA
is examining regulatory alternatives for control measures to protect
employees from infectious disease exposures to pathogens that can cause
significant disease. In addition to health care, workplaces where SERs
suggested such control measures might be necessary include: Emergency
response, correctional facilities, homeless shelters, drug treatment
programs, and other occupational settings where employees can be at
increased risk of exposure to potentially infectious people.
A standard could also apply to laboratories, which handle materials
that may be a source of pathogens, and to pathologists, coroners'
offices, medical examiners, and mortuaries. OSHA offered several
alternatives to the SBREFA panel when presenting the proposed
Infectious Disease (ID) rule. OSHA considered a specification oriented
rule rather than a performance oriented rule, but has preliminarily
determined that this type of rule would provide less flexibility and
would likely fail to anticipate all of the potential hazards and
necessary controls for every type and every size of facility and would
under-protect workers. OSHA also considered changing the scope of the
rule by restricting the ID rule to workers who have occupational
exposure during the provision of direct patient care in institutional
settings but based on the evidence thus far analyzed, workers
performing other covered tasks in both institutional and non-
institutional settings also face a risk of infection because of their
occupational exposure.
Anticipated Cost and Benefits: The estimates of costs and benefits
are still under development.
Risks: Analysis of risks is still under development.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 05/06/10 75 FR 24835
RFI Comment Period End.............. 08/04/10
Analyze Comments.................... 12/30/10
Stakeholder Meetings................ 07/05/11 76 FR 39041
Initiate SBREFA..................... 06/04/14
Complete SBREFA..................... 12/22/14
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: Local, State.
Federalism: Undetermined.
Agency Contact: Andrew Levinson, Deputy Director, Directorate of
Standards and Guidance, Department of Labor, Occupational Safety and
Health Administration, 200 Constitution Avenue NW, FP Building, Room N-
3718, Washington, DC 20210, Phone: 202 693-1950, Email:
[email protected].
RIN: 1218-AC46
BILLING CODE 4510-HL-P
DEPARTMENT OF TRANSPORTATION (DOT)
Introduction: Department Overview
DOT has statutory responsibility for ensuring the United States has
the safest and most efficient transportation system in the world. To
accomplish this goal, DOT regulates safety in the aviation, motor
carrier, railroad, motor vehicle, commercial space, transit, and
pipeline transportation areas. The Department also regulates aviation
consumer and economic issues and provides financial assistance and
writes the necessary implementing rules for programs involving
highways, airports, mass transit, the maritime industry, railroads,
motor transportation and vehicle safety. DOT also has responsibility
for developing policies that implement a wide range of regulations that
govern Departmental programs such as acquisition and grants management,
access for people with disabilities, environmental protection, energy
conservation, information technology, occupational safety and health,
property asset management, seismic safety, security, emergency
response, and the use of aircraft and vehicles. In addition, DOT writes
regulations to carry out a variety of statutes ranging from the Air
Carrier Access Act and the Americans
[[Page 5129]]
with Disabilities Act to Title VI of the Civil Rights Act. The
Department carries out its responsibilities through the Office of the
Secretary (OST) and the following operating administrations (OAs):
Federal Aviation Administration (FAA); Federal Highway Administration
(FHWA); Federal Motor Carrier Safety Administration (FMCSA); Federal
Railroad Administration (FRA); Federal Transit Administration (FTA);
Maritime Administration (MARAD); National Highway Traffic Safety
Administration (NHTSA); Pipeline and Hazardous Materials Safety
Administration (PHMSA); and Great Lakes St. Lawrence Seaway Development
Corporation (GLS).
The Department's Regulatory Philosophy and Initiatives
The U.S. Department of Transportation (Department or DOT) issues
regulations to ensure the United States transportation system is the
safest in the world, and addresses other urgent challenges facing the
Nation, including the coronavirus disease 2019 (COVID-19) pandemic, job
creation, equity, and climate change. These issues are addressed, in
part, by encouraging innovation, thereby ensuring that the Department's
regulations keep pace with the latest developments and reflect its top
priorities.
The Department's actions are also governed by several recent
executive orders issued by the President, which direct agencies to
utilize all available regulatory tools to address pressing national
challenges. On January 20, 2021, the President signed Executive Order
13992, Revocation of Certain Executive Orders Concerning Federal
Regulation. This Executive Order directs Federal agencies to promptly
take steps to rescind any orders, rules, regulations, guidelines, or
policies that would hamper the agencies' flexibility to use robust
regulatory action to address national priorities. On January 20, the
President also issued Executive Order 13990, Protecting Public Health
and the Environment and Restoring Science To Tackle the Climate Crisis.
This Executive Order directs Federal agencies to review all regulatory
actions issued in the previous Administration and revise or rescind any
of those actions that do not adequately respond to climate change,
protect the environment, advance environmental justice, or improve
public health. Section 2(a)(ii) of Executive Order 13990 specifically
requires the Department of Transportation to review ``The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National
Program,'' 84 FR 51310 (September 27, 2019) (SAFE I Rule) and ``The
Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years
2021-2026 Passenger Cars and Light Trucks,'' 85 FR 24174 (April 30,
2020) (SAFE II Rule). The Secretary of Transportation directed NHTSA to
review these fuel economy rules.
On July 9, 2021, the President signed Executive Order 14036,
Promoting Competition in the American Economy. Among other things, this
Executive Order requires the Department to enhance consumer access to
airline flight information and ensure that consumers are not exposed or
subject to advertising, marketing, pricing, and charging of ancillary
fees that may constitute an unfair or deceptive practice or an unfair
method of competition. This Executive Order also requires the
Department to: (1) Publish a notice of proposed rulemaking (NPRM)
requiring airlines to refund baggage fees when a passenger's luggage is
substantially delayed and other ancillary fees when passengers pay for
a service that is not provided; and (2) consider initiating a
rulemaking to ensure that consumers have ancillary fee information,
including ``baggage fees,'' ``change fees,'' and ``cancellation fees,''
at the time of ticket purchase.
On August 5, 2021, the President signed Executive Order 14037,
Strengthening American Leadership in Clean Cars and Trucks. This
Executive Order requires that the Department consider beginning work on
a rulemaking to establish new fuel economy standards for passenger cars
and light-duty trucks beginning with model year 2027 and extending
through and including at least model year 2030. This Executive Order
also requires the Department to consider beginning work on a rulemaking
to establish new fuel efficiency standards for heavy-duty pickup trucks
and vans beginning with model year 2028 and extending through and
including at least model year 2030. Finally, this Executive Order
requires the Department to consider beginning work on a rulemaking to
establish new fuel efficiency standards for medium- and heavy-duty
engines and vehicles to begin as soon as model year 2030.
In response to Executive Order 13992, in April 2021, the Department
issued a final rule revising the regulations governing its regulatory
process to ensure that it has the maximum flexibility necessary to
quickly respond to the urgent challenges facing our Nation. Following
implementation of the final rule, in June 2021, the Secretary of
Transportation signed a Departmental Order strengthening the
Department's internal rulemaking procedures and revitalizing the
partnership between Operating Administrations and the Office of the
Secretary in promulgating regulations to better achieve the
Department's goals and priorities. As part of this critical overhaul, a
Regulatory Leadership Group was established, led by the Deputy
Secretary of Transportation, which provides vital legal and policy
guidance on the Department's regulatory agenda.
In response to Executive Order 13990, in May 2021, the Department
issued an NPRM proposing to repeal the SAFE I Rule and associated
guidance documents. In August 2021, the Department issued a
Supplemental Notice of Proposed Rulemaking inviting comments on the
appropriate path forward regarding civil penalties imposed on
violations of DOT's vehicle emissions rules. Finally, in September
2021, the Department issued an NPRM proposing more stringent vehicle
emission limits than those set by the SAFE II Rule.
In response to Executive Orders 14036 and 14037, the Department is
considering the following rulemakings: (1) Refunding Fees for Delayed
Checked Bags and Ancillary Services That Are Not Provided; (2) Airline
Ticket Refunds; (3) Amendments to Department's Procedures in Regulating
Unfair and Deceptive Practices; and (4) fuel economy standards for
passenger cars, light-duty trucks, heavy-duty pickup trucks, and vans.
The Department's regulatory activities also remain directed toward
protecting safety for all persons. Safety is a pressing national
concern and our highest priority; the Department remains focused on
managing safety risks and ensuring that the United States has the
safest and most efficient transportation system in the world. This
focus is as urgent as ever; after decades of declines in the number of
fatalities on our roads, the United States has been seeing a recent
increase in fatalities among pedestrians, bicyclists, and vehicle
occupants that must be reversed. Similarly, we must address disparities
in how the burden of these safety risks fall on different communities.
The Department's Regulatory Priorities
The regulatory plan laid out below reflects a careful balance that
emphasizes the Department's priorities in responding to the urgent
challenges facing our nation.
Safety. Safety is our North Star. The DOT Regulatory Plan reflects
this commitment to safety through a balanced regulatory approach
grounded in reducing transportation-related
[[Page 5130]]
fatalities and injuries. Our goals are to manage safety risks, reverse
recent trends negatively affecting safety, and build on the successes
that have already been achieved to make our transportation system safer
than it has ever been. Innovations should reduce deaths and serious
injuries on our Nation's transportation network, while committing to
the highest standards of safety across technologies. For example, the
Department is working on two rulemakings to require or standardize
equipment performance for automatic emergency braking on heavy trucks
and newly manufactured light vehicles.
Responding to the COVID-19 Pandemic. The Department is providing
rapid response and emergency review of legal and operational challenges
presented by COVID-19 and its associated burdens within the
transportation network. Since the beginning of this Administration, our
efforts have focused on ensuring compliance with the mask requirements
issued by the Centers for Disease Control and Prevention and the
Transportation Security Administration. These requirements help reduce
the spread of the COVID-19 disease within the transportation sector and
among the traveling public. DOT is also addressing regulatory
compliance made impracticable by the COVID-19 public health emergency
due to facility closures, personnel shortages, and other restrictions.
Economic Growth. The safe and efficient movement of goods and
passengers requires us not just to maintain, but to improve our
national transportation infrastructure. But that cannot happen without
changes to the way we plan, fund, and approve projects. Accordingly,
our Regulatory Plan incorporates regulatory actions that increase
competition and consumer protection, as well as streamline the approval
process and facilitate more efficient investment in infrastructure,
which is necessary to maintain global leadership and foster economic
growth.
Climate Change. Climate change is one of the most urgent challenges
facing our nation. The Department has engaged in multiple regulatory
activities to address this challenge. As discussed earlier, the
Department is actively engaged in updating its regulations with the
goal of reducing emissions. The Department is also engaged in
rulemakings to measure and reduce emissions from transportation
projects and improve safety related to movement of natural gas.
Equity. Ensuring that the transportation system equitably benefits
underserved communities is a top priority. As discussed earlier, the
Department is urgently working to address the threat of climate change,
which is a burden often disproportionately borne by underserved
communities. This work is guided by the Departmental and interagency
work being done pursuant to Executive Order 13985, Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government. The Department is also working on a rulemaking that would
make it easier for members of underserved communities to apply to and
be a part of the Disadvantaged Business Enterprise (DBE) and Airport
Concession DBE Program. In addition, the Department is working on
multiple rulemakings to ensure access to transportation for people with
disabilities. For example, the Department is working on a rulemaking to
ensure that people with disabilities can access lavatories on single-
aisle aircraft, and it has commenced a rulemaking to ensure that
disabled persons have equitable access to transit facilities.
All OAs are prioritizing their regulatory actions in accordance
with Executive Orders 13985, 13990, and 13992 to make sure they are
providing the highest level of safety while responding to the urgent
challenges facing our Nation. Since each OA has its own area of focus,
we summarize the regulatory priorities of each below. More information
about each of the rules discussed below can be found in the DOT Unified
Agenda.
Office of the Secretary of Transportation
OST oversees the regulatory processes for the Department. OST
implements the Department's regulatory policies and procedures and is
responsible for ensuring the involvement of senior officials in
regulatory decision making. Through the Office of the General Counsel,
OST is also responsible for ensuring that the Department complies with
the Administrative Procedure Act, Executive Orders 12866 and 13563,
DOT's Regulatory Policies and Procedures, and other legal and policy
requirements affecting the Department's rulemaking activities. In
addition, OST has the lead role in matters concerning aviation consumer
and economic rules, Title VI of the Civil Rights Act, the Americans
with Disabilities Act, and rules that affect multiple elements of the
Department.
OST provides guidance and training regarding compliance with
regulatory requirements and processes for personnel throughout the
Department. OST also plays an instrumental role in the Department's
efforts to improve our economic analyses; risk assessments; regulatory
flexibility analyses; other related analyses; retrospective reviews of
rules; and data quality, including peer reviews. The Office of the
General Counsel (OGC) is the lead office that works with the Office of
Management and Budget's (OMB) Office of Information and Regulatory
Affairs (OIRA) to comply with Executive Order 12866 for significant
rules, coordinates the Department's response to OMB's intergovernmental
review of other agencies' significant rulemaking documents, and other
relevant Administration rulemaking directives. OGC also works closely
with representatives of other agencies, the White House, and
congressional staff to provide information on how various proposals
would affect the ability of the Department to perform its safety,
infrastructure, and other missions.
In July 2021, the President issued Executive Order 14036, which
directed the Department to take actions that would promote competition
and deliver benefits to America's consumers, including potentially
initiating a rulemaking to ensure that air consumers have ancillary fee
information, including ``baggage fees,'' ``change fees,'' and
``cancellation fees,'' at the time of ticket purchase. Among a number
of steps to further the Administration's goals in this area, the
Department has initiated a rulemaking to enhance consumers' ability to
determine the true cost of travel, titled ``Enhancing Transparency of
Airline Ancillary Service Fees.'' In addition, OST will further enhance
its airline passenger protections through the rulemaking initiatives
required by Executive Order 14036.
Advancing equity in air transportation for individuals with
disabilities is also a priority for the Administration. To further this
goal, the Department is developing a rulemaking to improve the
accessibility of lavatories on single-aisle aircraft. In this
rulemaking, the Department is considering options to significantly
improve the ability of passengers with disabilities to travel with
freedom and dignity by being able to access the lavatory.
Federal Aviation Administration
FAA is charged with safely and efficiently operating and
maintaining the most complex aviation system in the world. To enhance
aviation safety, FAA is finalizing a rulemaking that would require
certain airport certificate holders to develop, implement, maintain,
and adhere to a safety management system.
[[Page 5131]]
FAA is also developing a proposal to reduce risks caused by latent
defects in critical systems on transport category airplanes.
The FAA will continue to advance rulemakings to ensure that the
United States has the safest aviation, most efficient, and modern
aviation system in the word, including proposing a rulemaking that
would require certain aircraft, engine, and propeller manufacturers;
certificate holders conducting common carriage operations; certain
maintenance providers; and persons conducting certain, specific types
of air tour operations to implement a Safety Management System. FAA
will also manage rulemakings to further advance the integration of
unmanned aircraft systems and commercial space operations into the
national airspace system. In addition, the FAA will propose
requirements for the certification of certain airplanes to enforce
compliance with the emissions standards adopted by the Environmental
Protection Agency under the Clean Air Act.
Federal Highway Administration
FHWA carries out the Federal highway program in partnership with
State and local agencies to meet the Nation's transportation needs.
FHWA's mission is to improve the quality and performance of our
Nation's highway system and its intermodal connectors.
Consistent with this mission, FHWA is scheduled to update the
Manual on Uniform Traffic Control Devices for Streets and Highways
(MUTCD), conforming technical provisions of the 2009 edition to reflect
advances in technologies and operational practices that are not
currently allowed in the MUTCD. This update will incorporate the latest
human factors research to make road signage more accessible, thereby
ensuring that both pedestrians and vehicles comply with that signage
and reduce the risk of an accident. The Agency will also pursue a new
regulation requiring safety integration across all Federal-aid programs
and any necessary mitigation on Federal-aid projects. In addition, FHWA
will work on a rulemaking to establish a method for the measurement and
reporting of greenhouse gas emissions associated with transportation.
Federal Motor Carrier Safety Administration
The mission of FMCSA is to reduce crashes, injuries, and fatalities
involving commercial trucks and buses. A strong regulatory program is a
cornerstone of FMCSA's compliance and enforcement efforts to advance
this safety mission. In addition to Agency-directed regulations, FMCSA
develops regulations mandated by Congress, through legislation such as
the Moving Ahead for Progress in the 21st Century (MAP-21) and the
Fixing America's Surface Transportation (FAST) Acts. FMCSA regulations
establish minimum safety standards for motor carriers, commercial
drivers, commercial motor vehicles, and State agencies receiving
certain motor carrier safety grants and issuing commercial drivers'
licenses.
FMCSA will continue to coordinate efforts on the development of
autonomous vehicle technologies and review existing regulations to
identify changes that might be needed to ensure that DOT regulations
ensure safety and keep pace with innovations. Additionally, in support
of the National Highway Traffic Safety Administration's (NHTSA)
automatic emergency braking (AEB) rulemaking for heavy trucks, FMCSA
will seek information and comment concerning the maintenance and
operation of AEB by motor carriers.
National Highway Traffic Safety Administration
The mission of NHTSA is to save lives, prevent injuries, and reduce
economic costs due to roadway crashes. The statutory responsibilities
of NHTSA relating to motor vehicles include reducing the number, and
mitigating the effects, of motor vehicle crashes and related fatalities
and injuries; providing safety-relevant information to aid prospective
purchasers of vehicles, child restraints, and tires; and improving
light-, medium-, and heavy-duty vehicle fuel efficiency requirements.
NHTSA pursues policies that enable safety, climate and energy policy
and conservation, equity, and mobility. NHTSA develops safety standards
and regulations driven by data and research, including those mandated
by Congress under the MAP-21 Act, the FAST Act, and the Energy
Independence and Security Act, among others. NHTSA's regulatory
priorities for Fiscal Year 2022 focus on issues related to safety,
climate, equity, and vulnerable road users.
To enhance the safety of vulnerable road users and vehicle
occupants, NHTSA plans to issue a proposal to require automatic
emergency braking (AEB) on light vehicles, including Pedestrian AEB.
For heavy trucks, NHTSA also plans to propose to require AEB. For
climate and equity, NHTSA plans to complete a rulemaking to address
corporate average fuel economy (CAFE) preemption, pursuant to Executive
Order 13990. Improving fuel economy for light, medium and heavy-duty
vehicles can have significant public health impacts, especially for
overburdened communities. NHTSA also plans to issue a final rule for
Model Year 2024-2026 CAFE standards for passenger cars and light
trucks. More information about these rules can be found in the DOT
Unified Agenda.
Federal Railroad Administration
FRA exercises regulatory authority over all areas of railroad
safety and, where feasible, incorporates flexible performance
standards. The current FRA regulatory program continues to reflect a
number of pending proceedings to satisfy mandates resulting from the
Rail Safety Improvement Act of 2008 (RSIA08), the Passenger Rail
Investment and Improvement Act of 2008 (PRIIA), and the FAST Act. These
actions support a safe, high-performing passenger rail network, address
the safe and effective movement of energy products, and encourage
innovation and the adoption of new technology in the rail industry to
improve safety and efficiencies. FRA's regulatory priority for Fiscal
Year 2022 is to propose regulations addressing the issue of the
requirements for safe minimum train crew size depending on the type of
operation.
Federal Transit Administration
The mission of FTA is to improve public transportation for
America's communities. To further that end, FTA provides financial and
technical assistance to local public transit systems, including buses,
subways, light rail, commuter rail, trolleys, and ferries, oversees
safety measures, and helps develop next-generation technology research.
FTA's regulatory activities implement the laws that apply to
recipients' uses of Federal funding and the terms and conditions of FTA
grant awards.
In furtherance of its mission and consistent with statutory
changes, in Fiscal Year 2022, FTA will update its Buy America
regulation to incorporate changes to the waiver process made by MAP-21
and the FAST Act and to make other conforming updates and amendments.
FTA will also modify its Bus Testing regulation to improve testing
procedures and to respond to technological advancements in vehicle
testing. Finally, the Agency is considering a rulemaking that would
address transit roadway worker protections and operator assaults.
Maritime Administration
MARAD administers Federal laws and programs to improve and
strengthen the
[[Page 5132]]
maritime transportation system to meet the economic, environmental, and
security needs of the Nation. To that end, MARAD's efforts are focused
upon ensuring a strong American presence in the domestic and
international trades and to expanding maritime opportunities for
American businesses and workers.
MARAD's regulatory objectives and priorities reflect the Agency's
responsibility for ensuring the availability of water transportation
services for American shippers and consumers and, in times of war or
national emergency, for the U.S. armed forces.
For Fiscal Year 2022, MARAD will continue its work increasing the
efficiency of program operations by updating and clarifying
implementing rules and program administrative procedures.
Pipeline and Hazardous Materials Safety Administration
PHMSA has responsibility for rulemaking focused on hazardous
materials transportation and pipeline safety. In addition, PHMSA
administers programs under the Federal Water Pollution Control Act, as
amended by the Oil Pollution Act of 1990.
In Fiscal Year 2022, PHMSA will focus on the Gas Pipeline Leak
Detection and Repair rulemaking, which would amend the Pipeline Safety
Regulations to enhance requirements for detecting and repairing leaks
on new and existing natural gas distribution, gas transmission, and gas
gathering pipelines. PHMSA anticipates that the amendments proposed in
this rulemaking would reduce methane emissions arising from avoidance/
remediation of leaks and incidents from natural gas pipelines and
address environmental justice concerns by improving the safety of
natural gas pipelines near environmental justice communities and
mitigating the risks for those communities arising from climate change.
PHMSA will also focus on the Improving the Safety of Transporting
Liquefied Natural Gas rulemaking. This rulemaking action would amend
the Hazardous Materials Regulations governing transportation of
liquefied natural gas (LNG) in rail tank cars. This rulemaking action
would incorporate the results of ongoing research efforts and
collaboration with other Department of Transportation Operating
Administrations and external technical experts; respond to a directive
in Executive Order 13990 for PHMSA to review recent actions that could
be obstacles to Administration policies promoting public health and
safety, the environment, and climate change mitigation; and provide an
opportunity for stakeholders and the public to contribute their
perspectives on rail transportation of LNG.
DOT--OFFICE OF THE SECRETARY (OST)
Proposed Rule Stage
129. +Processing Buy America and Buy American Waivers Based on
Nonavailability
Priority: Other Significant.
Legal Authority: 23 U.S.C. 313; 49 U.S.C. 5323(j); 49 U.S.C.
24405(a); 49 U.S.C. 50101; Consolidated Appropriations Act of 2018,
div. L, title IV, sec. 410; 41 U.S.C. 8301 to 8305; E.O. 13788, Buy
American and Hire American (April 18, 2017)
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This rule will establish the applicable regulatory
standard for waivers from the Buy America requirement on the basis that
a product or item is not manufactured in the United States meeting the
applicable Buy America requirement. This standard will require the use
of items and products with the maximum known amount of domestic
content. The rule will also establish the required information, which
is expected to be consistent across the Department, the applicants must
provide in applying for such waivers.
Statement of Need: Pursuant to Executive Order 13788, Buy American
and Hire American, which establishes as a policy of the executive
branch to ``maximize, consistent with law . . . the use of goods,
products, and materials produced in the United States,'' DOT will be
requiring that applicants for non-availability waivers select products
that maximize domestic content. In addition, this rule will streamline
the Buy America non-availability waiver process, and improve
coordination across the Department of Transportation.
Summary of Legal Basis: 23 U.S.C. 313; 49 U.S.C. 5323(j); 49 U.S.C.
24405(a); 49 U.S.C. 50101; Consolidated Appropriations Act, 2018, div.
L, tit. IV section 410; 41 U.S.C. 8301-8305; Executive Order 13788, Buy
American and Hire American (Apr. 18, 2017).
Alternatives: TBD.
Anticipated Cost and Benefits: TBD.
Risks: TBD.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Federalism: Undetermined.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Michael A. Smith, Attorney Advisor, Department of
Transportation, Office of the Secretary, 1200 New Jersey Avenue SE,
Washington, DC 20590, Phone: 202 366-4000, Email:
[email protected].
RIN: 2105-AE79
DOT--OST
130. +Accessible Lavatories on Single-Aisle Aircraft: Part II
Priority: Other Significant. Major under 5 U.S.C. 801.
Legal Authority: Air Carrier Access Act, 49 U.S.C. 41705
CFR Citation: 14 CFR 382.
Legal Deadline: None.
Abstract: This rulemaking proposes that airlines make lavatories on
new single-aisle aircraft large enough, equivalent to that currently
found on twin-aisle aircraft, to permit a passenger with a disability
(with the help of an assistant, if necessary) to approach, enter, and
maneuver within the aircraft lavatory as necessary to use all lavatory
facilities and leave by means of the aircraft's on-board wheelchair.
Statement of Need: This rulemaking proposes to improve
accessibility of lavatories on single-aisle aircraft.
Summary of Legal Basis: 49 U.S.C. 41705; 14 CFR part 382.
Alternatives: N/A.
Anticipated Cost and Benefits: TBD.
Risks: N/A.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Blane A. Workie, Assistant General Counsel,
Department of Transportation, Office of the Secretary, 1200 New Jersey
Avenue SE,
[[Page 5133]]
Washington, DC 20590. Phone: 202 366-9342, Fax: 202 366-7153, Email:
[email protected].
Related RIN: Split from 2105-AE32, Related to 2105-AE88.
RIN: 2105-AE89
DOT--OST
131. +Enhancing Transparency of Airline Ancillary Service Fees
Priority: Other Significant.
Legal Authority: 49 U.S.C. 41712
CFR Citation: 14 CFR 399.
Legal Deadline: None.
The Department of Transportation is proposing to amend its aviation
consumer protection regulations to ensure that consumers have ancillary
fee information, including ``baggage fees,'' ``change fees,'' and
``cancellation fees'' at the time of ticket purchase. This rulemaking
would also examine whether fees for certain ancillary services should
be disclosed at the first point in a search process where a fare is
listed. This rulemaking implements section 5, paragraph (m)(i)(F) of
Executive Order 14.
Abstract: This rulemaking would amend DOT's aviation consumer
protection regulations to ensure that consumers have ancillary fee
information, including ``baggage fees,'' ``change fees,'' and
``cancellation fees'' at the time of ticket purchase. This rulemaking
would also examine whether fees for certain ancillary services should
be disclosed at the first point in a search process where a fare is
listed. This rulemaking implements section 5, paragraph (m)(i)(F) of
Executive Order 14036 on Promoting Competition in the American Economy,
which directs the Department to better protect consumers and improve
competition.
Statement of Need: This rulemaking proposes that consumers have
ancillary fee information, including ``baggage fees,'' ``change fees,''
and ``cancellation fees,'' at the time of ticket purchase.
Summary of Legal Basis: 49 U.S.C. 41712; 14 CFR part 399, Executive
Order 14036.
Alternatives: N/A.
Anticipated Cost and Benefits: TBD.
Risks: N/A.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Blane A. Workie, Assistant General Counsel,
Department of Transportation, Office of the Secretary, 1200 New Jersey
Avenue SE, Washington, DC 20590, Phone: 202 366-9342, Fax: 202 366-
7153, Email: [email protected].
RIN: 2105-AF10
DOT--FEDERAL AVIATION ADMINISTRATION (FAA)
Final Rule Stage
132. +Registration and Marking Requirements for Small Unmanned Aircraft
Priority: Other Significant.
Legal Authority: 49 U.S.C. 106(f), 49 U.S.C. 41703, 44101 to 44106,
44110 to 44113, and 44701
CFR Citation: 14 CFR 1; 14 CFR 375; 14 CFR 45; 14 CFR 47; 14 CFR
48; 14 CFR 91.
Legal Deadline: None.
Abstract: This rulemaking would provide an alternative, streamlined
and simple, web-based aircraft registration process for the
registration of small unmanned aircraft, including small unmanned
aircraft operated exclusively for limited recreational operations, to
facilitate compliance with the statutory requirement that all aircraft
register prior to operation. It would also provide a simpler method for
marking small unmanned aircraft that is more appropriate for these
aircraft. This action responds to public comments received regarding
the proposed registration process in the Operation and Certification of
Small Unmanned Aircraft notice of proposed rulemaking, the request for
information regarding unmanned aircraft system registration, and the
recommendations from the Unmanned Aircraft System Registration Task
Force.
Statement of Need: This interim final rule (IFR) provides an
alternative process that small unmanned aircraft owners may use to
comply with the statutory requirements for aircraft operations. As
provided in the clarification of these statutory requirements and
request for further information issued October 19, 2015, 49 U.S.C.
44102 requires aircraft to be registered prior to operation. See 80 FR
63912 (October 22, 2015). Currently, the only registration and aircraft
identification process available to comply with the statutory aircraft
registration requirement for all aircraft owners, including small
unmanned aircraft, is the paper-based system set forth in 14 CFR parts
45 and 47. As the Secretary and the Administrator noted in the
clarification issued October 19, 2015 and further analyzed in the
regulatory evaluation accompanying this rulemaking, the Department and
the FAA have determined that this process is too onerous for small
unmanned aircraft owners and the FAA. Thus, after considering public
comments and the recommendations from the Unmanned Aircraft System
(UAS) Registration Task Force, the Department and the FAA have
developed an alternative process, provided by this IFR (14 CFR part
48), for registration and marking available only to small unmanned
aircraft owners. Small unmanned aircraft owners may use this process to
comply with the statutory requirement to register their aircraft prior
to operating in the National Airspace System (NAS).
Summary of Legal Basis: 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. This rulemaking is
promulgated under the authority described in 49 U.S.C. 106(f), which
establishes the authority of the Administrator to promulgate
regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the
Administrator to promote safe flight of civil aircraft in air commerce
by prescribing regulations and setting minimum standards for other
practices, methods, and procedures necessary for safety in air commerce
and national security. This rule is also promulgated pursuant to 49
U.S.C. 44101-44106 and 44110-44113 which require aircraft to be
registered as a condition of operation and establish the requirements
for registration and registration processes. Additionally, this
rulemaking is promulgated pursuant to the Secretary's authority in 49
U.S.C. 41703 to permit the operation of foreign civil aircraft in the
United States.
Alternatives: Currently, the only registration and aircraft
identification process available to comply with the statutory aircraft
registration requirement for all aircraft owners, including small
unmanned aircraft, is the paper-based system set forth in 14 CFR parts
45 and 47. As the Secretary and the Administrator noted in the
clarification issued October 19, 2015 and further analyzed in the
regulatory evaluation accompanying this rulemaking, the Department and
the FAA have determined that this process
[[Page 5134]]
is too onerous for small unmanned aircraft owners and the FAA.
Anticipated Cost and Benefits: In order to implement the new
streamlined, web-based system described in this interim final rule
(IFR), the FAA will incur costs to develop, implement, and maintain the
system. Small UAS owners will require time to register and mark their
aircraft, and that time has a cost. The total of government and
registrant resource cost for small unmanned aircraft registration and
marking under this new system is $56 million ($46 million present value
at 7 percent) through 2020. In evaluating the impact of this interim
final rule, we compare the costs and benefits of the IFR to a baseline
consistent with existing practices: For modelers, the exercise of
discretion by FAA (not requiring registration) and continued broad
public outreach and educational campaign, and for non-modelers,
registration via part 47 in the paper-based system. Given the time to
register aircraft under the paper-based system and the projected number
of sUAS aircraft, the FAA estimates the cost to the government and non-
modelers would be about $383 million. The resulting cost savings to
society from this IFR equals the cost of this baseline policy ($383
million) minus the cost of this IFR ($56 million), or about $327
million ($259 million in present value at a 7 percent discount rate).
These cost savings are the net quantified benefits of this IFR.
Risks: Many of the owners of these new sUAS may have no prior
aviation experience and have little or no understanding of the NAS, let
alone knowledge of the safe operating requirements and additional
authorizations required to conduct certain operations. Aircraft
registration provides an immediate and direct opportunity for the
agency to engage and educate these new users prior to operating their
unmanned aircraft and to hold them accountable for noncompliance with
safe operating requirements, thereby mitigating the risk associated
with the influx of operations. In light of the increasing reports and
incidents of unsafe incidents, rapid proliferation of both commercial
and model aircraft operators, and the resulting increased risk, the
Department has determined it is contrary to the public interest to
proceed with further notice and comment rulemaking regarding aircraft
registration for small unmanned aircraft. To minimize risk to other
users of the NAS and people and property on the ground, it is critical
that the Department be able to link the expected number of new unmanned
aircraft to their owners and educate these new owners prior to
commencing operations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 12/16/15 80 FR 78593
Interim Final Rule Effective........ 12/21/15 .......................
OMB approval of information 12/21/15 80 FR 79255
collection.
Interim Final Rule Comment Period 01/15/16 .......................
End.
Final Rule.......................... 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Bonnie Lefko, Department of Transportation, Federal
Aviation Administration, 6500 S MacArthur Boulevard, Registry Building
26, Room 118, Oklahoma City, OK 73169, Phone: 405 954-7461, Email:
[email protected].
RIN: 2120-AK82
DOT--FEDERAL HIGHWAY ADMINISTRATION (FHWA)
Proposed Rule Stage
133. +Greenhouse Gas Emissions Measure
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 23 U.S.C. 150
CFR Citation: 23 CFR 490.
Legal Deadline: None.
Abstract: This rulemaking would establish a method for the
measurement and reporting of greenhouse gas (GHG) emissions associated
with on-road transportation under title 23 of the United States Code
(U.S.C.). It is proposed as an addition to existing FHWA regulations
that establish a set of performance measures for State departments of
transportation (State DOTs) and metropolitan planning organizations
(MPOs) to use pursuant to 23 U.S.C. 150(c) or other authorities.
Statement of Need: The proposed national performance management
measure responds to the climate crisis. Establishing a method for
measuring and reporting greenhouse gas (GHG) emissions associated with
transportation under title 23, United States Code, is necessary because
the environmental sustainability, including the carbon footprint, of
the transportation system is an important attribute of the system that
States can use to assess the performance of the Interstate and non-
Interstate National Highway System (NHS). Consistent measurement and
reporting of GHG emissions from on-road mobile source emissions under
the proposed rule would assist all levels of government and the public
in making more informed choices about GHG emissions trends.
Summary of Legal Basis: FHWA has the legal authority to establish
the proposed GHG emissions measure under 23 U.S.C. 150(c)(3), which
calls for performance measures that the States can use to assess
performance of the Interstate and non-Interstate NHS for purposes of
carrying out the National Highway Performance Program (NHPP) under 23
U.S.C. 119. Specifically, FHWA interprets the performance of the
Interstate System and the NHS under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V)
to include environmental performance, consistent with the national
goals established under 23 U.S.C. 150(b). Other statutory provisions
also support the proposed measure, including 23 U.S.C. 119 (NHPP) and
23 U.S.C. 101(b)(3)(G) (transportation policy), 134(a)(1)
(transportation planning policy), 134(c)(1) (metropolitan planning),
and 135(d)(1) and (d)(2) (statewide planning process and a performance-
based approach).
Alternatives: FHWA is developing a proposed rule and will consider
all available alternatives in the development of its proposal.
Anticipated Cost and Benefits: FHWA is preparing a regulatory
analysis of the costs and benefits associated with the proposed rule.
In the analysis, FHWA anticipates quantifying estimates where possible
and qualitatively discussing costs and benefits that cannot be
quantified.
Risks: FHWA is developing a proposed rule and will consider
potential risks in the development of its proposal.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
[[Page 5135]]
Government Levels Affected: Local, State.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Michael Culp, Department of Transportation, Federal
Highway Administration, 1200 New Jersey Avenue SE, Washington, DC
20590, Phone: 202 366-9229, Email: [email protected].
RIN: 2125-AF99
DOT--FHWA
Final Rule Stage
134. +Manual on Uniform Traffic Control Devices for Streets and
Highways
Priority: Other Significant.
Legal Authority: 23 U.S.C. 101(a), 104, 109(d), 114(a), 217, 315,
and 402(a)
CFR Citation: 23 CFR 655.
Legal Deadline: None.
Abstract: This rulemaking would update the Manual on Uniform
Traffic Control Devices for Streets and Highways (MUTCD) incorporated
by reference at 23 CFR part 655. The new edition would update the
technical provisions of the 2009 edition to reflect advances in
technologies and operational practices that are not currently allowed
in the MUTCD.
Statement of Need: Updates to the Manual on Uniform Traffic Control
Devices for Streets and Highways (MUTCD) are needed to update the
technical provisions to reflect advances in technologies and
operational practices, incorporate recent trends and innovations, and
set the stage for automated driving systems as those continue to take
shape. The proposed changes to the MUTCD would promote uniformity and
incorporate technology advances in the traffic control device
application. They ultimately would improve and encourage the safe and
efficient utilization of roads that are open to public travel.
Summary of Legal Basis: FHWA proposed this rule under 23 U.S.C.
109(d), 315, and 402(a), which give the Secretary of Transportation the
authority to promulgate uniform provisions to promote the safe and
efficient utilization of the highways. The Secretary has delegated this
authority to FHWA under 49 CFR 1.85.
Alternatives: FHWA continues to consider all available alternatives
in this rulemaking as the Agency considers public comments received on
the Notice of Proposed Amendments (NPA) to inform a final rule.
Anticipated Cost and Benefits: FHWA estimated the costs and
potential benefits of the proposed changes to the MUTCD in an economic
analysis. FHWA analyzed the expected compliance costs associated with
132 proposed substantive revisions. As summarized in the NPA, FHWA
found that 8 of those substantive revisions have quantifiable economic
impacts. FHWA quantified the total estimated cost of 3 substantive
revisions for which costs can be quantified as $541,978 when discounted
at 7 percent and $589,667 when discounted at 3 percent, measured in
2018 dollars. FHWA lacked information to estimate the cost of 5
substantive revisions but expects they will have net benefits based on
per-unit or per-mile costs and benefits of the proposed revisions. FHWA
will update the economic analysis to reflect the final rule, to be
designated as the 11th edition of the MUTCD.
Risks: FHWA is continuing to consider potential risks as the Agency
considers public comments received on the NPA to inform a final rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/14/20 85 FR 80898
Publication Date for Extension of 02/02/21 .......................
Comment Period.
NPRM Comment Period End............. 05/14/21 .......................
Final Rule.......................... 09/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, Local, State, Tribal.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Kevin Sylvester, Department of Transportation,
Federal Highway Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590, Phone: 202 366-2161, Email: [email protected].
RIN: 2125-AF85
DOT--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA)
Proposed Rule Stage
135. +Heavy Vehicle Automatic Emergency Braking
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 49 U.S.C. 30111; 49 U.S.C. 30115; 49 U.S.C. 30117;
49 U.S.C. 30166; 49 U.S.C. 322; delegation of authority at 49 CFR 1.95
CFR Citation: 49 CFR 571.
Legal Deadline: None.
Abstract: This notice will seek comments on a proposal to require
and/or standardize equipment performance for automatic emergency
braking on heavy trucks. The agency previously published a notice (80
FR 62487) on October 16, 2015, granting a petition for rulemaking
submitted by the Truck Safety Coalition, the Center for Auto Safety,
Advocates for Highway and Auto Safety, and Road Safe America (dated
February 19, 2015), to establish a safety standard to require automatic
forward collision avoidance and mitigation (FCAM) systems on certain
heavy vehicles. For several years, NHTSA has researched forward
collision avoidance and mitigation technology on heavy vehicles,
including forward collision warning and automatic emergency braking
systems. This rulemaking proposes test procedures for measuring
performance of these systems.
Statement of Need: This proposed rule would establish a safety
standard to require and/or standardize performance of automatic forward
collision avoidance and mitigation systems on heavy vehicles. NHTSA
believes there is potential for AEB to improve safety by reducing the
likelihood of rear-end crashes involving heavy vehicles and the
severity of crashes. NHTSA is commencing the rulemaking process to
potentially require new heavy vehicles to be equipped with automatic
emergency braking systems, or to standardize AEB performance when the
systems are optionally installed on vehicles.
Summary of Legal Basis: 49 U.S.C. 322, 30111, 30115, 30117 and
30166; delegation of authority at 49 CFR 1.95.
Alternatives: NHTSA will present regulatory alternatives in the
NPRM.
Anticipated Cost and Benefits: NHTSA will present preliminary costs
and benefits in the NPRM.
Risks: The agency believes there are no substantial risks to this
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: David Hines, Director, Office of Crash Avoidance
[[Page 5136]]
Standards, Department of Transportation, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590,
Phone: 202-366-2720, Email: [email protected].
RIN: 2127-AM36
DOT--NHTSA
136. +Light Vehicle Automatic Emergency Braking (AEB) With Pedestrian
AEB
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 49 U.S.C. 30111; 49 U.S.C. 30115; 49 U.S.C. 30117;
49 U.S.C. 30166; 49 U.S.C. 322; delegation of authority at 49 CFR 1.95
CFR Citation: 49 CFR 571.
Legal Deadline: None.
Abstract: This notice will seek comment on a proposal to require
and/or standardize performance for Light Vehicle Automatic Emergency
Braking (AEB), including Pedestrian AEB (PAEB), on all newly
manufactured light vehicles. A vehicle with AEB detects crash imminent
situations in which the vehicle is moving forward towards another
vehicle and/or a pedestrian, and automatically applies the brakes to
prevent the crash from occurring, or to mitigate the severity of the
crash. This rulemaking would set performance requirements and would
specify a test procedure under which compliance with those requirements
would be measured.
Statement of Need: This proposed rule would reduce rear end
vehicle-to-vehicle crashes and could reduce motor vehicle impacts with
pedestrians that often result in death and injury.
Summary of Legal Basis: 49 U.S.C. 322, 30111, 30115, 30117, 30166;
delegation of authority at 49 CFR 1.95.
Alternatives: NHTSA will present regulatory alternatives in the
NPRM.
Anticipated Cost and Benefits: NHTSA will present preliminary costs
and benefits in the NPRM.
Risks: The agency believes there are no substantial risks to this
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: David Hines, Director, Office of Crash Avoidance
Standards, Department of Transportation, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590,
Phone: 202-366-2720, Email: [email protected].
RIN: 2127-AM37
DOT--NHTSA
Final Rule Stage
137. +Corporate Average Fuel Economy (CAFE) Preemption
Priority: Other Significant.
Legal Authority: delegation of authority at 49 CFR 1.95
CFR Citation: 49 CFR 533.
Legal Deadline: None.
Abstract: This action would repeal of The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program, 84 FR
51310 (Sept. 27, 2019) (``SAFE I Rule'').
Statement of Need: This action is directed under Executive Order
13990.
Summary of Legal Basis: This rulemaking would respond to
requirements of the Energy Independence and Security Act of 2007
(EISA), Title 1, Subtitle A, Section 102, as it amends 49 U.S.C. 32902,
which was signed into law December 19, 2007. The statute requires that
corporate average fuel economy standards be prescribed separately for
passenger automobiles and non-passenger automobiles. The law requires
the standards be set at least 18 months prior to the start of the model
year.
Alternatives: NHTSA considered alternatives in its May 2021 NPRM.
NHTSA will update the regulatory alternatives in the final rule as
appropriate.
Anticipated Cost and Benefits: NHTSA estimated costs and benefits
in its May 2021 NPRM. NHTSA will update the costs and benefits in the
final rule as appropriate.
Risks: The agency believes there are no substantial risks to this
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/12/21 86 FR 25980
NPRM Comment Period End............. 06/11/21 .......................
Final Rule.......................... 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Kerry Kolodziej, Trial Attorney, Department of
Transportation, National Highway Traffic Safety Administration, 1200
New Jersey Ave. SE, Washington, DC 20590, Phone: 202 366-2161, Email:
[email protected].
RIN: 2127-AM33
DOT--NHTSA
138. +Passenger Car and Light Truck Corporate Average Fuel Economy
Standards
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Delegation of authority at 49 CFR 1.95
CFR Citation: 49 CFR 533.
Legal Deadline: None.
Abstract: This rulemaking would reconsider Corporate Average Fuel
Economy (CAFE) standards for passenger cars and light trucks that were
established in the agency's April 30, 2020 final rule. This rulemaking
would respond to requirements of the Energy Independence and Security
Act of 2007 (EISA), title 1, subtitle A, section 102, as it amends 49
U.S.C. 32902. The statute requires that corporate average fuel economy
standards be prescribed separately for passenger automobiles and non-
passenger automobiles. For model years 2021 to 2030, the average fuel
economy required to be attained by each fleet of passenger and non-
passenger automobiles shall be the maximum feasible for each model
year. The law requires the standards be set at least 18 months prior to
the start of the model year.
Statement of Need: This action is directed under Executive Order
13990.
Summary of Legal Basis: This rulemaking would respond to
requirements of the Energy Independence and Security Act of 2007
(EISA), Title 1, Subtitle A, Section 102, as it amends 49 U.S.C. 32902,
which was signed into law December 19, 2007. The statute requires that
corporate average fuel economy standards be prescribed separately for
passenger automobiles and non-passenger automobiles. The law requires
the standards be set at least 18 months prior to the start of the model
year.
Alternatives: NHTSA considered alternatives in its September 2021
NPRM. NHTSA will update the regulatory alternatives in the final rule
as appropriate.
Anticipated Cost and Benefits: NHTSA estimated costs and benefits
in
[[Page 5137]]
its September 2021 NPRM. NHTSA will update the costs and benefits in
the final rule as appropriate.
Risks: The agency believes there are no substantial risks to this
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/03/21 86 FR 49602
NPRM Comment Period End............. 10/26/21 .......................
Final Action........................ 03/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Gregory Powell, Program Analyst, Department of
Transportation, National Highway Traffic Safety Administration, 1200
New Jersey Avenue SE, Washington, DC 20590, Phone: 202 366-5206, Email:
[email protected].
RIN: 2127-AM34
DOT--FEDERAL RAILROAD ADMINISTRATION (FRA)
Proposed Rule Stage
139. +Train Crew Staffing
Priority: Other Significant.
Legal Authority: 49 CFR 1.89(a); 49 U.S.C. 20103
CFR Citation: 49 CFR 218.
Legal Deadline: None.
Abstract: This rulemaking would address the potential safety impact
of one-person train operations, including appropriate measures to
mitigate an accident's impact and severity, and the patchwork of State
laws concerning minimum crew staffing requirements. This rulemaking
would address the issue of minimum requirements for the size of
different train crew staffs, depending on the type of operations.
Statement of Need: To address the potential safety impact of one-
person train operations, including appropriate measures to mitigate an
accident's impact and severity, and the patchwork of State laws
concerning minimum crew staffing requirements, FRA is drafting an NPRM
that would address the issue of minimum requirements for the size of
different train crew staffs, depending on the type of operation.
Summary of Legal Basis: 49 U.S.C. 20103; 49 CFR 1.89(a).
Alternatives: FRA will analyze regulatory alternatives in the NPRM.
Anticipated Cost and Benefits: FRA is currently expecting the
economic impact of this rule is expected to be less than $100 million;
however, FRA has not yet quantified the costs or benefits associated
with this proposed rulemaking.
Risks: The NPRM is based off a risk assessment that individual
railroads will have to perform. The risks should be negatively
impacted.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Local, State.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Amanda Maizel, Attorney Adviser, Department of
Transportation, Federal Railroad Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590, Phone: 202 493-8014, Email:
[email protected].
RIN: 2130-AC88
DOT--PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION (PHMSA)
Long-Term Actions
140. +Pipeline Safety: Class Location Requirements
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 49 U.S.C. 60101 et seq.
CFR Citation: 49 CFR 192.
Legal Deadline: None.
Abstract: This rulemaking action would address class location
requirements for natural gas transmission pipelines, specifically as
they pertain to actions operators are required to take following class
location changes due to population growth near the pipeline. Operators
have suggested that performing integrity management measures on
pipelines where class locations have changed due to population
increases would be an equally safe but less costly alternative to the
current requirements of either reducing pressure, pressure testing, or
replacing pipe.
Statement of Need: Section 5 of the Pipeline Safety Act of 2011
required the Secretary of Transportation to evaluate and issue a report
on whether integrity management (IM) requirements should be expanded
beyond high-consequence areas and whether such expansion would mitigate
the need for class location requirements. PHMSA issued a report to
Congress on its evaluation of this issue in April 2016, noting it would
further evaluate the feasibility and appropriateness of alternatives to
address pipe replacement requirements when class locations change due
to population growth. PHMSA issued an advance notice of proposed
rulemaking on July 31, 2018, to obtain public comment on whether
allowing IM measures on pipelines where class locations have changed
due to population increases would be an equally safe but less costly
alternative to the current class location change requirements. PHMSA is
proposing revisions to the Federal Pipeline Safety Regulations to amend
the requirements for pipelines that experience a change in class
location. This proposed rule addresses a part of a congressional
mandate from the Pipeline Safety Act of 2011 and responds to public
input received as part of the rulemaking process. The amendments in
this proposed rule would add an alternative set of requirements
operators could use, based on implementing integrity management
principles and pipe eligibility criteria, to manage certain pipeline
segments where the class location has changed from a Class 1 location
to a Class 3 location. PHMSA intends for this alternative to provide
equivalent public safety in a more cost-effective manner to the current
natural gas pipeline safety rules, which require operators to either
reduce the pressure of the pipeline, pressure test the pipeline segment
to higher standards, or replace the pipeline segment.
Summary of Legal Basis: Congress established the current framework
for regulating the safety of natural gas pipelines in the Natural Gas
Pipeline Safety Act of 1968 (NGPSA). The NGPSA provided the Secretary
of Transportation the authority to prescribe minimum Federal safety
standards for natural gas pipeline facilities. That authority, as
amended in subsequent reauthorizations, is currently codified in the
Pipeline Safety Laws (49 U.S.C. 60101 et seq.).
Alternatives: PHMSA is evaluating and considering additional
regulatory alternatives to these proposed requirements, including a
``no action'' alternative.
Anticipated Cost and Benefits: Estimated annual cost savings are
$149 million.
[[Page 5138]]
Risks: The alternative conditions PHMSA is proposing to allow
operators to manage class location changes through IM will provide an
equivalent level of safety as the existing class location change
regulations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 07/31/18 83 FR 36861
ANPRM Comment Period End............ 10/01/18 .......................
NPRM................................ 10/14/20 85 FR 65142
NPRM Comment Period End............. 12/14/20 .......................
Final Rule.......................... 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Cameron H. Satterthwaite, Transportation
Regulations Specialist, Department of Transportation, Pipeline and
Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590, Phone: 202-366-8553, Email:
[email protected].
RIN: 2137-AF29
BILLING CODE 4910-9X-P
DEPARTMENT OF THE TREASURY
Statement of Regulatory Priorities
The primary mission of the Department of the Treasury is to
maintain a strong economy and create economic and job opportunities by
promoting the conditions that enable economic growth and stability at
home and abroad, strengthen national security by combatting threats and
protecting the integrity of the financial system, and manage the U.S.
Government's finances and resources effectively.
Consistent with this mission, regulations of the Department and its
constituent bureaus are promulgated to interpret and implement the laws
as enacted by Congress and signed by the President. It is the policy of
the Department to comply with applicable requirements to issue a Notice
of Proposed Rulemaking and carefully consider public comments before
adopting a final rule. Also, the Department invites interested parties
to submit views on rulemaking projects while a proposed rule is being
developed.
To the extent permitted by law, it is the policy of the Department
to adhere to the regulatory philosophy and principles set forth in
Executive Orders 12866, 13563, and 13609 and to develop regulations
that maximize aggregate net benefits to society while minimizing the
economic and paperwork burdens imposed on persons and businesses
subject to those regulations.
Alcohol and Tobacco Tax and Trade Bureau
The Alcohol and Tobacco Tax and Trade Bureau (TTB) issues
regulations to implement and enforce Federal laws relating to alcohol,
tobacco, firearms, and ammunition excise taxes and certain non-tax laws
relating to alcohol. TTB's mission and regulations are designed to:
(1) Collect the taxes on alcohol, tobacco products, firearms, and
ammunition;
(2) Protect the consumer by ensuring the integrity of alcohol
products;
(3) Ensure only qualified businesses enter the alcohol and tobacco
industries; and
(4) Prevent unfair and unlawful market activity for alcohol and
tobacco products.
In FY 2022, TTB will continue its multi-year Regulations
Modernization effort by prioritizing projects that reduce regulatory
burdens, streamline and simplify requirements, and improve service to
regulated businesses. Specifically, TTB plans to publish deregulatory
rules that will reduce the amount of information industry members must
submit to TTB in connection with permit and similar applications to
engage in regulated businesses, and reduce the types of operational
activities that require prior approval. TTB expects these proposals to
ultimately reduce the amount of operational information industry
members must submit to TTB and provide for the piloting of a combined
tax return and simplified operations report, reducing the overall
number of reports industry members must submit. These measures are
expected to reduce burden on industry member and provide them greater
flexibility, and make starting new businesses easier and faster for new
industry members.
TTB will also prioritize rulemaking to amend its regulations to
reflect statutory changes pursuant to the Taxpayer Certainty and
Disaster Tax Act of 2020, which made permanent most of the Craft
Beverage Modernization and Tax Reform provisions of the Tax Cuts and
Jobs Act of 2017. These legislative changes include reduced tax rates
for beer and distilled spirits and tax credits for wine, among other
provisions that had previously been provided on a temporary basis, as
well as new provisions on the types of activities that qualify for
reduced tax rates for distilled spirits and on permissible transfers of
bottled distilled spirits in bond. Additionally, as a result of this
legislation, and as addressed in a June 2021 Report to Congress on
Administration of Craft Beverage Modernization Act Refund Claims for
Imported Alcohol, TTB will also prioritize rulemaking to implement and
administer refund claims for imported alcohol.
Additional priority projects include rulemaking to authorize new
container sizes (standards of fill) for wine and responding to industry
member petitions to authorize new wine treating materials and
processes, new grape varietal names for use on labels of wine, and new
American Viticultural Areas (AVAs).
This fiscal year TTB plans to prioritize the following measures:
Streamlining and Modernizing the Permit
Application Process (RINs: 1513-AC46, 1513-AC47, and 1513-AC48,
Modernization of Permit and Registration Application Requirements for
Distilled Spirits Plants, Permit Applications for Wineries, and
Qualification Requirements for Brewers, respectively.
In FY 2017, TTB engaged in a review of its regulations to identify
any regulatory requirements that could potentially be eliminated,
modified, or streamlined to reduce burdens on industry related to
application and qualification requirements. Since that time, TTB has
removed a number of requirements, particularly with regard to the
information that is required to be submitted on TTB permit-related
forms. In FY 2022, TTB intends to propose amending its regulations to
further streamline the qualification and application requirements for
new and existing businesses, including distilled spirits plants,
wineries, and breweries.
Streamlining of Tax Return and Report
Requirements (RIN: 1513-AC68).
In FY 2022, TTB intends to propose for notice and comment
regulatory amendments to substantially streamline current requirements
pertaining to tax returns and operational reports and reducing the
amount of information and the number of reports submitted. This measure
will also include updates to return and report requirements to improve
overall tax oversight and enforcement.
Modernizing the Alcohol Beverage Labeling and
Advertising Requirements (RIN: 1513-AC66, Modernization of the Labeling
and Advertising Regulations for Distilled Spirits and Malt Beverage,
and RIN: 1513-AC67, Modernization of
[[Page 5139]]
Wine Labeling and Advertising Regulations).
The Federal Alcohol Administration Act requires that alcohol
beverages introduced in interstate commerce have a label approved under
regulations prescribed by the Secretary of the Treasury. TTB conducted
an analysis of its alcohol beverage labeling regulations to identify
any that might be outmoded, ineffective, insufficient, or excessively
burdensome, and to modify, streamline, expand, or repeal them in
accordance with that analysis. These regulations were also reviewed to
assess their applicability to the modern alcohol beverage marketplace.
As a result of this review, in FY 2019, TTB proposed revisions to the
regulations concerning the labeling requirements for wine, distilled
spirits, and malt beverages. TTB anticipated that these regulatory
changes would assist industry in voluntary compliance, decrease
industry burden, and result in the regulated industries being able to
bring products to market without undue delay. TTB received over 1,100
comments in response to the notice, which included suggestions for
further revisions. In FY 2020, TTB published in the Federal Register
(85 FR 18704) a final rule amending its regulations to make permanent
certain of the proposed liberalizing and clarifying changes, and to
provide certainty with regard to certain other proposals that
commenters generally opposed and that TTB did not intend to adopt. In
FY 2022, TTB intends to address remaining aspects of this rulemaking
initiative, including incorporating a proposed reorganization of the
regulatory provisions intended to make the regulations easier to read
and understand, for which industry members expressed support.
Implementation of the Craft Beverage
Modernization Act (RIN: 1513-AC87, Implementing the Craft Beverage
Modernization Act Permanent Provisions, and RIN: 1513-AC89,
Administering the Craft Beverage Modernization Act Refund Claims for
Imported Alcohol).
TTB is amending its regulations for beer, wine, and distilled
spirits, including those related to administration of import claims, to
implement changes made to the Internal Revenue Code by the Taxpayer
Certainty and Disaster Act of 2020, which made permanent most of the
Craft Beverage Modernization and Tax Reform (CBMA) provisions of the
Tax Cuts and Jobs Act of 2017. The CBMA provisions reduced excise taxes
on all beverage alcohol producers, large and small, foreign and
domestic. In 2020, these tax cuts were made permanent. The 2020
provisions also transferred responsibility for administering certain
CBMA provisions for imported alcohol from U.S. Customs and Border
Protection (CBP) to the Treasury Department after December 31, 2022.
Importers will be required to pay the full tax rate at entry and submit
refund claims to Treasury. Treasury intends for TTB to administer these
claims.
Authorizing the Use of Additional Wine Treating
Materials and Soliciting Comments on Proposed Changes to the Limits on
the Use of Wine Treating Materials to Reflect ``Good Manufacturing
Practice'' (RIN: 1513-AB61 and 1513-AC75).
In FY 2017, TTB proposed to amend its regulations pertaining to the
production of wine to authorize additional treatments that may be
applied to wine and to juice from which wine is made. These proposed
amendments were made in response to requests from wine industry members
to authorize certain wine treating materials and processes not
currently authorized by TTB regulations. Although TTB may
administratively approve such treatments, such administrative approval
does not guarantee acceptance in foreign markets of any wine so
treated. Under certain international agreements, wine made with wine
treating materials is not subject to certain restrictions if the
authorization to use the treating materials is implemented through
public notice; thus, rulemaking facilitates the acceptance of exported
wine made using those treatments in foreign markets. In FY 2018, TTB
reopened the comment period for the notice in response to industry
member requests and, after consideration of the comments, TTB intends
in FY 2022 to issue a final rule on those proposals. In FY 2022, TTB
also intends to propose for public comment additional changes to the
regulations governing wine treating materials, in response to a
petition to more broadly amend the regulations to allow more wine
treating materials to be used within the limitations of ``good
manufacturing practice'' rather than within specified numerical limits.
Addition of New Standards of Fill for Wine (RIN:
1513-AC86)
TTB plans to publish a proposal to amend the regulations governing
wine containers to add additional authorized standards of fill in
response to requests it has received for such standards, and to be
consistent with a Side Letter included as part of a U.S.-Japan Trade
Agreement that addresses issues related to market access and,
specifically, to alcohol beverage standards of fill. TTB will also
propose a technical amendment to add equivalent standard United States
measures to the wine labeling regulations for recently approved wine
standards of fill and for the additional sizes proposed in this notice.
Addition of Singani to the Standards of Identity
for Distilled Spirits (RIN: 1513-AC61).
On August 25, 2021, TTB published a proposal (86 FR 47429) to amend
the regulations that set forth the standards of identity for distilled
spirits to include Singani as a type of brandy that is a distinctive
product of Bolivia. This proposal follows a joint petition submitted by
the Plurinational State of Bolivia and Singani 63, Inc., and subsequent
discussions with the Office of the United States Trade Representative.
TTB solicited comments on this proposal, including comments on its
proposal to authorize a minimum bottling proof of 35 percent alcohol by
volume (or 70[deg] proof) for Singani. TTB expects to publish a final
rule in FY22.
Proposal to Amend the Regulations to Add New
Grape Variety Names for American Wines (RIN: 1513-AC24).
In FY 2017, TTB proposed to amend its wine labeling regulations by
adding a number of new names to the list of grape variety names
approved for use in designating American wines. The proposed
deregulatory amendments would allow wine bottlers to use these
additional approved grape variety names on wine labels and in wine
advertisements in the U.S. and international markets. In 2018, TTB
reopened the comment period for the notice in response to requests. TTB
was unable to complete this project in FY 2020 because of redirected
efforts to address COVID-19 guidance, and TTB now intends to issue a
final rule in FY 2022.
Office of the Comptroller of the Currency
The Office of the Comptroller of the Currency (OCC) charters,
regulates, and supervises all national banks and Federal savings
associations (FSAs). The agency also supervises the Federal branches
and agencies of foreign banks. The OCC's mission is to ensure that
national banks and FSAs operate in a safe and sound manner, provide
fair access to financial services, treat customers fairly, and comply
with applicable laws and regulations.
Regulatory priorities for fiscal year 2022 are described below.
Amendments to Bank Secrecy Act Compliance
Program Rule (12 CFR part 21).
The OCC, the Board of Governors of the Federal Reserve System
(FRB), and
[[Page 5140]]
the Federal Deposit Insurance Corporation (FDIC) plan to issue a notice
of proposed rulemaking amending their respective Bank Secrecy Act
Compliance Program Rules.
Basel III Revisions (12 CFR part 3).
The OCC, the FRB, and the FDIC plan to issue a notice of proposed
rulemaking that would comprehensively revise the agencies' risk-based
capital rules, including revisions to the current standardized and
advanced approaches capital rules.
Capital Requirements for Market Risk;
Fundamental Review of the Trading Book (12 CFR part 3).
The OCC, the FRB, and the FDIC plan to issue a notice of proposed
rulemaking to revise their respective capital requirements for market
risk, which are generally applied to banking organizations with
substantial trading activity. The banking agencies expect the proposal
to be generally consistent with the standards set forth in the
Fundamental Review of the Trading Book published by the Basel Committee
on Bank Supervision.
Community Reinvestment Act Regulations (12 CFR
parts 25 and 195).
The OCC plans to issue a proposal to replace the current Community
Reinvestment Act (CRA) rule with revised rules largely based on the
1995 CRA regulations.
Community Reinvestment Act Regulations (12 CFR
part 25).
Along with the Federal Deposit Insurance Agency and the Board of
Governors of the Federal Reserve, the OCC plans to issue a joint rule
to modernize the Community Reinvestment Act regulations.
Computer-Security Incident Notification (12 CFR
part 53).
The OCC, FRB, and FDIC plan to issue a final rule that would
require a banking organization to notify its primary federal regulator
of significant computer-security incidents on a timely basis. The rule
would also require a bank service provider to promptly notify banking
organization customers of certain significant computer-security
incidents. The notice of proposed rulemaking was published on January
12, 2021 (86 FR 2299).
Exemptions to Suspicious Activity Report
Requirements (12 CFR parts 21 and 163).
The OCC plans to issue a final rule to modify the requirements for
national banks and Federal savings associations to file Suspicious
Activity Reports. The rule would amend the OCC's Suspicious Activity
Report regulations to allow the OCC to issue exemptions from the
requirements of those regulations. The rule would make it possible for
the OCC to grant relief to national banks or federal savings
associations that develop innovative solutions to meet Bank Secrecy Act
requirements more efficiently and effectively. The notice of proposed
rulemaking was published on January 22, 2021 (86 FR 6572).
Implementation of Emergency Capital Investment
Program (12 CFR part 3).
Section 104A of the Community Development Banking and Financial
Institutions Act of 1994, which was added by the Consolidated
Appropriations Act, 2021, authorizes the Secretary of the Treasury to
establish the Emergency Capital Investment Program (ECIP) through which
the Department of the Treasury (Treasury) can make capital investments
in low- and moderate-income community financial institutions. The
purpose of ECIP is to support the efforts of such financial
institutions to, among other things, provide financial intermediary
services for small businesses, minority-owned businesses, and
consumers, especially in low-income and underserved communities. In
order to support and facilitate the timely implementation and
acceptance of ECIP and promote its purpose, the OCC, FRB, and FDIC plan
to issue a final rule that provides that preferred stock issued to
Treasury under ECIP qualifies as additional tier 1 capital and that
subordinated debt issued to Treasury under ECIP qualifies as tier 2
capital under the agencies' capital rule. The interim final rule was
published on March 22, 2021 (86 FR 15076).
Rules of Practice and Procedure (12 CFR part
19).
The OCC, FRB, and FDIC plan to issue a proposed rule to amend their
rules of practice and procedure to reflect modern filing and
communication methods and improve or clarify other procedures.
Tax Allocation Agreements (12 CFR part 30).
The OCC, FRB, and FDIC plan to issue a final rule requiring banks
that file income taxes as part of a consolidated group to develop and
maintain tax allocation agreements with other members of the
consolidated group. The notice of proposed rulemaking was published on
May 10, 2021 (86 FR 24755).
Customs Revenue Functions
The Homeland Security Act of 2002 (the Act) provides that, although
many functions of the former United States Customs Service were
transferred to the Department of Homeland Security, the Secretary of
the Treasury retains sole legal authority over customs revenue
functions. The Act also authorizes the Secretary of the Treasury to
delegate any of the retained authority over customs revenue functions
to the Secretary of Homeland Security. By Treasury Department Order No.
100-16, the Secretary of the Treasury delegated to the Secretary of
Homeland Security authority to prescribe regulations pertaining to the
customs revenue functions subject to certain exceptions, but further
provided that the Secretary of the Treasury retained the sole authority
to approve such regulations.
During fiscal year 2021, CBP and Treasury plan to give priority to
regulatory matters involving the customs revenue functions which
streamline CBP procedures, protect the public, or are required by
either statute or Executive Order. Examples of these efforts are
described below.
Investigation of Claims of Evasion of
Antidumping and Countervailing Duties.
Treasury and CBP plan to finalize interim regulations (81 FR 56477)
which amended CBP regulations implementing section 421 of the Trade
Facilitation and Trade Enforcement Act of 2015, which set forth
procedures to investigate claims of evasion of antidumping and
countervailing duty orders.
Enforcement of Copyrights and the Digital
Millennium Copyright Act.
Treasury and CBP plan to finalize proposed amendments to the CBP
regulations pertaining to importations of merchandise that violate or
are suspected of violating the copyright laws, including the Digital
Millennium Copyright Act (DMCA), in accordance with Title III of the
Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) and
Executive Order 13785, ``Establishing Enhanced Collection and
Enforcement of Anti-dumping and Countervailing Duties and Violations of
Trade and Customs Laws.'' The proposed amendments are intended to
enhance CBP's enforcement efforts against increasingly sophisticated
piratical goods, clarify the definition of piracy, simplify the
detention process relative to goods suspected of violating the
copyright laws, and prescribe new regulations enforcing the DMCA.
Inter Partes Proceedings Concerning Exclusion
Orders Based on Unfair Practices in Import Trade.
Treasury and CBP plan to publish a proposal to amend its
regulations with respect to administrative rulings related to the
importation of articles in light of exclusion orders issued by the
United States International Trade Commission (``Commission'') under
section 337 of the Tariff Act of 1930, as amended. The proposed
amendments seek to promote
[[Page 5141]]
the speed, accuracy, and transparency of such rulings through the
creation of an inter partes proceeding to replace the current ex parte
process.
Merchandise Produced by Convict or Forced Labor
or Indentured Labor under Penal Sanctions.
Treasury and CBP plan to publish a proposed rule to update,
modernize, and streamline the process for enforcing the prohibition in
19 U.S.C. 1307 against the importation of merchandise that has been
mined, produced, or manufactured, wholly or in part, in any foreign
country by convict labor, forced labor, or indentured labor under penal
sanctions. The proposed rule would generally bring the forced labor
regulations and detention procedures into alignment with other
statutes, regulations, and procedures that apply to the enforcement of
restrictions against other types of prohibited merchandise.
Non-Preferential Origin Determinations for
Merchandise Imported From Canada or Mexico for Implementation of the
Agreement Between the United States of America, the United Mexican
States, and Canada (USMCA).
Treasury and CBP plan to finalize a proposed rule to harmonize non-
preferential origin determinations for merchandise imported from Canada
or Mexico. Such determinations would be made using certain tariff-based
rules of origin to determine when a good imported from Canada or Mexico
has been substantially transformed resulting in an article with a new
name, character, or use. Once finalized, the rule is intended to reduce
administrative burdens and inconsistency for non-preferential origin
determinations for merchandise imported from Canada or Mexico for
purposes of the implementation of the USMCA.
Financial Crimes Enforcement Network
As administrator of the Bank Secrecy Act (BSA), the Financial
Crimes Enforcement Network (FinCEN) is responsible for developing and
implementing regulations that are the core of the Department's anti-
money laundering (AML) and countering the financing of terrorism (CFT)
efforts. FinCEN's responsibilities and objectives are linked to, and
flow from, that role. In fulfilling this role, FinCEN seeks to enhance
U.S. national security by making the financial system increasingly
resistant to abuse by money launderers, terrorists and their financial
supporters, and other perpetrators of crime.
The Secretary of the Treasury, through FinCEN, is authorized by the
BSA to issue regulations requiring financial institutions to file
reports and keep records that are highly useful in criminal, tax, or
regulatory investigations, risk assessments, or proceedings, or
intelligence or counter-intelligence activities, including analysis, to
protect against terrorism. The BSA also authorizes FinCEN to require
that designated financial institutions establish AML/CFT programs and
compliance procedures. To implement and realize its mission, FinCEN has
established regulatory objectives and priorities to safeguard the
financial system from the abuses of financial crime, including
terrorist financing, proliferation financing, money laundering, and
other illicit activity.
These objectives and priorities include: (1) Issuing, interpreting,
and enforcing compliance with regulations implementing the BSA; (2)
supporting, working with, and as appropriate overseeing compliance
examination functions delegated by FinCEN to other Federal regulators;
(3) managing the collection, processing, storage, and dissemination of
data related to the BSA; (4) maintaining a government-wide access
service to that same data for authorized users with a range of
interests; (5) conducting analysis in support of policymakers, law
enforcement, regulatory and intelligence agencies, and (for compliance
purposes) the financial sector; and (6) coordinating with and
collaborating on AML/CFT initiatives with domestic law enforcement and
intelligence agencies, as well as foreign financial intelligence units.
FinCEN's regulatory priorities for fiscal year 2022 include:
Section 6110. BSA Application to Dealers in
Antiquities and Assessment of BSA Application to Dealers in Art.
On September 24, 2021, FinCEN issued an Advance Notice of Proposed
Rulemaking (ANPRM) in order to implement Section 6110 of the Anti-Money
Laundering Act of 2020 (the AML Act). This section amends the BSA (31
U.S.C. 5312(a)(2)) to include as a financial institution a person
engaged in the trade of antiquities, including an advisor, consultant,
or any other person who engages as a business in the solicitation or
the sale of antiquities, subject to regulations prescribed by the
Secretary of the Treasury. The section further requires the Secretary
of the Treasury to issue proposed rules to implement the amendment
within 360 days of enactment of the AML Act.
Reports of Foreign Financial Accounts Civil
Penalties (Technical Change).
FinCEN is amending 31 CFR 1010.820 to withdraw the reports of
foreign financial accounts (FBAR) civil monetary penalties language at
31 CFR 1010.820(g), which was made obsolete with the enactment of the
American Jobs Creation Act of 2004. The American Jobs Creation Act of
2004 amended 31 U.S.C. 5321(a)(5) to allow for a greater maximum
penalty for a willful violation of 31 U.S.C. 5314 than was previously
authorized.
Clarification of the requirement to collect,
retain, and transmit information on transactions involving convertible
virtual currency and digital assets with legal tender status.
The Board of Governors of the Federal Reserve System and FinCEN
(collectively, the ``Agencies'') intend to issue a revised proposal to
clarify the meaning of ``money'' as used in the rules implementing the
BSA requiring financial institutions to collect, retain, and transmit
information on certain funds transfers and transmittals of funds. The
Agencies intend that the revised proposal will ensure that the rules
apply to domestic and cross-border transactions involving convertible
virtual currency, which is a medium of exchange (such as
cryptocurrency) that either has an equivalent value as currency, or
acts as a substitute for currency, but lacks legal tender status. The
Agencies further intend that the revised proposal will clarify that
these rules apply to domestic and cross-border transactions involving
digital assets that have legal tender status.
Real Estate Transaction Reports and Records.
FinCEN will issue an Advanced Notice of Proposed Rulemaking (ANPRM)
to seek guidance on a future rulemaking that would require certain
legal entities involved in real estate transactions to submit reports
and keep records. Specifically, the ANPRM will seek comment to assist
FinCEN in preparing a proposed rule that would potentially impose
nationwide recordkeeping and reporting requirements on financial
institutions and nonfinancial trades and businesses participating in
purchases of real estate by certain legal entities that are not
financed by a loan, mortgage, or other similar instrument.
Section 6212. Pilot Program on Sharing
Information Related to Suspicious Activity Reports (SARs) Within a
Financial Group.
FinCEN intends to issue a Notice of Proposed Rulemaking (NPRM) in
order
[[Page 5142]]
to implement Section 6212 the AML Act. This section amends the BSA (31
U.S.C. 5318(g)) to establish a pilot program that permits financial
institutions to SAR information with their foreign branches,
subsidiaries, and affiliates for the purpose of combating illicit
finance risks. The section further requires the Secretary of the
Treasury to issue rules to implement the amendment within one year of
enactment of the AML Act.
Section 6101. Establishment of National Exam and
Supervision Priorities.
FinCEN intends to issue a NPRM to implement Section 6101 the AML
Act. That section, among other things, amends section 5318(h) to title
31 of the United States Code to: (1) Require financial institutions to
establish CFT programs in addition to AML programs; (2) require FinCEN
to establish national AML/CFT Priorities and, as appropriate,
promulgate implementing regulations within 180 days of the issuance of
those priorities; and (3) provide that the duty to establish, maintain,
and enforce a BSA AML/CFT program remains the responsibility of, and
must be performed by, persons in the United States who are accessible
to, and subject to oversight and supervision by, the Secretary of the
Treasury and the appropriate Federal functional regulator.
Additionally, FinCEN intends to propose other changes, including
regulatory amendments to establish that all financial institutions
subject to an AML/CFT program requirement must maintain an effective
and reasonably designed AML/CFT program, and that such a program must
include a risk assessment process.
Sec. 6305. No Action Letter Program.
FinCEN will issue an ANPRM following the implementation of Section
6305 of the AML Act. This section required FinCEN to conduct an
assessment on whether to issue no-action letters in response to
specific conduct requests from third parties, and propose rulemaking if
appropriate. The assessment concluded that FinCEN should issue no-
action letters, subject to sufficient resources, and proposed
rulemaking to follow the issuance of the report. The ANPRM will seek
guidance on the contours of a FinCEN no-action letter process, and, if
necessary and appropriate, may be followed by a NPRM establishing
regulations to govern the process. The ANPRM will also solicits
feedback on FinCEN's current forms of regulatory guidance and relief.
Voluntary Information Sharing Among Financial
Institutions Under Section 314(b) of the USA PATRIOT Act.
FinCEN is considering issuing this rule to strengthen the
administration of the regulation implementing the statutory safe harbor
that allows eligible financial institutions and associations of
financial institutions to voluntarily share information regarding
activities that may involve terrorist acts or money laundering.
Sec. 6314. Updating Whistleblower Incentives and
Protection.
FinCEN intends to issue a NPRM relating to Section 6314 of the AML
Act. Section 6314 of AML Act amends Section 5323 of title 31, United
States Code. Section 6314, enacted on January 1, 2021, established a
whistleblower program that requires FinCEN to pay an award, under
regulations prescribed by FinCEN and subject to certain limitations, to
eligible whistleblowers who voluntarily provide FinCEN or the
Department of Justice (DOJ) with original information about a violation
of the Bank Secrecy Act that leads to the successful enforcement of a
covered judicial or administrative action, or related action, and
requires that FinCEN preserve the confidentiality of a whistleblower.
Additionally, section 6314 of the AML Act repealed 31 U.S.C. 5328,
the previous whistleblower protection provision, and replaced it with a
new subsection to 31 U.S.C. 5323: Subsection (g) ``Protection of
Whistleblowers.'' The new subsection (g) prohibits retaliation by
employers against individuals that provide FinCEN or the DOJ with
information about potential Bank Secrecy Act violations; any individual
alleging retaliation may seek relief by filing a complaint with the
Department of Labor.
Section 6403. Corporate Transparency Act.
On April 5, 2021, FinCEN issued an ANPRM entitled ``Beneficial
Ownership Information Reporting Requirements,'' relating to the
Corporate Transparency Act (Sections 6401-6403 of the AML Act), and
intends to issue a NPRM. Section 6403 of the AML Act amends the BSA by
adding new Section 5336 to title 31 of the United States Code. New
Section 5336 requires FinCEN to issue rules requiring: (i) Reporting
companies to submit certain information about the individuals who are
beneficial owners of those entities and the individuals who formed or
registered those entities; (ii) establishing a mechanism for issuing
FinCEN identifiers to entities and individuals that request them; (iii)
requiring FinCEN to maintain the information in a confidential, secure,
non-public database; and (iv) authorizing FinCEN to disclose the
information to certain government agencies and financial institutions
for purposes specified in the legislation and subject to protocols to
protect the confidentiality of the information. Section 5336 requires
that the first of these requirements, notably the beneficial ownership
information reporting regulation for legal entities (the ``reporting
regulation''), be published in final form by January 1, 2022. The ANPRM
solicited comments on a wide range of questions having to do with the
possible shape of the reporting regulation, as well as questions that
concern the interaction of the requirements of this regulation and the
shape and functionality of the database that will be populated with the
information reported under Section 5336.
Orders Imposing Additional Reporting and
Recordkeeping Requirements (Technical Change).
On November 15, 2021, FinCEN issued a final rule to update the
regulation set forth at 31 CFR 1010.370 to reflect amendments to the
underlying statute, 31 U.S.C. 5326, concerning the authority of FinCEN
to issue orders imposing additional reporting and recordkeeping
requirements on financial institutions and nonfinancial trades or
businesses in a geographic area.
Requirements for Certain Transactions Involving
Convertible Virtual Currency or Digital Assets.
FinCEN is proposing to amend the regulations implementing the BSA
to require banks and money service businesses to submit reports, keep
records, and verify the identity of customers in relation to
transactions involving convertible virtual currency (CVC) or digital
assets with legal tender status (``legal tender digital assets'' or
``LTDA'') held in unhosted wallets, or held in wallets hosted in a
jurisdiction identified by FinCEN.
Report of Foreign Bank and Financial Accounts.
FinCEN is proposing to amend the regulations implementing the BSA
regarding reports of foreign financial accounts (FBARs). The proposed
changes are intended to clarify which persons will be required to file
reports of foreign financial accounts and what information is
reportable. The proposed changes are intended to amend two provisions
of the FBAR regulation: (1) Signature or other authority; and (2)
special rules. Treasury is considering whether the relevant statutory
objectives can be achieved at a lower cost.
Withdraw Obsolete Civil Money Penalty Provisions
for BSA Violations. (Technical Change)
[[Page 5143]]
FinCEN is amending 31 CFR 1010.820 to withdraw the civil money
penalty provisions for BSA violations that are obsolete. Statutory
amendments have been made to specific civil BSA penalties since the
regulation was last revised. In addition, the Federal Civil Penalties
Inflation Adjustment Act of 1990 as amended, 28 U.S.C. 2461 note,
requires agencies to issue regulations making annual adjustments
reflecting the effect of inflation for civil penalties expressed in
terms of a dollar amount. Those inflation adjustments are correctly
captured in a separate regulation, and therefore the obsolete and
inconsistent provisions will be withdrawn.
Amendments to the Definitions of Broker or
Dealer in Securities.
FinCEN is finalizing amendments to the regulatory definitions of
``broker or dealer in securities'' under the regulations implementing
the BSA. The changes are intended to expand the current scope of the
definitions to include funding portals. In addition, these amendments
would require funding portals to implement policies and procedures
reasonably designed to achieve compliance with all of the BSA
requirements that are currently applicable to brokers or dealers in
securities. The rule to require these organizations to comply with the
BSA regulations is intended to help prevent money laundering, terrorist
financing, and other financial crimes.
Other Requirements.
FinCEN also will continue to issue proposed and final rules
pursuant to section 311 of the USA PATRIOT Act, as appropriate.
Finally, FinCEN expects that it may propose various technical and other
regulatory amendments in conjunction with ongoing efforts with respect
to a comprehensive review of existing regulations to enhance regulatory
efficiency required by Section 6216 of the AML Act.
Bureau of the Fiscal Service
The Bureau of the Fiscal Service (Fiscal Service) administers
regulations pertaining to the Government's financial activities,
including: (1) Implementing Treasury's borrowing authority, including
regulating the sale and issue of Treasury securities; (2) administering
Government revenue and debt collection; (3) administering government-
wide accounting programs; (4) managing certain Federal investments; (5)
disbursing the majority of Government electronic and check payments;
(6) assisting Federal agencies in reducing the number of improper
payments; and (7) providing administrative and operational support to
Federal agencies through franchise shared services.
During fiscal year 2022, Fiscal Service will accord priority to the
following regulatory projects:
Surety Companies Doing Business with the United
States.
Fiscal Service is proposing to amend its regulations governing
surety companies doing business with the United States, found at 31 CFR
part 223. When a federal law requires a person to post a bond through a
surety, the person satisfies the requirement if the bond is
underwritten by a company that is certified by Treasury to write
federal bonds. Fiscal Service administers the regulations governing the
issuance, renewal, and revocation of certificates of authority to
surety companies to write or reinsure federal bonds. Fiscal Service
proposes to amend its regulations governing how it values the assets
and liabilities of sureties to keep pace with changes in regulation of
the surety industry occurring at the state and international levels.
Government Participation in the Automated
Clearing House.
The Fiscal Service is proposing to amend its regulation at 31 CFR
part 210 governing the government's participation in the Automated
Clearing House (ACH). The proposed amendment would address changes to
the National Automated Clearing House Association's (Nacha) private-
sector ACH rules that have been adopted since those rules were last
incorporated by reference in part 210. Among other things, the
amendment would address the increase in the Same-Day ACH transaction
limit from $100,000 per transaction to $1,000,000 per transaction.
Re-Write of DCIA Offset Regulations in 31 CFR
part 285 subpart A.
The Fiscal Service is proposing to amend its offset regulations
currently codified in 31 CFR part 285 subpart A. These regulations
govern how Fiscal Service administers the offset of federal and state
payments to collect federal and state debt through the Treasury Offset
Program. Through the amendment, Fiscal Service will re-write and
reorganize the current regulations. The main purpose of the amendment
will be to improve the clarity of the regulations. A second purpose
will be to restore flexibility where previously-issued regulations may
have unintentionally narrowed statutory authority.
Internal Revenue Service
The Internal Revenue Service (IRS), working with the Office of Tax
Policy, promulgates regulations that interpret and implement the
Internal Revenue Code (Code), and other internal revenue laws of the
United States. The purpose of these regulations is to carry out the tax
policy determined by Congress in a fair, impartial, and reasonable
manner, taking into account the intent of Congress, the realities of
relevant transactions, the need for the Government to administer the
rules and monitor compliance, and the overall integrity of the Federal
tax system. The goal is to make the regulations practical and as clear
and simple as possible, which reduces the burdens on taxpayers and the
IRS.
During fiscal year 2022, the IRS and Treasury's Office of Tax
Policy's priority is to continue providing guidance regarding
implementation of key provisions of the American Rescue Plan Act of
2021, Public Law 117-2, the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act), Public Law 116-136, Public Law 115-97, known
as the Tax Cuts and Jobs Act, as well as the Taxpayer First Act, Public
Law 116-25, Division O of the Further Consolidated Appropriations Act,
2020, and Public Law 116-94, known as the Setting Every Community Up
for Retirement Enhancement Act of 2019 (SECURE Act).
Every year, Treasury and the IRS identify guidance projects that
are priorities for allocation of the resources during the year in the
Priority Guidance Plan (PGP) (available on irs.gov and
regulations.gov). The plan represents projects that Treasury and the
IRS intend to actively work on during the plan year. See, for example,
the 2021-2022 Priority Guidance Plan (September 9, 2021). To help
facilitate and encourage suggestions, Treasury and the IRS have
developed an annual process for soliciting public input for guidance
projects. The annual solicitation is done through the issuance of a
notice inviting recommendations from the public for items to be
included on the PGP for the upcoming plan year. See, for example,
Notice 2021-28 (April 14, 2021). We also invite the public to continue
throughout the year to provide us with their comments and suggestions
for guidance projects.
BILLING CODE 4810-25-P
DEPARTMENT OF VETERANS AFFAIRS (VA)
Statement of Regulatory Priorities
The Department of Veterans Affairs (VA) administers services and
benefit programs that recognize the important public obligations to
those who served
[[Page 5144]]
this Nation. VA's regulatory responsibility is almost solely confined
to carrying out mandates of the laws enacted by Congress relating to
programs for veterans and their families. VA's major regulatory
objective is to implement these laws with fairness, justice, and
efficiency.
Most of the regulations issued by VA involve at least one of three
VA components: The Veterans Benefits Administration, the Veterans
Health Administration, and the National Cemetery Administration. The
primary mission of the Veterans Benefits Administration is to provide
high-quality and timely nonmedical benefits to eligible veterans and
their dependents. The primary mission of the Veterans Health
Administration is to provide high-quality health care on a timely basis
to eligible veterans through its system of medical centers, nursing
homes, domiciliaries, and outpatient medical and dental facilities. The
primary mission of the National Cemetery Administration is to bury
eligible veterans, members of the Reserve components, and their
dependents in VA National Cemeteries and to maintain those cemeteries
as national shrines in perpetuity as a final tribute of a grateful
Nation to commemorate their service and sacrifice to our Nation.
VA's regulatory priority plan consists of three high priority
regulations:
(1) RIN 2900-AQ30 Proposed Rule--Modifying Copayments for Veterans
at High Risk for Suicide.
The Department of Veterans Affairs (VA) proposes to amend its
medical regulations that govern copayments for outpatient medical care
and medications for at-risk veterans.
(2) RIN 2900-AR01 Proposed Rule--VA Pilot Program on Graduate
Medical Education and Residency.
The Department of Veterans Affairs proposes to revise its medical
regulations to establish a new pilot program on graduate medical
education and residency, as required by section 403 of the John S.
McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining
Internal Systems and Strengthening Integrated Outside Network Act of
2018.
(3) RIN 2900-AR16 Interim Final Rule--Staff Sergeant Parker Gordon
Fox Suicide Prevention Grant Program.
The Department of Veterans Affairs (VA) is issuing this interim
final rule to implement legislation authorizing VA initiate a three-
year community-based grant program to award grants to eligible entities
to provide or coordinate the provision of suicide prevention services
to eligible individuals and their families. This rulemaking specifies
grant eligibility criteria, application requirements, scoring criteria,
constraints on the allocation and use of the funds, and other
requirements necessary to implement this grant program.
VA
Proposed Rule Stage
141. Modifying Copayments for Veterans at High Risk for Suicide
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1710(g); 38 U.S.C. 1722A
CFR Citation: 38 CFR 17.108; 38 CFR 17.110.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) proposes to amend
its medical regulations that govern copayments for outpatient medical
care and medications for at-risk veterans.
Statement of Need: This rulemaking is needed because a change in
the current regulation is called for by the policy outlined in
Executive Order 13822, which provides that our Government must improve
mental healthcare and access to suicide prevention resources available
to veterans. Healthcare research has provided extensive evidence that
copayments can be barriers to healthcare for vulnerable patients, which
places the proposed change in line with the goals of the Executive
Order.
Summary of Legal Basis: Executive Order 13822.
Alternatives: The express intent of the rulemaking is to reduce
barriers to mental health care for Veterans at high risk for suicide.
To defer implementation of the regulation would be to undermine its
purpose. However, alternative regulatory approaches were considered. It
was considered whether VHA national or local policy changes could
effectively meet the intent of the proposed regulation. It was found
that policy change is not a viable alternative due to regulatory
constraints that prevent changes to copayment requirements. The timing
of rulemaking was considered. There were no potential cost savings or
other net benefits identified that would lead to a more beneficial
option.
A phase-in period for the regulation was considered. There were no
burdens, likely failures, or negative comments identified that a phase-
in period would help mitigate. There were no potential cost savings or
other net benefits identified that would make phasing in the regulation
a more beneficial option.
Anticipated Cost and Benefits: Outpatient medical care and
medication copayments will be reduced for Veterans determined to be at
high risk for suicide. VA strongly believes, based on extensive
empirical evidence, that the provisions of this rulemaking will
decrease the likelihood of fatal or medically serious overdoses from VA
prescribed medications among Veterans who are at a high risk of
suicide. VA also strongly believes, based on the evidence, that the
provisions of this rulemaking will significantly increase the
engagement of Veterans who are at a high risk of suicide in outpatient
health care, which is known to decrease the risk of suicide and other
adverse outcomes.
VA has determined that there are transfers associated with this
rulemaking and a loss of revenue to VA from the reduction of specific
veteran copayments. The transfers are estimated to be $9.43M in FY2022
and $54.35M over a 5-year period. The loss of revenue to VA is
estimated to be $0.21M in FY2022 and $1.11M over a five-year period.
The total budgetary impact of this rulemaking is estimated to be $9.63M
in FY2022 and $55.47M over a five-year period.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Julie Wildman, Informatics Educator, Department of
Veterans Affairs, 795 Willow Road, Building 321, Room A124, Menlo Park,
CA 94304, Phone: 650 493-5000, Email: [email protected].
RIN: 2900-AQ30
VA
142. VA Pilot Program on Graduate Medical Education and Residency
Priority: Other Significant.
Legal Authority: Pub. L. 115-182, sec. 403
CFR Citation: 38 CFR 17.243 to 17.248.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs proposes to revise its
medical regulations to establish a new pilot program on graduate
medical education and residency, as required by section
[[Page 5145]]
403 of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson
VA Maintaining Internal Systems and Strengthening Integrated Outside
Network Act of 2018.
Statement of Need: This rulemaking is needed to implement section
403 of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson
VA Maintaining Internal Systems and Strengthening Integrated Outside
Network Act of 2018 (hereafter referred to as the MISSION Act). Section
403 of the MISSION Act requires the Department of Veterans Affairs (VA)
create a pilot program to establish additional medical residency
positions authorized under section 301(b)(2) of Public Law 113-146
(note to section 7302 of title 38 United States Code (U.S.C.)) at
certain covered facilities, to include non-VA facilities. Prior to
section 403 of the MISSION Act, VA's authority in 38 U.S.C. 7302
permitted VA to establish medical residency programs in VA facilities
and ensure that such programs have a sufficient number of residents,
where VA's graduate medical education (GME) programming was limited to
funding resident salaries and benefits only if such residents were in
VA facilities, caring for Veterans, and supervised by VA staff, with
some additional support to the affiliated educational institutions for
educational costs.
Summary of Legal Basis: Section 403 of the MISSION Act expanded on
this authority by creating a pilot to allow VA to fund residents
regardless of whether they are in VA facilities, and to pay for certain
costs of new residency programs that might also not be in VA
facilities.
Alternatives: VA analyzed whether this pilot program could be
implemented without regulations, because the administration of resident
stipends and benefits, as well as the reimbursement of certain costs of
new residency programs, would be controlled by contracts or agreements
outside of regulations. However, regulations were thought necessary to:
Better characterize selection criteria for the covered facilities in
which residents will be placed, and to establish priority placement at
certain covered facilities as required by section 403; establish
criteria for defining new residency programs; qualify the resident
activities that would be reimbursable; and qualify the reimbursable
costs for new residency programs if VA places a resident in a new
residency program. Regulations were also thought necessary to clarify
that this pilot program, unlike many other VA pilot programs, is not a
grant program or a cooperative agreement program through which entities
may apply to be considered for resident funding or reimbursement of new
residency program costs.
Anticipated Cost and Benefits: Increasing the number of residents
and residency programs in underserved regions may improve the number of
physicians practicing there after residency training and also will
increase access to healthcare for veterans and possibly non-Veterans
residing in those regions.
VA estimates that costs of this program will be $4,160,259 in FY22
and 13,691,052 over a 5-year period. Transfers will be zero in FY22 and
$25,687,106 over a 5-year period. Combined, this results in a budget
impact of $4,160,259 in FY 22 and $39,378,158 over a 5-year window.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Marjorie A. Bowman, Chief, Office of Academic
Affiliations (10X1), Department of Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, Phone: 202 461-9490, Email:
[email protected].
RIN: 2900-AR01
VA
Final Rule Stage
143. Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program
Priority: Other Significant.
Legal Authority: Pub. L. 116-171, sec. 201; 38 U.S.C. 1720F; 38
U.S.C. 501
CFR Citation: 38 CFR 62.2; 38 CFR 50.1(d); 38 CFR 78.45.
Legal Deadline: Other, Statutory, December 31, 2025, Required
consultation pursuant to section 201 of Pub. L. 116-171. Required
consultation pursuant to section 201 of Pub. L. 116-171. This grant
program is authorized by section 201 of Public Law 116-171. VA must
publish regulations for matters related to grants as required by 38
U.S.C. 501(d).
Abstract: The Department of Veterans Affairs (VA) is issuing this
interim final rule to implement legislation authorizing VA to initiate
a three-year community-based grant program to award grants to eligible
entities to provide or coordinate the provision of suicide prevention
services to eligible individuals and their families. This rulemaking
specifies grant eligibility criteria, application requirements, scoring
criteria, constraints on the allocation and use of the funds, and other
requirements necessary to implement this grant program.
Statement of Need: The Department of Veterans Affairs (VA) is
issuing regulations for the implementation of section 201 of Public Law
116-171, the Commander John Scott Hannon Veterans Mental Health Care
Improvement Act of 2019 (the Act). Title 38 of United States Code
(U.S.C.) section 501(d) requires VA to publish regulations for matters
related grants, notwithstanding section 553(a)(2) of the Administration
Procedure Act.
Summary of Legal Basis: This grant program is authorized by section
201 of Public Law 116-171. VA must publish regulations for matters
related to grants as required by 38 U.S.C. 501(d).
Alternatives: VHA initially was planning to implement the pilot
program without any collaboration or planning with our internal or
external partners. As an alternative, VHA intends to collaborate with
other grant programs to examine certain costs which may be shared such
as FTE, IT systems, and utilizing internal VA offices and
infrastructure for certain aspect of grants management. This will
maximize the effectiveness of the program and minimize any
inefficiencies which would have otherwise arisen. VA determined the
best course of action was to work with internal and external partners
to develop the best grant program possible for suicide prevention among
our Veteran population.
Anticipated Cost and Benefits: VA has estimated that there are both
transfers and costs associated with the provisions of this rulemaking.
The transfers are estimated to be $51.7M in FY2023 and $156 7M through
FY2025. The costs are estimated to be $1.6M in FY2021 and $16.8M over
five years (FY2021-FY2025).
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request For Information (RFI)....... 04/01/21 86 FR 17268
RFI Comment Period End.............. 04/22/21 .......................
Interim Final Rule.................. 04/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: https://www.federalregister.gov
[[Page 5146]]
Agency Contact: Juliana Hallows, Associate Director, VACO Suicide
Prevention Program, Department of Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, Phone: 406 475-0624, Email:
[email protected].
RIN: 2900-AR16
BILLING CODE 8320-01-P
ENVIRONMENTAL PROTECTION AGENCY (EPA)
Statement of Priorities
Overview
EPA works to ensure that all Americans are protected from
significant risks to human health and the environment, including
climate change, and that overburdened and underserved communities and
vulnerable individuals--including low-income communities and
communities of color, children, the elderly, tribes, and indigenous
people--are meaningfully engaged and benefit from focused efforts to
protect their communities from pollution. EPA acts to ensure that all
efforts to reduce environmental harms are based on the best available
scientific information, that federal laws protecting human health and
the environment are enforced equitably and effectively, and that the
United States plays a leadership role in working with other nations to
protect the global environment. EPA is committed to environmental
protection that builds and supports more diverse, equitable,
sustainable, resilient, and productive communities and ecosystems.
By taking advantage of the latest science, the newest technologies
and the most cost-effective and sustainable solutions, EPA and its
federal, tribal, state, local, and community partners have made
important progress in addressing pollution where people live, work,
play, and learn. By cleaning up contaminated waste sites, reducing
greenhouse gases, lowering emissions of mercury and other air
pollutants, and investing in water and wastewater treatment, EPA's
efforts have resulted in tangible benefits to the American public.
Efforts to reduce air pollution alone have produced hundreds of
billions of dollars in benefits in the United States, and tremendous
progress has been made in cleaning up our nation's land and waterways.
But much more needs to be done to implement the nation's environmental
statutes and ensure that all individuals and communities benefit from
EPA's efforts to protect human health and the environment and to
address the climate crisis.
EPA has initiated cross-Agency efforts to address our most complex
environmental challenges including PFAS pollution. Per- and
polyfluoroalkyl substances (PFAS) are a group of man-made chemicals,
including PFOA and PFOS, that have been manufactured and used in a
variety of industries around the globe, including in the United States,
since the 1940s. Both chemicals persist in the environment and in the
human body. The EPA Administrator established a Council on PFAS,
comprised of a group of senior agency leaders who are charged with
accelerating the Agency's progress on PFAS. EPA is committed to using
all the Agency's authorities to address PFAS pollution including Safe
Drinking Water Act, Clean Water Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act. EPA also is
expanding our existing data collection efforts to better understand the
environmental and human health impacts of PFAS. Similarly, EPA has
developed a cross-Agency strategy to coordinate the Agency's efforts to
reduce lead exposure and protect children and families from the harmful
effects of lead.
EPA will use its regulatory authorities, along with grant- and
incentive-based programs, technical and compliance assistance, and
research and educational initiatives, to address the following
priorities set forth in EPA's upcoming Strategic Plan:
Tackle the Climate Crisis
Advance Environmental Justice and Civil Rights
Ensure Clean and Healthy Air for All Communities
Ensure Clean and Healthy Water for All Communities
Safeguard and Revitalize Communities
Ensure Safety of Chemicals for People and the Environment
All this work will be undertaken with a strong commitment to
scientific integrity, the rule of law and transparency, the health of
children and other vulnerable populations, and with special focus on
supporting and achieving environmental justice at federal, tribal,
state, and local levels.
Highlights of EPA's Regulatory Plan
This Regulatory Plan highlights our most important upcoming
regulatory actions. As always, our Semiannual Regulatory Agenda
contains information on a broader spectrum of EPA's upcoming regulatory
actions.
Tackle the Climate Crisis
EPA must take bold and decisive steps to respond to the severe and
urgent threat of climate change, including taking appropriate
regulatory action under existing statutory authorities to reduce
emissions from our nation's largest sources of greenhouse gases (GHG).
The impacts of climate change are affecting people in every region of
the country, threatening lives and livelihoods and damaging
infrastructure, ecosystems, and social systems. Overburdened and
underserved communities and individuals are particularly vulnerable to
these impacts, including low-income communities and communities of
color, children, the elderly, tribes, and indigenous people. Exercising
its authority under the Clean Air Act (CAA), EPA will address major
sources of GHGs that are driving these impacts by taking regulatory
action to minimize emissions of methane from new and existing sources
in the oil and natural gas sector; reduce GHGs from new and existing
fossil fuel-fired power plants; limit GHGs from new light-duty vehicles
and heavy-duty trucks; and set requirements for the use of renewable
fuel. EPA will also carry out the mandates of the recently enacted
American Innovation and Manufacturing (AIM) Act to implement, and where
appropriate accelerate, a national phasedown in the production and
consumption of hydrofluorocarbons (HFCs), which are highly potent GHGs.
Emission Guidelines for Oil and Natural Gas Sector. The
oil and natural gas industry are the largest industrial source of U.S.
emissions of methane, a GHG more than 25 times as potent as carbon
dioxide at trapping heat in the atmosphere. Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis,'' states that the Administrator of EPA
should consider proposing new regulations to establish emission
guidelines for methane emissions from existing operations in the oil
and gas sector, including the exploration and production, transmission,
processing, and storage segments. The purpose of this action is to
propose new emission guidelines for existing sources in the oil and gas
sector by October 2021.
New Source Performance Standards for Crude Oil and Natural
Gas Facilities: Review of Policy and Technical Rules. Executive Order
13990 further directs EPA to review the new source performance
standards (NSPS) issued in 2020 for the oil and gas sector about
methane and volatile organic compound
[[Page 5147]]
(VOC) emissions and, as appropriate and consistent with applicable law,
consider publishing for notice and comment a proposed rule suspending,
revising, or rescinding the NSPS. The Executive Order also directs EPA
to consider proposing new regulations to establish comprehensive NSPS
for methane and VOC emissions from the exploration and production,
transmission, processing, and storage segments. The purpose of this
action is to review the existing NSPS and propose new standards as
necessary.
Emission Guidelines for Greenhouse Gas Emissions from
Fossil Fuel-Fired Existing Electric Generating Units. On January 19,
2021, the D.C. Circuit Court vacated the Affordable Clean Energy Rule
(40 CFR part 60, subpart UUUUa) and remanded the rule to EPA for
further consideration consistent with its decision. On February 12,
2021, considering the court's decision, the EPA published a memorandum
on the status of the Affordable Clean Energy (ACE) rule and informed
states not to continue the development or submittal of state plans in
accordance with CAA section 111(d) guidelines for GHG emissions from
power plants at this time. EPA continues to review the court's vacatur
and remand of these actions. The anticipated proposal date for this
action is by July 2022, and promulgation by July 2023.
Amendments to the NSPS for GHG Emissions from New,
Modified, & Reconstructed Stationary Sources: EGUs. Under CAA section
111(b), EPA sets New Source Performance Standards (NSPS) for GHG
emissions from new, modified, and reconstructed fossil fuel-fired power
plants. In 2015, EPA finalized regulations to limit GHG emissions from
new fossil-fuel fired utility boilers and from natural gas-fired
stationary combustion turbines. In 2018, EPA proposed to revise the
NSPS for coal fired EGUs. To date, that proposed action has not been
finalized. The 2018 proposed rule would have revised the 2015 NSPS
finalized in conjunction with the Clean Power Plan (80 FR 64510).
Litigation remains in abeyance for the 2015 final NSPS. The purpose of
this action is to review the NSPS and, if appropriate, amend the
standards for new fossil fuel fired EGUs. Anticipated timing of the
proposed rule is by June 2022 and promulgation by June 2023.
Restrictions on Certain Uses of Hydrofluorocarbons under
Subsection (i) of the American Innovation and Manufacturing Act. EPA
intends to propose a rule that, in part, responds to petitions granted
under subsection (i) of the AIM Act. Subsection (i) of the AIM Act
provides that a person may petition EPA to promulgate a rule for the
restriction on use of a regulated substance in a sector or subsector.
EPA will consider a rule restricting, fully, partially, or on a
graduated schedule, the use of HFCs in sectors or subsectors including
the refrigeration, air conditioning, aerosol, and foam sectors informed
by petitions received from environmental groups, trade associations,
and individual companies. Additionally, EPA will consider establishing
recordkeeping and reporting requirements and addressing other related
elements of the AIM Act.
Phasedown of Hydrofluorocarbons: Updates to the Allowance
Allocation and Trading Program under the American Innovation and
Manufacturing Act for 2024 and Later Years. As noted above, the AIM Act
directs EPA to sharply reduce production and consumption of HFCs, which
are harmful and potent greenhouse gases, by using an allowance
allocation and trading program. This phasedown will decrease the
production and import of HFCs in the United States by 85% over the next
15 years. The first regulation under the AIM Act established the
allowance allocation and trading program for 2022 and 2023. To continue
phasing down the production and consumption of listed HFCs on the
schedule listed in the AIM Act, this rulemaking will provide the
framework for how the Agency will issue allowances in 2024 and beyond.
Revised 2023 and Later Model Year Light-Duty Vehicle
Greenhouse Gas Emissions Standards. Executive Order 13990 directed EPA
to review the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for
Model Years 2021-2026 Passenger Cars and Light Trucks (April 30, 2020).
In August 2021, EPA proposed to revise existing national GHG emissions
standards for passenger cars and light trucks for Model Years 2023-
2026. The proposed standards would achieve significant GHG emissions
reductions along with reductions in other criteria pollutants. The
proposal would result in substantial public health and welfare
benefits, while providing consumers with savings from lower fuel costs.
Volume Requirements for 2023 and Beyond under the
Renewable Fuel Standard Program. CAA statutory provisions governing the
Renewable Fuel Standard (RFS) program provide target volumes of
renewable fuel for the RFS program only through 2022. For years 2023
and thereafter, the statute requires EPA to set those volumes based on
an analysis of specified factors. If EPA does not set those volumes,
there will be no applicable requirement to blend renewable fuel into
gasoline and diesel. This rulemaking will establish volume requirements
for 2023 and some years beyond. The proposal will provide the public
with an opportunity to provide feedback on various alternative volume
requirements.
Renewable Fuel Standard (RFS) Program: RFS Annual Rules.
CAA section 211 requires EPA to set renewable fuel percentage standards
every year. This action establishes the annual percentage standards for
cellulosic biofuel, biomass-based diesel, advanced biofuel, and total
renewable fuel that apply to gasoline and diesel transportation fuel.
Ensure Clean and Healthy Air for All Communities
All people regardless of race, ethnicity, national origin, or
income deserve to breathe clean air. EPA has the responsibility to
protect the health of vulnerable and sensitive populations, such as
children, the elderly, and persons overburdened by pollution or
adversely affected by persistent poverty or inequality. Since enactment
of the CAA, EPA has made significant progress in reducing harmful air
pollution even as the U.S. population and economy have grown. Between
1970 and 2020, the combined emissions of six key pollutants dropped by
78%, while the U.S. economy remained strong growing 272% over that time
period. As required by the CAA, EPA will continue to build on this
progress and work to ensure clean air for all Americans, including
those in underserved and overburdened communities. Among other things,
EPA will take regulatory action to review and implement health-based
air quality standards for criteria pollutants such as particulate
matter (PM); limit emissions of harmful air pollution from both
stationary and mobile sources; address sources of hazardous air
pollution (HAP), such as ethylene oxide, that disproportionately affect
communities with environmental justice concerns; and protect downwind
communities from sources of air pollution that cross state lines. Along
with the full set of CAA actions listed in the regulatory agenda, the
following high priority actions will allow EPA to continue its progress
in reducing harmful air pollution.
Review of the National Ambient Air Quality Standards for
Particulate Matter. Under the CAA Amendments of 1977, EPA is required
to review and if appropriate revise the air quality criteria for the
primary (health-based) and secondary (welfare-based) national ambient
air quality standards (NAAQS)
[[Page 5148]]
every 5 years. In December 2020, EPA published its final decision in
the review of the PM NAAQS, retaining the existing standard established
in 2013. The review included the preparation of an Integrated Review
Plan, an Integrated Science Assessment (ISA), and a Policy Assessment
with opportunities for review by EPA's Clean Air Scientific Advisory
Committee (CASAC) and the public. These documents informed the
Administrator's decision in the PM NAAQS review. On June 10, 2021, EPA
notified the public that it will reconsider the 2020 decision to retain
the PM NAAQS. As part of this reconsideration, EPA intends to develop a
supplement to the ISA and a revised policy assessment to consider the
most up-to-date science on public health and welfare impacts of PM and
to engage with the CASAC and a newly constituted expert PM panel.
Additionally, on July 7, 2020, EPA notified the public that it was
initiating an update of the ISA for lead as part of the periodic review
of the lead NAAQS.
NESHAP: Coal- and Oil-Fired Electric Utility Steam
Generating Units--Revocation of the 2020 Reconsideration, and
Affirmation of the Appropriate and Necessary Supplemental Finding.
Executive Order 13990 directs EPA to take certain actions by August
2021, including considering publishing, as appropriate and consistent
with applicable law, a proposed rule suspending, revising, or
rescinding the ``National Emission Standards for Hazardous Air
Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating
Units--Reconsideration of Supplemental Finding and Residual Risk and
Technology Review,'' 85 FR 31286 (May 22, 2020). The May 2020 final
action is the latest amendment to the February 16, 2012, National
Emission Standards for Hazardous Air Pollutants for Coal- and Oil-fired
Electric Utility Steam Generating Units (77 FR 9304). That 2012 rule
(40 CFR part 63, subpart UUUUU), commonly referred to as the Mercury
and Air Toxics Standards (MATS), includes standards to control HAP
emissions from new and existing coal- and oil-fired steam EGUs located
at both major and area sources of HAP emissions. In the May 22, 2020
action, EPA found that it is not appropriate and necessary to regulate
coal- and oil-fired EGUs under CAA section 112. As directed by E.O.
13990, EPA will review the May 22, 2020, finding and, under this
action, will take appropriate action resulting from its review of the
May 2020 finding that it is not appropriate and necessary to regulate
coal- and oil-fired EGUs under Clean Air Act section 112. Results of
EPA's review of the May 2020 RTR will be presented in a separate
action.
Interstate Transport Rule for 2015 Ozone NAAQS. This
action would apply in certain states for which EPA has either
disapproved a ``good neighbor'' state implementation plan (SIP)
submission under CAA section 110(a)(2)(D)(i)(I) or has made a finding
of failure to submit such a SIP submission for the 2015 ozone NAAQS.
This action would determine whether and to what extent upwind sources
of ozone-precursor emissions need to reduce these emissions to prevent
interference with downwind states' maintenance or attainment of the
2015 8-hour ozone NAAQS. For upwind states that EPA determines to be
linked to a downwind nonattainment or maintenance receptor, EPA would
conduct further analysis to determine what (if any) additional
emissions controls are required in such states and develop an
enforceable program for implementation of such controls.
Control of Air Pollution from New Motor Vehicles: Heavy-
Duty Engine and Vehicle Standards. Heavy-duty engines have been subject
to emission standards for criteria pollutants, including PM,
hydrocarbon (HC), carbon monoxide (CO), and oxides of nitrogen
(NOX), for nearly half a century. Current data suggest that
existing standards should be revised to ensure full, in-use emission
control. NOX emissions are major precursors of ozone and
significant contributors to secondary PM2.5 formation. Ozone
and ambient PM2.5 concentrations continue to be a nationwide
health and air quality issue. Reducing NOX emissions from
on-highway, heavy-duty trucks and buses is an important component of
improving air quality nationwide and reducing public health and welfare
effects associated with these pollutants, especially for vulnerable
populations and in highly impacted regions. Through this action, EPA
will evaluate data on current NOX emissions from heavy-duty
vehicles and engines and propose options to improve control of criteria
pollutant emissions through revised emissions standards. Additionally,
this action will propose updates to the existing greenhouse gas
emissions standards for heavy-duty vehicles.
National Emission Standards for Hazardous Air Pollutants:
Ethylene Oxide Commercial Sterilization and Fumigation Operations. In
response to EPA's most recent National Air Toxics Assessment (NATA),
which identified several areas across the country as having the
potential for elevated cancer risk due to emissions of ethylene oxide
to the outdoor air, EPA has initiated a review of its existing air
rules for source categories that emit this chemical. This includes
reviewing the current National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Ethylene Oxide Commercial Sterilization and
Fumigation Operations, which were finalized in December 1994 (59 FR
62585). The standards require existing and new major sources to control
emissions to the level achievable by the maximum achievable control
technology (MACT) and require existing and new area sources to control
emissions using generally available control technology (GACT). In this
action, EPA will conduct a statutorily required technology review for
the NESHAP and will also consider the cancer risks of ethylene oxide
emissions from this source category. To aid in this effort, EPA issued
an advance notice of proposed rulemaking (ANPRM) on December 12, 2019
(84 FR 67889) that solicited comment from stakeholders, developed
important emissions-related data through data collection activities,
and undertook a Small Business Advocacy Review (SBAR) panel, which is
needed when there is the potential for significant economic impacts to
small businesses from any regulatory actions being considered.
Review of Final Rule Reclassification of Major Sources as
Area Sources Under Section 112 of the Clean Air Act. This rulemaking
will address the review of the final rule, ``Reclassification of Major
Sources as Area Sources Under Section 112 of the Clean Air Act'' (Major
MACT to Area, or MM2A final rule). See 85 FR 73854, November 19, 2020.
Pursuant to Executive Order 13990, EPA has decided to review the MM2A
final rule and, as appropriate and consistent with the CAA section 112,
to publish for comment a notice of proposed rulemaking either
suspending, revising, or rescinding the MM2A final rule. The MM2A final
rule became effective on January 19, 2021 and provides that a major
source can be reclassified to area source status at any time upon
reducing its potential to emit (PTE) HAP to below the major source
thresholds (MST) of 10 tons per year (tpy) of any single HAP and 25 tpy
of any combination of HAP. Major sources that reclassify to area source
status will no longer be subject to CAA section 112 major source
requirements and, instead, will be subject to any applicable area
source requirements. The MM2A final rule also included an interim
ministerial revision
[[Page 5149]]
that removed the word ``federally'' from the phrase ``federally
enforceable'' in the PTE definition in 40 CFR 63.2.
Ensure Clean and Healthy Water for All Communities
The Nation's water resources are the lifeblood of our communities,
supporting our health, economy, and way of life. Clean and safe water
is a vital resource that is essential to the protection of human
health. The EPA is committed to ensuring clean and safe water for all,
including low-income communities and communities of color, children,
the elderly, tribes, and indigenous people. Since the enactment of the
Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA), EPA and
its state and tribal partners have made significant progress toward
improving the quality of our waters and ensuring a safe drinking water
supply. Along with the full set of water actions listed in the
regulatory agenda, the regulatory initiatives listed below will help
ensure that this important progress continues.
Revised Definition of ``Waters of the United States''--
Rule 1: In April 2020, the EPA, and the Department of the Army (``the
agencies'') published the Navigable Waters Protection Rule (NWPR) that
revised the previously-codified definition of ``waters of the United
States'' (85 FR 22250, April 21, 2020). The agencies are now initiating
this new rulemaking process that restores the regulations in place
prior to the 2015 ``Clean Water Rule: Definition of `Waters of the
United States' '' (80 FR 37054, June 29, 2015), updated to be
consistent with relevant Supreme Court decisions. The agencies intend
to consider further revisions in a second rule in light of additional
stakeholder engagement and implementation considerations, scientific
developments, and environmental justice values. This effort will also
be informed by the experience of implementing the pre-2015 rule, the
2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.
Revised Definition of ``Waters of the United States''--
Rule 2: The EPA and the Department of the Army (``the agencies'')
intend to pursue a second rule defining ``Waters of the United States''
to consider further revisions to the agencies' first rule (RIN 2040-
AG13) which proposes to restore the regulations in place prior to the
2015 ``Clean Water Rule: Definition of `Waters of the United States' ''
(80 FR 37054, June 29, 2015), updated to be consistent with relevant
Supreme Court Decisions. This second rule proposes to include revisions
reflecting on additional stakeholder engagement and implementation
considerations, scientific developments, and environmental justice
values. This effort will also be informed by the experience of
implementing the pre-2015 rule, the 2015 Clean Water Rule, and the 2020
Navigable Waters Protection Rule.
Clean Water Act Section 401: Water Quality Certification.
In accordance with Executive Order 13990, EPA has completed its review
of the 2020 Clean Water Act Section 401 Certification Rule (85 FR
42210, July 13, 2020) and has determined that it erodes state and
tribal authority as it relates to protecting water quality. Through the
new rulemaking, EPA intends to restore the balance of state, tribal,
and federal authorities while retaining elements that support efficient
and effective implementation of section 401. Congress provided
authority to states and tribes under CWA section 401 to protect the
quality of their waters from adverse impacts resulting from federally
licensed or permitted projects. Under section 401, a federal agency may
not issue a license or permit to conduct any activity that may result
in any discharge into navigable waters unless the affected state or
tribe certifies that the discharge is in compliance with the CWA and
state law or waives certification. EPA intends to strengthen the
authority of states and tribes to protect their vital water resources.
Effluent Limitations Guidelines and Standards for the
Steam Electric Power Generating Point Source Category. On July 26,
2021, EPA announced its decision to conduct a rulemaking to potentially
strengthen the Steam Electric Effluent Limitations Guidelines (ELGs)
(40 CFR 423). This rulemaking process could result in more stringent
ELGs for waste streams addressed in the 2020 final rule, as well as
waste streams not covered in the 2020 rule. The former could address
petitioners' claims in current litigation pending in the Fourth Circuit
Court of Appeals. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).
EPA revised the Steam Electric ELGs in 2015 and 2020.
Per- and polyfluoroalkyl substances (PFAS):
Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)
National Primary Drinking Water Regulation Rulemaking. On March 3,
2021, EPA published the Fourth Regulatory Determinations (86 FR 12272),
including a determination to regulate perfluorooctanoic acid (PFOA) and
perfluorooctanesulfonic acid (PFOS) in drinking water. With this
action, EPA intends to develop a proposed national primary drinking
water regulation for PFOA and PFOS, and, as appropriate, take final
action. Additionally, EPA will continue to consider other PFAS as part
of this action.
National Primary Drinking Water Regulations for Lead and
Copper: Regulatory Revisions. EPA promulgated the final Lead and Copper
Rule Revision (LCRR) on January 15, 2021 (86 FR 4198). Consistent with
the directives of Executive Order 13990, EPA is currently considering
revising this rulemaking. EPA will complete its review of the rule by
December 2021 in accordance with those directives and informed by a
robust stakeholder engagement process, including hearing from low-
income people and communities of color who are disproportionately
affected by lead contamination. EPA understands that the benefits of
clean water are not shared equally by all communities, and this review
of the LCRR will be consistent with the policy aims set forth in
Executive Order 13985, ``Advancing Racial Equity and Support for
Underserved Communities through the Federal Government.''
Cybersecurity in Public Water Systems. EPA is evaluating
regulatory approaches to ensure improved cybersecurity at public water
systems. EPA plans to offer separate guidance, training, and technical
assistance to states and public water systems on cybersecurity. This
action is expected to provide regulatory clarity and certainty and
promote the adoption of cybersecurity measures by public water systems.
Federal Baseline Water Quality Standards for Indian
Reservations. EPA is developing a proposed rule to establish tribal
baseline water quality standards (WQS) for waters on Indian
reservations that do not have WQS under the CWA. The development of
this rule will help advance President Biden's commitment to
strengthening the nation-to-nation relationships with Indian Country.
Currently, less than 20 percent of reservations have EPA-approved
tribal WQS. Promulgating baseline WQS would address this longstanding
gap and provide more scientific rigor and regulatory certainty to
National Pollutant Discharge Elimination System (NPDES) permits for
discharges to these waters. Consistent with EPA's regulations, the
baseline WQS would include designated uses, water quality criteria to
protect those uses, and antidegradation policies to protect high
quality waters. EPA has consulted with tribes and will continue to do
so.
[[Page 5150]]
Safeguard and Revitalize Communities
EPA works to improve the health and livelihood of all Americans by
cleaning up and returning land to productive use, preventing
contamination, and responding to emergencies. EPA collaborates with
other federal agencies, industry, states, tribes, and local communities
to enhance the livability and economic vitality of neighborhoods.
Challenging and complex environmental problems persist at many
contaminated properties, including contaminated soil, sediment, surface
water, and groundwater that can cause human health concerns. EPA's
regulatory program works to incorporate new technologies and approaches
to cleaning up land to provide for an environmentally sustainable
future more efficiently and effectively, as well as to strengthen
climate resilience and to integrate environmental justice and equitable
development when returning sites to productive use. Along with the
other land and emergency management actions in the regulatory agenda,
EPA will take the following priority actions to address the
contamination of soil, sediment, surface water, and groundwater.
Designation of Perfluorooctanoic and
Perfluorooctanesulfonic Acids as Hazardous Substances. EPA issued a
PFAS Action Plan on February 14, 2019, responding to extensive public
interest and input. The plan announced that EPA will begin the steps
necessary to propose designating PFOA and PFOS as hazardous substances
through one of the available statutory mechanisms in section 102 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA). CERCLA, commonly known as Superfund, provides EPA with
enforcement authority and establishes liability for releases or
threatened releases of hazardous substances. Designating PFOA and PFOS
as CERCLA hazardous substances will require reporting of releases of
PFOA and PFOS that meet or exceed the reportable quantity assigned to
these substances. This will enable federal, state, tribal and local
authorities to collect information regarding the location and extent of
release. Moreover, designating PFOS and PFOA as hazardous substances
under CERCLA would expand EPA's authority to investigate or respond to
a release, and, thereby, reduce harm or risk to human health, welfare,
and the environment.
Hazardous and Solid Waste Management System: Disposal of
Coal Combustion Residues from Electric Utilities. EPA is planning to
amend the existing regulations in 40 CFR part 257 on the disposal of
Coal Combustion Residuals (CCR) under subtitle D of the Resource
Conservation and Recovery Act, initially issued on April 17, 2015 (80
FR 21302). By implementing the April 2015 final rule, EPA is working to
ensure that CCR disposal units that do not meet rule requirements,
including unlined surface impoundments, cease receipt of waste and
close in a way that protects public health and the environment. In
addition, the Water Infrastructure Improvements for the Nation Act of
2016 established new statutory provisions applicable to CCR disposal
units and authorized EPA, if provided specific appropriations, to
develop a federal permit program in nonparticipating states for CCR
units. EPA plans to finalize regulatory amendments to provide a federal
CCR permitting program. Finally, EPA plans to propose a rule to
regulate inactive CCR surface impoundments at inactive utilities, or
``legacy units.''
Accidental Release Prevention Requirements: Risk Management Program
(RMP) under the Clean Air Act; Retrospection. In accordance with
Executive Order 13990, EPA is revising the RMP regulations, which
implement the requirements of CAA section 112(r)(7). RMP requires
facilities that use extremely hazardous substances to develop a Risk
Management Plan. In 2019, EPA finalized a reconsideration of the RMP
regulations that eliminated many of the major incident prevention
initiatives that had been established in 2017 amendments to the rule.
To support the current revisions, EPA hosted listening sessions to
provide interested stakeholders the opportunity to present information
or comment on issues pertaining to these revisions.
Ensure Safety of Chemicals for People and the Environment
EPA is responsible for ensuring the safety of chemicals and
pesticides for all people at all life stages. Chemicals and pesticides
released into the environment as a result their manufacture,
processing, distribution, use, or disposal can threaten human health
and the environment. EPA gathers and assesses information about the
risks associated with chemicals and pesticides and acts to minimize
risks and prevent unreasonable risks to individuals, families, and the
environment. EPA acts under several different statutory authorities,
including the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA), the Federal Food, Drug and Cosmetic Act (FFDCA), the Toxic
Substances Control Act (TSCA), the Emergency Planning and Community
Right-to-Know-Act (EPCRA), and the Pollution Prevention Act (PPA).
Using best available science, the Agency will continue to satisfy its
overall directives under these authorities and highlights the following
rulemakings intended for release in FY2022:
Chemical Specific Risk Management Rulemakings under TSCA section
6(a). As amended in 2016, TSCA requires EPA to evaluate the safety of
existing chemicals via a three-stage process: Prioritization, risk
evaluation, and risk management. EPA first prioritizes chemicals as
either high- or low-priority for risk evaluation. EPA evaluates high-
priority chemicals for unreasonable risk. If, at the end of the risk
evaluation process, EPA determines that a chemical presents an
unreasonable risk to health or the environment, the Agency must
immediately move the chemical to risk management action under TSCA. EPA
is required to implement, via regulation, regulatory restrictions on
the manufacture, processing, distribution, use or disposal of the
chemical to eliminate the unreasonable risk. TSCA gives EPA a range of
risk management options, including labeling, recordkeeping or notice
requirements, actions to reduce human exposure or environmental
release, or a ban of the chemical or of certain uses.
As announced on June 30, 2021, EPA reviewed the TSCA risk
evaluations issued for the first 10 chemicals and as a result intends
to implement policy changes to ensure the Agency is protecting human
health and the environment under the requirements of TSCA. Upon review
of the risk evaluations issued for Cyclic Aliphatic Bromide Cluster
(HBCD) (RIN 2070-AK71), C.I. Pigment Violet 29 (PV29) (RIN 2070-AK87),
and asbestos (part 1: Chrysotile asbestos) (RIN 2070-AK86), EPA
currently believes these risk evaluations are likely sufficient to
inform the risk management approaches being considered and that these
approaches will be protective; therefore, the Agency does not think it
needs to conduct any additional technical analysis that would amend the
risk evaluation. However, EPA does intend to reissue individual
chemical risk determinations that amend the approach to personal
protective equipment (PPE) and include a whole chemical risk
determination for HBCD (RIN 2070-AK71) and PV29 (RIN 2070-AK87) and,
during part 2 of the risk evaluation for asbestos. The Agency is also
working expeditiously on risk management and believes the proposed
rules for HBCD (RIN 2070-AK71) and asbestos (part 1: Chrysotile
asbestos) (RIN 2070-AK86)
[[Page 5151]]
will likely be the first of the 10 to be ready for release in FY2022.
Modification to the Minimum Risk Pesticide Listing
Program. Under FIFRA section 25(b), EPA has determined that certain
``minimum risk pesticides'' pose little to no risk to human health or
the environment and has exempted them from registration and other
requirements under FIFRA. In 1996, EPA created a regulatory list of
minimum risk active and inert ingredients in 40 CFR 152.25. Such
exemption reduces the cost and regulatory burdens on businesses and the
public for those pesticides deemed to pose little or no risk and allows
EPA to focus our resources on pesticides that pose greater risk to
humans and the environment. EPA is considering streamlining the
petition process and revising how the Agency evaluates the potential
minimum risk active and inert substances, factors used in classes of
exemptions, state implementation of the minimum risk program, and the
need for any future exemptions or modifications to current exemptions.
On April 8, 2021 (86 FR 18232), EPA issued an advance notice of
proposed rulemaking to solicit public input that it is considering in
developing a proposed rule that the Agency intends to issue in FY2022.
Rules Expected To Affect Small Entities
By better coordinating small business activities, EPA aims to
improve its technical assistance and outreach efforts, minimize burdens
to small businesses in its regulations, and simplify small businesses'
participation in its voluntary programs. Actions that may affect small
entities can be tracked on EPA's Regulatory Flexibility website
(https://www.epa.gov/reg-flex) at any time.
EPA--OFFICE OF AIR AND RADIATION (OAR)
Proposed Rule Stage
144. National Emission Standards for Hazardous Air Pollutants: Ethylene
Oxide Commercial Sterilization and Fumigation Operations
Priority: Other Significant.
Legal Authority: 42 U.S.C. 7412 Clean Air Act; 42 U.S.C.
7607(d)(7)(B)
CFR Citation: 40 CFR 63.
Legal Deadline: None.
Abstract: The National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Ethylene Oxide Commercial Sterilization and
Fumigation Operations were finalized in December 1994 (59 FR 62585).
The standards require existing and new major sources to control
emissions to the level achievable by the maximum achievable control
technology (MACT) and require existing and new area sources to control
emissions using generally available control technology (GACT). EPA
completed a residual risk and technology review for the NESHAP in 2006
and, at that time, concluded that no revisions to the standards were
necessary. In this action, EPA will conduct the second technology
review for the NESHAP and also assess potential updates to the rule. To
aid in this effort, EPA issued an advance notice of proposed rulemaking
(ANPRM) that solicited comment from stakeholders and undertook a Small
Business Advocacy Review (SBAR) panel, which is needed when there is
the potential for significant economic impacts to small businesses from
any regulatory actions being considered. EPA is also planning to
undertake community outreach as part of the development of this action.
Statement of Need: The National Air Toxics Assessment (NATA)
released in August 2018 identified ethylene oxide (EtO) emissions as a
potential concern in several areas across the country. The latest NATA
estimates that EtO significantly contributes to potential elevated
cancer risks in some census tracts. These elevated risks are largely
driven by an EPA risk value that was updated in December 2016. Further
investigation on NATA inputs and results led to the EPA identifying
commercial sterilization using EtO as a source category contributing to
some of these risks. Over the past two years, the EPA has been
gathering additional information to help evaluate opportunities to
reduce EtO emissions in this source category through potential NESHAP
revisions. In this rule, EPA will address EtO emissions from commercial
sterilizers.
Summary of Legal Basis: CAA section 112, 42 U.S.C. 7412, provides
the legal framework and basis for regulatory actions addressing
emissions of hazardous air pollutants from stationary sources. CAA
section 112(d)(6) requires EPA to review, and revise as necessary,
emission standards promulgated under CAA section 112(d) at least every
8 years, considering developments in practices, processes, and control
technologies.
Alternatives: EPA is evaluating various options for reducing EtO
emissions from commercial sterilizers under the NESHAP, such as
pollution control equipment, reducing fugitive emissions, or
monitoring.
Anticipated Cost and Benefits: Based on conversations with
regulated entities who have been working to reduce emissions, the
potential costs of controlling some emissions sources could be
substantial.
Risks: As part of this rulemaking, EPA has been updating
information regarding EtO emissions and the specific emission points
within the source category. Preliminary analyses suggest that fugitive
emissions from commercial sterilizers may substantially contribute to
health risks associated with exposure to EtO.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 12/12/19 84 FR 67889
NPRM................................ 06/00/22 .......................
Final Rule.......................... 10/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Additional Information:
Sectors Affected: 311423 Dried and Dehydrated Food Manufacturing;
33911 Medical Equipment and Supplies Manufacturing; 561910 Packaging
and Labeling Services; 325412 Pharmaceutical Preparation Manufacturing;
311942 Spice and Extract Manufacturing.
Agency Contact: Jonathan Witt, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code E143-
05, Research Triangle Park, NC 27709, Phone: 919 541-5645, Email:
[email protected].
Steve Fruh, Environmental Protection Agency, Office of Air and
Radiation, E143-01, 109 T.W. Alexander Drive, Research Triangle Park,
NC 27711, Phone: 919 541-2837, Email: [email protected].
RIN: 2060-AU37
EPA--OAR
145. Control of Air Pollution From New Motor Vehicles: Heavy-Duty
Engine and Vehicle Standards
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7414 et seq. Clean Air Act
CFR Citation: 40 CFR 86.
Legal Deadline: None.
Abstract: Heavy-duty engines have been subject to emission
standards for criteria pollutants, including particulate matter (PM),
hydrocarbon (HC), carbon monoxide (CO), and oxides of nitrogen
(NOX), for nearly half a century; however, current data
suggest that the
[[Page 5152]]
existing standards do not ensure full, in-use emission control. In
particular, in-use engine NOX emission levels from heavy-
duty vehicles can be significantly higher than their certified values
under certain conditions. NOX emissions are major precursors
of ozone and significant contributors to secondary PM2.5
formation. Ozone and ambient PM2.5 concentrations continue
to be a nationwide health and air quality issue. Reducing
NOX emissions from on-highway, heavy-duty trucks and buses
is an important component of improving air quality nationwide and
reducing public health and welfare effects associated with these
pollutants, especially for vulnerable populations and in highly
impacted regions. This action will evaluate data on current
NOX emissions from heavy-duty vehicles and engines, and
options available to improve control of criteria pollutant emissions
through revised emissions standards. Additionally, this action will
contain targeted greenhouse gas (GHG) reductions and evaluate ways to
streamline existing requirements. This rulemaking will address
significant public health and environmental justice concerns caused by
pollution from internal combustion engines while supporting early
introduction of zero emission technologies.
Statement of Need: This action follows petitions for a rulemaking
on this issue from over 20 organizations including state and local air
agencies from across the country.
Summary of Legal Basis: CAA section 202(a).
Alternatives: EPA may request comment to address alternative
options in the proposed rule.
Anticipated Cost and Benefits: Updating these standards will result
in NOX reductions from mobile sources and could be one
important way that allows areas across the U.S. to meet National
Ambient Air Quality Standards for ozone and particulate matter.
Updating the standards will also offer opportunities to reduce
regulatory burden through smarter program design.
Risks: EPA will evaluate the risks of this rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 01/21/20 85 FR 3306
NPRM................................ 01/00/22 .......................
Final Rule.......................... 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information:
Sectors Affected: 11 Agriculture, Forestry, Fishing and Hunting;
211112 Natural Gas Liquid Extraction; 324110 Petroleum Refineries;
325110 Petrochemical Manufacturing; 325193 Ethyl Alcohol Manufacturing;
325199 All Other Basic Organic Chemical Manufacturing; 333618 Other
Engine Equipment Manufacturing; 335312 Motor and Generator
Manufacturing; 336111 Automobile Manufacturing; 336112 Light Truck and
Utility Vehicle Manufacturing; 336120 Heavy Duty Truck Manufacturing;
336211 Motor Vehicle Body Manufacturing; 336213 Motor Home
Manufacturing; 336311 Carburetor, Piston, Piston Ring, and Valve
Manufacturing; 336312 Gasoline Engine and Engine Parts Manufacturing;
336999 All Other Transportation Equipment Manufacturing; 423110
Automobile and Other Motor Vehicle Merchant Wholesalers; 424690 Other
Chemical and Allied Products Merchant Wholesalers; 424710 Petroleum
Bulk Stations and Terminals; 486910 Pipeline Transportation of Refined
Petroleum Products; 493130 Farm Product Warehousing and Storage; 811111
General Automotive Repair; 811112 Automotive Exhaust System Repair;
811198 All Other Automotive Repair and Maintenance.
Agency Contact: Tuana Phillips, Environmental Protection Agency,
Office of Air and Radiation, 1200 Pennsylvania NW, Washington, DC
20460, Phone: 410 267-5704, Email: [email protected].
Christy Parsons, Environmental Protection Agency, Office of Air and
Radiation, USEPA National Vehicle and Fuel Emissions Laboratory, Ann
Arbor, MI 48105, Phone: 734 214-4243, Email: [email protected].
RIN: 2060-AU41
EPA--OAR
146. Amendments to the NSPS for GHG Emissions From New, Modified,
Reconstructed Stationary Sources: EGUS
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7411 Clean Air Act
CFR Citation: 40 CFR 60 TTTT.
Legal Deadline: None.
Abstract: On October 23, 2015, the EPA finalized Standards of
Performance for Greenhouse Gas Emissions From New, Modified, and
Reconstructed Stationary Sources: Electric Generating Units, found at
40 CFR part 60, subpart TTTT. On December 20, 2018, the EPA proposed to
revise the standards of performance in 40 CFR part 60, subpart TTTT.
The EPA proposed to amend the previous determination that the best
system of emission reduction (BSER) for newly constructed coal-fired
steam generating units (i.e., EGUs) is partial carbon capture and
storage, and replace it with a determination that BSER for this source
category is the most efficient demonstrated steam cycle (e.g.,
supercritical steam conditions for large units and subcritical steam
conditions for small units) in combination with the best operating
practices. The EPA is undertaking a comprehensive review of the NSPS
for greenhouse gas emissions from EGUs, including a review of all
aspects of the 2018 proposed amendments and requirements in the 2015
Rule that the Agency did not propose to amend in the 2018 proposal.
Statement of Need: New EGUs are a significant source of GHG
emissions. This action will evaluate options to reduce those emissions.
Summary of Legal Basis: Clean Air Act section 111(b) provides the
legal framework for establishing greenhouse gas emission standards for
new electric generating units.
Alternatives: EPA evaluated several options for reducing GHG
emissions from new EGUs
Anticipated Cost and Benefits: Undetermined.
Risks: Undetermined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22 .......................
Final Rule.......................... 06/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information:
Agency Contact: Christian Fellner, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-
01, Research Triangle Park, NC 27711, Phone: 919 541-4003, Fax: 919
541-4991, Email: [email protected].
[[Page 5153]]
Nick Hutson, Environmental Protection Agency, Office of Air and
Radiation, 109 T.W. Alexander Drive. Mail Code D243-01, Research
Triangle Park, NC 27711, Phone: 919 541-2968, Fax: 919 541-4991, Email:
[email protected].
Related RIN: Related to 2060-AT56.
RIN: 2060-AV09
EPA--OAR
147. Emission Guidelines for Greenhouse Gas Emissions From Fossil Fuel-
Fired Existing Electric Generating Units
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 7411 Clean Air Act
CFR Citation: 40 CFR 60 UUUU.
Legal Deadline: None.
Abstract: On January 19, 2021, the D.C. Circuit Court issued an
opinion vacating the Affordable Clean Energy Rule (found at 40 CFR part
60, subpart UUUUa)--the previously applicable emission guidelines for
greenhouse gas (GHG) emissions from existing electric generating units
(i.e. EGUs). The EPA is working on a new set of emission guidelines for
states to follow in submitting state plans to establish and implement
standards of performance for greenhouse gas emissions from existing
fossil fuel-fired EGUs.
Statement of Need: There are no EPA regulations on the books for
greenhouse gases from existing fossil-fuel fired electric generating
units. Previous regulations of this nature have either been vacated or
repealed prior to implementation.
Summary of Legal Basis: Clean Air Act section 111(d) provides the
legal framework for establishing greenhouse gas emission standards for
existing electric generating units.
Alternatives: There are no alternatives at this time.
Anticipated Cost and Benefits: EPA is still evaluating the scope
and associated costs, benefits and reductions with a prospective rule.
Risks: EPA is still evaluating the scope and risks with a
prospective rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/22 .......................
Final Rule.......................... 07/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, State, Tribal.
Federalism: Undetermined.
Energy Effects: Statement of Energy Effects planned as required by
Executive Order 13211.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information:
Agency Contact: Nicholas Swanson, Environmental Protection Agency,
Office of Air and Radiation, E143-03, Research Triangle Park, NC 27711,
Phone: 919 541-4080, Email: [email protected].
Nick Hutson, Environmental Protection Agency, Office of Air and
Radiation, 109 T.W. Alexander Drive, Mail Code D243-01, Research
Triangle Park, NC 27711, Phone: 919 541-2968, Fax: 919 541-4991, Email:
[email protected].
RIN: 2060-AV10
EPA--OAR
148. Renewable Fuel Standard (RFS) Program: RFS Annual Rules
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7414 et seq. Clean Air Act
CFR Citation: 40 CFR 80.
Legal Deadline: Final, Statutory, November 30, 2021, The Energy
Independence and Security Act of 2007 (EISA 2007) requires the RFS
volumes be finalized by November 30th of the year preceding the
compliance year.
Abstract: Under section 211 of the Clean Air Act, the Environmental
Protection Agency (EPA) is required to set renewable fuel percentage
standards every year. This action establishes the annual percentage
standards for cellulosic biofuel, biomass-based diesel, advanced
biofuel, and total renewable fuel that apply to gasoline and diesel
transportation fuel.
Statement of Need: The Clean Air Act requires EPA to promulgate
regulations that specify the annual volume requirements for renewable
fuels under the Renewable Fuel Standard (RFS) program. The RFS program
was created under the Energy Independence and Security Act of 2007 to
``move the United States toward greater energy independence and
security, to increase the production of clean renewable fuels, to
protect consumers, to increase the efficiency of products, buildings,
and vehicles, to promote research on and deploy greenhouse gas capture
and storage options, and to improve the energy performance of the
Federal Government.''
Summary of Legal Basis: CAA section 211(o).
Alternatives: EPA is considering alternative volume standards in
the development of the proposal, including a response to the D.C.
Circuit remand of the rule establishing the RFS volumes for 2016. We
intend to continue to consider alternatives as we develop the proposed
rule.
Anticipated Cost and Benefits: Anticipated costs will be developed
for the proposed rule. Costs and benefits of this rulemaking account
for the nature of the program and the nested structure of the volume
requirements. An updated estimate of the costs, based on a number of
illustrative assumptions, will be provided in the proposed rule.
Risks: Environmental and resource impacts of the RFS program are
primarily addressed under another section of the CAA (Section 204). EPA
released an updated report to congress on June 29, 2018. More
information on this report can be found at: https://cfpub.epa.gov/si/si_public_record_Report.cfm?dirEntryId=341491.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
Final Rule.......................... 02/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Additional Information:
Sectors Affected: 325199 All Other Basic Organic Chemical
Manufacturing; 325193 Ethyl Alcohol Manufacturing; 221210 Natural Gas
Distribution; 111120 Oilseed (except Soybean) Farming; 424710 Petroleum
Bulk Stations and Terminals; 324110 Petroleum Refineries; 424720
Petroleum and Petroleum Products Merchant Wholesalers (except Bulk
Stations and Terminals).
Agency Contact: Dallas Burkholder, Environmental Protection Agency,
Office of Air and Radiation, N26, 2565 Plymouth Road, Ann Arbor, MI
48105, Phone: 734 214-4766, Email: [email protected].
Nick Parsons, Environmental Protection Agency, Office of Air and
Radiation, NVFEL, 2565 Plymouth Road, Ann Arbor, MI 48105, Phone: 734
214-4479, Email: [email protected].
Related RIN: Related to 2060-AU82.
RIN: 2060-AV11
[[Page 5154]]
EPA--OAR
149. NESHAP: Coal- and Oil-Fired Electric Utility Steam Generating
Units--Revocation of the 2020 Reconsideration, and Affirmation of the
Appropriate and Necessary Supplemental Finding
Priority: Other Significant.
Legal Authority: 42 U.S.C. 7412 Clean Air Act; 42 U.S.C.
7607(d)(7)(B)
CFR Citation: 40 CFR 63.
Legal Deadline: None.
Abstract: On February 16, 2012, EPA promulgated National Emission
Standards for Hazardous Air Pollutants for Coal- and Oil-fired Electric
Utility Steam Generating Units (77 FR 9304). The rule (40 CFR part 63,
subpart UUUUU), commonly referred to as the Mercury and Air Toxics
Standards (MATS), includes standards to control hazardous air pollutant
(HAP) emissions from new and existing coal- and oil-fired electric
utility steam generating units (EGUs) located at both major and area
sources of HAP emissions. There have been several regulatory actions
regarding MATS since February 2012, including a May 22, 2020, action
that completed a reconsideration of the appropriate and necessary
finding for MATS and finalized the residual risk and technology review
(RTR) conducted for the Coal- and Oil-Fired EGU source category
regulated under MATS (85 FR 31286). The Biden Administration's
Executive Order 13990, Protecting Public Health and the Environment and
Restoring Science To Tackle the Climate Crisis, ``directs all executive
departments and agencies (agencies) to immediately review and, as
appropriate and consistent with applicable law, take action to address
the promulgation of Federal regulations and other actions during the
last 4 years that conflict with these important national objectives,
and to immediately commence work to confront the climate crisis.''
Section 2(a)(iv) of the Executive Order specifically directs that the
Administrator consider publishing, as appropriate and consistent with
applicable law, a proposed rule suspending, revising, or rescinding the
``National Emission Standards for Hazardous Air Pollutants: Coal- and
Oil-Fired Electric Utility Steam Generating Units--Reconsideration of
Supplemental Finding and Residual Risk and Technology Review,'' 85 FR
31286 (May 22, 2020), As directed by Executive Order 13990, EPA will
review the May 22, 2020 final action and, under this action, will take
appropriate action resulting from its review of the May 2020 finding
that it is not appropriate and necessary to regulate coal- and oil-
fired EGUs under Clean Air Act section 112. Results of EPA's review of
the May 2020 RTR will be presented in a separate action (RIN 2060-
AV53).
Statement of Need: As directed by Executive Order 13990, EPA has
completed its review of the May 2020 finding that it is not appropriate
and necessary to regulate coal- and oil-fired EGUs under Clean Air Act
section 112. EPA will issue the results of the review in a notice of
proposed rulemaking and will solicit comment on the resulting finding.
Summary of Legal Basis: CAA section 112, 42 U.S.C. 7412, provides
the legal framework and basis for regulatory actions addressing
emissions of hazardous air pollutants from stationary sources.
Alternatives: Two bases for the appropriate and necessary
determination, one preferred and one alternative, are put forth in the
proposed rulemaking.
Anticipated Cost and Benefits: There are no anticipated costs or
benefits because there are no regulatory amendments or impacts
associated with review of the appropriate and necessary finding.
Risks: There are no anticipated risks because there are no
regulatory amendments or impacts associated with review of the
appropriate and necessary finding.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/21 .......................
Final Rule.......................... 09/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Additional Information: EPA-HQ-OAR-2018-0794.
Sectors Affected: 921150 American Indian and Alaska Native Tribal
Governments; 221122 Electric Power Distribution; 221112 Fossil Fuel
Electric Power Generation.
URL For More Information: ttps://www.epa.gov/mats/regulatory-actions-final-mercury-and-air-toxics-standards-mats-power-plants.
Agency Contact: Nick Hutson, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-
01, Research Triangle Park, NC 27711, Phone: 919 541-2968, Fax: 919
541-4991, Email: [email protected].
Melanie King, Environmental Protection Agency, Office of Air and
Radiation, 109 T.W. Alexander Drive, Mail Code D243-01, Research
Triangle Park, NC 27711, Phone: 919 541-2469, Email:
[email protected].
Related RIN: Related to 2060-AT99.
RIN: 2060-AV12
EPA--OAR
150. Standards of Performance for New, Reconstructed, and Modified
Sources and Emissions Guidelines for Existing Sources: Oil and Natural
Gas Sector Climate Review
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7411
CFR Citation: 40 CFR 60; 40 CFR 60 subpart OOOOa.
Legal Deadline: None.
Abstract: On January 20, 2021, President Joe Biden issued an
Executive Order titled ``Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis,'' which directs the
EPA to take certain actions by September 2021 to reduce methane and
volatile organic compound (VOC) emissions in the oil and natural gas
sector. Specifically, the Executive Order directs the EPA to review the
new source performance standards (NSPS) issued in 2020 for the oil and
gas sector and, as appropriate and consistent with applicable law,
consider publishing for notice and comment a proposed rule suspending,
revising, or rescinding the NSPS. The Executive Order further directs
the EPA to consider proposing (1) new regulations to establish
comprehensive NSPS for methane and VOC emissions and (2) new
regulations to establish emission guidelines for methane emissions from
existing operations in the oil and gas sector, including from the
exploration and production, transmission, processing, and storage
segments. The purpose of this action is to review the existing NSPS and
propose new standards as necessary to meet the directives set forth in
the Executive Order, as well as to propose new emission guidelines for
existing sources in the oil and gas sector.
Statement of Need: Executive Order 13990, ``Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis''. The Executive Order directs the EPA to consider proposing, by
September 2021, a rulemaking to reduce methane emissions in the Oil and
Natural Gas source category by suspending, revising, or rescinding
previously issued new source performance standards. It also instructs
the EPA to consider proposing new regulations to establish
comprehensive standards of performance and emission guidelines for
methane and volatile organic
[[Page 5155]]
compound (VOC) emissions from existing operations in the oil and
natural gas sector, including the exploration and production,
processing, transmission and storage segments.
Summary of Legal Basis: Clean Air Act section 111(b) provides the
legal framework for establishing greenhouse gas emission standards (in
the form of limitations on methane) and volatile organic compounds for
new oil and natural gas sources. Clean Air Act section 111(d) provides
the legal framework for establishing greenhouse gas emission standards
(in the form of limitations on methane) for existing oil and natural
gas sources.
Alternatives: The EPA has evaluated several options for new and
existing sources and will propose and solicit comment on those options.
Anticipated Cost and Benefits: EPA is still evaluating the scope
and associated costs, benefits and reductions associated with the
forthcoming proposed rules.
Risks: EPA is still evaluating the scope and risks associated with
the forthcoming proposed rules.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/15/21 86 FR 63110
NPRM Comment Period End............. 01/14/22 .......................
Final Rule.......................... 10/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Energy Effects: Statement of Energy Effects planned as required by
Executive Order 13211.
Additional Information:
Agency Contact: Karen Marsh, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code E143-
01, Research Triangle Park, NC 27711, Phone: 919 541-1065, Email:
[email protected].
Steve Fruh, Environmental Protection Agency, Office of Air and
Radiation, 109 T.W. Alexander Drive, Mail Code E143-01, Research
Triangle Park, NC 27711, Phone: 919 541-2837, Email:
[email protected].
RIN: 2060-AV16
EPA--OAR
151. Review of Final Rule Reclassification of Major Sources as Area
Sources Under Section 112 of the Clean Air Act
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7401 et seq.
CFR Citation: 40 CFR 63.1.
Legal Deadline: None.
Abstract: The final rule, Reclassification of Major Sources as Area
Sources Under section 112 of the Clean Air Act (Major MACT to Area-
MM2A final rule), was promulgated on November 19, 2020. (See 85 FR
73854) The MM2A final rule became effective on January 19, 2021. On
January 20, 2021, President Biden issued Executive Order 13990
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis. The EPA has identified the MM2A final rule
as an action being considered pursuant section (2)(a) of Executive
Order 13990. Under this review, EPA, as appropriate and consistent with
the Clean Air Act section 112, will publish for comment a notice of
proposed rulemaking either suspending, revising, or rescinding the MM2A
final rule.
Statement of Need: The EPA will issue a notice of proposed
rulemaking of EPA's review of the final rule Reclassification of Major
Sources as Area Sources Under section 112 of the Clean Air Act (Major
MACT to Area- MM2A final rule) pursuant Executive Order 13990. Pursuant
section (2)(a) of Executive Order 13990 Protecting Public Health and
the Environment and Restoring Science to Tackle the Climate Crisis, the
EPA is to review the MM2A final rule and as appropriate and consistent
with the Clean Air Act section 112, to publish for comment a notice of
proposed rulemaking either suspending, revising, or rescinding the MM2A
final rule.
Summary of Legal Basis: The EPA issued a final rulemaking on
November 19, 2020. The final MM2A rule provides that a major source can
be reclassified to area source status at any time upon reducing its
potential to emit (PTE) hazardous air pollutants (HAP) to below the
major source thresholds (MST) of 10 tons per year (tpy) of any single
HAP and 25 tpy of any combination of HAP. Pursuant section (2)(a) of
Executive Order 13990 Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis, the EPA is to review
the MM2A final rule and as appropriate and consistent with the Clean
Air Act section 112, to publish for comment a notice of proposed
rulemaking either suspending, revising, or rescinding the MM2A final
rule.
Alternatives: EPA will take comments on the review of the final
MM2A and EPA's proposed rulemaking either suspending, revising, or
rescinding the MM2A final rule.
Anticipated Cost and Benefits: The anticipated costs and benefits
of this action are to be determined.
Risks: The risks of this action are to be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22 .......................
Final Rule.......................... 06/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: Undetermined.
Additional Information:
Agency Contact: Elineth Torres, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D205-
02, Research Triangle Park, NC 27709, Phone: 919 541-4347, Email:
[email protected].
Jodi Howard, Environmental Protection Agency, Office of Air and
Radiation, E143-01, Research Triangle Park, NC 27711, Phone: 919 541-
4991, Fax: 919 541-0246, Email: [email protected].
Related RIN: Related to 2060-AM75.
RIN: 2060-AV20
EPA--OAR
152. Restrictions on Certain Uses of Hydrofluorocarbons Under
Subsection (i) of the American Innovation and Manufacturing Act
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7401 et seq.
CFR Citation: 40 CFR 610.
Legal Deadline: None.
Abstract: EPA is considering a rule that will in part respond to
petitions granted under subsection (i) of the American Innovation and
Manufacturing (AIM) Act of 2020, enacted on December 27, 2020.
Specifically, EPA is considering a rule restricting, fully, partially,
or on a graduated schedule, the use of HFCs in sectors or subsectors
including the refrigeration, air conditioning, aerosol, and foam
sectors, and establishing recordkeeping and reporting requirements, and
addressing other related elements of the AIM Act.
Statement of Need: This rule is required to meet the statutory
provisions of subsection (i) of the American Innovation and
Manufacturing (AIM) Act of 2020.
Summary of Legal Basis: The American Innovation and
[[Page 5156]]
Manufacturing (AIM) Act, enacted on December 27, 2020, provides EPA new
authorities to address hydrofluorocarbons (HFCs) in three main areas:
Phasing down the production and consumption of listed HFCs, maximizing
reclamation and minimizing releases of these HFCs and their substitutes
in equipment (e.g., refrigerators and air conditioners), and
facilitating the transition to next-generation technologies by
restricting the use of HFCs in particular sectors or subsectors.
Subsection (i) of the AIM Act provides that a person may petition EPA
to promulgate a rule for the restriction on use of a regulated
substance in a sector or subsector. The statute requires EPA to grant
or deny a petition under not later than 180 days after the date of
receipt of the petition. If EPA grants a petition under subsection (i),
then the statute requires EPA to promulgate a final rule not later than
two years after the date on which the EPA grants the petition. In
carrying out a rulemaking or making a determination to grant or deny a
petition, the statute requires EPA, to the extent practicable, to take
into account specified factors.
Alternatives: The alternatives for establishing a subsection (i)
rule are whether to restrict, fully, partially, or on a graduated
schedule, the use of HFCs in sectors or subsectors.
Anticipated Cost and Benefits: The Agency will prepare a Regulatory
Impact Analysis (RIA) to provide the public with estimated potential
costs and benefits of this action.
Risks: EPA is still evaluating the scope and risks associated with
a prospective rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/22
Final Rule.......................... 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information:
Agency Contact: Joshua Shodeinde, Environmental Protection Agency,
Office of Air and Radiation, 1200 Pennsylvania Avenue NW, Washington,
DC 20460, Phone: 202 564-7037, Email: [email protected].
RIN: 2060-AV46
EPA--OAR
153. Review of the National Ambient Air Quality Standards for
Particulate Matter
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 7414 et seq. Clean Air Act
CFR Citation: 40 CFR 50.
Legal Deadline: None.
Abstract: Under the Clean Air Act Amendments of 1977, EPA is
required to review and if appropriate revise the air quality criteria
for the primary (health-based) and secondary (welfare-based) national
ambient air quality standards (NAAQS) every 5 years. On December 18,
2020, the EPA published a final decision retaining the NAAQS for
particulate matter (PM), which was the subject of several petitions for
reconsideration as well as petitions for judicial review. As directed
in Executive Order 13990, ``Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis,''
signed by President Biden on January 20, 2021, EPA is undertaking a
review of the decision to retain the PM NAAQS. Based on that review,
EPA is undertaking a rulemaking to reconsider the December 18, 2020
decision because the available scientific evidence and technical
information indicate that the current standards may not be adequate to
protect public health and welfare, as required by the Clean Air Act. As
part of this reconsideration, EPA intends to develop an updated
Integrated Science Assessment (ISA) and revised policy assessment to
take into account the most up-to-date science on public health impacts
of PM, and to engage with the Clean Air Scientific Advisory Committee
(CASAC) and a newly constituted expert PM panel.
Statement of Need: Under the Clean Air Act Amendments of 1977, EPA
is required to review and if appropriate revise the air quality
criteria and national ambient air quality standards (NAAQS) every 5
years. On December 18, 2020, EPA published a final rule retaining the
NAAQS for particulate matter, without revision. On June 10, 2021, EPA
announced that it is reconsidering the December 2020 decision on the
air quality standards for PM.
Summary of Legal Basis: Under the Clean Air Act Amendments of 1977,
EPA is required to review and if appropriate revise the air quality
criteria and the primary (health-based) and secondary (welfare-based)
national ambient air quality standards (NAAQS) every 5 years.
Alternatives: The main alternative for the Administrator's decision
on the review of the national ambient air quality standards for
particulate matter is whether to retain or revise the existing
standards.
Anticipated Cost and Benefits: The Clean Air Act makes clear that
the economic and technical feasibility of attaining standards are not
to be considered in setting or revising the NAAQS, although such
factors may be considered in the development of state plans to
implement the standards. Accordingly, when the Agency proposes
revisions to the standards, the Agency prepares a Regulatory Impact
Analysis (RIA) to provide the public with illustrative estimates of the
potential costs and health and welfare benefits of attaining the
revised standards.
Risks: The reconsideration will build on the review completed in
2020, which included the preparation by EPA of an Integrated Review
Plan, an Integrated Science Assessment, and also a Policy Assessment,
which includes a risk/exposure assessment, with opportunities for
review by the EPA's Clean Air Scientific Advisory Committee (CASAC) and
the public. These documents informed the Administrator's final decision
to retain the PM standards in 2020. As a part of the reconsideration,
EPA will prepare an updated Policy Assessment and a Supplement to the
Integrated Science Assessment, which will be reviewed at a public
meeting by the CASAC. These documents will inform the Administrator's
proposed decisions on whether to revise the PM NAAQS, and will take
into consideration these documents, CASAC advice, and public comment on
the proposed decision.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/22
Final Rule.......................... 03/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Federalism: Undetermined.
Additional Information:
Agency Contact: Karen Wesson, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code C504-
06, Research Triangle Park, NC 27711, Phone: 919 541-3515, Email:
[email protected].
Nicole Hagan, Environmental Protection Agency, Office of Air and
Radiation, 109 T.W. Alexander Drive, Mail Code C504-06, Research
Triangle Park, NC 27709, Phone: 919 541-3153, Email:
[email protected].
[[Page 5157]]
RIN: 2060-AV52
EPA--OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION (OCSPP)
Proposed Rule Stage
154. Pesticides; Modification to the Minimum Risk Pesticide Listing
Program and Other Exemptions Under FIFRA Section 25(b)
Priority: Other Significant.
Legal Authority: 7 U.S.C. 136(w) Federal Insecticide Fungicide and
Rodenticide Act
CFR Citation: 40 CFR 152.
Legal Deadline: None.
Abstract: Under section 25(b) of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), EPA has determined that certain
``minimum risk pesticides'' pose little to no risk to human health or
the environment, and has exempted them from registration and other
requirements under FIFRA. In 1996, EPA created a regulatory list of
minimum risk active and inert ingredients in 40 CFR 152.25. Such an
exemption reduces the cost and regulatory burdens on businesses and the
public for those pesticides deemed to pose little or no risk, and
allows EPA to focus our resources on pesticides that pose greater risk
to humans and the environment. In April 2021, EPA issued an advance
notice of proposed rulemaking (ANPRM) soliciting public comments and
suggestions about the petition process for exemptions regarding
pesticides from registration and other requirements under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), where the
pesticides are determined to be of a character unnecessary to be
subject to regulation under FIFRA. The Agency is considering
streamlining the petition process and revisions to how the Agency
evaluates the potential minimum risk active and inert substances,
factors used in classes of exemptions, state implementation of the
minimum risk program and the need for any future exemptions or
modifications to current exemptions. EPA is also sought comment on
whether the Agency should consider amending existing exemptions or
adding new classes of pesticidal substances for exemption, such as peat
when used in septic filtration systems. EPA is currently considering
the public input received and development of a proposed rule.
Statement of Need: This rulemaking effort is intended to reduce
regulatory burdens and focus EPA resources on pesticide products that
have risks to public health or the environment by streamlining the
petition process used to seek such exemptions; revising how the Agency
evaluates the potential minimum risk active and inert substances,
factors used in classes of exemptions and state implementation of the
minimum risk program; and considering the need for any future
exemptions or modifications to current exemptions.
Summary of Legal Basis: Exemptions to the requirements of FIFRA are
issued under the authority of FIFRA section 25(b). Eligible products
may be exempt from, among other things, registration requirements under
FIFRA section 3.
Alternatives: In considering a streamlined petition process and
other improvements, EPA intends to identify and evaluate available
alternatives that facilitate the effective and efficient identification
of pesticides products that could be exempt from registration and other
requirements under FIFRA.
Anticipated Cost and Benefits: EPA intends to consider the costs
and benefits of proposed improvements during the development of the
proposed rule.
Risks: This procedural rule is not intended to address identified
risks, and, by definition, will only involve pesticides products
identified as having minimal risk.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 04/08/21 86 FR 18232
NPRM................................ 08/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information:
Sectors Affected: 624410 Child Day Care Services; 424210 Drugs and
Druggists' Sundries Merchant Wholesalers; 561710 Exterminating and Pest
Control Services; 424910 Farm Supplies Merchant Wholesalers; 561730
Landscaping Services; 423120 Motor Vehicle Supplies and New Parts
Merchant Wholesalers; 444220 Nursery, Garden Center, and Farm Supply
Stores; 311119 Other Animal Food Manufacturing; 444210 Outdoor Power
Equipment Stores; 325320 Pesticide and Other Agricultural Chemical
Manufacturing; 926150 Regulation, Licensing, and Inspection of
Miscellaneous Commercial Sectors; 562991 Septic Tank and Related
Services; 221320 Sewage Treatment Facilities; 238910 Site Preparation
Contractors; 325611 Soap and Other Detergent Manufacturing; 611620
Sports and Recreation Instruction; 445110 Supermarkets and Other
Grocery (except Convenience) Stores.
URL For More Information: https://www.epa.gov/minimum-risk-pesticides.
Agency Contact: Sara Kemme, Environmental Protection Agency, Office
of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue
NW, Mail Code 7101M, Washington, DC 20460, Phone: 202 566-1217, Email:
[email protected].
Cameo Smoot, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7101M, Washington, DC 20460, Phone: 202 566-1207, Email:
[email protected].
RIN: 2070-AK55
EPA--OCSPP
155. Cyclic Aliphatic Bromide Cluster (HBCD); Rulemaking Under TSCA
Section 6(a)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 15 U.S.C. 2605 Toxic Substances Control Act
CFR Citation: 40 CFR 751.
Legal Deadline: NPRM, Statutory, September 15, 2021, TSCA section
6(c).
Final, Statutory, September 15, 2022, TSCA section 6(c).
Abstract: Section 6 of the Toxic Substances Control Act (TSCA)
requires EPA to address unreasonable risks of injury to health or the
environment that the Administrator has determined are presented by a
chemical substance under the conditions of use. Following a risk
evaluation for cyclic aliphatic bromide cluster (HBCD) carried out
under the authority of the TSCA section 6, EPA initiated rulemaking to
address unreasonable risks of injury to health and the environment
identified in the final risk evaluation. EPA's risk evaluation for
HBCD, describing the conditions of use and presenting EPA's
determinations of unreasonable risk, is in docket EPA-HQ-OPPT-2019-
0237, with additional information in docket EPA-HQ-OPPT-2016-0735.
Statement of Need: This rulemaking is needed to address the
unreasonable risk of the Cyclic Aliphatic Bromide Cluster (or,
``HBCD'') identified in a risk evaluation completed under TSCA section
6(b). EPA reviewed the exposures and hazards of HBCD uses, the
magnitude of risk, exposed populations, severity of the hazard,
uncertainties, and other factors. EPA
[[Page 5158]]
sought input from the public and peer reviewers as required by TSCA and
associated regulations.
Summary of Legal Basis: In accordance with TSCA section 6(a), if
EPA determines in a final risk evaluation completed under TSCA 6(b)
that the manufacture, processing, distribution in commerce, use, or
disposal of a chemical substance or mixture, or that any combination of
such activities, presents an unreasonable risk of injury to health or
the environment, the Agency must issue regulations requiring one or
more of the following actions to the extent necessary so that the
chemical substance no longer presents an unreasonable risk: (1)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce; (2) Prohibit or otherwise restrict for a particular use or
above a set concentration; (3) Require minimum warnings and
instructions with respect to use, distribution in commerce, or
disposal; (4) Require recordkeeping or testing; (5) Prohibit or
regulate any manner or method of commercial use; (6) Prohibit or
regulate any manner or method of disposal; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors and replace or repurchase products if required.
Alternatives: There are no non-regulatory alternatives to this
rulemaking. TSCA section 6(a) requires EPA to address by rule chemical
substances that the Agency determines present unreasonable risk upon
completion of a final risk evaluation. As required under TSCA section
6(c), EPA will consider one or more primary alternative regulatory
actions as part of the development of a proposed rule.
Anticipated Cost and Benefits: EPA will prepare a regulatory impact
analysis as the Agency develops the proposed rule.
Risks: As EPA determined in the TSCA section 6(b) risk evaluation,
HBCD presents unreasonable risks to human health and the environment.
EPA must issue regulations so that this chemical substance no longer
presents an unreasonable risk. For more information, visit: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-existing-chemicals-under-tsca.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/22
Final Rule.......................... 04/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Additional Information: EPA-HQ-OPPT-2020-0548.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-cyclic-aliphatic-bromide-cluster-hbcd.
Agency Contact: Sue Slotnick, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7404T, Washington, DC 20460, Phone: 202 566-1973,
Email: [email protected].
Erik Winchester, Environmental Protection Agency, Office of
Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW,
Mail Code 7404T, Washington, DC 20460, Phone: 202 564-6450, Email:
[email protected].
RIN: 2070-AK71
EPA--OCSPP
156. Asbestos (Part 1: Chrysotile Asbestos); Rulemaking Under TSCA
Section 6(a)
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 15 U.S.C. 2605 Toxic Substances Control Act
CFR Citation: 40 CFR 751.
Legal Deadline: NPRM, Statutory, December 28, 2021, TSCA sec. 6(c).
Final, Statutory, December 28, 2022, TSCA sec. 6(c).
Abstract: Section 6 of the Toxic Substances Control Act (TSCA)
requires EPA to address unreasonable risks of injury to health or the
environment that the Administrator has determined are presented by a
chemical substance under the conditions of use. Following a risk
evaluation for chrysotile asbestos carried out under the authority of
TSCA section 6, EPA initiated rulemaking to address unreasonable risks
of injury to health identified in the final risk evaluation. EPA's risk
evaluation for chrysotile asbestos, describing the conditions of use
and presenting EPA's determinations of unreasonable risk, is in docket
EPA-HQ-OPPT-2019-0501, with additional information in docket EPA-HQ-
OPPT-2016-0736.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of chrysotile asbestos that were identified in a
risk evaluation completed under TSCA section 6(b). EPA reviewed the
exposures and hazards of chrysotile asbestos, the magnitude of risk,
exposed populations, severity of the hazard, uncertainties, and other
factors. EPA sought input from the public and peer reviewers as
required by TSCA and associated regulations.
Summary of Legal Basis: In accordance with TSCA section 6(a), if
EPA determines in a final risk evaluation completed under TSCA section
6(b) that the manufacture, processing, distribution in commerce, use,
or disposal of a chemical substance or mixture, or that any combination
of such activities, presents an unreasonable risk of injury to health
or the environment, the Agency must issue regulations requiring one or
more of the following actions to the extent necessary so that the
chemical substance no longer presents an unreasonable risk: (1)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce; (2) Prohibit or otherwise restrict for a particular use or
above a set concentration; (3) Require minimum warnings and
instructions with respect to use, distribution in commerce, or
disposal; (4) Require recordkeeping or testing; (5) Prohibit or
regulate any manner or method of commercial use; (6) Prohibit or
regulate any manner or method of disposal; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors and replace or repurchase products if required.
Alternatives: There are no non-regulatory alternatives to this
rulemaking. TSCA section 6(a) requires EPA to address by rule chemical
substances that the Agency determines present unreasonable risk upon
completion of a final risk evaluation. As required under TSCA section
6(c), EPA will consider one or more primary alternative regulatory
actions as part of the development of a proposed rule.
Anticipated Cost and Benefits: EPA will prepare a regulatory impact
analysis as the Agency develops the proposed rule.
Risks: As EPA determined in the TSCA section 6(b) risk evaluation,
chrysotile asbestos present unreasonable risks to human health. EPA
must issue regulations so that this chemical substance no longer
presents an unreasonable risk. For more information, visit: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-existing-chemicals-under-tsca.
Timetable:
[[Page 5159]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
Final Rule.......................... 11/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information:
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-asbestos-part-1-chrysotile-asbestos.
Agency Contact: Robert Courtnage, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7404T, Washington, DC 20460, Phone: 202 566-1081,
Email: [email protected].
RIN: 2070-AK86
EPA--OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)
Proposed Rule Stage
157. Designating PFOA and PFOS as CERCLA Hazardous Substances
Priority: Other Significant.
Legal Authority: 42 U.S.C. 9602
CFR Citation: 40 CFR 302.
Legal Deadline: None.
Abstract: On February 14, 2019, the Environmental Protection Agency
(EPA) issued a PFAS Action Plan, which responded to extensive public
interest and input the agency had received and represented the first
time EPA has built a multi-media, multi-program, national communication
and research plan to address an emerging environmental challenge like
PFAS. This Plan was updated on February 26, 2020. EPA's Action Plan
identified both short-term solutions for addressing these chemicals and
long-term strategies that may provide the tools and technologies
states, tribes, and local communities requested to provide clean and
safe drinking water to their residents and to address PFAS at the
source before it gets into the water. The designation of PFOA and PFOS
as CERCLA hazardous substances was one of several actions mentioned in
the PFAS Action Plan. EPA is undertaking a rulemaking effort to
designate PFOA and PFOS as CERCLA hazardous substances. Designating
PFOA and PFOS as CERCLA hazardous substances will require reporting of
releases of PFOA and PFOS that meet or exceed the reportable quantity
assigned to these substances. This will enable Federal, State Tribal,
and local authorities to collect information regarding the location and
extent of releases.
Statement of Need: Designating PFOA and PFOS as CERCLA hazardous
substances will require reporting of releases of PFOA and PFOS that
meet or exceed the reportable quantity assigned to these substances.
This will enable Federal, State, Tribal and local authorities to
collect information regarding the location and extent of releases.
Summary of Legal Basis: No aspect of this action is required by
statute or court order.
Alternatives: The Agency identified through the 2019 PFAS Action
Plan that one of the goals was to designate PFOA and PFOS as hazardous
substances. EPA determined that we have enough information to propose
this designation.
Anticipated Cost and Benefits: The EPA is analyzing the potential
costs and benefits associated with this action with respect to the
reporting of any release of the subject hazardous substances to the
Federal, State, and local authorities. Currently EPA expects to
estimate lower and upper-bound reporting cost scenarios.
Risks: This is a reporting rule and will enable Federal, State,
Tribal and local authorities to collect information regarding the
location and extent of releases.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/22
-----------------------------------
Final Rule.......................... To Be Determined
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Federal, Local, State, Tribal.
Additional Information:
Sectors Affected: 325998 All Other Miscellaneous Chemical Product
and Preparation Manufacturing; 811192 Car Washes; 314110 Carpet and Rug
Mills; 332813 Electroplating, Plating, Polishing, Anodizing, and
Coloring; 922160 Fire Protection; 488119 Other Airport Operations;
325510 Paint and Coating Manufacturing; 322121 Paper (except Newsprint)
Mills; 322130 Paperboard Mills; 424710 Petroleum Bulk Stations and
Terminals; 324110 Petroleum Refineries; 325992 Photographic Film,
Paper, Plate, and Chemical Manufacturing; 562212 Solid Waste Landfill.
Agency Contact: Michelle Schutz, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 703 603-8708, Email:
[email protected].
RIN: 2050-AH09
EPA--OLEM
158. Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy Surface
Impoundments
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6906; 42 U.S.C. 6907; 42 U.S.C. 6912(a);
42 U.S.C. 6944; 42 U.S.C. 6945(c)
CFR Citation: 40 CFR 257.
Legal Deadline: None.
Abstract: On April 17, 2015, the Environmental Protection Agency
(EPA or the Agency) promulgated national minimum criteria for existing
and new coal combustion residuals (CCR) landfills and existing and new
CCR surface impoundments. On August 21, 2018 the D.C. Circuit Court of
Appeals issued its opinion in the case of Utility Solid Waste
Activities Group, et al v. EPA, which vacated and remanded the
provision that exempted inactive impoundments at inactive facilities
from the CCR rule. The EPA is developing regulations to implement this
part of the court decision for inactive CCR surface impoundments at
inactive utilities, or ``legacy units''. This proposal may include
adding a new definition for legacy CCR surface impoundments. The EPA
may also propose to require such legacy CCR surface impoundments to
follow existing regulatory requirements for fugitive dust, groundwater
monitoring, and closure, or other technical requirements.
Statement of Need: On April 17, 2015, the EPA finalized national
regulations to regulate the disposal of Coal Combustion Residuals (CCR)
as solid waste under subtitle D of the Resource Conservation and
Recovery Act (RCRA) (2015 CCR final rule). In response to the Utility
Solid Waste Activities Group v. EPA decision, this proposed rulemaking,
if finalized, would bring inactive surface impoundments at inactive
facilities (legacy surface impoundments) into the regulated universe.
[[Page 5160]]
Summary of Legal Basis: No statutory or judicial deadlines apply to
this rule. The EPA is taking this action in response to an August 21,
2018 court decision that vacated and remanded the provision that
exempted inactive impoundments at inactive electric utilities from the
2015 CCR final rule. The proposed rule would be established under the
authority of the Solid Waste Disposal Act of 1970, as amended by the
Resource Conservation and Recovery Act of 1976 (RCRA), as amended by
the Hazardous and Solid Waste Amendments of 1984 (HWSA) and the Water
Infrastructure Improvements for the Nation Act of 2016.
Alternatives: The Agency issued an advance notice of proposed
rulemaking (ANPRM) on October 14, 2020 (85 FR 65015), which included
public notice and opportunity for comment on this effort. We have not
identified at this time any significant alternatives for analysis.
Anticipated Cost and Benefits: The Agency will determine
anticipated costs and benefits later as it is currently too early in
the process.
Risks: The Agency will estimate the risk reductions and impacts
later as it is currently too early in the process.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 10/14/20 85 FR 65015
NPRM................................ 09/00/22
Final Rule.......................... 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Additional Information: Docket #: EPA-HQ-OLEM-2020-0107.
Sectors Affected: 221112 Fossil Fuel Electric Power Generation.
URL For More Information: https://www.epa.gov/coalash.
URL For Public Comments: https://www.regulations.gov/docket/EPA-HQ-OLEM-2020-0107.
Agency Contact: Frank Behan, Environmental Protection Agency,
Office of Land and Emergency Management, Mail Code 5304T, 1200
Pennsylvania Avenue NW, Washington, DC 20460, Phone: 202 566-1730,
Email: [email protected].
Michelle Lloyd, Environmental Protection Agency, Office of Land and
Emergency Management, Mail Code 5304T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-0560, Email:
[email protected].
RIN: 2050-AH14
EPA--OLEM
159. Accidental Release Prevention Requirements: Risk Management
Program Under the Clean Air Act; Retrospection
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7412 Clean Air Act
CFR Citation: 40 CFR 68.
Legal Deadline: None.
Abstract: The Environmental Protection Agency (EPA) is considering
revising the Risk Management Program (RMP) regulations, which implement
the requirements of section 112(r)(7) of the 1990 Clean Air Act
amendments. The RMP requires facilities that use listed extremely
hazardous substances above specified threshold quantities to develop a
Risk Management Plan. The EPA is reviewing the RMP rule in accordance
with Executive Order 13990: Protecting Public Health and the
Environment and Restoring Science To Tackle the Climate Crisis, which
directs federal agencies to review existing regulations and take action
to address the Administration's priorities, including bolstering
resilience to the impacts of climate change and prioritizing
environmental justice.
Statement of Need: On January 13, 2017, the EPA published a final
RMP rule (2017 Amendments) to prevent and mitigate the effect of
accidental releases of hazardous chemicals from facilities that use,
manufacture, and store them. The 2017 Amendments were a result of
Executive Order 13650, Improving Chemical Facility Safety and Security,
which directed EPA (and several other federal agencies) to, among other
things, modernize policies, regulations, and standards to enhance
safety and security in chemical facilities. The 2017 Amendments rule
contained various new provisions applicable to RMP-regulated facilities
addressing prevention program elements, emergency coordination with
local responders, and information availability to the public. EPA
received three petitions for reconsideration of the 2017 Amendments
rule under CAA section 307(d)(7)(B). On December 19, 2019, EPA
promulgated a final RMP rule (2019 Revisions) that acts on the
reconsideration. The 2019 Revisions rule repealed several major
provisions of the 2017 Amendments and retained other provisions with
modifications.
On January 20, 2021, Executive Order 13990, Protecting Public
Health and the Environment and Restoring Science To Tackle the Climate
Crisis (E.O. 13990), directed federal agencies to review existing
regulations and take action to address priorities established by the
new administration including bolstering resilience to the impact of
climate change and prioritizing environmental justice. The EPA is
considering developing a regulatory action to revise the current RMP
regulations. The proposed rule would address the administration's
priorities and focus on regulatory revisions completed since 2017. The
proposed rule would also expect to contain a number of proposed
modifications to the RMP regulations based in part on stakeholder
feedback received from RMP public listening sessions held on June 16
and July 8, 2021.
Summary of Legal Basis: The CAA section 112(r)(7)(A) authorizes the
EPA Administrator to promulgate accidental release prevention,
detection, and correction requirements, which may include monitoring,
record keeping, reporting, training, vapor recovery, secondary
containment, and other design, equipment, work practice, and
operational requirements. The CAA section 112(r)(7)(B) authorizes the
Administrator to promulgate reasonable regulations and appropriate
guidance to provide, to the greatest extent practicable, for the
prevention and detection of accidental releases of regulated substances
and for response to such releases by the owners or operators of the
sources of such releases.
Alternatives: The EPA currently plans to prepare a notice of
proposed rulemaking that would provide the public an opportunity to
comment on the proposal, and any regulatory alternatives that may be
identified within the preamble to the proposed rulemaking.
Anticipated Cost and Benefits: Costs may include the burden on
regulated entities associated with implementing new or revised
requirements including program implementation, training, equipment
purchases, and recordkeeping, as applicable. Some costs could also
accrue to implementing agencies and local governments, due to new or
revised provisions associated with emergency response. Benefits will
result from avoiding the harmful accident consequences to communities
and the environment, such as deaths, injuries, and property damage,
environmental damage, and from mitigating the effects of releases that
may occur. Similar benefits will accrue to regulated entities and their
employees.
Risks: The proposed action would address the risks associated with
accidental releases of listed regulated
[[Page 5161]]
toxic and flammable substances to the air from stationary sources.
Substances regulated under the RMP program include highly toxic and
flammable substances that can cause deaths, injuries, property and
environmental damage, and other on- and off-site consequences if
accidentally released. The proposed action would reduce these risks by
potentially making accidental releases less likely, and by mitigating
the severity of releases that may occur. The proposed action would not
address the risks of non-accidental chemical releases, accidental
releases of non-regulated substances, chemicals released to other
media, and air releases from mobile sources.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/22
Final Rule.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Sectors Affected: 42469 Other Chemical and Allied Products Merchant
Wholesalers; 22131 Water Supply and Irrigation Systems; 49313 Farm
Product Warehousing and Storage; 11511 Support Activities for Crop
Production; 221112 Fossil Fuel Electric Power Generation; 31152 Ice
Cream and Frozen Dessert Manufacturing; 311612 Meat Processed from
Carcasses; 311411 Frozen Fruit, Juice, and Vegetable Manufacturing;
49311 General Warehousing and Storage; 42491 Farm Supplies Merchant
Wholesalers; 49312 Refrigerated Warehousing and Storage; 32519 Other
Basic Organic Chemical Manufacturing; 211112 Natural Gas Liquid
Extraction; 49319 Other Warehousing and Storage; 322 Paper
Manufacturing; 22132 Sewage Treatment Facilities; 325 Chemical
Manufacturing; 311511 Fluid Milk Manufacturing; 32411 Petroleum
Refineries; 311615 Poultry Processing; 42471 Petroleum Bulk Stations
and Terminals; 311 Food Manufacturing.
Agency Contact: Deanne Grant, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 564-1096, Email: [email protected].
Veronica Southerland, Environmental Protection Agency, Office of
Land and Emergency Management, 1200 Pennsylvania Avenue NW, Mail Code
5104A, Washington, DC 20460, Phone: 202 564-2333, Email:
[email protected].
RIN: 2050-AH22
EPA--OFFICE OF WATER (OW)
Proposed Rule Stage
160. Federal Baseline Water Quality Standards for Indian Reservations
Priority: Other Significant.
Legal Authority: 33 U.S.C. 1313(c)(4)(B)
CFR Citation: 40 CFR 131.
Legal Deadline: None.
Abstract: EPA is developing a proposed rule to establish tribal
baseline water quality standards (WQS) for waters on Indian
reservations that do not have WQS under the Clean Water Act (CWA). Less
than 20 percent of reservations have EPA-approved tribal WQS.
Promulgating baseline WQS would address this longstanding gap and
provide more scientific rigor and regulatory certainty to National
Pollutant Discharge Elimination System (NPDES) permits for discharges
to these waters. Consistent with EPA regulations, the baseline WQS
would include designated uses, water quality criteria to protect those
uses, and antidegradation policies to protect high quality waters. EPA
initiated tribal consultation on June 15th, 2021 and will be engaged in
coordination and consultation with tribes throughout the consultation
period, which ends September 13th, 2021. EPA welcomes consultation with
tribes both during and after the consultation period. EPA plans to
propose this rule by early 2022 and to finalize by early 2023.
Statement of Need: The federal government has recognized 574
tribes. More than 300 of these tribes have reservation lands such as
formal reservations, Pueblos, and informal reservations (i.e., lands
held in trust by the United States for tribal governments that are not
designated as formal reservations) and are eligible to apply to
administer a WQS program. Only 75 tribes, out of over 300 tribes with
reservations, currently have such TAS authorization to administer a WQS
program. Of these 75 tribes, only 46 tribes to date have adopted WQS
and submitted them to EPA for review and approval under the CWA. As a
result, 50 years after enactment of the CWA, over 80% of Indian
reservations do not have this foundational protection expected by
Congress as laid out in the CWA for their waters. This lack of CWA-
effective WQS for the waters of more than 250 Indian reservations is a
longstanding gap in human health and environmental protections, given
that WQS are central to implementing the water quality framework of the
CWA. Although it is EPA's preference for tribes to obtain TAS and
develop WQS tailored to the tribes' individual environmental goals and
reservation waters, EPA's promulgation of baseline WQS would serve to
safeguard water quality until tribes obtain TAS and adopt and
administer CWA WQS themselves.
Summary of Legal Basis: While CWA section 303 clearly contemplates
WQS for all waters of the United States, it does not explicitly address
WQS for Indian country waters where tribes lack CWA-effective WQS.
Under CWA section 303(a) states were required to adopt WQS for all
interstate and intrastate waters. Where a state does not establish such
standards, Congress directed EPA to do so under the CWA section 303(b).
These provisions are consistent with Congress' design of the CWA as a
general statute applying to all waters of the United States, including
those within Indian country. Several provisions of the CWA provide EPA
with the authority to propose this rule. Section 501(a) of the CWA
provides that [t]he Administrator is authorized to prescribe such
regulations as are necessary to carry out his functions under this
chapter. In Indian country waters where tribes are not yet authorized
to establish WQS and where states lack jurisdiction to do the same, EPA
is responsible for implementing section 303(c) of the CWA. Section
303(c)(4)(B) of the CWA provides that [t]he Administrator shall
promptly prepare and publish proposed regulations setting forth a
revised or new water quality standard for the navigable waters involved
in any case where the Administrator determines that a revised or new
standard is necessary to meet the requirements of [the Act]. In 2001
the EPA Administrator made an Administrator's Determination that new or
revised WQS are necessary for certain Indian country waters.
Alternatives: To be determined.
Anticipated Cost and Benefits: To be determined.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 09/29/16 81 FR 66900
NPRM................................ 04/00/22
Final Rule.......................... 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, State, Tribal.
[[Page 5162]]
Additional Information:
URL For More Information: https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian.
Agency Contact: James Ray, Environmental Protection Agency, Office
of Water, Mail Code 4305T, 200 Pennsylvania Avenue NW, Washington, DC
20460, Phone: 202 566-1433, Email: [email protected].
RIN: 2040-AF62
EPA--OW
161. Clean Water Act Section 401: Water Quality Certification
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 1151
CFR Citation: 40 CFR 121.1.
Legal Deadline: None.
Abstract: Clean Water Act (CWA) section 401 provides States and
Tribes with a powerful tool to protect the quality of their waters from
adverse impacts resulting from federally licensed or permitted
projects. Under section 401, a federal agency may not issue a license
or permit to conduct any activity that may result in any discharge into
navigable waters, unless the State or Tribe where the discharge would
originate either issues a section 401 water quality certification
finding ``that any such discharge will comply with the applicable
provisions of sections 301, 302, 303, 306, and 307'' of the CWA, or
certification is waived. EPA promulgated implementing regulations for
water quality certification prior to the passage of the CWA in 1972,
which created section 401. In June 2020, EPA revised these regulations,
titled ``Clean Water Act section 401 Certification Rule.'' In
accordance with Executive Order 13990, the EPA has completed its review
of the June 2020 regulation and determined that it will propose
revisions to the rule through a new rulemaking effort.
Statement of Need: To be determined.
Summary of Legal Basis: To be determined.
Alternatives: To be determined.
Anticipated Cost and Benefits: To be determined.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice.............................. 06/02/21 86 FR 29541
NPRM................................ 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Agency Contact: Lauren Kasparek, Environmental Protection Agency,
Office of Water, 1200 Pennsylvania Avenue NW, Washington, DC 20460,
Phone: 202 564-3351, Email: [email protected].
Related RIN: Related to 2040-AF86.
RIN: 2040-AG12
EPA--OW
162. Revised Definition of ``Waters of the United States''--Rule 1
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 1251
CFR Citation: 40 CFR 120.1.
Legal Deadline: None.
Abstract: In April 2020, the EPA and the Department of the Army
(the agencies) published the Navigable Waters Protection Rule (NWPR)
that revised the previously codified definition of ``waters of the
United States'' (85 FR 22250, April 21, 2020). The agencies are now
initiating this new rulemaking process that restores the regulations in
place prior to the 2015 ``Clean Water Rule: Definition of `Waters of
the United States' '' (80 FR 37054, June 29, 2015), updated to be
consistent with relevant Supreme Court decisions. The agencies intend
to consider further revisions in a second rule in light of additional
stakeholder engagement and implementation considerations, scientific
developments, and environmental justice values. This effort will also
be informed by the experience of implementing the pre-2015 rule, the
2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.
Statement of Need: In 2015, the Environmental Protection Agency and
the Department of the Army (``the agencies'') published the ``Clean
Water Rule: Definition of `Waters of the United States' '' (80 FR
37054, June 29, 2015). In April 2020, the agencies published the
Navigable Waters Protection Rule (85 FR 22250, April 21, 2020). The
agencies conducted a substantive re-evaluation of the definition of
``waters of the United States'' in accordance with the Executive Order
13990 and determined that they need to revise the definition to ensure
the agencies listen to the science, protect the environment, ensure
access to clean water, consider how climate change resiliency may be
affected by the definition of waters of the United States, and to
ensure environmental justice is prioritized in the rulemaking process.
Summary of Legal Basis: The Clean Water Act (33 U.S.C. 1251 et
seq.).
Alternatives: To be determined.
Anticipated Cost and Benefits: To be determined.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Sectors Affected: 11 Agriculture, Forestry, Fishing and Hunting;
112990 All Other Animal Production; 111998 All Other Miscellaneous Crop
Farming; 111 Crop Production.
Agency Contact: Whitney Beck, Environmental Protection Agency,
Office of Water, Mail Code 4504T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-2553, Email: [email protected].
Related RIN: Related to 2040-AF75.
RIN: 2040-AG13
EPA--OW
163. Revised Definition of ``Waters of the United States''--
Rule 2
Priority: Other Significant.
Legal Authority: 33 U.S.C. 1251
CFR Citation: 40 CFR 120.1.
Legal Deadline: None.
Abstract: The EPA and the Department of the Army (the agencies'')
intend to pursue a second rule defining ''Waters of the United States''
to consider further revisions to the agencies' first rule (RIN 2040-
AG13) which proposes to restore the regulations in place prior to the
2015 ``Clean Water Rule: Definition of `Waters of the United States' ''
(80 FR 37054, June 29, 2015), updated to be consistent with relevant
Supreme Court Decisions. This second rule proposes to include revisions
reflecting on additional stakeholder engagement and implementation
considerations, scientific developments, and environmental justice
values. This effort will also be informed by the experience of
implementing the pre-2015 rule, the 2015 Clean Water Rule, and the 2020
Navigable Waters Protection Rule.
Statement of Need: The agencies intend to pursue a second rule
defining waters of the United States to consider
[[Page 5163]]
further revisions to the agencies' first rule which proposes to restore
the regulations in place prior to the 2015 WOTUS rule, updated to be
consistent with relevant Supreme Court Decisions. This second rule
proposes to include revisions reflecting on additional stakeholder
engagement and implementation considerations, scientific developments,
and environmental justice values. This effort will also be informed by
the experience of implementing the pre-2015 rule, the 2015 Clean Water
Rule, and the 2020 Navigable Waters Protection Rule.
Summary of Legal Basis: The Clean Water Act (33 U.S.C. 1251 et
seq.).
Alternatives: To be determined.
Anticipated Cost and Benefits: To be determined.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Additional Information:
Agency Contact: Whitney Beck, Environmental Protection Agency,
Office of Water, Mail Code 4504T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-2553, Email: [email protected].
RIN: 2040-AG19
EPA--OFFICE OF AIR AND RADIATION (OAR)
Final Rule Stage
164. Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse
Gas Emissions Standards
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7411 Clean Air Act; 42 U.S.C. 7401
CFR Citation: 40 CFR 85.1401; 40 CFR 86; 40 CFR 600.001.
Legal Deadline: None.
Abstract: Under Executive Order 13990 on Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate Crisis
(January 20, 2021), EPA was directed to review the Safer Affordable
Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks (April 30, 2020). Based on the Agency's
reevaluation, EPA will determine whether to revise the GHG standards
for certain model years.
Statement of Need: Under Executive Order 13990 on Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis (January 20, 2021), EPA was directed to review the Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-
2026 Passenger Cars and Light Trucks (April 30, 2020).
Summary of Legal Basis: CAA section 202 (a).
Alternatives: EPA requested comment to address alternative options
in the proposed rule.
Anticipated Cost and Benefits: Compliance with the standards would
impose reasonable costs on manufacturers. The proposed revised
standards would result in significant benefits for public health and
welfare, primarily through substantial reductions in both GHG emissions
and fuel consumption and associated fuel costs paid by drivers.
Risks: EPA will evaluate the risks of this rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/10/21 86 FR 43726
NPRM Comment Period End............. 09/27/21
Final Rule.......................... 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Additional Information: EPA-HQ-OAR-2021-0208.
Sectors Affected: 335312 Motor and Generator Manufacturing; 336111
Automobile Manufacturing; 811111 General Automotive Repair; 811112
Automotive Exhaust System Repair; 811198 All Other Automotive Repair
and Maintenance.
Agency Contact: Tad Wysor, Environmental Protection Agency, Office
of Air and Radiation, USEPA, Ann Arbor, MI 48105, Phone: 734 214-4332,
Fax: 734 214-4816, Email: [email protected].
Jessica Mroz, Environmental Protection Agency, Office of Air and
Radiation, 1200 Pennsylvania Avenue NW, Washington, DC 20460, Phone:
202 564-1094, Email: [email protected].
RIN: 2060-AV13
EPA--OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)
Final Rule Stage
165. Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Federal CCR Permit
Program
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6945
CFR Citation: 40 CFR 22; 40 CFR 124; 40 CFR 257.
Legal Deadline: None.
Abstract: The Water Infrastructure Improvements for the Nation
(WIIN) Act established a new coal combustion residual (CCR) regulatory
structure under which states may seek approval from the Environmental
Protection Agency (EPA) to operate a permitting program that would
regulate CCR facilities within their state; if approved, the state
program would operate in lieu of the federal requirements. The WIIN Act
requires that such state programs must ensure that facilities comply
with either the federal regulations or with state requirements that the
EPA has determined are ``at least as protective as'' the federal
regulations. Furthermore, the WIIN Act established a requirement for
the EPA to establish a federal permit program for the disposal of CCR
in Indian Country and in ``nonparticipating'' states, contingent upon
Congressional appropriations. In March 2018 (Pub. L. 115-141) and March
2019 (Pub. L. 116-6), Congress appropriated funding for federal CCR
permitting. The final rule would establish a new federal permitting
program for disposal of CCR. The potentially regulated universe is
limited to facilities with CCR disposal units subject to regulation
under 40 CFR part 257 subpart D, which are located in Indian Country
and in nonparticipating states. Remaining CCR facilities would be
regulated by an approved state program and would not be subject to
federal permitting requirements.
Statement of Need: The Water Infrastructure Improvements for the
Nation (WIIN) Act established a new CCR regulatory structure under
which states may seek approval from the EPA to operate a permitting
program that would operate in lieu of the federal requirements.
Furthermore, the WIIN Act established a requirement for the EPA to
establish a federal permit program for the disposal of CCR in Indian
Country and in nonparticipating states, contingent upon Congressional
appropriations. In March 2018, Congress appropriated funding for
federal CCR permitting.
Summary of Legal Basis: No statutory or judicial deadlines apply to
this rule. This rule would be established under the authority of the
Solid Waste Disposal Act of 1970, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), as amended by the
Hazardous and Solid Waste Amendments of 1984 (HWSA) and the Water
Infrastructure Improvements for the Nation Act of 2016.
[[Page 5164]]
Alternatives: The Agency provided public notice and opportunity for
comment on the proposal to establish a federal permit program. The
proposal included procedures for issuing permits. Substantive
requirements are addressed in the existing CCR regulations (40 CFR part
257 subpart D). Alternatives considered in the proposal included
approaches to tiering initial application deadlines (e.g., by risks
presented due to unit stability or other factors, such as leaking
units) and procedures for permit by rule or issuance of general permits
as an alternative to individual permits.
Anticipated Cost and Benefits: Costs and benefits of the February
20, 2020 proposal were presented in the Regulatory Impact Analysis
(RIA) supporting the proposed rule. The EPA estimated that the net
effect of proposed revisions would result in an estimated annual cost
of this proposal is a cost increase of approximately $136,312. This
cost increase is composed of approximately $135,690 in annualized labor
costs and $622 in capital or operation and maintenance costs.
Risks: The proposal to establish a federal CCR permit program is
not expected to impact the overall risk conclusions discussed in the
2015 CCR Rule. The proposal would establish procedural requirements for
issuance of permits would generally not establish substantive
requirements affecting environmental risk.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/20/20 85 FR 9940
Final Rule.......................... 10/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, Tribal.
Additional Information: Docket #: EPA-HQ-OLEM-2019-0361.
Sectors Affected: 221112 Fossil Fuel Electric Power Generation.
URL For More Information: https://www.epa.gov/coalash.
URL For Public Comments: https://www.regulations.gov/docket?D=EPA-HQ-OLEM-2019-0361.
Agency Contact: Stacey Yonce, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Mail Code 5304T, Washington, DC 20460, Phone: 202 566-0568, Email:
[email protected].
RIN: 2050-AH07
EPA--OLEM
166. Hazardous and Solid Waste Management System: Disposal of CCR; a
Holistic Approach to Closure Part B: Implementation of Closure
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6906; 42 U.S.C. 6907; 42 U.S.C. 6912(a);
42 U.S.C. 6944; 42 U.S.C. 6945(c)
CFR Citation: 40 CFR 257.
Legal Deadline: None.
Abstract: On April 17, 2015, the Environmental Protection Agency
(EPA) promulgated national minimum criteria for existing and new coal
combustion residuals (CCR) landfills and existing and new CCR surface
impoundments. On August 21, 2018, the D.C. Circuit Court of Appeals
issued its opinion in the case of Utility Solid Waste Activities Group,
et al v. EPA. On October 15, 2018, the court issued its mandate,
vacating certain provisions of the 2015 final rule. On March 3, 2020,
the EPA proposed a number of revisions and flexibilities to the CCR
regulations. In particular, the EPA proposed the following revisions:
(1) Procedures to allow facilities to request approval to use an
alternate liner for CCR surface impoundments; (2) Two co-proposed
options to allow the use of CCR during unit closure; (3) An additional
closure option for CCR units being closed by removal of CCR; and (4)
Requirements for annual closure progress reports. The EPA has since
taken final action on one of the four proposed issues. Specifically, on
November 12, 2020, the EPA issued a final rule that would allow a
limited number of facilities to demonstrate to the EPA that based on
groundwater data and the design of a particular surface impoundment,
the unit has and will continue to have no probability of adverse
effects on human health and the environment. (This final rule was
covered under RIN 2050-AH11. See ``Additional Information'' section.)
The present rulemaking would consider taking final action on the
remaining proposed issues.
Statement of Need: On April 17, 2015, the EPA finalized national
regulations to regulate the disposal of Coal Combustion Residuals (CCR)
as solid waste under subtitle D of the Resource Conservation and
Recovery Act (RCRA) (2015 CCR Rule). On March 3, 2020, the EPA proposed
a number of revisions to the CCR regulations, the last in a set of four
planned actions to implement the Water Infrastructure Improvements for
the Nation (WIIN) Act, respond to petitions, address litigation and
apply lessons learned to ensure smoother implementation of the
regulations.
Summary of Legal Basis: No statutory or judicial deadlines apply to
this rule. This rule would be established under the authority of the
Solid Waste Disposal Act of 1970, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), as amended by the
Hazardous and Solid Waste Amendments of 1984 (HWSA) and the Water
Infrastructure Improvements for the Nation Act of 2016.
Alternatives: The Agency provided public notice and opportunity for
comment on these issues associated with the closure of CCR surface
impoundments. Each of these issues is fairly narrow in scope and we
have not identified any significant alternatives for analysis.
Anticipated Cost and Benefits: Costs and benefits of the March 3,
2020 proposed targeted changes were presented in the Regulatory Impact
Analysis (RIA) supporting the proposed rule. EPA estimated that the net
effect of proposed revisions (excluding the one issue that EPA
finalized on November 12, 2020) to be an annualized cost savings of
between $37 million and $129 million when discounting at 7%. The RIA
also qualitatively describes the potential effects of the proposal on
two categories of benefits from the 2015 CCR Rule.
Risks: Key benefits of the 2015 CCR Rule included the prevention of
future catastrophic failures of CCR surface impoundments, the
protection of groundwater from contamination, the reduction of dust in
communities near CCR disposal units and increases in the beneficial use
of CCR. The average annual monetized benefits of the 2015 CCR Rule were
estimated to be $232 million per year using a seven percent discount
rate. For reasons discussed in the March 3, 2020 proposal, the EPA was
unable to quantify or monetize the proposed rule's incremental effect
on human health and the environment using currently available data.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/03/20 85 FR 12456
Final Rule.......................... 09/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State, Tribal.
Additional Information: Docket #: EPA-HQ-OLEM-2019-0173. The action
is split from 2050-AH11: Hazardous and Solid Waste Management System:
Disposal of CCR; A Holistic Approach to Closure Part B: Alternate
Demonstration
[[Page 5165]]
for Unlined Surface Impoundments; Implementation of Closure. This
action was split from 2050-AH11 after the March 3, 2020 NPRM (85 FR
12456) as two final rules would be developed based on the proposed
rule. The November 12, 2020 final rule (85 FR 72506) mentioned in this
abstract was covered under 2050-AH11.
Sectors Affected: 221112 Fossil Fuel Electric Power Generation.
URL For More Information: https://www.epa.gov/coalash.
URL For Public Comments: https://www.regulatons.gov/docket?D=EPA-HQ-OLEM-2019-0173.
Agency Contact: Jesse Miller, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Mail Code 5304T, Washington, DC 20460, Phone: 202 566-0562, Email:
[email protected].
Frank Behan, Environmental Protection Agency, Office of Land and
Emergency Management, Mail Code 5304T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-1730, Email: [email protected].
RIN: 2050-AH18
EPA--OFFICE OF WATER (OW)
Final Rule Stage
167. Cybersecurity in Public Water Systems
Priority: Other Significant.
Legal Authority: 5 U.S.C. 553(b)(3)(A)
CFR Citation: 40 CFR 142.16; 40 CFR 142.2.
Legal Deadline: None.
Abstract: EPA is evaluating regulatory approaches to ensure
improved cybersecurity at public water systems. EPA plans to offer
separate guidance, training, and technical assistance to states and
public water systems on cybersecurity. This action will provide
regulatory clarity and certainty and promote the adoption of
cybersecurity measures by public water systems.
Statement of Need: A cyber-attack can degrade the ability of a
public water system to produce and distribute safe drinking water. The
risk of a cyber-attack can be reduced through the adoption of
cybersecurity best practices by public water systems. Sanitary surveys,
which states, tribes, or the EPA typically conduct every 3 to 5 years
on all public water systems, should include an evaluation of
cybersecurity to identify significant deficiencies. EPA recognizes,
however, that many states currently do not assess cybersecurity
practices during public water system sanitary surveys. This action is
necessary to convey to states that EPA interprets existing regulations
for public water system sanitary surveys as including the possible
identification of significant deficiencies in cybersecurity practices.
Summary of Legal Basis: The Administrative Procedure Act exempts
interpretive rules from its notice and comment requirements. 5 U.S.C.
553(b)(3)(A). The term is not defined in the APA, but the Attorney
General's Manual on the APA, often considered to be akin to legislative
history, describes them as ``rules or statements issued by an agency to
advise the public of the agency's construction of the statutes and
rules which it administers.''
Alternatives: Provide guidance to states, tribes, and EPA on
evaluating cybersecurity practices during public water system sanitary
surveys without issuing an interpretive rule.
Anticipated Cost and Benefits: This action is an interpretation of
existing responsibilities under current regulations. It establishes no
new regulatory requirements and, hence, has no regulatory costs or
benefits.
Risks: The purpose of this action is to reduce the risks associated
with cyber-attacks on public water systems. Because this action is not
establishing new regulatory requirements, EPA has not quantified costs
and benefits for it. Accordingly, EPA has not estimated the current
level of risk or the possible reduction in risk due to this action.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule.......................... 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Undetermined.
Additional Information:
Sectors Affected: 924110 Administration of Air and Water Resource
and Solid Waste Management Programs.
Agency Contact: Stephanie Flaharty, Environmental Protection
Agency, Office of Water, 4601M, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 564-5072, Email:
[email protected].
RIN: 2040-AG20
EPA--OW
Long-Term Actions
168. National Primary Drinking Water Regulations for Lead and Copper:
Regulatory Revisions
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 300f et seq. Safe Drinking Water Act
CFR Citation: 40 CFR 141; 40 CFR 142.
Legal Deadline: None.
Abstract: The Environmental Protection Agency (EPA) published the
final Lead and Copper Rule Revision (LCRR) on January 15, 2021. EPA is
currently considering revising this rulemaking. This action is
consistent with presidential directives issued on January 20, 2021, to
the heads of Federal agencies to review certain regulations, including
the LCRR (E.O. 13990). EPA will complete its review of the rule in
accordance with those directives and conduct important consultations
with affected parties. This review of the LCRR will be consistent with
the policy aims set forth in Executive Order 13985 on Advancing Racial
Equity and Support for Underserved Communities through the Federal
Government.
Statement of Need: The EPA promulgated the final Lead and Copper
Rule Revision (LCRR) on January 15, 2021 (86 FR 4198). Consistent with
the directives of Executive Order 13990, the EPA is currently
considering revising this rulemaking. The EPA will complete its review
of the rule in accordance with those directives and conduct important
consultations with affected parties. The EPA understands that the
benefits of clean water are not shared equally by all communities and
this review of the LCRR will be consistent with the policy aims set
forth in Executive Order 13985, ``Advancing Racial Equity and Support
for Underserved Communities through the Federal Government.''
Summary of Legal Basis: The Safe Drinking Water Act, section 1412,
National Primary Drinking Water Regulations, authorizes EPA to initiate
the development of a rulemaking if the agency has determined that the
action maintains or improves the public health.
Alternatives: To Be Determined.
Anticipated Cost and Benefits: To Be Determined.
Risks: To Be Determined.
Timetable:
[[Page 5166]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ To Be Determined
-----------------------------------
Final Action........................ To Be Determined
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Agency Contact: Stephanie Flaharty, Environmental Protection
Agency, Office of Water, 4601M, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 564-5072, Email:
[email protected].
Related RIN: Related to 2040-AF15, Related to 2040-AG15.
RIN: 2040-AG16
EPA--OW
169. Per- and Polyfluoroalkyl Substances (PFAS): Perfluorooctanoic Acid
(PFOA) and Perfluorooctanesulfonic Acid (PFOS) National Primary
Drinking Water Regulation Rulemaking
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 300f et seq. Safe Drinking Water Act
CFR Citation: 40 CFR 141; 40 CFR 142.
Legal Deadline: NPRM, Statutory, March 3, 2023, Safe Drinking Water
Act.
Final, Statutory, September 3, 2024, Safe Drinking Water Act.
Abstract: On March 3, 2021, the Environmental Protection Agency
(EPA) published the Fourth Regulatory Determinations in Federal
Register, including a determination to regulate perfluorooctanoic acid
(PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water. Per
the Safe Drinking Water Act, following publication of the Regulatory
Determination, the Administrator shall propose a maximum contaminant
level goal (MCLG) and a national primary drinking water regulation
(NPDWR) not later than 24 months after determination and promulgate a
NPDWR within 18 months after proposal (the statute authorizes a 9-month
extension of this promulgation date). With this action, EPA intends to
develop a proposed national primary drinking water regulation for PFOA
and PFOS, and as appropriate, take final action. Additionally, EPA will
continue to consider other PFAS as part of this action.
Statement of Need: EPA has determined that PFOA and PFOS may have
adverse health effects; that PFOA and PFOS occur in public water
systems with a frequency and at levels of public health concern; and
that, in the sole judgment of the Administrator, regulation of PFOA and
PFOS presents a meaningful opportunity for health risk reduction for
persons served by public water systems.
Summary of Legal Basis: The EPA is developing a PFAS NPDWR under
the authority of the Safe Drinking Water Act (SDWA), including sections
1412, 1413, 1414, 1417, 1445, and 1450 of the SDWA. Section 1412
(b)(1)(A) of the SDWA requires that EPA shall publish a maximum
contaminant level goal and promulgate a NPDWR if the Administrator
determines that (1) the contaminant may have an adverse effect on the
health of persons, (2) is known to occur or there is a substantial
likelihood that the contaminant will occur in public water systems with
a frequency and at a level of public health concern, and (3) in the
sole judgement of the Administrator there is a meaningful opportunity
for health risk reduction for persons served by public water systems.
EPA published a final determination to regulate PFOA and PFOS on March
3, 2021 after considering public comment (86 FR 12272). Section 1412
(b)(1)(E) of the SDWA requires that EPA publish a proposed Maximum
Contaminant Level Goal and a NPDWR within 24 months of a final
regulatory determination and that the Agency promulgate a NPDWR within
18 months of proposal.
Alternatives: Undetermined.
Anticipated Cost and Benefits: Undetermined.
Risks: Studies indicate that exposure to PFOA and/or PFOS above
certain exposure levels may result in adverse health effects, including
developmental effects to fetuses during pregnancy or to breast-fed
infants (e.g., low birth weight, accelerated puberty, skeletal
variations), cancer (e.g., testicular, kidney), liver effects (e.g.,
tissue damage), immune effects (e.g., antibody production and
immunity), and other effects (e.g., cholesterol changes). Both PFOA and
PFOS are known to be transmitted to the fetus via the placenta and to
the newborn, infant, and child via breast milk. Both compounds were
also associated with tumors in long-term animal studies.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
Final Action........................ 12/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: Undetermined.
Energy Effects: Statement of Energy Effects planned as required by
Executive Order 13211.
Additional Information:
Agency Contact: Stephanie Flaharty, Environmental Protection
Agency, Office of Water, 4601M, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 564-5072, Email:
[email protected].
RIN: 2040-AG18
BILLING CODE 6560-50-P
GENERAL SERVICES ADMINISTRATION (GSA)
Regulatory Plan--October 2021
The U.S. General Services Administration (GSA) delivers value and
savings in real estate, acquisition, technology, and other mission-
support services across the Federal Government. GSA's acquisition
solutions supply Federal purchasers with cost-effective, high-quality
products and services from commercial vendors. GSA provides workplaces
for Federal employees and oversees the preservation of historic Federal
properties. GSA helps keep the nation safe and efficient by providing
tools, equipment, and non-tactical vehicles to the U.S. military, and
providing State and local governments with law enforcement equipment,
firefighting and rescue equipment, and disaster recovery products and
services.
GSA serves the public by delivering products and services directly
to its Federal customers through the Federal Acquisition Service (FAS),
the Public Buildings Service (PBS), and the Office of Government-wide
Policy (OGP). GSA has a continuing commitment to its Federal customers
and the U.S. taxpayers by providing those products and services in the
most cost-effective manner possible.
Federal Acquisition Service
FAS is the lead organization for procurement of products and
services (other than real property) for the Federal Government. The FAS
organization leverages the buying power of the Government by
consolidating Federal agencies' requirements for common goods and
services. FAS provides a range of high-quality and flexible acquisition
services to increase overall Government effectiveness and efficiency by
aligning resources around key functions.
[[Page 5167]]
Public Buildings Service
PBS is the largest public real estate organization in the United
States. As the landlord for the civilian Federal Government, PBS
acquires space on behalf of the Federal Government through new
construction and leasing, and acts as a manager for Federal properties
across the country. PBS is responsible for over 370 million rentable
square feet of workspace for Federal employees, has jurisdiction,
custody, and control over more than 1,600 federally owned assets
totaling over 180 million rentable square feet, and contracts for more
than 7,000 leased assets totaling over 180 million rentable square
feet.
Later in FY22, GSA expects to update the existing internal guidance
and issue a new PBS Order following the release of an E.O. on Federal
Sustainability which is likely to be issued in late October or early
November.
Office of Government-Wide Policy
OGP sets Government-wide policy in the areas of personal and real
property, mail, travel, relocation, transportation, information
technology, regulatory information, and the use of Federal advisory
committees. OGP also helps direct how all Federal supplies and services
are acquired as well as GSA's own acquisition programs. Pursuant to
Executive Order 12866, ``Regulatory Planning and Review'' (September
30, 1993) and Executive Order 13563, ``Improving Regulation and
Regulatory Review'' (January 18, 2011), the Regulatory Plan and Unified
Agenda provides notice regarding OGP's regulatory and deregulatory
actions within the Executive Branch.
GSA prepared a list of 20 non-regulatory actions in the areas of
Climate Risk Management, Resilience, and Adaptation; Environmental
Justice; Greenhouse Gas (GHG) Reduction; Clean Energy; Energy
Reduction; Water Reduction; Performance Contracting; Waste Reduction;
Sustainable Buildings; and Electronics Stewardship & Data Centers.
Detailed information on actions GSA is considering taking through
December 31, 2025, to implement the Administration's policy set by
Executive Orders 13990 and Executive Order 14008 were provided in GSA's
Executive Order 13990 90-day response; GSA Climate Change Risk
Management Plan and GSA 2021 Sustainability Plan. More specifics will
be known on the Sustainability Plan when feedback is obtained from the
Council on Environmental Quality (CEQ) and Office of Management and
Budget (OMB).
OGP's Office of Government wide Policy, Office of Asset and
Transportation Management and Office of Acquisition Policy are
prioritizing rulemaking focused on initiatives that:
Tackle the climate change emergency.
Promote the country's economic resilience and improve the
buying power of U.S. citizens.
Support underserved communities, promoting equity in the
Federal government; and,
Support national security efforts, especially safeguarding
Federal government information and information technology systems.
Office of Asset and Transportation Management
The Fall 2021 Unified Agenda consists of fourteen (14) active
Office of Asset and Transportation Management (MA) agenda items, of
which four (4) active actions are included in the Federal Travel
Regulation (FTR) and ten (10) active actions are included in the
Federal Management Regulation (FMR).
The Federal Travel Regulation (FTR) enumerates the travel and
relocation policy for all title 5 Executive Agency employees. The Code
of Federal Regulations (CFR) is available at https://ecfr.federalregister.gov/. Each version is updated as official changes
are published in the Federal Register (FR).
The FTR is the regulation contained in title 41 of the CFR,
chapters 300 through 304, that implements statutory requirements and
Executive branch policies for travel by Federal civilian employees and
others authorized to travel at Government expense. The FTR presents
policies in a clear manner to both agencies and employees to assure
that official travel is performed responsibly.
The Federal Management Regulation (FMR) establishes policy for
Federal aircraft management, mail management, transportation, personal
property, real property, and committee management.
MA Rulemaking That Tackles Climate Change
FTR Case 2020-301-1, Definition for ``Fuel'', Rental Car Policy
Updates and Clarifications, replaces the word ``gasoline'' where
appropriate and replaces it with the term ``fuel'' to acknowledge the
use of alternative fuels, such as electricity.
FTR Case 2021-301-1, Removal Reservation of part 300-90-Telework
Travel Expenses Test Programs and appendix E to chapter 301-Suggested
Guidance for Conference Planning, supports sustainability by reducing
the number of paper pages required for publication in the Code of
Federal Regulations.
MA Rulemaking That Supports Equity and Underserved Communities
FTR Case 2020-302-01, Taxes on Relocation Expenses, Withholding Tax
Allowance (WTA) and Relocation Income Tax Allowance (RITA) Eligibility,
creates equity among all Federal Government employees by authorizing
agencies to reimburse new hires and others previously not eligible for
relocation benefits afforded to employees transferred in the interest
of the Government.
FMR Case 2021-01, Use of Federal Real Property to Assist the
Homeless'' will streamline the process by which excess Federal real
property is screened for potential conveyance to homeless interests.
MA Rulemaking That Supports National Security
FMR Case 2021-102-1, ``Real Estate Acquisition'' will clarify the
policies for entering into leasing agreements for high security space
(i.e., space with a Facility Security Level (FSL) of III, IV, or V) in
accordance with the Secure Federal LEASEs Act (Pub. L. 116-276).
Office of Acquisition Policy
The Fall 2021 Unified Agenda consists of nineteen (19) active
Office of Acquisition Policy (MV) agenda items, all of which are for
the General Services Administration Acquisition Regulation (GSAR).
Office of Acquisition Policy--General Services Administration
Acquisition Regulation
The GSAR establishes agency acquisition regulations that affect
GSA's business partners (e.g., prospective offerors and contractors)
and acquisition of leasehold interests in real property. The latter are
established under the authority of 40 U.S.C. 585. The GSAR implements
contract clauses, solicitation provisions, and standard forms that
control the relationship between GSA and contractors and prospective
contractors.
MV Rulemaking That Promotes Economic Resilience
GSAR Case 2021-G530, Extension of Federal Minimum Wage to Lease
Acquisitions, will increase efficiency and cost savings in the work
performed for leases with the Federal Government by increasing the
hourly minimum wage paid to those contractors in accordance with
Executive Order 14026, ``Increasing the Minimum Wage for Federal
Contractors'' dated April 27,
[[Page 5168]]
2021, and Department of Labor regulations at 29 CFR part 23.
MV Rulemaking That Supports Equity and Underserved Communities
GSAR Case 2020-G511, Updated Guidance for Non-Federal Entities
Access to Federal Supply Schedules, will clarify the requirements for
use of Federal Supply Schedules by eligible Non-Federal Entities, such
as state and local governments. The regulatory changes are intended to
increase understanding of the existing guidance and expand access to
GSA sources of supply by eligible Non-Federal Entities, as authorized
by historic statutes including the Federal Supply Schedules Usage Act
of 2010.
GSAR Case 2021-G529, Updates to References to Individuals with
Disabilities, will provide more inclusive acquisition guidance for
underserved communities by updating references from ``handicapped
individuals'' to ``individuals with disabilities'', pursuant to Section
508 of the Rehabilitation Act.
Rulemaking That Supports National Security
GSAR Case 2016-G511, Contract Requirements for GSA Information
Systems, will streamline and update requirements for contracts that
involve GSA information systems. GSA's policies on cybersecurity and
other information technology requirements have been previously issued
and communicated by the Office of the Chief Information Officer through
the GSA public website. By incorporating these requirements into the
GSAR, the GSAR will provide centralized guidance to ensure consistent
application across the organization.
GSAR Case 2020-G534, Extension of Certain Telecommunication
Prohibitions to Lease Acquisitions, will protect national security by
prohibiting procurement from certain covered entities using covered
equipment and services in lease acquisitions pursuant to Section 889 of
the National Defense Authorization Act for Fiscal Year 2019. The
regulatory changes will implement the Section 889 requirements in lease
acquisitions by requiring inclusion of the related Federal Acquisition
Regulation (FAR) provisions and clauses.
GSAR Case 2021-G522, Contract Requirements for High-Security Leased
Space, will incorporate contractor disclosure requirements and access
limitations for high-security leased space pursuant to the Secure
Federal Leases Act. Covered entities are required to identify whether
the beneficial owner of a high-security leased space, including an
entity involved in the financing thereof, is a foreign person or entity
when first submitting a proposal and annually thereafter.
GSAR Case 2021-G527, Immediate and Highest-Level Owner for High-
Security Leased Space, addresses the risks of foreign ownership of
Government-leased real estate and requires the disclosure of immediate
and highest-level ownership information for high-security space leased
to accommodate a Federal agency.
Dated: September 8, 2021.
Name: Krystal J. Brumfield,
Associate Administrator, Office of Government-wide Policy.
BILLING CODE 6820-34-P
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)
Statement of Regulatory Priorities
The National Aeronautics and Space Administration's (NASA) aim is
to increase human understanding of the solar system and the universe
that contains it and to improve American aeronautics ability. NASA's
basic organization consists of the Headquarters, nine field Centers,
the Jet Propulsion Laboratory (a federally funded research and
development center), and several component installations which report
to Center Directors. Responsibility for overall planning, coordination,
and control of NASA programs is vested in NASA Headquarters, located in
Washington, DC.
NASA continues to implement programs according to its 2018
Strategic Plan. The Agency's mission is to ``Lead an innovative and
sustainable program of exploration with commercial and international
partners to enable human expansion across the solar system and bring
new knowledge and opportunities back to Earth. Support growth of the
Nation's economy in space and aeronautics, increase understanding of
the universe and our place in it, work with industry to improve
America's aerospace technologies, and advance American leadership.''
The FY 2018 Strategic Plan (available at https://www.nasa.gov/sites/default/files/atoms/files/nasa_2018_strategic_plan.pdf) guides NASA's
program activities through a framework of the following four strategic
goals:
Strategic Goal 1: Expand human knowledge through new
scientific discoveries.
Strategic Goal 2: Extend human presence deeper into space
and to the Moon for sustainable long-term exploration and utilization.
Strategic Goal 3: Address national challenges and catalyze
economic growth.
Strategic Goal 4: Optimize capabilities and operations.
NASA's Regulatory Philosophy and Principles
The Agency's rulemaking program strives to be responsive,
efficient, and transparent. NASA adheres to the general principles set
forth in Executive Order 12866, ``Regulatory Planning and Review.''
NASA is a signatory to the Federal Acquisition Regulatory (FAR)
Council. The FAR at 48 CFR chapter 1 contains procurement regulations
that apply to NASA and other Federal agencies. Pursuant to 41 U.S.C.
1302 and FAR 1.103(b), the FAR is jointly prepared, issued, and
maintained by the Secretary of Defense, the Administrator of General
Services, and the Administrator of NASA, under their several statutory
authorities.
NASA is also mindful of the importance of international regulatory
cooperation, consistent with domestic law and U.S. trade policy, as
noted in Executive Order 13609, ``Promoting International Regulatory
Cooperation'' (May 1, 2012). NASA, along with the Departments of State,
Commerce, and Defense, engage with other countries in the Wassenaar
Arrangement, Nuclear Suppliers Group, Australia Group, and Missile
Technology Control Regime through which the international community
develops a common list of items that should be subject to export
controls. NASA has also been a key participant in interagency efforts
to overhaul and streamline the U.S. Munitions List and the Commerce
Control List. These efforts help facilitate transfers of goods and
technologies to allies and partners while helping prevent transfers to
countries of national security and proliferation concerns.
NASA Priority Regulatory Actions
NASA is highlighting one priority in this agenda and a short
summary is provided below.
Procedures for Implementing the National Environmental Policy Act
(NEPA)
NASA is revising its policy and procedures for implementing the
National Environmental Policy Act of 1969 (NEPA) and the Council on
Environmental Quality (CEQ) regulations. These proposed amendments
would update procedures
[[Page 5169]]
contained in the Agency's current regulation at 14 CFR subpart 1216.3,
Procedures for Implementing the National Environmental Policy Act, to
incorporate updates based on the Agency's review of its Categorical
Exclusions and streamline the NEPA process to better support NASA's
evolving mission.
BILLING CODE 7510-13-P
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (NARA)
Statement of Regulatory Priorities
The National Archives and Records Administration (NARA) primarily
issues regulations directed to other Federal agencies. These
regulations include records management, information services, and
information security. For example, records management regulations
directed to Federal agencies concern the proper management and
disposition of Federal records. Through the Information Security
Oversight Office (ISOO), NARA also issues Government-wide regulations
concerning information security classification, controlled unclassified
information (CUI), and declassification programs; through the Office of
Government Information Services, NARA issues Government-wide
regulations concerning Freedom of Information Act (FOIA) dispute
resolution services and FOIA ombudsman functions; and through the
Office of the Federal Register, NARA issues regulations concerning
publishing Federal documents in the Federal Register, Code of Federal
Regulations, and other publications.
NARA regulations directed to the public primarily address access to
and use of our historically valuable holdings, including archives,
donated historical materials, Nixon Presidential materials, and other
Presidential records. NARA also issues regulations relating to the
National Historical Publications and Records Commission (NHPRC) grant
programs.
NARA's regulatory priority for fiscal year 2022 is included in The
Regulatory Plan. This priority is a multi-year project to update our
entire set of records management regulations (36 CFR 1220-1239) to
reflect an overall change for the Federal Government from paper to
electronic records, account for updates in processes and technologies,
and streamline these regulations.
Changes to 44 U.S.C. 3302 require NARA to issue standards for
digital reproductions of records with an eye toward allowing agencies
to then dispose of the original source records. Changes to 44 U.S.C.
2904 require NARA to promulgate regulations requiring all Federal
agencies to transfer records to the National Archives of the United
States in digital or electronic form to the greatest extent possible.
In addition, our Strategic Plan for 2018-2022 establishes that we will
no longer accept paper records from agencies by the end of 2022.
As a result of these deadlines, agencies have begun major
digitization projects and will be doing more in the future so that they
can meet deadlines and requirements for electronic records and reduce
the storage and cost burdens involved with managing paper records.
Under the statutory provisions in 44 U.S.C. 3302, however, agencies may
not dispose of original source records due to having digitized them
(prior to the disposal authority date established in a records
schedule), unless they have digitized the records according to
standards established by NARA. So, the first priority for our
overarching records management project was to initiate two rulemaking
actions in FY 2019 and FY2020 to establish digitizing standards for
Federal records. Both actions add new subparts to 36 CFR 1236,
Electronic Records Management. The first regulatory action focused on
digitizing temporary records (records of short-term, temporary value
that are not appropriate for preservation in the National Archives of
the United States) and was issued as a final rule effective on May 10,
2019. We began developing the second action during FY 2019 as well,
focused on digitizing permanent records (permanently valuable and
appropriate for preservation in the National Archives of the United
States), and we expect to publish it as a final rule in the winter of
2021, depending upon the scope and range of agency comments.
We are also revising 36 CFR 1224, Records Disposition Programs, and
36 CFR 1225, Scheduling Records, during FY 2022 to incorporate more
regular review and assessment of records. These changes include a
requirement for agencies to periodically review established records
schedules to ensure they remain viable and up to date. This will help
agencies as they manage records and set priorities for digitizing
projects.
We are also revising 36 CFR 1222, Creation and Maintenance of
Federal Records, to incorporate requirements in the Electronic Messages
Preservation Act (EMPA), passed in January 2021. Although our
regulations at 36 CFR 1236 already include requirements for preserving
electronic messages that are records, these requirements are general
requirements for all electronic records, so we are also adding them to
36 CFR 1222 to comply with the new law.
During FY 2021 we also worked on extensive revisions to all the
records management regulations, which will continue during FY 2022 and
FY 2023.
BILLING CODE 7515-01-P
U.S. OFFICE OF PERSONNEL MANAGEMENT
Statement of Regulatory and Deregulatory Priorities Fall 2021 Unified
Agenda
Mission and Overview
OPM works in several broad categories to recruit, retain and honor
a world-class workforce for the American people.
We manage Federal job announcement postings at
USAJOBS.gov, and set policy on governmentwide hiring procedures.
We uphold and defend the merit systems in Federal civil
service, making sure that the Federal workforce uses fair practices in
all aspects of personnel management.
We manage pension benefits for retired Federal employees
and their families. We also administer health and other insurance
programs for Federal employees and retirees.
We provide training and development programs and other
management tools for Federal employees and agencies.
In many cases, we take the lead in developing, testing and
implementing new governmentwide policies that relate to personnel
issues.
Altogether, we work to make the Federal government America's model
employer for the 21st century.
Statement of Regulatory and Deregulatory Priorities
Management Priorities
OPM is required to amend the regulations to implement statutory and
policy initiatives. OPM prioritization is focused on initiatives that:
Actions that advance equity and support underserved,
vulnerable and marginalized communities;
Actions that counter the COVID-19 public health emergency
and expand access to healthcare;.
Actions that create and sustain good jobs with a free and
fair choice to join a union and promote economic resilience in general.
Rulemaking That Supports Equity
Elijah E. Cummings Federal Employee Anti-Discrimination
Act of 2020
[[Page 5170]]
3206-AO26
The Office of Personnel Management (OPM) is issuing proposed
regulations governing implementation of the Elijah E. Cummings Federal
Employee Discrimination Act of 2020, which became law on January 1,
2021. OPM is proposing to conform its regulations to the Act, which
amends existing or adds new requirements to the Notification and
Federal Employee Anti-Discrimination and Retaliation Act of 2002. The
proposed regulations, among other things, establish a new requirement
to post findings of discrimination that have been made, establish new
electronic format reporting requirements for Agencies, and establish
new disciplinary action reporting requirements for Agencies.
The Fair Chance Act
3206-AO00
The Fair Chance Act prohibits agencies from making inquiries or
soliciting information concerning job applicant's criminal history
record information prior to receipt of conditional offer. It requires
OPM to publish regulations by December 20, 2020, covering the entire
Executive civil service. Regulations must include position specific
exceptions and a process for receiving and investigating complaints
against Federal employees by applicants and specifies adverse actions
for founded violations.
Rulemaking That Addresses Covid-19 Related Issues and Expand Access to
Healthcare
Requirements Related to Surprise Billing; Part I
3206-AO30
This interim final rule with comment would implement certain
protections against surprise medical bills under the No Surprises Act.
Requirements Related to Surprise Billing; Part II
3206-AO29
This joint interim final rule with comment with the Departments of
Health and Human Services, Labor, and Treasury would implement
additional protections against surprise medical bills under the No
Surprises Act, including provisions related to the independent dispute
resolution processes.
FEDVIP: Extension of Eligibility to Certain Employees on
Temporary Appointments and Certain Employees on Seasonal and
Intermittent Schedules; Enrollment Clarifications and Qualifying Life
Events
3206-AN91
The U.S. Office of Personnel Management (OPM) is issuing a proposed
rule to expand eligibility for enrollment in the Federal Employees
Dental and Vision Insurance Program (FEDVIP) to additional categories
of Federal employees. This proposed rule expands eligibility for FEDVIP
to certain Federal employees on temporary appointments and certain
employees on seasonal and intermittent schedules that became eligible
for Federal Employees Health Benefits (FEHB) enrollment beginning in
2015.This rule also expands access to FEDVIP benefits to certain
firefighters on temporary appointments and intermittent emergency
response personnel who became eligible for FEHB coverage in 2012. These
additions will align FEDVIP with FEHB Program eligibility requirements.
This proposed rule also updates the provisions on enrollment for active
duty service members who become eligible for FEDVIP as uniformed
service retirees pursuant to the National Defense Authorization Act of
2017 (FY17 NDAA), Public Law 108-496. In addition, this rule proposes
to add qualifying life events (QLEs) for enrollees who may become
eligible for and enroll in dental and/or vision services from the
Department of Veterans Affairs, since this issue may impact TRICARE-
eligible individuals (TEIs) and other enrollees.
Rulemaking That Creates and Sustains Good Jobs With a Free and Fair
Choice To Join a Union and Promote Economic Resilience in General
Probation on Initial Appointment to a Competitive
Position, Performance-Based Reduction in Grade and Removal Actions and
Adverse Actions
3206-AO23
The Office of Personnel Management (OPM) is issuing regulations
governing probation on initial appointment to a competitive position,
performance-based reduction in grade and removal actions, and adverse
actions. The rule rescinds certain regulatory changes made in an OPM
final rule published at 85 FR 65940 on November 16, 2020 per E.O. 14003
on Protecting the Federal Workforce. This rule also proposes new
requirements for procedural and appeal rights for dual status National
Guard technicians for certain adverse actions. Elements of the November
16, 2020, rule due to statutory changes will remain in effect, such as
procedures for disciplinary action against supervisors who retaliate
against whistleblowers and the inclusion of appeals rights information
in proposal notices for adverse actions.
Hiring Authority for College Graduates
3206-AO23
The U.S. Office of Personnel Management (OPM) is issuing an interim
rule to amend its career and career-conditional employment regulations.
The revision is necessary to implement section 1108 of Public Law 115-
232, John S. McCain National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2019, which requires OPM to issue regulations
establishing hiring authorities for certain college graduates to
positions in the competitive service under 5 U.S.C. 3115. The intended
effect of the authority is to provide additional flexibility in
recruiting and hiring eligible and qualified individuals from all
segments of society. This authority may also be a useful tool in
helping agencies implement Agency Diversity, Equity, Inclusion, and
Accessibility Strategic Plans as required by E.O. 14035.
Pathways Programs
3206-AO25
The U.S. Office of Personnel Management (OPM) is issuing proposed
regulations to modify the Pathways Internship program (IP) to allow
agencies greater flexibility when making appointments. OPM is proposing
these changes to improve and enhance the effectiveness of the IP
consistent with E.O. 13562, which requires OPM to support agency
internship needs, and E.O 14035, which requires OPM to support and
promote agency use of paid internships.
BILLING CODE 3280-F5-P
PENSION BENEFIT GUARANTY CORPORATION (PBGC)
Statement of Regulatory and Deregulatory Priorities
The Pension Benefit Guaranty Corporation (PBGC or Corporation) is a
federal corporation created under title IV of the Employee Retirement
Income Security Act of 1974 (ERISA) to guarantee the payment of pension
benefits earned by over 33 million workers and retirees in private-
sector defined benefit plans. PBGC administers two insurance programs--
one for single-employer defined benefit pension plans and a second for
multiemployer defined benefit pension plans.
Single-Employer Program. Under the single-employer
program, when a plan terminates with insufficient assets to cover all
plan benefits (distress and involuntary terminations), PBGC pays plan
benefits that are guaranteed under title IV. PBGC also pays
nonguaranteed plan benefits to the extent funded by plan assets or
recoveries from
[[Page 5171]]
employers. In fiscal year (FY) 2021, PBGC paid over $6.4 billion in
benefits to nearly 970,000 retirees. Operations under the single-
employer program are financed by insurance premiums, investment income,
assets from pension plans trusteed by PBGC, and recoveries from the
companies formerly responsible for the trusteed plans.
Multiemployer Program. The multiemployer program covers
collectively bargained plans involving more than one unrelated
employer. PBGC provides financial assistance (technically in the form
of a loan, though almost never repaid) to the plan if the plan is
insolvent and thus unable to pay benefits at the guaranteed level. The
guarantee is structured differently from, and is generally
significantly lower than, the single-employer guarantee. In FY 2021,
PBGC paid $230 million in financial assistance to 109 multiemployer
plans. Operations under the multiemployer program generally are
financed by insurance premiums and investment income. In addition, the
American Rescue Plan Act of 2021 (ARP) added section 4262 of ERISA,
which requires PBGC to provide special financial assistance (SFA) to
certain financially troubled multiemployer plans upon application for
assistance, which is funded by general tax revenues.
While risks remain, the financial status of the single-employer
program improved to a positive net financial position of $30.9 billion
at the end of FY 2021. Due to enactment of ARP, the net financial
position of the multiemployer program improved dramatically during FY
2021 from a negative net position of $63.7 billion at the end of FY
2020 to a positive net position of $481 million at the end of FY 2021.
ARP substantially improves the financial condition and the outlook for
PBGC's multiemployer program. By forestalling the near-term insolvency
of the most troubled multiemployer plans, the multiemployer program is
no longer expected to go insolvent in FY 2026 and can accumulate a
greater level of reserve assets in its insurance fund in the near-term.
To carry out its statutory functions, PBGC issues regulations on
such matters as how to pay premiums, when reports are due, what
benefits are covered by the insurance program, how to terminate a plan,
the liability for underfunding, and how withdrawal liability works for
multiemployer plans. PBGC follows a regulatory approach that seeks to
encourage the continuation and maintenance of securely-funded defined
benefit plans. In developing new regulations and reviewing existing
regulations, PBGC seeks to reduce burdens on plans, employers, and
participants, and to ease and simplify employer compliance wherever
possible. PBGC particularly strives to meet the needs of small
businesses that sponsor defined benefit plans. In all such efforts,
PBGC's mission is to protect the retirement incomes of plan
participants.
Regulatory/Deregulatory Objectives and Priorities
PBGC's regulatory/deregulatory objectives and priorities are
developed in the context of the Corporation's statutory purposes,
priorities, and strategic goals.
Pension plans and the statutory framework in which they are
maintained and terminated are complex. Despite this complexity, PBGC is
committed to issuing simple, understandable, flexible, and timely
regulations to help affected parties. PBGC's regulatory/deregulatory
objectives and priorities are:
To enhance the retirement security of workers and
retirees;
To implement regulatory actions that ease compliance
burdens and achieve maximum net benefits while protecting retirement
security; and
To simplify existing regulations and reduce burden.
PBGC endeavors in all its regulatory and deregulatory actions to
promote clarity and reduce burden with the goal that net cost impact on
the public is zero or less overall.
American Rescue Plan
The American Rescue Plan Act of 2021 (ARP) added a new section 4262
of ERISA to create a program to enhance retirement security for more
than 3 million Americans by providing special financial assistance
(SFA) to certain financially troubled multiemployer plans. In turn, the
SFA program improves the financial condition of PBGC's multiemployer
insurance program. For plans that adopted a benefit suspension under
the Multiemployer Pension Reform Act of 2014 (MPRA), and for certain
insolvent plans that suspended benefits upon insolvency, the SFA
includes make-up payments of suspended benefits for participants and
beneficiaries who are in pay status at the time SFA is paid, and
prospective reinstatement of suspended benefits for all participants
and beneficiaries.
Under new section 4262 of ERISA, PBGC was required within 120 days
to prescribe in regulations or other guidance the requirements for SFA
applications. To implement the program, on July 9, 2021, PBGC released
an interim final rule adding a new part 4262 to its regulations,
``Special Financial Assistance by PBGC,'' which was published in the
Federal Register on July 12, 2021. Part 4262 provides guidance to
multiemployer pension plan sponsors on eligibility, determining the
amount of SFA, content of an application for SFA, the process of
applying, PBGC's review of applications, and restrictions and
conditions on plans that receive SFA. PBGC also released instructions
and guidance on assumptions used for determining eligibility and the
amount of SFA. PBGC held two webinars related to the interim final rule
on the SFA application and review process; restrictions, conditions,
and reporting; agency guidance; and program resources. The public
comment period on the interim final rule ended on August 12, 2021, and
PBGC expects to publish a final rule in January 2022.
Multiemployer Plans
In other multiemployer plan rulemakings, PBGC plans to publish a
proposed rule prescribing actuarial assumptions which may be used by a
multiemployer plan actuary in determining an employer's withdrawal
liability (RIN 1212-AB54). Section 4213(a) of ERISA permits PBGC to
prescribe by regulation such assumptions.
PBGC also plans to propose a rulemaking that would add a new part
4022A to PBGC's regulations to provide guidance on determining the
monthly amount of multiemployer plan benefits guaranteed by PBGC
(``Multiemployer Plan Guaranteed Benefits,'' RIN 1212-AB37). For
example, the proposed rule would explain what multiemployer plan
benefits are eligible for PBGC's guarantee, how to determine credited
service, how to determine a benefit's accrual rate, and how to
calculate the guaranteed monthly benefit amount.
Rethinking Existing Regulations
Most of PBGC's regulatory/deregulatory actions are the result of
its ongoing retrospective review to identify and correct unintended
effects, inconsistencies, inaccuracies, and requirements made
irrelevant over time. For example, PBGC's regulatory review identified
a need to improve PBGC's recoupment of benefit overpayment rules
(``Improvements to Rules on Recoupment of Benefit Overpayments,'' RIN
1212-AB47). The ``Benefit Payments'' rulemaking (RIN 1212-AB27) would
make clarifications and codify policies in PBGC's benefit payments and
valuation regulations
[[Page 5172]]
involving payment of lump sums, changes to benefit form, partial
benefit distributions, and valuation of plan assets. Other rulemakings
would modernize PBGC's regulations and policies by adopting up-to-date
assumptions and methods that are more consistent with best practices
within the pension community. For example, PBGC is considering
modernizing the interest, mortality, and expense load assumptions used
to determine the present value of benefits under the asset allocation
regulation (for single-employer plans) and for determining mass
withdrawal liability payments (for multiemployer plans) (RIN 1212-
AA55).
Small Businesses
PBGC considers very seriously the impact of its regulations and
policies on small entities. PBGC attempts to minimize administrative
burdens on plans and participants, improve transparency, simplify
filing, and assist plans to comply with applicable requirements. PBGC
particularly strives to meet the needs of small businesses that sponsor
defined benefit plans. In all such efforts, PBGC's mission is to
protect the retirement incomes of plan participants.
Open Government and Increased Public Participation
PBGC encourages public participation in the regulatory process. For
example, PBGC's ``Federal Register Notices Open for Comment'' web page
highlights when there are opportunities to comment on proposed rules,
information collections, and other Federal Register notices. PBGC also
encourages comments on an ongoing basis as it continues to look for
ways to further improve the agency's regulations. Efforts to reduce
regulatory burden in the projects discussed above are in substantial
part a response to public comments.
PBGC
Final Rule Stage
170. Special Financial Assistance by PBGC
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 29 U.S.C. 1432; 29 U.S.C. 1302(b)(3)
CFR Citation: 29 CFR 4262.
Legal Deadline: Other, Statutory, July 9, 2021, 120 days after date
of enactment (March 11, 2021).
Section 4262(c) as added to the Employee Retirement Income Security
Act of 1974 (ERISA) by section 9704 of Subtitle H of the American
Rescue Plan Act of 2021, requires that within 120 days of the date of
enactment of this section, PBGC shall issue regulations or guidance
setting forth requirements for special financial assistance (SFA)
applications under this section.
Abstract: This final rule implements section 9704 of the American
Rescue Plan Act by setting forth the requirements for plan sponsors of
financially troubled multiemployer defined benefit pension plans to
apply for special financial assistance from the Pension Benefit
Guaranty Corporation, and related requirements.
Statement of Need: This final rule is needed to implement section
9704 of the American Rescue Plan Act and set forth the requirements for
plan sponsors of financially troubled multiemployer defined benefit
pension plans to apply for special financial assistance from the
Pension Benefit Guaranty Corporation, and related requirements.
Anticipated Cost and Benefits: In its fiscal year (FY) 2020
Projections Report, published in September 2021, PBGC estimated a range
of possible outcomes for the total amount of SFA payments under the
provisions of the interim final rule. PBGC used the mean value in that
range--$97.2 billion--to estimate the transfer impacts of the SFA
program, and estimated the average annual information collection,
including application, cost of the SFA program will be about $2
million. The SFA program is expected to assist plans covering more than
3 million participants and beneficiaries, including the provision of
funds to reinstate suspended benefits of participants and
beneficiaries.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 07/12/21 86 FR 36598
Interim Final Rule Effective........ 07/12/21
Interim Final Rule Comment Period 08/11/21
End.
Final Action........................ 01/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Hilary Duke, Assistant General Counsel for
Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street
NW, Washington, DC 20005, Phone: 202 229-3839, Email:
[email protected].
RIN: 1212-AB53
BILLING CODE 7709-02-P
U.S. SMALL BUSINESS ADMINISTRATION
Statement of Regulatory Priorities
Overview
The mission of the U.S. Small Business Administration (SBA) is to
maintain and strengthen the Nation's economy by enabling the
establishment and viability of small businesses, and by assisting in
the physical and economic recovery of communities after disasters. In
accomplishing this mission, SBA strives to improve the economic
environment for small businesses, including: those in rural areas, in
areas that have significantly higher unemployment and lower income
levels than the Nation's averages, and those in traditionally
underserved markets.
SBA has several financial, procurement, and technical assistance
programs that provide a crucial foundation for those starting or
growing a small business. For example, the Agency serves as a guarantor
of loans made to small businesses by lenders that participate in SBA's
programs. The Agency also licenses small business investment companies
that make equity and debt investments in qualifying small businesses
using a combination of privately raised capital and SBA guaranteed
leverage. SBA also funds various training and mentoring programs to
help small businesses, particularly businesses owned by women,
veterans, minorities, and other historically underrepresented groups,
gain access to Federal government contracting opportunities. The Agency
also provides management and technical assistance to existing or
potential small business owners through various grants, cooperative
agreements, or contracts. Finally, as a vital part of its purpose, SBA
also provides direct financial assistance to homeowners, renters, and
businesses to repair or replace their property in the aftermath of a
disaster.
Reducing Burden on Small Businesses
SBA's regulatory policy reflects a commitment to developing
regulations that reduce or eliminate the burden on the public, in
particular the Agency's core constituents--small businesses. SBA's
regulatory process generally includes an assessment of the costs and
benefits of the regulations as required by Executive Order No. 12866,
1993, ``Regulatory Planning and Review''; Executive Order No. 13563,
2011, ``Improving Regulation and Regulatory Review''; and the
Regulatory Flexibility Act. SBA's program offices are particularly
invested in finding ways to
[[Page 5173]]
reduce the burden imposed by the Agency's core activities in its loan,
grant, innovation, and procurement programs.
Openness and Transparency
SBA promotes transparency, collaboration, and public participation
in its rulemaking process. To that end, SBA routinely solicits comments
on its regulations, even those that are not subject to the public
notice and comment requirement under the Administrative Procedure Act.
Where appropriate, SBA also conducts hearings, webinars, and other
public events as part of its regulatory process.
Regulatory Framework
The SBA Strategic Plan serves as the foundation for the regulations
that the Agency will develop during the next twelve months. This
Strategic Plan provides a framework for strengthening, streamlining,
and simplifying SBA's programs; and leverages collaborative
relationships with other agencies and the private sector to maximize
the tools small business owners and entrepreneurs need to drive
American innovation and strengthen the economy. The plan sets out four
Strategic Goals: (1) Support small business revenue and job growth; (2)
build healthy entrepreneurial ecosystems and create business friendly
environments; (3) restore small businesses and communities after
disasters; and (4) strengthen SBA's ability to serve small businesses.
The regulations reported in SBA's semi-annual Regulatory Agenda and
Plan are intended to facilitate achievement of these goals and
objectives.
Over the past 18 months, SBA's regulatory activities focused
primarily on rulemakings that were necessary to implement the Paycheck
Protection Program and the Economic Injury Disaster Loan program, which
made it possible for millions of businesses, sole proprietors,
independent contractors, certain non-profits, and veterans'
organizations, among other entities, to receive financial assistance to
alleviate the economic crisis caused by the COVID-19 pandemic. Over the
next 12 months, SBA will take further regulatory action if necessary to
tweak requirements for the programs to further advance the country's
economic recovery.
Administration's Priorities
To the extent possible and consistent with the Agency's statutory
purpose, SBA will also take steps to support the Administration's
priorities highlighted in Fall 2021 Data Call for the Unified Agenda of
Federal Regulatory and Deregulatory Action (08/16/2021), namely: (1)
Actions that advance the country's economic recovery and continue to
address any additional necessary COVID-related issues; (2) actions that
tackle the climate change emergency; (3) actions that advance equity
and support underserved, vulnerable and marginalized communities; and
(4) actions that create and sustain good jobs with a free and fair
choice to join a union and promote economic resilience in general.
Advancing the Country's Economic Recovery and Addressing Additional
COVID-Related Issues
As small businesses across multiple industries continue to face
economic uncertainties, SBA will continue to provide financial
assistance consistent with existing statutory authorities to help
alleviate the financial burdens still facing small businesses. SBA will
take steps, including regulatory action where necessary, to modify
requirements for its various COVID-related assistance programs to
alleviate burdens on eligible program recipients and further advance
the country's economic recovery. For example, the interim final rule
(RIN: 3245-AH80) included in SBA's Fall Regulatory Agenda expands the
number of small businesses, nonprofit organizations, qualified
agricultural businesses, and independent contractors within various
sectors of the economy that are eligible for a loan under the COVID-
EIDL program and also expands the eligible uses of loan proceeds. These
and other program amendments made by the rule will increase the flow of
funds to the businesses and put them in a better position to recover
from the economic losses caused by the pandemic, sustain their
operations and retain or hire employees. SBA's other currently
available COVID financial assistance programs do not require
regulations; however, the Agency is committed to ensuring that they are
executed in a manner that are as impactful as the loan program.
Advancing Equity and Supporting Underserved, Vulnerable, and
Marginalized Communities
As evidenced by SBA's equity assessment report, the Agency has made
great strides in identifying potential barriers facing underserved and
marginalized communities and ways in which SBA can help to overcome
those barriers. The responsive actions identified to date do not
require regulations for implementation and include the following:
Promoting greater access for small businesses to all our programs
including addressing language and cultural differences and social
economic factors; targeting lending groups that work with underserved
communities; improving outreach through technology and addressing
digital/technological divide. To help identify gaps and develop a more
targeted outreach effort, SBA will continue to revise information
collection instruments and enter into agreements with federal
statistical agencies to gather demographic data on recipients of its
programs and services.
Tackling the Climate Change Emergency and Promoting Economic Resilience
To help combat the climate change crisis, SBA is implementing a
multi-year priority goal to help prepare and rebuild resilient
communities by enhancing communication efforts for mitigation. SBA's
regulations in 13 CFR part 123 contain the legal framework for
financing projects specifically targeted for pre-disaster and post-
disaster mitigation projects. Proceeds from other SBA financing
programs can also be used for mitigating measures. At this point no
regulations are necessary to implement any of these options; therefore,
SBA will focus its efforts on educating the public on the benefits of
investing in mitigation and resilience projects and also on increasing
awareness of SBA loan programs that can be used for renovating,
retrofitting, or purchasing buildings and equipment to reduce
greenhouse gas emissions; improving energy efficiency; or enabling the
development of innovative solutions that support the green economy.
Regulatory Plan Rule
In the context of its Regulatory Agenda, SBA plans to prioritize
the regulations that are necessary to implement new authority for SBA
to take over responsibility from the Department of Veterans Affairs
(VA) for certifying veteran-owned small businesses (VOSBs) and service-
disabled veteran-owned small businesses (SDVOSBs) for sole source and
set-asides contracts. Section 862 of the NDAA FY 2021 requires transfer
of the program to SBA on January 1, 2023. SBA is prioritizing
development of the required rulemaking to ensure that the affected
public is aware of the regulatory requirements that will govern the
VOSB and SDVOSB certification process at SBA and that the Agency is
positioned to begin certifications on the transfer date. This
statutorily mandated program is consistent with SBA's ongoing efforts
to support businesses in underserved markets, including veteran-
[[Page 5174]]
owned small businesses. And as businesses struggle to overcome the
financial effects of the COVID pandemic, promulgating the rule before
the transfer date will also ensure there is no gap in the certification
process. Any delay in certification could adversely impact those VOSBs
and SDVOSBs seeking access to the billions of dollars in federal
government procurement opportunities and could impact their economic
recovery.
Title: Service-Disabled Veteran-Owned Small Business Certification (RIN
3245-AH69)
The Veteran-Owned Small Business (VOSB) and Service-Disabled
Veteran-Owned Small Business (SDVOSB) Programs, as managed by the
Department of Veterans Affairs (VA) in compliance with 38 U.S.C. 8127,
authorize Federal contracting officers to restrict competition to
eligible VOSBs and SDVOSBs for VA contracts. There is currently no
government wide VOSB set-aside program, and firms seeking to be awarded
SDVOSB set-aside contracts with Federal agencies other than the VA are
required only to self-certify their SDVOSB status. Section 862 of the
National Defense Authorization Act, Fiscal Year 2021, Public Law 116-
283, 128 Stat. 3292 (January 1, 2021), amended the VA certification
authority and transferred the responsibility for certification of VOSBs
and SDVOSBs to SBA and created a government-wide certification
requirement for SDVOSBs seeking sole source and set-aside contracts.
Before SBA officially takes over responsibility for the
certification on January 1, 2023, the Agency must put in place the
regulations and other guidance that will govern the certification
program at SBA. As a first step in this process, SBA will publish an
Advance Notice of Proposed Rulemaking (ANPRM) to solicit public input
on how to implement a program that would best serve the needs of
America's veterans who aspire to start or grow their businesses and
access the billions of dollars in contracts that Federal agencies award
annually. SBA will seek comments on how the certification processes are
currently working, how they can be improved, and how best to
incorporate those improvements into any new certification program at
SBA. Shortly after evaluating the comments received on the ANPRM, SBA
will issue a proposed rule to set out how the Agency plans to structure
the certification program and to solicit final public comments.
SBA
Prerule Stage
171. Service-Disabled Veteran-Owned Small Business Certification
Priority: Other Significant.
Legal Authority: 15 U.S.C. 634(b)(6); 15 U.S.C. 657f
CFR Citation: 13 CFR 125.
Legal Deadline: None.
Abstract: Section 862 of the Fiscal Year 2021 National Defense
Authorization Act, Public Law 116-283, expands Service-Disabled
Veteran-Owned Small Businesses verification government-wide and
transfers certification authority from the VA to the SBA. This
legislation requires SBA to amend 13 CFR 125 to eliminate self-
certification and create a government-wide certification program for
Veteran-owned Small Businesses (VOSBs) and Service-Disabled Veteran-
Owned Small Businesses (SDVOSBs). The certification requirement applies
only to participants wishing to compete for set-aside or sole-source
contracts. When the program is established (target date January 2023),
SDVOSBs that are not certified will not be eligible to compete on set-
asides or receive sole-source contracts in the SDVOSB Program. NDAA
also created a one-year grace period for SDVOSB firms currently self-
certified to apply to SBA for certification.
Statement of Need: Section 862 requires the Administrator to
establish procedures necessary to implement the amendments. The
Advanced Notice of Proposed Rulemaking (ANPRM) is intended to gather
feedback from the public, particularly those VOSBs and SDVOSBS that
would seek certification from SBA on how to implement the transferred
authority and establish a government-wide certification program for
SDVOSBs. In addition to the statutory requirement to establish
regulations and procedures to implement the NDAA 2021 amendments, SBA's
current regulations are also in conflict with said changes.
Summary of Legal Basis: The legal basis is the mandate in section
862 of the National Defense Authorization Act for Fiscal Year 2021
(NDAA 2021) (Pub. L. 116-283) for SBA to amend its regulations to
implement a statutory requirement to certify VOSBs and SDVOSBs and
establish a government wide certification program for SDVOSBs.
Alternatives: There are no viable alternatives to implementing
regulations. In addition to the statutory requirement to establish
regulations and procedures to implement the NDAA 2021 amendments, SBA's
current regulations are also in conflict with said changes. Therefore,
revised regulations are necessary not only to incorporate the new
authority, but also to amend any inconsistencies.
Anticipated Cost and Benefits: SBA's SDVOSB/VOSB certification
program ensures that only eligible small businesses receive set-aside
contracts from agencies throughout the federal government. Since
agencies cannot award to small businesses unless they are certified by
SBA, this regulation may reduce an agency's time and costs associated
with contract award, protest, and appeal. The statutory requirement for
SBA to establish a government-wide certification program for SDVOSBs
and certify VOSBs and SDVOSBs imposes a significant program cost burden
for the agency that is currently unfunded. There are no financial costs
to the applicant other than the time spent preparing and submitting the
application.
Risks: There is a risk that SBA's certification program would fail
to identify an ineligible entity that would subsequently receive a set-
aside contract. This risk is reduced by existing SDVOSB/VOSB protest
procedures and periodic eligibility examinations of participant firms.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Edmund Bender, Small Business Administration, 409
3rd Street SW, Washington, DC 20416, Phone: 202 205-6455.
RIN: 3245-AH69
BILLING CODE 8026-03-P
SOCIAL SECURITY ADMINISTRATION (SSA)
I. Statement of Regulatory Priorities
We administer the Retirement, Survivors, and Disability Insurance
programs under title II of the Social Security Act (Act), the
Supplemental Security Income (SSI) program under title XVI of the Act,
and the Special Veterans Benefits program under title VIII of the Act.
As directed by Congress, we also assist in administering portions of
the Medicare program under title XVIII of the Act. Our regulations
codify the requirements for eligibility and entitlement to benefits and
our procedures for administering these
[[Page 5175]]
programs. Generally, our regulations do not impose burdens on the
private sector or on State or local governments, except for the States'
Disability Determination Services and representatives of claimants.
However, our regulations can impose burdens on the private sector in
the course of evaluating a claimant's initial or continued eligibility.
We fully fund the Disability Determination Services in advance or via
reimbursement for necessary costs in making disability determinations.
The entries in our regulatory plan represent issues of major
importance to the Agency. Through our regulatory plan, we intend to:
A. Simplify a specific policy within the SSI program by no longer
considering food expenses as a source of In-Kind Support and
Maintenance (RIN 0960-AI60);
B. Revise our regulations to confirm that we will allow a $20
tolerance that prevents us from assessing In-Kind Support and
Maintenance if an SSI claimant is close to meeting his or her fair
share of expenses (RIN 0960-AI68); and
C. Simplify policies and business processes while assisting
vulnerable populations who may need assistance providing their intent
to file and recording their protective filing. We would also allow
third parties who are assisting the potential claimants to submit a
written statement regardless of whether the written inquiry is signed,
which will protect claimants who are unable to provide the information
by themselves (RIN 0960-AI69).
II. Regulations in the Proposed Rule Stage
Two of our regulations target changes to the In-Kind Support and
Maintenance policy in our SSI program. They would simplify a specific
policy within the SSI program by no longer considering food expenses as
a source of ISM (RIN 0960-AI60) and would revise our regulations to
confirm that we will allow a $20 tolerance that prevents us from
assessing In-Kind Support and Maintenance if an SSI claimant is close
to meeting his or her fair share of expenses (RIN 0960-AI68).
In addition, our proposed regulations would simplify policies and
business processes while assisting vulnerable populations who may need
assistance providing their intent to file and recording their
protective filing. The proposed regulation would allow third parties
who are assisting the potential claimants to submit a written statement
regardless of whether the written inquiry is signed, which will protect
claimants who are unable to provide the information by themselves (RIN
0960-AI69).
III. Regulations in the Final Rule Stage
We are not including any of our regulations in the final rule stage
in this statement of regulatory priorities.
Retrospective Review of Existing Regulations
Pursuant to section 6 of Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (January 18, 2011), SSA regularly
engages in retrospective review and analysis for multiple existing
regulatory initiatives. These initiatives may be proposed or completed
actions, and they do not necessarily appear in The Regulatory Plan. You
can find more information on these completed rulemakings in past
publications of the Unified Agenda at www.reginfo.gov in the
``Completed Actions'' section for the Social Security Administration.
SSA
Proposed Rule Stage
172. Omitting Food From In-Kind Support and Maintenance Calculations
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 902(a)(5); 42 U.S.C. 1381a; 42
U.S.C.1382; 42 U.S.C. 1382a; 42 U.S.C. 1382b; 42 U.S.C. 1382c(f); 42
U.S.C. 1382j; 42 U.S.C. 1383; 42 U.S.C. 1382 note
CFR Citation: 20 CFR 416.1102; 20 CFR 416.1130; 20 CFR 416.1131.
Legal Deadline: None.
Abstract: We propose to change the definition of In-Kind Support
and Maintenance (ISM) to no longer consider food expenses as a source
of ISM. Instead, ISM would only be derived from shelter expenses (i.e.
costs associated with room, rent, mortgage payments, real property
taxes, heating fuel, gas, electricity, water, sewerage, and garbage
collection services). The present definition of ISM is used across
several regulations and this regulatory change would necessitate minor
changes to other related regulations.
Statement of Need: This change would remove food cost when we
determine ISM. By doing so, it streamlines the ISM policy and resulting
SSI program complexity.
Anticipated Cost and Benefits: To be provided with publication of
the proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Scott Logan, Social Insurance Specialist, Social
Security Administration, Office of Income Security Programs, 6401
Security Boulevard, Baltimore, MD 21235-6401, Phone: 410 966-5927,
Email: [email protected].
RIN: 0960-AI60
SSA
173. $20 Tolerance Rule To Establish That the Individual Meets
the Pro-Rata Share of Household Expenses When Living in the Household
of Another
Priority: Other Significant.
Legal Authority: 42 U.S.C. 902(a)(5); 42 U.S.C. 1381a; 42 U.S.C.
1382; 42 U.S.C. 1382a; 42 U.S.C. 1382b; 42 U.S.C. 1382c(f); 42 U.S.C.
1382j; 42 U.S.C. 1383; 42 U.S.C. 1382 note
CFR Citation: 20 CFR 416.1133.
Legal Deadline: None.
Abstract: When SSI claimants live in another person's household,
their benefits may be reduced because they could receive in-kind
support and maintenance from that household. However, their benefits
will not be reduced if they demonstrate that they are paying their pro-
rata share of the household's expenses. If SSI claimants do not
contribute their pro-rata share of household expenses, but they do
contribute an amount that is within $20 of their share of household
expenses, we treat the situation as if the claimants pay their pro-rata
share under our tolerance policy. In this situation, we would not
reduce a claimant's benefit because of in-kind support and maintenance.
This proposed rule seeks to codify this policy.
Statement of Need: This change would reinforce a tolerance that
prevents SSA from assessing ISM if a claimant is within a specific
dollar amount of meeting their fair share when living in the home on
another.
Anticipated Cost and Benefits: This is a new draft regulation
proposal and we have not completed the regulation specifications. We
are unable to formally project costs and benefits.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/22
------------------------------------------------------------------------
[[Page 5176]]
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Scott Logan, Social Insurance Specialist, Social
Security Administration, Office of Income Security Programs, 6401
Security Boulevard, Baltimore, MD 21235-6401, Phone: 410 966-5927,
Email: [email protected].
RIN: 0960-AI68
SSA
174. Inquiry About SSI Eligibility at Application Filing Date
Which Will Remove the Requirement for a Signed Written Statement and
Will Expand Protective Filing
Priority: Other Significant.
Legal Authority: 42 U.S.C. 902 (a)(5)
CFR Citation: 20 CFR 416.340; 20 CFR 416.345.
Legal Deadline: None.
Abstract: Under current regulations, a protective filing may be
established only if the claimant, the claimant's spouse, or a person
who may sign an application on the claimant's behalf (20 CFR
416.340(b), 416.345(b)) submits a signed written statement expressing
intent to file, or makes an oral inquiry. Under our regulations, people
who may sign such an application include parents or caregivers of
claimants who are minor children or mentally incompetent (20 CFR
416.315). However, the regulations do not authorize other third parties
to sign an application or otherwise establish a protective filing date,
unless the situation meets the regulatory exception. The exception only
allows considering a protective filing from a third party if it
prevents a loss of benefits due to a delay in filing when there is a
good reason why the claimant cannot sign an application.
Revising the regulations and combining them to provide one set of
rules for both situations will simplify policies and business processes
while assisting vulnerable populations who may need assistance
providing their intent to file and recording their protective filing.
Amending both regulations to allow third parties who are assisting
the potential claimants to submit a written statement regardless of
whether the written inquiry is signed will protect claimants who are
unable to provide the information by themselves.
Statement of Need: We need these revisions in order to simplify
policies and business processes while assisting vulnerable populations
who may need assistance providing their intent to file and recording
their protective filing. Amending both regulations to allow third
parties who are assisting the potential claimants to submit a written
statement regardless of whether the written inquiry is signed will
protect claimants who are unable to provide the information by
themselves.
Anticipated Cost and Benefits: We cannot quantify costs and
benefits at this time, but this change would allow SSA technicians to
schedule appointments from the information submitted by the third party
without first having to contact the potential claimant to confirm their
intent to file nor developing for a good reason why the third party is
providing us with the claimant's intent to file. We see benefits here
in terms of work hours for SSA employees and in terms of protective
filings established for vulnerable populations requiring assistance.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Organizations.
Government Levels Affected: None.
Agency Contact: Crystal Ors, Policy Analyst, Social Security
Administration, ORDP/OISP/OAESP, 6401 Social Security Boulevard,
Baltimore, MD 21235-6401, Phone: 866 931-7110, Email:
[email protected].
RIN: 0960-AI69
BILLING CODE 4191-02-P
FEDERAL ACQUISITION REGULATION (FAR)
The Federal Acquisition Regulation (FAR) was established to codify
uniform policies for acquisition of supplies and services by executive
agencies. It is issued and maintained jointly under the statutory
authorities granted to the Secretary of Defense, Administrator of
General Services, and the Administrator, National Aeronautics and Space
Administration, known as the Federal Acquisition Regulatory Council
(FAR Council). Overall statutory authority is found at chapters 11 and
13 of title 41 of the United States Code.
Pursuant to Executive Order 12866, ``Regulatory Planning and
Review'' (September 30, 1993) and Executive Order 13563, ``Improving
Regulation and Regulatory Review'' (January 18, 2011), the Regulatory
Plan and Unified Agenda provide notice about the FAR Council's proposed
regulatory and deregulatory actions within the Executive Branch. The
Fall 2021 Unified Agenda consists of forty-seven (48) active agenda
items.
Rulemaking Priorities
The FAR Council is required to amend the Federal Acquisition
Regulation to implement statutory and policy initiatives. The FAR
Council prioritization is focused on initiatives that:
Promote the country's economic resilience, including
addressing COVID-related issues.
Tackle the climate change emergency.
Support equity and underserved communities; and
Support national security efforts, especially safeguarding
Federal Government information and information technology systems.
Rulemaking That Promotes Economic Resilience
FAR Case 2021-021, ``Ensuring Adequate COVID-19 Safety Protocols
for Federal Contractors,'' will promote economy and efficiency in
procurement by implementing the safeguard requirements of Executive
Order 14042, ``Ensuring Adequate COVID-19 Safety Protocols for Federal
Contractors'' dated September 9, 2021, and the guidance published by
the Safer Federal Workforce Task Force. Contracting with sources that
provide adequate safeguards to their workers will decrease worker
absence, reduce labor costs and therefore, improve the efficiency of
contractors and subcontractors performing on Federal procurements.
FAR Case 2021-014, ``Increasing the Minimum Wage for Contractors,''
will increase efficiency and cost savings in the work performed by
parties who contract with the Federal Government by increasing the
hourly minimum wage paid to those contractors in accordance with
Executive Order 14026, ``Increasing the Minimum Wage for Federal
Contractors'' dated April 27, 2021, and Department of Labor regulations
at 29 CFR part 23.
FAR Case 2021-008, Amendments to the FAR Buy American Act
Requirements, will strengthen the impact of the Buy American Act
through amendments, such as increasing the domestic content threshold
and enhancing price preference for critical domestic products, in
accordance with section 8 of Executive Order 14005, ``Ensuring the
[[Page 5177]]
Future is Made in All of America by All of America's Workers.''
Rulemaking That Tackles Climate Change
FAR Case 2021-015, ``Disclosure of Greenhouse Gas Emissions and
Climate-Related Financial Risk,'' will consider requiring major Federal
suppliers to publicly disclose greenhouse gas emissions and climate-
related financial risk, and to set science-based reductions targets per
section 5(b)(i) of Executive Order 14030, ``Climate-Related Financial
Risk.''
FAR Case 2021-016, ``Minimizing the Risk of Climate Change in
Federal Acquisitions,'' will consider amendments to ensure major agency
procurements minimize the risk of climate change and require
consideration of the social cost of greenhouse gas emissions in
procurement decisions per section 5(b)(ii) of Executive Order 14030,
``Climate-Related Financial Risk.''
Rulemaking That Supports Equity and Underserved Communities
FAR Case 2021-010, ``Subcontracting to Puerto Rican and Other Small
Businesses,'' will provide contracting incentives to mentors that
subcontract to protege firms that are Puerto Rican businesses in
accordance with section 861 of the National Defense Authorization Act
of Fiscal Year 2019 as implemented in the Small Business Administration
final rule published October 16, 2020.
FAR Case 2021-012, 8(a) Program, will implement regulatory changes
made to the 8(a) Business Development Program by the Small Business
Administration, in its final rule published in the Federal Register on
October 16, 2020, which provided clarifications on offer and
acceptance, certificate of competency and follow-on requirements.
FAR Case 2020-013, ``Certification of Women-Owned Small
Businesses,'' will implement the statutory requirement for
certification of women-owned and economically disadvantaged women-owned
small businesses participating in the Women-Owned Small Business
Program, as implemented by the Small Business Administration in its
final rule published May 11, 2020.
FAR Case 2019-007, ``Update of Historically Underutilized Business
Zone Program,'' will implement SBA's regulatory changes issued in its
final rule published on November 26, 2019. The regulatory changes are
intended to reduce the regulatory burden associated with the
Historically Underutilized Business Zone (HUBZone) Program.
Rulemakings That Support National Security
FAR Case 2021-017, ``Cyber Threat and Incident Reporting and
Information Sharing,'' will increase the sharing of information about
cyber threats and incident information and require certain contractors
to report cyber incidents to the Federal Government to facilitate
effective cyber incident response and remediation per sections 2(b),
(c), and (g)(i) of Executive Order 14028, ``Improving the Nation's
Cybersecurity.''
FAR Case 2021-019, ``Standardizing Cybersecurity Requirements for
Unclassified Information Systems,'' will standardize cybersecurity
contractual requirements across Federal agencies for unclassified
information systems per sections 2(i) and 8(b) of Executive Order
14028, Improving the Nation's Cybersecurity.
FAR Case 2020-011, ``Implementation of Issued Exclusion and Removal
Orders,'' will implement authorities authorized by section 2020 of the
SECURE Technology Act for the Federal Acquisition Security Council
(FASC), the Secretary of Homeland Security, the Secretary of Defense
and the Director of National Intelligence to issue exclusion and
removal orders. These exclusions and removal orders are issued to
protect national security by excluding certain covered products,
services, or sources from the Federal supply chain.
Dated: September 8, 2021.
Name: William F. Clark, Director, Office of Government-wide
Acquisition Policy, Office of Acquisition Policy, Office of Government-
wide Policy.
BILLING CODE 6820-EP-P
CONSUMER PRODUCT SAFETY COMMISSION (CPSC)
Statement of Regulatory Priorities
The U.S. Consumer Product Safety Commission is charged with
protecting the public from unreasonable risks of death and injury
associated with consumer products. To achieve this goal, CPSC, among
other things:
Develops mandatory product safety standards or bans when
other efforts are inadequate to address a safety hazard, or where
required by statute;
obtains repairs, replacements, or refunds for defective
products that present a substantial product hazard;
develops information and education campaigns about the
safety of consumer products;
participates in the development or revision of voluntary
product safety standards; and
follows statutory mandates.
Unless otherwise directed by congressional mandate, when deciding
which of these approaches to take in any specific case, CPSC gathers
and analyzes data about the nature and extent of the risk presented by
the product. The Commission's rules at 16 CFR 1009.8 require the
Commission to consider the following criteria, among other factors,
when deciding the level of priority for any particular project:
The frequency and severity of injuries;
the causality of injuries;
chronic illness and future injuries;
costs and benefits of Commission action;
the unforeseen nature of the risk;
the vulnerability of the population at risk;
the probability of exposure to the hazard; and
additional criteria that warrant Commission attention.
Significant Regulatory Actions
Currently, the Commission is considering taking action in the next
12 months on one rule, table saws (RIN 3041-AC31), which would
constitute a ``significant regulatory action'' under the definition of
that term in Executive Order 12866.
BILLING CODE 6355-01-P
FEDERAL TRADE COMMISSION (FTC)
Statement of Regulatory Priorities
The Federal Trade Commission is an independent agency charged with
rooting out unfair methods of competition and unfair or deceptive acts
or practices. This mission is vital to our national interest because,
when markets are fair and competitive, honest businesses and consumers
alike reap the rewards. The Commission is committed to deploying all
its tools to realize this mission.
I. New Circumstances Facing the Commission
In 2021, a number of changed circumstances caused the Commission to
consider deploying new tools to advance its mission. First, the Supreme
Court decided that the Commission cannot invoke its authority under
Section 13(b) of the FTC Act to seek restitution or disgorgement in
federal court.\3\ Second, the Commission, after
[[Page 5178]]
careful study, streamlined its own Rules of Practice, eliminating extra
bureaucratic steps and unnecessary formalities by returning to the
statutory text Congress enacted in section 18 of the FTC Act, which
will make new consumer-protection rulemakings more feasible and
efficient while still preserving robust public participation.\4\ As the
Supreme Court noted in its decision, consumer redress remains available
for cases that involve a consumer-protection rule violation.\5\ Third,
the case-by-case approach to promoting competition, while necessary,
has proved insufficient, leaving behind a hyper-concentrated economy
whose harms to American workers, consumers, and small businesses demand
new approaches. Accordingly, the Commission in the coming year will
consider developing both unfair-methods-of-competition rulemakings as
well as rulemakings to define with specificity unfair or deceptive acts
or practices.
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\3\ See AMG Capital Mgmt., LLC v. FTC, 141 S. Ct. 1341, 1352
(2021). The Commission has called on Congress to restore its ability
to seek disgorgement and restitution. The Consumer Protection and
Recovery Act, which would fix the adverse court ruling and restore
the Commission's powers, passed the U.S. House of Representatives on
July 20, 2021. See Congress.gov, H.R. 2668--Consumer Protection and
Recovery Act, https://www.congress.gov/bill/117th-congress/house-bill/2668/actions.
\4\ See Fed. Trade Comm'n, Statement of the Commission Regarding
the Adoption of Revised Section 18 Rulemaking Procedures (July 9,
2021), https://www.ftc.gov/system/files/documents/public_statements/1591786/p210100commnstmtsec18rulesofpractice.pdf.
\5\ See AMG Capital, 141 S. Ct. at 1352.
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The Commission is particularly focused on developing rules that
allow the agency to recover redress for consumers who have been
defrauded and seek penalties for firms that engage in data abuses. The
Commission's recent action to prohibit Made in USA labeling fraud
offers a model for how the agency can deter the worst abuses without
imposing burdens on honest businesses.\6\
---------------------------------------------------------------------------
\6\ See Fed. Trade Comm'n, Made in USA Labeling Rule, 86 FR
37022, 37032-33 (July 14, 2021) (codified at 16 CFR 323.2).
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Among the many pressing issues consumers confront in the modern
economy, the abuses stemming from surveillance-based business models
are particularly alarming. The Commission is considering whether
rulemaking in this area would be effective in curbing lax security
practices, limiting intrusive surveillance, and ensuring that
algorithmic decision-making does not result in unlawful discrimination.
Importantly, it is not only consumers that are threatened by
surveillance-based business models but also competition.
Over the coming year, the Commission will also explore whether
rules defining certain ``unfair methods of competition'' prohibited by
section 5 of the FTC Act would promote competition and provide greater
clarity to the market. A recent Executive Order encouraged the
Commission to consider competition rulemakings relating to non-compete
clauses, surveillance, the right to repair, pay-for-delay
pharmaceutical agreements, unfair competition in online marketplaces,
occupational licensing, real-estate listing and brokerage, and
industry-specific practices that substantially inhibit competition.\7\
The Commission will explore the benefits and costs of these and other
competition rulemaking ideas.
---------------------------------------------------------------------------
\7\ See Office of the President of the United States, Executive
Order or Promoting Competition in the American Economy, section
5(g), (h)(i)-(vii) (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
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Recently, the Commission published in the Federal Register a
``Request for Public Comment Regarding Contract Terms that May Harm
Fair Competition,'' which included for reference two public petitions
for competition rulemaking the Commission has received.\8\ One of those
petitions was to curtail the use of non-compete clauses, and the other
was to limit exclusionary contracting by dominant firms, but the
Commission also solicited additional examples of unfair terms. Members
of the public filed thousands of comments, which the Commission's staff
are carefully reviewing.
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\8\ See Regulations.gov, Request for Public Comment Regarding
Contract Terms that May Harm Fair Competition, No. FTC-2021-0036,
https://www.regulations.gov/docket/FTC-2021-0036.
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II. Updates on Ongoing Rulemakings
a. Periodic Regulatory Review Program
In 1992, the Commission implemented a program to review its rules
and guides on a regular basis. The Commission's review program is
patterned after provisions in the Regulatory Flexibility Act, 5 U.S.C.
601-612, and complies with the Small Business Regulatory Enforcement
Fairness Act of 1996. The Commission's review program is also
consistent with section 5(a) of Executive Order 12866, which directs
executive branch agencies to reevaluate periodically all their
significant regulations.\9\ Under the Commission's program, rules and
guides are reviewed on a 10-year schedule that results in more frequent
reviews than are generally required by the Regulatory Flexibility Act.
The public can obtain information on rules and guides under review and
the Commission's regulatory review program generally at https://www.ftc.gov/enforcement/rules/retrospective-review-ftc-rules-guides.
---------------------------------------------------------------------------
\9\ 58 FR 51735 (Sept. 30, 1993).
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The program provides an ongoing, systematic approach for obtaining
information about the costs and benefits of rules and guides and
whether there are changes that could minimize any adverse economic
effects, not just a ``significant economic impact upon a substantial
number of small entities.'' \10\ As part of each review, the Commission
requests public comment on, among other things, the economic impact and
benefits of the rule; possible conflict between the rule and state,
local, or other federal laws or regulations; and the effect on the rule
of any technological, economic, or other industry changes. Reviews may
lead to the revision or rescission of rules and guides to ensure that
the Commission's consumer protection and competition goals are achieved
efficiently. Pursuant to this program, the Commission has rescinded 40
rules and guides promulgated under the FTC's general authority and
updated dozens of other rules and guides since the program's inception.
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\10\ 5 U.S.C. 610.
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(1) Newly Initiated and Upcoming Periodic Reviews of Rules and Guides
On July 2, 2021, the Commission issued an updated ten-year review
schedule.\11\ Since the publication of the 2020 Regulatory Plan, the
Commission has initiated or announced plans to initiate periodic
reviews of the following rules and guides:
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\11\ 86 FR 35239 (July 2, 2021).
---------------------------------------------------------------------------
Business Opportunity Rule, 16 CFR 437. During the latter part of
2021, the Commission plans to initiate periodic review of the Business
Opportunity Rule as part of the Commission's systematic review of all
current Commission rules and guides. The Commission plans to seek
comments on, among other things, the economic impact, and benefits of
this rule; possible conflict between the rule and State, local, or
other Federal laws or regulations; and the effect on the rule of any
technological, economic, or other industry changes. Effective in 2012,
the Rule requires business-opportunity sellers to furnish prospective
purchasers a disclosure document that provides information regarding
the seller, the seller's business, and the nature of the proposed
business opportunity, as well as additional information to substantiate
any claims about actual or potential sales, income, or profits for a
prospective business-opportunity
[[Page 5179]]
purchaser. The seller must also preserve information that forms a
reasonable basis for such claims.
Power Output Claims for Amplifiers Utilized in Home Entertainment
Products, 16 CFR 432. On December 18, 2020, the Commission initiated
periodic review of the Amplifier Rule (officially Power Output Claims
for Amplifiers Utilized in Home Entertainment Products Rule).\12\ The
Commission sought comments on, among other things, the economic impact,
and benefits of this Rule; possible conflict between the Rule and
State, local, or other Federal laws or regulations; and the effect on
the Rule of any technological, economic, or other industry changes.
Staff anticipates submitting a recommendation for further action to the
Commission by February 2022. The Amplifier Rule establishes uniform
test standards and disclosures so that consumers can make more
meaningful comparisons of amplifier-equipment performance attributes.
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\12\ 85 FR 82391 (Dec. 18, 2020).
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Hart-Scott-Rodino Antitrust Improvements Act Coverage, Exemption,
and Transmittal Rules, 16 CFR 801-803. On December 1, 2020, the
Commission initiated the periodic review of the Hart-Scott-Rodino
Antitrust Improvements Act Coverage, Exemption, and Transmittal Rules
(HSR Rules) as part of the Commission's systematic review of all
current Commission rules and guides.\13\ The comment period closed on
February 1, 2021, and staff is now reviewing the comments. The HSR
Rules and the Antitrust Improvements Act Notification and Report Form
(HSR Form) were adopted pursuant to section 7(A) of the Clayton Act,
which requires firms of a certain size contemplating mergers,
acquisitions, or other transactions of a specified size to file
notification with the FTC and the DOJ and to wait a designated period
before consummating the transaction.
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\13\ 85 FR 77042 (Dec. 1, 2020).
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During the first quarter of 2022, staff anticipates that the
Commission will propose a rulemaking to update the HSR Form and
Instructions to the new cloud-based, e-filing system, which will
eliminate paper filings.
Guides. During the calendar year of 2022, the Commission plans to
initiate periodic review of the Guides Against Deceptive Pricing, 16
CFR 233, the Guides, 16 CFR 238, the Guide Concerning Use of the Word
``Free'' and Similar Representations, 16 CFR 251, and the Guides for
the Use of Environmental Marketing Claims, 16 CFR 260.
(2) Ongoing Periodic Reviews of Rules and Guides
The following proceedings for the retrospective review of
Commission rules and guides described in the 2020 Regulatory Plan are
ongoing:
Children's Online Privacy Protection Rule, 16 CFR 312. On July 25,
2019, the Commission issued a request for public comment on its
Children's Online Privacy Protection Rule (COPPA Rule).\14\ Although
the Commission's last COPPA Rule review ended in 2013, the Commission
initiated this review early in light of changes in the marketplace.
Following an extension, the public comment period closed on December 9,
2019.\15\ The FTC sought comment on all major provisions of the COPPA
Rule, including its definitions, notice and parental-consent
requirements, exceptions to verifiable parental consent, and safe-
harbor provision. The FTC hosted a public workshop to address issues
raised during the review of the COPPA Rule on October 7, 2019. Staff is
analyzing and reviewing public comments.
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\14\ 84 FR 35842 (July 25, 2019).
\15\ 84 FR 56391 (Oct. 22, 2019).
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Endorsement Guides, 16 CFR 255. On February 21, 2020, the
Commission initiated a periodic review of the Endorsement Guides.\16\
The comment period, as extended, closed on June 22, 2020.\17\ FTC staff
is currently reviewing the comments received. The Guides are designed
to assist businesses and others in conforming their endorsement and
testimonial advertising practices to the requirements of the FTC Act.
Among other things, the Endorsement Guides provide that if there is a
connection between an endorser and the marketer that consumers would
not expect and it would affect how consumers evaluate the endorsement,
that connection should be disclosed. The advertiser must also possess
and rely on adequate substantiation to support claims made through
endorsements in the same manner the advertiser would be required to do
if it had made the representation directly.
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\16\ 85 FR 10104 (Feb. 21, 2020).
\17\ 85 FR 19709 (Apr. 8, 2020).
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Franchise Rule, 16 CFR 436. On March 15, 2019, the Commission
initiated periodic review of the Franchise Rule (officially titled,
Disclosure Requirements and Prohibitions Concerning Franchising).\18\
The comment period closed on April 21, 2019. The Commission then held a
public workshop on November 10, 2020. The closing date for written
comments related to the issues discussed at the workshop was December
17, 2020.\19\ The Rule is intended to give prospective purchasers of
franchises the material information they need to weigh the risks and
benefits of such an investment. The Rule requires franchisors to
provide all potential franchisees with a disclosure document containing
23 specific items of information about the offered franchise, its
officers, and other franchisees. Required disclosure topics include,
for example, the franchise's litigation history; past and current
franchisees and their contact information; any exclusive territory that
comes with the franchise; assistance the franchisor provides
franchisees; and the cost of purchasing and starting up a franchise.
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\18\ 84 FR 9051 (Mar. 13, 2019).
\19\ 85 FR 55850 (Sept. 10, 2020).
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Funeral Rule, 16 CFR 453. On February 14, 2020, the Commission
initiated a periodic review of the Funeral Industry Practices Rule
(Funeral Rule).\20\ The comment period as extended closed on June 15,
2020.\21\ Commission staff is reviewing the comments received and
anticipates submitting a recommendation for further action to the
Commission by early 2022. The Rule, which became effective in 1984,
requires sellers of funeral goods and services to give price lists to
consumers who visit a funeral home.
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\20\ 85 FR 8490 (Feb. 14, 2020).
\21\ 85 FR 20453 (Apr. 13, 2020).
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Health Breach Notification Rule, 16 CFR 318. On May 22, 2020, the
Commission initiated a periodic review of the Health Breach
Notification Rule.\22\ The comment period closed on August 20, 2020.
Commission staff has reviewed the comments and intends to submit a
recommendation to the Commission by January 2022. The Rule requires
vendors of personal health records (PHR) and PHR-related entities to
provide: (1) Notice to consumers whose unsecured personally
identifiable health information has been breached; and (2) notice to
the Commission. Under the Rule, vendors must notify both the FTC and
affected consumers whose information has been affected by a breach
``without unreasonable delay and in no case later than 60 calendar
days'' after discovery of a data breach. Among other information, the
notices must provide consumers with steps they can take to protect
themselves from harm.
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\22\ 85 FR 31085 (May 22, 2020).
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Identity Theft Rules, 16 CFR 681. In December 2018, the Commission
initiated a periodic review of the
[[Page 5180]]
Identity Theft Rules, which include the Red Flags Rule and the Card
Issuer Rule.\23\ FTC staff is reviewing the comments received and
anticipates sending a recommendation to the Commission by January 2022.
The Red Flags Rule requires financial institutions and creditors to
develop and implement a written identity theft prevention program (a
Red Flags Program). By identifying red flags for identity theft in
advance, businesses can be better equipped to spot suspicious patterns
that may arise and take steps to prevent potential problems from
escalating into a costly episode of identity theft. The Card Issuer
Rule requires credit and debit card issuers to implement reasonable
policies and procedures to assess the validity of a change of address
if they receive notification of a change of address for a consumer's
debit or credit card account and, within a short period of time
afterwards, also receive a request for an additional or replacement
card for the same account.
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\23\ 83 FR 63604 (Dec. 11, 2018).
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Leather Guides, 16 CFR 24. On March 6, 2019, the Commission
initiated periodic review of the Leather Guides, formally known as the
Guides for Select Leather and Imitation Leather Products.\24\ The
comment period closed on April 22, 2019, and staff anticipates
submitting a recommendation for further action to the Commission by
December 2021. The Leather Guides apply to the manufacture, sale,
distribution, marketing, or advertising of leather or simulated leather
purses, luggage, wallets, footwear, and other similar products. The
Guides address misrepresentations regarding the composition and
characteristics of specific leather and imitation leather products.
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\24\ 84 FR 8045 (Mar. 6, 2019).
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Negative Option Rule, 16 CFR 425. On October 2, 2019, the
Commission issued an Advance Notice of Proposed Rulemaking (ANPRM)
seeking public comment on the effectiveness and impact of the Trade
Regulation Rule on Use of Prenotification Negative Option Plans
(Negative Option Rule).\25\ The Negative Option Rule helps consumers
avoid recurring payments for products and services they did not intend
to order and to allow them to cancel such payments without unwarranted
obstacles. The Commission is studying various options, but the next
expected action is undetermined.
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\25\ 84 FR 52393 (Oct. 2, 2019).
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Telemarketing Sales Rule (TSR), 16 CFR 310. On August 11, 2014, the
Commission initiated a periodic review of the TSR as set out on the 10-
year review schedule.\26\ The comment period as extended closed on
November 13, 2014.\27\ Staff anticipates making a recommendation to the
Commission by November 2021.
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\26\ 79 FR 46732 (Aug. 11, 2014).
\27\ 79 FR 61267 (Oct. 10, 2014).
---------------------------------------------------------------------------
b. Proposed Rules
Since the publication of the 2020 Regulatory Plan, the Commission
has initiated or plans to take further steps as described below in the
following rulemaking proceedings:
Care Labeling Rule, 16 CFR 423. On July 23, 2020, the Commission
issued a Supplemental Notice of Proposed Rulemaking seeking comment on
a proposed repeal of the Rule.\28\ On July 21, 2021, the Commission
voted to retain the Care Labeling Rule (officially the Rule on Care
Labeling of Textile Apparel and Certain Piece Goods as Amended) to
ensure American consumers continue to get accurate information on how
to take care of their fabrics and extend the life of their clothes. In
a public statement, the Commission also indicated that it would
continue to consider ways to improve the Rule to the benefit of
families and businesses. Promulgated in 1971, the Care Labeling Rule
makes it an unfair or deceptive act or practice for manufacturers and
importers of textile wearing apparel and certain piece goods to sell
these items without attaching care labels stating what regular care is
needed for the ordinary use of the product. The Rule also requires that
the manufacturer or importer possess, prior to sale, a reasonable basis
for the care instructions and allows the use of approved care symbols
in lieu of words to disclose care instructions.
---------------------------------------------------------------------------
\28\ 85 FR 44485 (July 23, 2020).
---------------------------------------------------------------------------
Energy Labeling Rule, 16 CFR 305. The Energy Labeling Rule requires
energy labeling for major home appliances and other consumer products
to help consumers compare the energy usage and costs of competing
models. Staff anticipates sending the Commission a recommendation to
update comparability ranges for 16 CFR 305.12 by April 2022.\29\
---------------------------------------------------------------------------
\29\ See Final Actions below for information about a separate
completed rulemaking proceeding for the Energy Labeling Rule.
---------------------------------------------------------------------------
Eyeglass Rule, 16 CFR 456. As part of the systematic review
process, the Commission issued a Federal Register notice seeking public
comments about the Trade Regulation Rule on Ophthalmic Practice Rules
(Eyeglass Rule) on September 3, 2015.\30\ The comment period closed on
October 26, 2015. Commission staff has completed the review of 831
comments on the Eyeglass Rule and anticipates sending a recommendation
for further Commission action by November 2021. The Eyeglass Rule
requires that an optometrist or ophthalmologist give the patient, at no
extra cost, a copy of the eyeglass prescription immediately after the
examination is completed. The Rule also prohibits optometrists and
ophthalmologists from conditioning the availability of an eye
examination, as defined by the Rule, on a requirement that the patient
agree to purchase ophthalmic goods from the optometrist or
ophthalmologist.
---------------------------------------------------------------------------
\30\ 80 FR 53274 (Sept. 3, 2015).
---------------------------------------------------------------------------
Safeguards Rule (Standards for Safeguarding Customer Information),
16 CFR 314. The FTC's Safeguards Rule, which was issued under the
Gramm-Leach-Bliley Act, requires each financial institution subject to
the FTC's jurisdiction to assess risks and develop a written
information security program that is appropriate to its size and
complexity, the nature and scope of its activities, and the sensitivity
of the customer information at issue. On October 27, 2021, the
Commission announced the issuance of a Supplemental Notice of Proposed
Rulemaking that proposes to further amend the Safeguards Rule to
require financial institutions to report to the Commission any security
event where the financial institutions have determined misuse of
customer information has occurred or is reasonably likely and that at
least 1,000 consumers have been affected or reasonably may be affected.
The comment period closes 60 days after publication in the Federal
Register.\31\
---------------------------------------------------------------------------
\31\ See Final Actions below for information about a separate
completed rulemaking proceeding for the Safeguards Rule.
---------------------------------------------------------------------------
c. Final Actions
Since the publication of the 2020 Regulatory Plan, the Commission
has issued the following final agency actions in rulemaking
proceedings:
Energy Labeling Rule, 16 CFR 305. On February 12, 2021, the
Commission published a final rule that establishes EnergyGuide labels
for portable air conditioners and requires manufacturers to label
portable air conditioner units produced after October 1, 2022.\32\ The
Commission also updated the Rule in conformity with new DoE energy
descriptors for central air conditioner units that will become
effective on January 1, 2023. Additionally, on October 20, 2021, the
Commission issued a final rule updating the comparability ranges and
sample labels
[[Page 5181]]
for central air conditioners.\33\ The amendments are effective on
January 1, 2023.\34\
---------------------------------------------------------------------------
\32\ 86 FR 9274 (Feb. 12, 2021).
\33\ Final Rule, 86 FR 57985 (Oct. 20, 2021); NPRM, 86 FR 29533
(June 2, 2021).
\34\ See (2) Ongoing Periodic Reviews of Rules and Guides (b)
Proposed Rules for information about a separate and ongoing
rulemaking under the Energy Labeling Rule.
---------------------------------------------------------------------------
Fair Credit Reporting Act Rules, 16 CFR 640-642, 660, and 680. On
September 8, 2021, the Commission announced final rules for each of
these Rule reviews that included revisions to the Rules to correspond
to changes to the Fair Credit Reporting Act made by the Dodd-Frank Act.
The final rules were effective 30 days after publication in the Federal
Register. These rules include: Duties of Creditors Regarding Risk-Based
Pricing, 16 CFR 640 \35\; Duties of Users of Consumer Reports Regarding
Address Discrepancies, 16 CFR 641 \36\; Prescreen Opt-Out Notice, 16
CFR 642 \37\; Duties of Furnishers of Information to Consumer Reporting
Agencies, 16 CFR 660 \38\; and Affiliate Marketing, 16 CFR 680.\39\
---------------------------------------------------------------------------
\35\ Final Rule (16 CFR 640), 86 FR 51795 (Sept. 17, 2021);
NPRM, 85 FR 63462 (Oct. 8, 2020).
\36\ Final Rule (16 CFR 641), 86 FR 51817 (Sept. 17, 2021);
NPRM, 85 FR 57172 (Sept. 15, 2020).
\37\ Final Rule (16 CFR 642), 86 FR 50848 (Sept. 13, 2021);
NPRM, 85 FR 59226 (Sept. 21, 2020).
\38\ Final Rule (16 CFR 660), 86 FR 51819 (Sept. 17, 2021);
NPRM, 85 FR 61659 (Sept. 30, 2020).
\39\ Final Rule (16 CFR 680), 86 FR 51609 (Sep. 16, 2021); NPRM,
85 FR 59466 (Sept. 22, 2020).
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Made in USA Labeling Rule, 16 CFR 323. On July 14, 2021, the
Commission issued a final rule that codified the FTC's longstanding
enforcement policy statement regarding U.S.-origin claims.\40\ The rule
was effective on August 13, 2021. The Rule prohibits marketers from
making unqualified MUSA claims on labels unless final assembly or
processing of the product occurs in the United States; all significant
processing that goes into the product occurs in the United States; and
all or virtually all ingredients or components of the product are made
and sourced in the United States. The rule does not impose any new
requirements on businesses. By codifying this guidance into a formal
rule, the Commission can increase deterrence of Made in USA fraud and
seek restitution for victims. The final rule included a provision
allowing marketers to seek exemptions if they have evidence showing
their unqualified Made-in-USA claims are not deceptive.
---------------------------------------------------------------------------
\40\ 86 FR 37022 (July 14, 2021).
---------------------------------------------------------------------------
Privacy of Consumer Financial Information Rule, 16 CFR 313. The
Privacy of Consumer Financial Information Rule (Rule) requires, among
other things, that certain motor vehicle dealers provide an annual
disclosure of their privacy policies to their customers by hand
delivery, mail, electronic delivery, or through a website, but only
with the consent of the consumer. On October 27, 2021, the Commission
announced the issuance of a final rule to, among other changes, revise
the Rule's scope, modify the Rule's definitions of ``financial
institution'' and ``federal functional regulator,'' and update the
Rule's annual customer privacy notice requirement.\41\ This action was
necessary to conform the Rule to the current requirements of the Gramm-
Leach-Bliley Act. The amendments will be effective 30 days after
publication in the Federal Register.
---------------------------------------------------------------------------
\41\ Final Rule, 86 FR ---- (---- --, 2021); NPRM, 84 FR 13150
(Apr. 4, 2019).
---------------------------------------------------------------------------
The Prohibition of Energy Market Manipulation Rule, 16 CFR 317. On
March 2, 2021, the Commission completed its regulatory review and
issued a Federal Register Notice confirming that the Rule was being
retained without modification.\42\
---------------------------------------------------------------------------
\42\ 86 FR 12091 (Mar. 2, 2021).
---------------------------------------------------------------------------
Safeguards Rule (Standards for Safeguarding Customer Information),
16 CFR 314. The FTC's Safeguards Rule, which was issued under the
Gramm-Leach-Bliley Act, requires each financial institution subject to
the FTC's jurisdiction to assess risks and develop a written
information security program that is appropriate to its size and
complexity, the nature and scope of its activities, and the sensitivity
of the customer information at issue. On October 27, 2021, the
Commission announced the issuance of a final rule that, among other
amendments, provides additional requirements for financial
institutions' information security programs. The final rule also
expands the definition of ``financial institution'' to include entities
that are significantly engaged in activities that are incidental to
financial activities, so that the rules would cover ``finders''--for
example, companies that serve as lead generators for payday loan
companies or mortgage companies. Certain provisions of the amendments,
set forth in section 314.5 of the final rule, will be effective one
year after the publication of the final rule in the Federal Register.
The remainder of the amendments are effective 30 days after Federal
Register publication.\43\
---------------------------------------------------------------------------
\43\ See (2) Ongoing Periodic Reviews of Rules and Guides (b)
Proposed Rules for information about a separate and ongoing
rulemaking under the Safeguards Rule.
---------------------------------------------------------------------------
d. Significant Regulatory Actions
The Commission has no proposed rule that would be a ``significant
regulatory action'' under the definition in Executive Order 12866. The
Commission also has no proposed rule that would have significant
international impacts, or any international regulatory cooperation
activities that are reasonably anticipated to lead to significant
regulations, as defined in Executive Order 13609.
Summary
The actions under consideration advance the Commission's mission by
informing and protecting consumers while minimizing burdens on honest
businesses. The Commission continues to identify and weigh the costs
and benefits of proposed regulatory actions and possible alternative
actions.
BILLING CODE 6750-01-P
NATIONAL INDIAN GAMING COMMISSION (NIGC)
Statement of Regulatory Priorities
In 1988, Congress adopted the Indian Gaming Regulatory Act (IGRA)
(Pub L. 100-497, 102 Stat. 2475) with a primary purpose of providing
``a statutory basis for the operation of gaming by Indian tribes as a
means of promoting tribal economic development, self-sufficiency, and
strong tribal governments.'' IGRA established the National Indian
Gaming Commission (NIGC or the Commission) to protect such gaming,
amongst other things, as a means of generating tribal revenue for
strengthening tribal governance and tribal communities.
At its core, Indian gaming is a function of sovereignty exercised
by tribal governments. In addition, the Federal government maintains a
government-to-government relationship with the tribes--a responsibility
of the NIGC. Thus, while the Agency is committed to strong regulation
of Indian gaming, the Commission is equally committed to strengthening
government-to-government relations by engaging in meaningful
consultation with tribes to fulfill IGRA's intent. The NIGC's vision is
to adhere to principles of good government, including transparency to
promote agency accountability and fiscal responsibility, to operate
consistently to ensure fairness and clarity in the administration of
IGRA, and to respect the responsibilities of each sovereign in order to
fully promote tribal economic development, self-sufficiency, a strong
workforce, and strong tribal governments.
[[Page 5182]]
Retrospective Review of Existing Regulations
As an independent regulatory agency, the NIGC has been performing a
retrospective review of its existing regulations. The NIGC recognizes
the importance of Executive Order 13563, issued on January 18, 2011,
and its regulatory review is being conducted in the spirit of Executive
Order 13563, to identify those regulations that may be outmoded,
ineffective, insufficient, or excessively burdensome and to modify,
streamline, expand, or repeal them in accordance with input from the
public. In addition, as required by Executive Order 13175, issued on
November 6, 2000, the Commission has been conducting government-to-
government consultations with tribes regarding each regulation's
relevancy, consistency in application, and limitations or barriers to
implementation, based on the tribes' experiences. The consultation
process is also intended to result in the identification of areas for
improvement and needed amendments, if any, new regulations, and the
possible repeal of outdated regulations.
The following Regulatory Identifier Numbers (RINs) have been
identified as associated with the review:
------------------------------------------------------------------------
RIN Title
------------------------------------------------------------------------
3141-AA32.......................... Definitions.
3141-AA70.......................... Class II Minimum Internal Control
Standards.
3141-AA58.......................... Management Contracts.
3141-AA69.......................... Class II Minimum Technical
Standards.
3141-AA71.......................... Background and Licensing.
3141-AA68.......................... Audit Regulations.
3141-AA72.......................... Self-Regulation of Gaming
Activities.
3141-AA73.......................... Gaming Ordinance Submission
Requirements.
3141-AA74.......................... Substantial Violations List.
3141-AA75.......................... Appeals to Commission.
3141-AA76.......................... Facility License Notifications and
Submissions.
3141-AA77.......................... Fees.
3141-AA79.......................... Suspensions of Gaming Licenses for
Key Employees and Primary
Management Officials.
3141-AA80.......................... Fee Rate Assessment, Reporting, and
Calculation Guidelines for Self
Regulated Tribes.
3141-AA81.......................... Orders of Temporary Closure.
------------------------------------------------------------------------
More specifically, the NIGC is currently considering promulgating
new regulations in the following areas: (i) Amendments to its
regulatory definitions to conform to the newly-promulgated rules; (ii)
updates or revisions to its management contract regulations to address
the current state of the industry; (iii) updates or revisions to the
existing audit regulations to reduce cost burdens for small or
charitable gaming operations; (iv) the review and revision of the
minimum technical standards for Class II gaming; (v) the review and
revision of the minimum internal control standards (MICS) for Class II
gaming; (vi) background and licensing; (vii) self-regulation of Class
II gaming activities; (viii) gaming ordinance submission requirements;
(ix) substantial violations; (x) appeals to the Commission; (xi)
facility license notification and submission; (xii) fees; (xiii)
updating its regulations concerning suspension of licenses issued to
Key Employees and Primary Management Officials who the NIGC determines
are not eligible for employment; (xiv) amending its regulations
concerning fee rate assessment, carry over status reporting process,
budget commitments for maintaining transition funds, and fee rate
calculation guidelines for self-regulated tribes; (xv) amending a
substantial violations identified in its regulations to provide that
closure for a tribe's failure to construct and operate its gaming
operation in a manner that adequately protects the environment, public
health, and safety includes issues related to cyber-security.
NIGC is committed to staying up-to-date on developments in the
gaming industry, including best practices and emerging technologies.
Further, the Commission aims to continue reviewing its regulations to
determine whether they are overly burdensome to tribes and industry
stakeholders, including smaller or rural operations. The NIGC
anticipates that the ongoing consultations with tribes will continue to
play an important role in the development of the NIGC's rulemaking
efforts.
BILLING CODE 7565-01-P
U.S. NUCLEAR REGULATORY COMMISSION
Statement of Regulatory Priorities for Fiscal Year 2022
I. Introduction
Under the authority of the Atomic Energy Act of 1954, as amended,
and the Energy Reorganization Act of 1974, as amended, the U.S. Nuclear
Regulatory Commission (NRC) regulates the possession and use of source,
byproduct, and special nuclear material. Our regulatory mission is to
license and regulate the Nation's civilian use of byproduct, source,
and special nuclear materials to ensure adequate protection of public
health and safety and promote the common defense and security. As part
of our mission, we regulate the operation of nuclear power plants and
fuel-cycle plants; the safeguarding of nuclear materials from theft and
sabotage; the safe transport, storage, and disposal of radioactive
materials and wastes; the decommissioning and safe release for other
uses of licensed facilities that are no longer in operation; and the
medical, industrial, and research applications of nuclear material. In
addition, we license the import and export of radioactive materials.
As part of our regulatory process, we routinely conduct
comprehensive regulatory analyses that examine the costs and benefits
of contemplated regulations. We have developed internal procedures and
programs to ensure that we impose only necessary requirements on our
licensees and to review existing regulations to determine whether the
requirements imposed are still necessary.
Our regulatory priorities for fiscal year (FY) 2022 reflect our
safety and security mission and will enable us to achieve our two
strategic goals described in NUREG-1614, Volume 7, ``Strategic Plan:
Fiscal Years 2018-2022'' (https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1614/v7/) (1) to ensure the safe use of
radioactive materials, and (2) to ensure the secure use of radioactive
materials.
[[Page 5183]]
II. Regulatory Priorities
This section contains information on some of our most important and
significant regulatory actions that we are considering issuing in
proposed or final form during FY 2022. The NRC's high-priority
rulemaking titled ``Risk-Informed, Technology Inclusive Regulatory
Framework for Advanced Reactors (RIN 3150-AK31; NRC-2019-0062)'' is not
included in this report due to the timeframe for reporting, as the
agency will not be publishing it in proposed or final form during FY
2022. The proposed rule is expected to be published in FY 2023. For
additional information on NRC rulemaking activities and on a broader
spectrum of our upcoming regulatory actions, see our portion of the
Unified Agenda of Regulatory and Deregulatory Actions. We also provide
additional information on planned rulemaking and petition for
rulemaking activities, including priority and schedule, on our website
at https://www.nrc.gov/about-nrc/regulatory/rulemaking/rules-petitions.html.
A. NRC's Priority Rulemakings
Proposed Rules
Advanced Nuclear Reactor Generic Environmental Impact Statement
(RIN 3150-AK55; NRC-2020-0101): This rule would amend the regulations
that govern the NRC's environmental reviews under National
Environmental Policy Act (NEPA) by codifying the findings of the
advanced nuclear reactor generic environmental impact statement.
Alternative Physical Security Requirements for Advanced Reactors
(RIN 3150-AK19; NRC-2017-0227): This rule would amend the NRC's
physical security requirements for small modular reactors and other
advanced reactor technologies.
Cyber Security for Fuel Facilities (RIN 3150-AJ64; NRC-2015-0179):
This rule would amend the NRC's regulations to add cyber security
requirements for certain nuclear fuel cycle facility applicants and
licensees.
Final Rules
American Society of Mechanical Engineers 2019-2020 Code Editions
(RIN 3150-AK22; NRC-2018-0290): This rule will incorporate by reference
into the NRC's regulations the 2019 and 2020 Editions of the Boiler and
Pressure Vessel Code and the Operations and Maintenance Code.
Emergency Preparedness Requirements for Small Modular Reactors and
Other New Technologies (RIN 3150-AJ68; NRC-2015-0225): This rule will
amend the regulations to add new emergency preparedness requirements
for small modular reactors and other new technologies such as non-
light-water reactors and non-power production or utilization
facilities.
NuScale Small Modular reactor Design Certification (RIN 3150-AJ98;
NRC-2017-0029): This rulemaking will amend the NRC's regulations to
incorporate the NuScale small modular reactor standard plant design.
B. Significant Final Rules
The following rulemaking activity meets the requirements of a
significant regulatory action in Executive Order 12866, ``Regulatory
Planning and Review,'' because it is likely to have an annual effect on
the economy of $100 million or more.
Revision of Fee Schedules: Fee Recovery for FY 2022 (RIN 3150-AK44;
NRC-2020-0031): This rule will amend the NRC's fee schedules for
licensing, inspection, and annual fees charged to its applicants and
licensees.
NRC
Proposed Rule Stage
175. Cyber Security at Fuel Cycle Facilities [NRC-2015-0179]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 40; 10 CFR 70; 10 CFR 73.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations to add
cyber security requirements for certain nuclear fuel cycle facility
applicants and licensees. The rule would require certain fuel cycle
facilities to establish, implement, and maintain a cyber security
program that is designed to protect public health and safety and the
common defense and security. It would affect fuel cycle applicants or
licensees that are or plan to be authorized to: (1) Possess greater
than a critical mass of special nuclear material and perform activities
for which the NRC requires an integrated safety analysis or (2) engage
in uranium hexafluoride conversion or deconversion.
Statement of Need: The NRC currently does not have a comprehensive
regulatory framework for addressing cyber security at fuel cycle
facilities (FCFs). Each FCF licensee is subject to either design basis
threats (DBTs) or to the Interim Compensatory Measures (ICM) Orders
issued to all FCF licensees subsequent to the events of September 11,
2001. Both the DBTs and the ICM Orders contain a provision that these
licensees include consideration of a cyber attack when considering
security vulnerabilities. However, the NRC's current regulations do not
provide specific requirements or guidance on how to implement these
performance objectives. Since the issuance of the ICM Orders and the
2007 DBT rulemaking, the threats to digital assets have increased both
globally and nationally. Cyber attacks have increased in number, become
more sophisticated, resulted in physical consequences, and targeted
digital assets similar to those used by FCF licensees. The rulemaking
would establish requirements for FCF licensees to establish, implement,
and maintain a cyber security program to detect, protect against, and
respond to a cyber attack capable of causing a consequence of concern.
The design of this cyber security program would provide flexibility to
account for the various types of FCFs, promote common defense and
security, and provide reasonable assurance that the public health and
safety remain adequately protected against the evolving risk of cyber
attacks.
Summary of Legal Basis: The legal basis for the proposed action is
42 U.S.C. 2201 and 42 U.S.C. 5841.
Alternatives: As an alternative to the rulemaking, the NRC staff
considered the ``no-action'' alternative. Under this option the NRC
would not modify 10 CFR part 73. The NRC considered a number of
additional approaches to improving cyber security at FCFs, including
issuing generic communications, developing new guidance documents, and
revising existing inspection modules or enforcement guidance. Because
these approaches would not fully address the regulatory issues, the NRC
did not evaluate them as alternatives to the proposed action. Because
the Commission had previously rejected the issuance of orders to
resolve these regulatory issues, orders were not evaluated as an
alternative for this rulemaking.
Anticipated Cost and Benefits: The NRC evaluated the provisions of
the proposed rule in the Regulatory Basis and concluded that the
provisions provide a substantial increase in the overall protection of
public health and safety through effective implementation of the cyber
security program to prevent safety consequences of concern. The
analysis further demonstrated that the costs for the proposed rule
provisions are cost justified for the additional protection provided.
Risks: In the absence of specific NRC requirements, FCF licensees
have
[[Page 5184]]
implemented limited, ad hoc, voluntary cyber security measures.
Voluntary cyber security measures do not include a complete set of
controls for digital assets, which leaves facilities susceptible to
potential vulnerabilities and the programs may not be enforceable
unless licensees incorporate them into their licensing basis. This may
result in a cyber security program that is unable to adequately address
the evolving cyber security threat confronting FCF licensees.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Draft Regulatory Basis.............. 09/04/15 80 FR 53478
Draft Regulatory Basis Comment 10/05/15
Period End.
Final Regulatory Basis.............. 04/12/16 81 FR 21449
NPRM................................ 12/00/21
Final Rule.......................... 10/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: The proposed rule was provided to the
Commission on October 4, 2017 (SECY-17-0099), (ADAMS Package Accession
No. ML17018A218).
Agency Contact: Irene Wu, Nuclear Regulatory Commission, Office of
Nuclear Material Safety and Safeguards, Washington, DC 20555-0001,
Phone: 301 415-1951, Email: [email protected].
RIN: 3150-AJ64
NRC
176. Alternative Physical Security Requirements for Advanced Reactors
[NRC-2017-0227]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 73.
Legal Deadline: None.
Abstract: This rule would amend the NRC's physical security
requirements for small modular reactors and other advanced reactor
technologies. This rulemaking would establish voluntary alternative
physical security requirements commensurate with the potential
consequences to public health and safety and the common defense and
security. This rulemaking would provide regulatory stability,
predictability, and clarity in the licensing process and minimize or
eliminate uncertainty for applicants who might otherwise request
exemptions from the regulations.
Statement of Need: Required by NEIMA.
Summary of Legal Basis: Policy Statement on the Regulation of
Advanced Reactors, published in the Federal Register (FR) on October
14, 2008 (73 FR 60612). Staff Requirements Memorandum (SRM)-SECY-18-
0076, dated November 19, 2018, (ADAMS Accession No. ML18324A478), the
Commission approved the staff's recommendation to initiate a limited-
scope rulemaking.
Alternatives: SECY-18-0076, Options and Recommendation for Physical
Security for Advanced Reactors, dated August 1, 2018, (ADAMS Accession
No. ML18170A051), presenting alternatives and a recommendation to the
Commission on possible changes to the regulations and guidance related
to physical security for advanced reactors (light-water small modular
reactors and non-light-water reactors). The staff evaluated the
advantages and disadvantages of each alternative and recommended a
limited-scope rulemaking to further assess and, if appropriate, revise
a limited set of NRC regulations. The staff also recommended developing
necessary guidance to address performance criteria for which the
alternative requirements may be applied for advanced reactor license
applicants.
Anticipated Cost and Benefits: The estimated benefits of the
proposed action include (1) fewer exemption requests as compared to
those made under current regulations, (2) fewer security staff or other
security features compared to those currently required by 10 CFR 73.55
commensurate with offsite consequences and radiation risks to public
health and safety, (3) consistent regulatory applicability in the
review of physical security plans in accordance with 10 CFR part 73,
and (4) potential use of a more risk-informed, performance-based
physical security framework.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Regulatory Basis.................... 07/16/19 84 FR 33861
Comment Period End.................. 08/15/19
NPRM................................ 12/00/21
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: NRC is not issuing a final regulatory basis
and will address public comments on the regulatory basis (84 FR 33861)
in the proposed rule.
Agency Contact: Dennis Andrukat, Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards, Washington, DC 20555-
0001, Phone: 301 415-3561, Email: [email protected].
RIN: 3150-AK19
NRC
177. Revision of Fee Schedules: Fee Recovery for FY 2022 [NRC-2020-
0031]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 31 U.S.C. 483; 42 U.S.C. 2201; 42 U.S.C. 2214; 42
U.S.C. 5841
CFR Citation: 10 CFR 170; 10 CFR 171.
Legal Deadline: NPRM, Statutory, September 30, 2022.
The Nuclear Energy Innovation and Modernization Act (NEIMA)
requires the NRC to assess and collect service fees and annual fees in
a manner that ensures that, to the maximum extent practicable, the
amount assessed and collected approximates the NRC's total budget
authority for that fiscal year less the NRC's budget authority for
excluded activities. NEIMA requires that the fees for FY 2022 be
collected by September 30, 2022.
Abstract: This rulemaking would amend the NRC's regulations for fee
schedules. The NRC conducts this rulemaking annually to recover
approximately 100 percent of the NRC's FY 2022 budget authority, less
excluded activities to implement NEIMA. This rulemaking would affect
the fee schedules for licensing, inspection, and annual fees charged to
the NRC's applicants and licensees.
Statement of Need: The NRC, as required by statue conducts an
annual rulemaking in order to assess and collect service fees and
annual fees in a manner that ensures that, to the maximum extent
practicable, the amount assessed and collected approximates the NRC's
total budget authority for that fiscal year less the NRC's budget
authority for excluded activities. NEIMA requires the NRC to establish
through rulemaking a schedule of annual fees that fairly and equitably
allocates the aggregate amount of annual fees among licensees and
certificate holders. NEIMA states that this schedule may be based on
the allocation of the NRC's resources among licensees, certificate
holders, or classes of licensees or certificate holders and requires
that the schedule of annual fees, to the maximum extent practicable,
shall be reasonably related to the cost of providing regulatory
services.
[[Page 5185]]
Summary of Legal Basis: Effective October 1, 2020, NEIMA puts in
place a revised framework for fee recovery by eliminating OBRA-90's
approximately 90 percent fee-recovery requirement and requiring the NRC
to assess and collect service fees and annual fees in a manner that
ensures that, to the maximum extent practicable, the amount assessed
and collected approximates the NRC's total budget authority for that
fiscal year less the NRC's budget authority for excluded activities.
Alternatives: Because this action is mandated by statute and the
fees must be assessed through rulemaking, the NRC did not consider
alternatives to this action.
Anticipated Cost and Benefits: The cost to the NRC's licensees is
approximately 100 percent of the NRC FY 2022 budget authority less the
amounts appropriated for excluded activities.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/22
Final Rule.......................... 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Local, State.
Agency Contact: Anthony Rossi, Nuclear Regulatory Commission,
Office of the Chief Financial Officer, Washington, DC 20555-0001,
Phone: 301 415-7341, Email: [email protected].
RIN: 3150-AK44
NRC
178. Advanced Nuclear Reactor Generic Environmental Impact Statement
[NRC-2020-0101]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 51.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations that
govern the agency's National Environmental Policy Act (NEPA) reviews.
The rulemaking would codify the findings of the Advanced Nuclear
Reactor Generic Environmental Impact Statement (ANR GEIS). The ANR GEIS
would use a technology-neutral regulatory framework and performance-
based assumptions to determine generic environmental impacts for new
commercial advanced nuclear reactors. The ANR GEIS would streamline the
NEPA reviews for future advanced reactor applicants.
Statement of Need: The NRC is developing a GEIS for advanced
nuclear reactors in order to streamline the environmental review
process for future advanced nuclear reactor (ANR) environmental
reviews. The purpose of an ANR GEIS is to determine which environmental
impacts could result in essentially the same (generic) impact for
different ANR designs that fit within the parameters set in the GEIS,
and which environmental impacts would require a plant-specific
analysis. Environmental reviews for advanced nuclear reactor license
applications could incorporate the ANR GEIS by reference and provide
site-specific information and analyses in a Supplemental Environmental
Impact Statement (SEIS), thereby streamlining the environmental review
process.
Summary of Legal Basis: 42 U.S.C. 4332, 4334, 4335.
Alternatives: As an alternative to the rulemaking, the NRC staff
considered the ``no-action'' alternative. Under this alternative the
NRC would not modify 10 CFR part 51 to codify the results of the ANR
GEIS. This alternative would not provide the benefits of streamlining
the environmental review process. Therefore, rulemaking is the
preferred alternative.
Anticipated Cost and Benefits: The anticipated benefits would
exceed the costs associated with the proposed regulatory action. The
supporting regulatory analysis will provide a detailed analysis of the
costs and benefits associated with this action.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Daniel Doyle, Nuclear Regulatory Commission, Office
of Nuclear Material Safety and Safeguards, Washington, DC 20555-0001,
Phone: 301 415-3748, Email: [email protected].
RIN: 3150-AK55
NRC
Final Rule Stage
179. Emergency Preparedness Requirements for Small Modular Reactors and
Other New Technologies [NRC-2015-0225]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 50; 10 CFR 52.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations to add
new emergency preparedness requirements for small modular reactors and
other new technologies such as non-light-water reactors and non-power
production or utilization facilities. The rule would adopt a scalable
plume exposure pathway emergency planning zone approach that is
performance-based, consequence-oriented, and technology-inclusive. This
rulemaking would affect applicants for new NRC licenses and reduce
regulatory burden related to the exemption process.
Statement of Need: Current emergency preparedness (EP) regulations
do not sufficiently reflect the advances in designs and more recent
safety research, particularly with respect to small modular reactors
(SMRs) and other new technologies (ONTs), such as non-light-water
reactors (non-LWRs) and medical isotope facilities.
Summary of Legal Basis: None.
Alternatives: None.
Anticipated Cost and Benefits: The proposed rule would be projected
to result in a cost-justified change based on a net (i.e., accounting
for both costs and benefits) averted cost to the industry that ranges
from $4.72 million using a 7-percent discount rate to $7.56 million
using a 3-percent discount rate. Relative to the regulatory baseline,
the NRC would realize a net averted cost of $1.17 million using a 7-
percent discount rate and $2.16 million using a 3-percent discount
rate. The proposed rule alternative would result in net averted costs
to the industry and the NRC ranging from $5.89 million using a 7-
percent discount rate to $9.71 million using a 3-percent discount rate.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Draft Regulatory Basis.............. 04/13/17 82 FR 17768
Draft Regulatory Basis Comment 06/27/17
Period End.
Regulatory Basis.................... 11/15/17 82 FR 52862
NPRM................................ 05/12/20 85 FR 28436
NPRM Comment Period End............. 07/27/20
[[Page 5186]]
NPRM Comment Period Extended........ 07/21/20 85 FR 44025
Comment Period End.................. 09/25/20
Final Rule.......................... 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: The proposed rule was published for public
comment on May 12, 2020. Draft regulatory guidance was also published
for public comment with the proposed rule. The public comment period
ended on September 25, 2020.
Agency Contact: Soly Soto Lugo, Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards, Washington, DC 20555-
0001, Phone: 302 415-7528, Email: [email protected].
RIN: 3150-AJ68
NRC
180. NuScale Small Modular Reactor Design Certification [NRC-2017-0029]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 52.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations to
incorporate the NuScale small modular reactor (SMR) standard plant
design. The rulemaking would add a new appendix for the initial
certification of the NuScale SMR standard plant design. This action
would allow applicants intending to construct and operate an SMR to
reference this design certification rule in future applications.
Statement of Need: This rule would place the NuScale standard
design certification, once issued by the Commission, into the Code of
Federal Regulations (CFR).
Summary of Legal Basis: The regulations in 10 CFR 52.51 require the
NRC to initiate rulemaking after an application is filed under 10 CFR
52.45.
Alternatives: Based on a review of NuScale Power's evaluation, the
NRC concludes that: (1) NuScale Power identified a reasonably complete
set of potential design alternatives to prevent and mitigate severe
accidents for the NuScale design and (2) none of the potential design
alternatives appropriate at the design certification stage are
justified on the basis of cost/benefit considerations.
Anticipated Cost and Benefits: There is no anticipated increase in
costs for consumers, individual industries, or geographical regions as
a result of the rulemaking. This action will certify a reactor design;
it does not constitute the license for construction of a nuclear power
plant at a site.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/01/21 86 FR 34999
NPRM Comment Period End............. 08/30/21
NPRM Comment Period Extended........ 08/24/21 86 FR 47251
NPRM Comment Extension Period End... 10/14/21
Final Rule.......................... 03/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Yanely Malave-Velez, Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards, Washington, DC 20555-
0001, Phone: 301 415-1519, Email: [email protected].
RIN: 3150-AJ98
NRC
181. American Society of Mechanical Engineers 2019-2020 Code Editions
[NRC-2018-0290]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 50.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations to
authorize the use of recent editions of American Society of Mechanical
Engineers (ASME) codes. The rule would incorporate by reference the
2019 Edition of the ASME Boiler and Pressure Vessel Code and the 2020
Edition of the ASME Operations and Maintenance of Nuclear Power Plants
Code into the NRC's regulations, with conditions. This action increases
consistency across the industry and makes use of current voluntary
consensus standards (as required by the National Technology Transfer
and Advancement Act), while continuing to provide adequate protection
to the public. This rulemaking would affect nuclear power reactor
licensees.
Statement of Need: The need for the rulemaking is to update the
regulations to incorporate the latest editions of consensus standards.
Summary of Legal Basis: The legal basis for the proposed action is
42 U.S.C. 2201, 42 U.S.C. 5841, and 10 CFR part 2, Agency Rules of
Practice and Procedure, ``Subpart H, Rulemaking.''
Alternatives: In the absence of incorporation by the reference of
the latest Editions of ASME Codes, licensees will continue to implement
Code editions that are currently incorporated by reference in the rule
and will not be able to take advantage of the latest advantages of ASME
Codes, including relaxation of certain requirements in the proposed
rule. Thus, licensees will have to continue to implement the
requirements of older Code editions and continue to request exemptions
from certain requirements that would otherwise not be needed. This may
result in nuclear power plant licensees, who would be the primary
beneficiaries, to not be able to apply the latest editions of ASME
Codes, and the NRC would not be able to meets its goal of ensuring the
protection of public health and safety and the environment by
continuing to provide the NRC's approval of ASME Code editions that
allow the use of the most current methods and technology and that may
decrease the likelihood of an accident and, therefore, decrease the
overall risk to public health.
Anticipated Cost and Benefits: The proposed rule would result in a
cost-justified change based on a net (i.e., taking into account both
costs and benefits) averted cost to the industry ranging from $6.26
million (7-percent net present value (NPV)) to $6.99 million (3-percent
NPV). Relative to the regulatory baseline, the NRC would realize a net
averted cost ranging from $0.49 million (7-percent NPV) to $0.57
million (3-percent NPV). The total costs and benefits of proceeding
with the rule would result in net averted costs to the industry and the
NRC ranging from $6.75 million (7-percent NPV) to $7.56 million (3-
percent NPV). Other benefits of the proposed rule include the NRC's
continued ability to meet its goal of ensuring the protection of public
health and safety and the environment through the agency's approval of
new editions of the ASME BPV Code and ASME OM Code, which allow the use
of the most current methods and technology.
Risks: In the absence of incorporation by the reference of the
latest Editions of ASME Codes, licensees will continue to implement
Code editions that are currently incorporated by reference in the rule
and will not be able to take advantage of the latest advantages of ASME
Codes, including relaxation of
[[Page 5187]]
certain requirements in the proposed rule. Thus, licensees will have to
continue to implement the requirements of older Code editions and
continue to request exemptions from certain requirements that would
otherwise not be needed. This may result in nuclear power plant
licensees, who would be the primary beneficiaries, to not be able to
apply the latest editions of ASME Codes, and the NRC would not be able
to meets its goal of ensuring the protection of public health and
safety and the environment by continuing to provide the NRC's approval
of ASME Code editions that allow the use of the most current methods
and technology and that may decrease the likelihood of an accident and,
therefore, decrease the overall risk to public health.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/26/21 86 FR 16087
NPRM Comment Period End............. 05/25/21
Final Rule.......................... 06/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Victoria V. Huckabay, Nuclear Regulatory
Commission, Office of Nuclear Material Safety and Safeguards,
Washington, DC 20555-0001, Phone: 301 415-5183, Email:
[email protected].
RIN: 3150-AK22
BILLING CODE 7590-01-P
[FR Doc. 2022-00702 Filed 1-28-22; 8:45 am]
BILLING CODE 6820-27-P