Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2022
| Citation | 88 FR 10966 |
| Published date | 22 February 2023 |
| Record Number | 2023-02113 |
| Court | Regulatory Information Service Center |
| Section | Proposed rules |
Federal Register, Volume 88 Issue 35 (Wednesday, February 22, 2023)
[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Proposed Rules]
[Pages 10966-11191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02113]
[[Page 10965]]
Vol. 88
Wednesday,
No. 35
February 22, 2023
Part IIRegulatory Information Service Center-----------------------------------------------------------------------Introduction to the Unified Agenda of Federal Regulatory and
Deregulatory Actions--Fall 2022
Federal Register / Vol. 88, No. 35 / Wednesday, February 22, 2023 /
UA: Reg Flex Agenda
[[Page 10966]]
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REGULATORY INFORMATION SERVICE CENTER
Introduction to the Unified Agenda of Federal Regulatory and
Deregulatory Actions--Fall 2022
AGENCY: Regulatory Information Service Center.
ACTION: Introduction to the Regulatory Plan and the Unified Agenda of
Federal Regulatory and Deregulatory Actions.
-----------------------------------------------------------------------
SUMMARY: Publication of the Fall 2022 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 2022 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 2022 Unified Agenda contains the Regulatory Plans
of 29 Federal agencies and 67 Federal agency regulatory agendas.
ADDRESSES: Regulatory Information Service Center (MV), 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 (MV), 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 2022 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
Corporation for National and Community Service
Environmental Protection Agency
General Services Administration
National Aeronautics and Space Administration
National Archives and Records Administration
National Science Foundation
Office of Personnel Management
Pension Benefit Guaranty Corporation
Small Business Administration
Social Security Administration
Department of Defense/General Services Administration/National
Aeronautics and Space Administration (Federal Acquisition Regulation)
Independent Regulatory Agencies
Consumer Product Safety Commission
Federal Trade Commission
National Indian Gaming Commission
Nuclear Regulatory Commission
Regulatory Flexibility 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 Justice
Department of Labor
Department of Transportation
Department of the Treasury
Other Executive Agencies
Environmental Protection Agency
General Services Administration
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; and (2) a description of the most important
significant regulatory and deregulatory actions that the agency
reasonably
[[Page 10967]]
expects to issue in proposed or final form during the upcoming fiscal
year. This edition includes the regulatory plans of 29 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 Unified Agenda
database to1995. 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 2022 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 http://reginfo.gov.
The regulatory agendas for agencies not publishing Regulatory
flexibility agendas are available to the public at http://reginfo.gov.
Cabinet Departments
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
Committee for Purchase From People Who Are Blind or Severely Disabled
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 the Intellectual Property Enforcement Coordinator
Office of Management and Budget
Office of National Drug Control Policy
Peace Corps
Pension Benefit Guaranty Corporation*
Railroad Retirement Board*
Social Security Administration*
U.S. Agency for Global Media
U.S. Commission on Civil Rights
Independent Agencies
Commodity Futures Trading Commission
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 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,'' January 18, 2011 (76 FR 3821) supplements and reaffirms the
principles, structures, and definitions
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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.
5. Completed Actions--actions or reviews the agency has completed
or withdrawn since publishing its last
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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.
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 each regulatory action listed in
the Regulatory Plan and the Unified Agenda, as directed by Executive
Order
[[Page 10971]]
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 20, 2022.
Boris Arratia,
Director.
Introduction to the Fall 2022 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 Fall 2022 Regulatory Plan. The regulatory
plans and agendas submitted by agencies and included here offer a
window into how the Administration plans to continue delivering on the
President's agenda to advance economic prosperity and equity, tackle
the climate crisis, advance public health, and much more to improve the
lives of the American people. Agencies will also be continuing their
work to implement landmark new legislation passed in 2022, including
the implementation of the PACT Act, (Pub. L. 117-168); the Inflation
Reduction Act, (Pub. L. 117-169); and the CHIPS and Science Act, (Pub.
L. 117-167); as well as ongoing efforts to implement the Infrastructure
Investment and Jobs Act (Bipartisan Infrastructure Law), Pub. L. 117-
58.
Department of Agriculture
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
1............................. Unfair Practices, Undue 0581-AE04 Proposed Rule.
Preferences, and Harm to
Competition Under the
Packers and Stockyards
Act (AMS-FTPP-21-0046).
2............................. Inclusive Competition and 0581-AE05 Proposed Rule.
Market Integrity Under
the Packers and
Stockyards Act (AMS-FTPP-
21-0045).
3............................. Poultry Growing 0581-AE18 Proposed Rule.
Tournament Systems:
Fairness and Related
Concerns--Harm to
Competition (AMS-FTPP-22-
0046).
4............................. Transparency in Poultry 0581-AE03 Final Rule.
Grower Contracting and
Tournaments (AMS-FTPP-21-
0044).
5............................. Organic Livestock and 0581-AE06 Final Rule.
Poultry Standards (AMS-
NOP-21-0073).
6............................. Special Supplemental 0584-AE82 Proposed Rule.
Nutrition Program for
Women, Infants and
Children (WIC):
Revisions in the WIC
Food Packages.
7............................. Child Nutrition Programs: 0584-AE88 Proposed Rule.
Revisions to Meal
Patterns Consistent With
the 2020 Dietary
Guidelines for Americans.
8............................. Community Eligibility 0584-AE93 Proposed Rule.
Provision: Increasing
Options for Schools.
9............................. Special Supplemental 0584-AE94 Final Rule.
Nutrition Program for
Women, Infants, and
Children (WIC):
Implementation of the
Access to Baby Formula
Act of 2022 and Related
Provisions.
10............................ Voluntary Labeling of 0583-AD87 Proposed Rule.
Products With ``Product
of USA'' and Similar
Statements.
11............................ Labeling of Meat and 0583-AD89 Proposed Rule.
Poultry Products Made
Using Animal Cell
Culture Technology.
12............................ Revision of the Nutrition 0583-AD56 Final Rule.
Facts Panels for Meat
and Poultry Products and
Updating Certain
Reference Amounts
Customarily Consumed.
13............................ Prior Label Approval 0583-AD78 Final Rule.
System: Expansion of
Generic Label Approval.
----------------------------------------------------------------------------------------------------------------
Department of Commerce
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
14............................ Section 1758 0694-AH80 Proposed Rule.
Technologies: Proposed
Controls; Request for
Comments.
[[Page 10972]]
15............................ The Imposition of 0694-AI84 Proposed Rule.
Emerging Technology
Export Controls on
Instruments for the
Automated Chemical
Synthesis of Peptides.
16............................ Updates to Bayh-Dole 0693-AB66 Final Rule.
Implementing Regulations.
17............................ Illegal, Unreported, and 0648-BG11 Final Rule.
Unregulated Fishing;
Fisheries Enforcement;
High Seas Driftnet
Fishing Moratorium
Protection Act (Reg Plan
Seq No. 17).
18............................ Amendments to the North 0648-BI88 Final Rule.
Atlantic Right Whale
Vessel Strike Reduction
Rule.
19............................ Setting and Adjusting 0651-AD65 Proposed Rule.
Trademark Fees.
----------------------------------------------------------------------------------------------------------------
Department of Defense
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
20............................ Department of Defense 0790-AK86 Proposed Rule.
(DoD)-Defense Industrial
Base (DIB) Cybersecurity
(CS) Activities.
21............................ Cybersecurity Maturity 0790-AL49 Proposed Rule.
Model Certification
(CMMC) Program.
22............................ Nondiscrimination on the 0790-AJ04 Final Rule.
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.
23............................ Definitions of Gold Star 0790-AL56 Final Rule.
Family and Gold Star
Survivor.
24............................ Assessing Contractor 0750-AK81 Proposed Rule.
Implementation of
Cybersecurity
Requirements (DFARS Case
2019-D041).
25............................ Small Business Innovation 0750-AK84 Proposed Rule.
Research Program Data
Rights (DFARS Case 2019-
D043).
26............................ Defense Commercial 0750-AL57 Proposed Rule.
Solutions Opening (DFARS
Case 2022-D006).
27............................ Modification of Prize 0750-AL65 Proposed Rule.
Authority For Advanced
Technology Achievements
(DFARS Case 2022-D014).
28............................ DFARS Buy American Act 0750-AL74 Proposed Rule.
Requirements (DFARS Case
2022-D019).
29............................ Past Performance of 0750-AK16 Final Rule.
Subcontractors and Joint
Venture Partners (DFARS
Case 2018-D055).
30............................ Restriction on 0750-AL60 Final Rule.
Acquisition of Personal
Protective Equipment and
Certain Items From Non-
Allied Foreign Nations
(DFARS Case 2022-D009).
31............................ Natural Disaster 0710-AA78 Proposed Rule.
Procedures:
Preparedness, Response,
and Recovery Activities
of the Corps of
Engineers.
32............................ Policy and Procedures for 0710-AB22 Proposed Rule.
Processing Requests to
Alter U.S. Army Corps of
Engineers Civil Works
Projects Pursuant to 33
U.S.C. 408.
33............................ Flood Control Cost- 0710-AB34 Proposed Rule.
Sharing Requirements
Under the Ability to Pay
Provision.
34............................ USACE Implementing 0710-AB41 Proposed Rule.
Procedures for
Principles,
Requirements, and
Guidelines Applicable to
Actions Involving
Investment in Water
Resources.
35............................ Appendix C Procedures for 0710-AB46 Proposed Rule.
the Protection of
Historic Properties.
36............................ Revised Definition of 0710-AB47 Proposed Rule.
``Waters of the United
States''--Rule 2.
37............................ Credit Assistance for 0710-AB31 Final Rule.
Water Resources
Infrastructure Projects.
38............................ Revised Definition of 0710-AB40 Final Rule.
``Waters of the United
States''--Rule 1.
39............................ TRICARE Reimbursement of 0720-AB73 Final Rule.
Ambulatory Surgery
Centers and Outpatient
Services Provided in
Cancer and Children's
Hospitals.
40............................ TRICARE Coverage of 0720-AB83 Final Rule.
National Institute of
Allergy and Infectious
Disease Coronavirus
Disease 2019 Clinical
Trials.
41............................ Expanding TRICARE Access 0720-AB85 Final Rule.
to Care in Response to
the COVID-19 Pandemic.
42............................ Collection From Third 0720-AB87 Final Rule.
Party Payers of
Reasonable Charges for
Healthcare Services;
Amendment.
----------------------------------------------------------------------------------------------------------------
Department of Education
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
43............................ Nondiscrimination on the 1870-AA19 Proposed Rule.
Basis of Sex in
Athletics Education
Programs or Activities
Receiving Federal
Financial Assistance.
44............................ Nondiscrimination on the 1870-AA16 Final Rule.
Basis of Sex in
Education Programs or
Activities Receiving
Federal Financial
Assistance.
45............................ Gainful Employment....... 1840-AD57 Proposed Rule.
46............................ Improving Income Driven 1840-AD81 Proposed Rule.
Repayment.
----------------------------------------------------------------------------------------------------------------
Department of Energy
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
47............................ Clean Energy Rule for New 1904-AB96 Proposed Rule.
Federal Buildings and
Major Renovations.
[[Page 10973]]
48............................ Energy Conservation 1904-AD20 Final Rule.
Standards for
Residential Non-
Weatherized Gas Furnaces
and Mobile Home Gas
Furnaces.
49............................ Loan Guarantees for Clean 1901-AB59 Final Rule.
Energy Projects.
----------------------------------------------------------------------------------------------------------------
Department of Health and Human Services
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
50............................ Amendments to Civil 0936-AA09 Final Rule.
Monetary Penalty Law
Regarding Grants,
Contracts, and
Information Blocking.
51............................ Rulemaking on 0945-AA15 Proposed Rule.
Discrimination on the
Basis of Disability in
Health and Human
Services Programs or
Activities.
52............................ Nondiscrimination in 0945-AA17 Final Rule.
Health Programs and
Activities.
53............................ ONC Health IT 0955-AA03 Proposed Rule.
Certification Program
Updates, Health
Information Network
Attestation Process for
the Trusted Exchange
Framework and Common
Agreement, and
Enhancements to Support
Information Sharing.
54............................ Establishment of 0955-AA05 Proposed Rule.
Disincentives for Health
Care Providers who Have
Committed Information
Blocking.
55............................ Patient Engagement, 0955-AA06 Proposed Rule.
Information Sharing, and
Public Health
Interoperability.
56............................ Medications for the 0930-AA39 Proposed Rule.
Treatment of Opioid Use
Disorder.
57............................ Control of Communicable 0920-AA75 Final Rule.
Diseases; Foreign
Quarantine.
58............................ World Trade Center Health 0920-AA81 Final Rule.
Program; Addition of
Uterine Cancer to the
List of WTC-Related
Health Conditions.
59............................ Biologics Regulation 0910-AI14 Proposed Rule.
Modernization.
60............................ Certifications Concerning 0910-AI66 Proposed Rule.
Imported Foods.
61............................ Use of Salt Substitutes 0910-AI72 Proposed Rule.
to Reduce the Sodium
Content in Standardized
Foods.
62............................ Tobacco Product Standard 0910-AI76 Proposed Rule.
for Nicotine Level of
Certain Tobacco Products.
63............................ Mammography Quality 0910-AH04 Final Rule.
Standards Act.
64............................ Nonprescription Drug 0910-AH62 Final Rule.
Product With an
Additional Condition for
Nonprescription Use.
65............................ Tobacco Product Standard 0910-AI28 Final Rule.
for Characterizing
Flavors in Cigars.
66............................ Standards for the 0910-AI49 Final Rule.
Growing, Harvesting,
Packing, and Holding of
Produce for Human
Consumption Relating to
Agricultural Water.
67............................ Tobacco Product Standard 0910-AI60 Final Rule.
for Menthol in
Cigarettes.
68............................ Provider 0938-AU64 Proposed Rule.
Nondiscrimination
Requirements for Group
Health Plans and Health
Insurance Issuers in the
Group and Individual
Markets (CMS-9910).
69............................ Short-Term Limited 0938-AU67 Proposed Rule.
Duration Insurance;
Update (CMS-9904).
70............................ Assuring Access to 0938-AU68 Proposed Rule.
Medicaid Services (CMS-
2442).
71............................ Transitional Coverage for 0938-AU86 Proposed Rule.
Emerging Technologies
(CMS-3421).
72............................ Interoperability and 0938-AU87 Proposed Rule.
Prior Authorization for
MA Organizations,
Medicaid and CHIP
Managed Care and State
Agencies, FFE QHP
Issuers, MIPS Eligible
Clinicians, Eligible
Hospitals and CAHs (CMS-
0057).
73............................ Medicare and Medicaid 0938-AU90 Proposed Rule.
Program Integrity (CMS-
6084).
74............................ Culturally Competent and 0938-AU91 Proposed Rule.
Person-Centered
Requirements to Increase
Access to Care and
Improve Quality for All
(CMS-3418).
75............................ Mental Health Parity and 0938-AU93 Proposed Rule.
Addiction Equity Act and
the Consolidated
Appropriations Act, 2021
(CMS-9902).
76............................ Coverage of Certain 0938-AU94 Proposed Rule.
Preventive Services
Under the Affordable
Care Act (CMS-9903).
77............................ Contract Year 2024 0938-AU96 Proposed Rule.
Changes to the Medicare
Advantage, Medicare
Prescription Drug
Benefit, Medicare Cost
Plan Programs, Medicare
Overpayment Provisions
of the Affordable Care
Act, and PACE (CMS-4201).
78............................ FY 2024 Skilled Nursing 0938-AV02 Proposed Rule.
Facility (SNFs)
Prospective Payment
System and Consolidated
Billing and Updates to
the Value-Based
Purchasing and Quality
Reporting Programs (CMS-
1779).
79............................ Streamlining the Medicaid 0938-AU00 Final Rule.
and CHIP Application,
Eligibility
Determination,
Enrollment, and Renewal
Processes (CMS-2421).
80............................ Foster Care Legal 0970-AC89 Proposed Rule.
Representation.
81............................ Separate Licensing 0970-AC91 Proposed Rule.
Standards for Relative
or Kinship Foster Family
Homes.
82............................ Unaccompanied Children 0970-AC93 Proposed Rule.
Program Foundational
Rule.
83............................ Federal Licensing of 0970-AC94 Proposed Rule.
Office of Refugee
Resettlement Facilities.
84............................ Strengthening TANF as a 0970-AC97 Proposed Rule.
Safety Net and Work
Program.
85............................ Adoption and Foster Care 0970-AC98 Proposed Rule.
Analysis and Reporting
System (AFCARS).
86............................ Modification of the 0970-AC99 Proposed Rule.
Tribal Non-Federal Share
Requirement.
87............................ ANA Non-Federal Share 0970-AC88 Final Rule.
Emergency Waivers.
88............................ Older Americans Act, 0985-AA17 Proposed Rule.
Titles III, VI, and VII.
89............................ Adult Protective Services 0985-AA18 Proposed Rule.
Functions and Grant
Programs.
----------------------------------------------------------------------------------------------------------------
[[Page 10974]]
Department of Homeland Security
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
90............................ Victims of Qualifying 1615-AA67 Proposed Rule.
Criminal Activities;
Eligibility Requirements
for U Nonimmigrant
Status and Adjustment of
Status.
91............................ Improving the Regulations 1615-AC22 Proposed Rule.
Governing the Adjustment
of Status to Lawful
Permanent Residence and
Related Immigration
Benefits.
92............................ Particular Social Group 1615-AC65 Proposed Rule.
and Related Definitions
and Interpretations for
Asylum and Withholding
of Removal.
93............................ U.S. Citizenship and 1615-AC68 Proposed Rule.
Immigration Services Fee
Schedule and Changes to
Certain Other
Immigration Benefit
Request Requirements.
94............................ Bars to Asylum 1615-AC69 Proposed Rule.
Eligibility and Related
Procedures.
95............................ Modernization and Reform 1615-AC76 Proposed Rule.
of the H-2 Programs.
96............................ Citizenship and 1615-AC80 Proposed Rule.
Naturalization and Other
Related Flexibilities.
97............................ Relief Under the Violence 1615-AC81 Proposed Rule.
Against Women Act of
1994 and Subsequent
Legislation.
98............................ Security Bars and 1615-AC57 Final Rule.
Processing.
99............................ Cybersecurity in the 1625-AC77 Proposed Rule.
Marine Transportation
System.
100........................... MARPOL Annex VI; 1625-AC78 Proposed Rule.
Prevention of Air
Pollution From Ships.
101........................... Advance Passenger 1651-AB43 Proposed Rule.
Information System:
Electronic Validation of
Travel Documents.
102........................... Enhancing Surface Cyber 1652-AA74 Prerule.
Risk Management.
103........................... Vetting of Certain 1652-AA69 Proposed Rule.
Surface Transportation
Employees.
104........................... Amending Vetting 1652-AA70 Proposed Rule.
Requirements for
Employees With Access to
a Security
Identification Display
Area (SIDA).
105........................... Flight Training Security 1652-AA35 Final Rule.
Program.
106........................... Immigration Bond 1653-AA85 Final Rule.
Notifications and
Electronic Service.
107........................... Optional Alternative to 1653-AA86 Final Rule.
the Physical Examination
Associated With
Employment Eligibility
Verification (Form I-9).
108........................... National Flood Insurance 1660-AB06 Proposed Rule.
Program: Standard Flood
Insurance Policy,
Homeowner Flood Form.
109........................... Individual Assistance 1660-AB07 Proposed Rule.
Program Equity.
110........................... Update of FEMA's Public 1660-AB09 Proposed Rule.
Assistance Regulations.
111........................... Updates to Floodplain 1660-AB12 Proposed Rule.
Management and
Protection of Wetlands
Regulations.
112........................... National Flood Insurance 1660-AB11 Long-Term Action.
Program's Floodplain
Management Standards for
Land Management & Use, &
an Assessment of the
Program's Impact on
Threatened and
Endangered Species &
Their Habitats.
113........................... Ammonium Nitrate Security 1670-AA00 Proposed Rule.
Program.
114........................... Chemical Facility Anti- 1670-AA01 Proposed Rule.
Terrorism Standards
(CFATS).
----------------------------------------------------------------------------------------------------------------
Department of Housing and Urban Development
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
115........................... 24 CFR 5, 92, 93, 200, 2501-AE05 Proposed Rule.
247, 574, 576 578
Violence Against Women
Act Reauthorization Act
of 2022: Compliance in
HUD Housing Programs (FR-
6319).
116........................... 24 CFR 50 Floodplain 2506-AC54 Proposed Rule.
Management and
Protection of Wetlands
(FR-6272).
----------------------------------------------------------------------------------------------------------------
Department of Interior
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
117........................... Onshore Oil and Gas 1004-AE91 Final Rule.
Operations--Annual Civil
Penalties Inflation
Adjustments.
----------------------------------------------------------------------------------------------------------------
Department of Justice
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
118........................... Home Confinement Under 1120-AB79 Final Rule.
the Coronavirus Aid,
Relief, and Economic
Security (CARES) Act.
119........................... Implementation of the ADA 1190-AA73 Proposed Rule.
Amendments Act of 2008:
Federally Conducted
(Section 504 of the
Rehabilitation Act of
1973).
120........................... Nondiscrimination on the 1190-AA78 Proposed Rule.
Basis of Disability by
State and Local
Governments: Medical
Diagnostic Equipment.
121........................... Nondiscrimination on the 1190-AA79 Proposed Rule.
Basis of Disability:
Accessibility of Web
Information and Services
of State and Local
Governments.
122........................... Nondiscrimination on the 1190-AA77 Long-Term Action.
Basis of Disability by
State and Local
Governments; Public
Right-of-Way.
123........................... Medications to Prevent 1117-AB73 Proposed Rule.
Narcotic Opioid
Withdrawal Symptoms.
[[Page 10975]]
124........................... Expansion of Induction of 1117-AB78 Proposed Rule.
Buprenorphine via
Telemedicine Encounter.
125........................... Bars to Asylum 1125-AB12 Proposed Rule.
Eligibility and Related
Procedures.
126........................... Particular Social Group 1125-AB13 Proposed Rule.
and Related Definitions
and Interpretations for
Asylum and Withholding
of Removal.
127........................... Procedures for Asylum and 1125-AB15 Proposed Rule.
Withholding of Removal.
128........................... Appellate Procedures and 1125-AB18 Proposed Rule.
Decisional Finality in
Immigration Proceedings;
Administrative Closure.
129........................... Procedures for Credible 1125-AB20 Final Rule.
Fear Screening and
Consideration of Asylum,
Withholding of Removal
and CAT Protection
Claims by Asylum
Officers.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
130........................... Final Action on Proposal 1250-AA09 Final Rule.
to Rescind Implementing
Legal Requirements
Regarding the Equal
Opportunity Clause's
Religious Exemption.
131........................... Pre-enforcement Notice 1250-AA14 Final Rule.
and Conciliation
Procedures.
132........................... Form LM-10 Employer 1245-AA13 Final Rule.
Report.
133........................... Defining and Delimiting 1235-AA39 Proposed Rule.
the Exemptions for
Executive,
Administrative,
Professional, Outside
Sales and Computer
Employees.
134........................... Nondisplacement of 1235-AA42 Proposed Rule.
Qualified Workers Under
Service Contracts.
135........................... Updating the Davis-Bacon 1235-AA40 Final Rule.
and Related Acts
Regulations.
136........................... Wagner-Peyser Act 1205-AC02 Final Rule.
Staffing.
137........................... Definition of the Term 1210-AC02 Proposed Rule.
``Fiduciary''.
138........................... Mental Health Parity and 1210-AC11 Proposed Rule.
Addiction Equity Act and
the Consolidated
Appropriations Act, 2021.
139........................... Respirable Crystalline 1219-AB36 Proposed Rule.
Silica.
140........................... Safety Program for 1219-AB91 Final Rule.
Surface Mobile Equipment.
141........................... Prevention of Workplace 1218-AD08 Prerule.
Violence in Health Care
and Social Assistance.
142........................... Heat Illness Prevention 1218-AD39 Prerule.
in Outdoor and Indoor
Work Settings.
143........................... Infectious Diseases...... 1218-AC46 Proposed Rule.
144........................... Occupational Exposure to 1218-AD36 Final Rule.
COVID-19 in Healthcare
Settings.
----------------------------------------------------------------------------------------------------------------
Department of Transportation
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
145........................... +Enhancing Transparency 2105-AF10 Proposed Rule.
of Airline Ancillary
Service Fees.
146........................... +Accessible Lavatories on 2105-AE89 Final Rule.
Single-Aisle Aircraft:
Part II.
147........................... +Safety Management System 2120-AL60 Proposed Rule.
for Parts 21, 91, 135
and 145.
148........................... +National Electric 2125-AG10 Final Rule.
Vehicle Infrastructure
Formula Program.
149........................... +Heavy Vehicle Automatic 2127-AM36 Proposed Rule.
Emergency Braking.
150........................... +Light Vehicle Automatic 2127-AM37 Proposed Rule.
Emergency Braking (AEB)
with Pedestrian AEB.
151........................... +Fuel Efficiency and 2127-AM39 Proposed Rule.
Greenhouse Gas Standards
for Medium- and Heavy-
Duty Engines and
Vehicles.
152........................... +Light Vehicle CAFE 2127-AM55 Proposed Rule.
Standards Beyond MY 2026.
153........................... +Train Crew Staffing..... 2130-AC88 Proposed Rule.
154........................... +Pipeline Safety: Class 2137-AF29 Final Rule.
Location Requirements.
----------------------------------------------------------------------------------------------------------------
Department of Veterans Affairs
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
155........................... Updating VA Adjudication 2900-AR10 Proposed Rule.
Regulations for
Disability or Death
Benefit Claims Related
to Herbicide Exposure.
156........................... Pilot Veterans Services 2900-AR60 Proposed Rule.
Organization
Complementary and
Integrative Health Self-
Care Well-Being Center
Grant Program.
157........................... Expanded Burial Benefits. 2900-AR69 Proposed Rule.
158........................... Updating VA Adjudication 2900-AR75 Proposed Rule.
Regulations for
Disability or Death
Benefits Based on Toxic
Exposure.
159........................... Reevaluation of Claims 2900-AR76 Proposed Rule.
for Dependency and
Indemnity Compensation
Based on Public Law 117-
168.
160........................... Authorization of 2900-AR77 Proposed Rule.
Electronic Notice in
Claims Under Laws
Administered by the
Secretary of Veterans
Affairs.
161........................... Modifying Copayments for 2900-AQ30 Final Rule.
Veterans at High Risk
for Suicide.
162........................... Home Visits in Program of 2900-AQ96 Final Rule.
Comprehensive Assistance
for Family Caregivers
During COVID-19 National
Emergency.
163........................... Staff Sergeant Parker 2900-AR16 Final Rule.
Gordon Fox Suicide
Prevention Grant Program.
[[Page 10976]]
164........................... Copayment Exemption for 2900-AR48 Final Rule.
Indian Veterans.
165........................... Technical Revisions to 2900-AR73 Final Rule.
Expand Health Care for
Certain Toxic Exposure
and Overseas Contingency
Service.
166........................... Procedural Updates for 2900-AR74 Final Rule.
the PACT Act.
----------------------------------------------------------------------------------------------------------------
Environmental Protection Agency
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
167........................... Phasedown of 2060-AV84 Prerule.
Hydrofluorocarbons:
Management of Certain
Hydrofluorocarbons and
Substitutes Under
Subsection (h) of the
American Innovation and
Manufacturing Act of
2020.
168........................... PFAS-Related Designations 2050-AH25 Prerule.
as CERCLA Hazardous
Substances.
169........................... National Emission 2060-AU37 Proposed Rule.
Standards for Hazardous
Air Pollutants: Ethylene
Oxide Commercial
Sterilization and
Fumigation Operations.
170........................... Amendments to the NSPS 2060-AV09 Proposed Rule.
for GHG Emissions From
New, Modified, &
Reconstructed Stationary
Sources: EGUs.
171........................... Emission Guidelines for 2060-AV10 Proposed Rule.
Greenhouse Gas Emissions
From Fossil Fuel-Fired
Existing Electric
Generating Units.
172........................... Volume Requirements for 2060-AV14 Proposed Rule.
2023 and Beyond Under
the Renewable Fuel
Standard Program.
173........................... New Source Performance 2060-AV16 Proposed Rule.
Standards and Emission
Guidelines for Crude Oil
and Natural Gas
Facilities: Climate
Review.
174........................... Review of Final Rule 2060-AV20 Proposed Rule.
Reclassification of
Major Sources as Area
Sources Under Section
112 of the Clean Air Act.
175........................... Revisions to the Air 2060-AV41 Proposed Rule.
Emission Reporting
Requirements (AERR).
176........................... Phasedown of 2060-AV45 Proposed Rule.
Hydrofluorocarbons:
Allowance Allocation
Methodology for 2024 and
Later Years.
177........................... Restrictions on Certain 2060-AV46 Proposed Rule.
Uses of
Hydrofluorocarbons Under
Subsection (i) of the
American Innovation and
Manufacturing Act.
178........................... Implementing Regulations 2060-AV48 Proposed Rule.
Under 40 CFR Part 60
Subpart Ba Adoption and
Submittal of State Plans
for Designated
Facilities.
179........................... Multi-Pollutant Emissions 2060-AV49 Proposed Rule.
Standards for Model
Years 2027 and Later
Light-Duty and Medium-
Duty Vehicles.
180........................... Reconsideration of the 2060-AV52 Proposed Rule.
National Ambient Air
Quality Standards for
Particulate Matter.
181........................... NESHAP: Coal-and Oil- 2060-AV53 Proposed Rule.
Fired Electric Utility
Steam Generating Units-
Review of the Residual
Risk and Technology
Review.
182........................... Methane Emissions and 2060-AV83 Proposed Rule.
Waste Reduction
Incentive Program and
Revisions to the
Mandatory Greenhouse Gas
Reporting Rule for
Petroleum and Natural
Gas Systems.
183........................... Fees for the 2070-AK64 Proposed Rule.
Administration of the
Toxic Substances Control
Act (TSCA).
184........................... Methylene Chloride; 2070-AK70 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
185........................... 1-Bromopropane; 2070-AK73 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
186........................... Carbon Tetrachloride; 2070-AK82 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
187........................... Trichloroethylene; 2070-AK83 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
188........................... Perchloroethylene; 2070-AK84 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
189........................... N-Methylpyrrolidone; 2070-AK85 Proposed Rule.
Rulemaking Under Section
6(a) of the Toxic
Substances Control Act
(TSCA).
190........................... Procedures for Chemical 2070-AK90 Proposed Rule.
Risk Evaluation Under
the Toxic Substances
Control Act (TSCA).
191........................... Reconsideration of the 2070-AK91 Proposed Rule.
Dust-Lead Hazard
Standards and Dust-Lead
Post Abatement Clearance
Levels.
192........................... Hazardous and Solid Waste 2050-AH14 Proposed Rule.
Management System:
Disposal of Coal
Combustion Residuals
From Electric Utilities;
Legacy Surface
Impoundments.
193........................... Revisions to Standards 2050-AH24 Proposed Rule.
for the Open Burning/
Open Detonation of Waste
Explosives.
194........................... Listing of PFOA, PFOS, 2050-AH26 Proposed Rule.
PFBS, and GenX as
Resource Conservation
and Recovery Act (RCRA)
Hazardous Constituents.
195........................... Definition of Hazardous 2050-AH27 Proposed Rule.
Waste Applicable to
Corrective Action for
Solid Waste Management
Units.
196........................... Reporting Requirements 2050-AH28 Proposed Rule.
for Emissions From
Animal Waste Under the
Emergency Planning and
Community Right-to-Know
Act.
197........................... Federal Baseline Water 2040-AF62 Proposed Rule.
Quality Standards for
Indian Reservations.
[[Page 10977]]
198........................... Revised Definition of 2040-AG13 Proposed Rule.
``Waters of the United
States''.
199........................... National Primary Drinking 2040-AG16 Proposed Rule.
Water Regulations for
Lead and Copper:
Improvements (LCRI) (.
200........................... Water Quality Standards 2040-AG17 Proposed Rule.
Regulatory Revisions to
Protect Tribal Reserved
Rights.
201........................... Per- and Polyfluoroalkyl 2040-AG18 Proposed Rule.
Substances (PFAS)
National Primary
Drinking Water
Regulation Rulemaking.
202........................... Effluent Limitations 2040-AG23 Proposed Rule.
Guidelines and Standards
for the Steam Electric
Power Generating Point
Source Category.
203........................... Control of Air Pollution 2060-AU41 Final Rule.
From New Motor Vehicles:
Heavy-Duty Engine and
Vehicle Standards.
204........................... NESHAP: Coal- and Oil- 2060-AV12 Final Rule.
Fired Electric Utility
Steam Generating Units-
Revocation of the 2020
Reconsideration, and
Affirmation of the
Appropriate and
Necessary Supplemental
Finding.
205........................... Pesticides; Exemptions of 2070-AK54 Final Rule.
Certain Plant-
Incorporated Protectants
(PIPs) Derived From
Newer Technologies.
206........................... Asbestos Part 1: 2070-AK86 Final Rule.
Chrysotile Asbestos;
Regulation of Certain
Conditions of Use Under
Section 6(a) of the
Toxic Substances Control
Act (TSCA).
207........................... Hazardous and Solid Waste 2050-AH07 Final Rule.
Management System:
Disposal of Coal
Combustion Residuals
From Electric Utilities;
Federal CCR Permit
Program.
208........................... Hazardous and Solid Waste 2050-AH18 Final Rule.
Management System:
Disposal of CCR; A
Holistic Approach to
Closure Part B:
Implementation of
Closure.
209........................... Accidental Release 2050-AH22 Final Rule.
Prevention Requirements:
Risk Management Program
Under the Clean Air Act;
Safer Communities by
Chemical Accident
Prevention.
210........................... Clean Water Act Section 2040-AG12 Final Rule.
401: Water Quality
Certification.
211........................... Revised Definition of 2040-AG19 Final Rule.
``Waters of the United
States''.
----------------------------------------------------------------------------------------------------------------
Office of Personnel Management
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
212........................... Postal Service Health 3206-AO43 Final Rule.
Benefits Program.
----------------------------------------------------------------------------------------------------------------
Pension Benefit Guaranty Corporation
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
213........................... Actuarial Assumptions for 1212-AB54 Proposed Rule.
Determining an
Employer's Withdrawal
Liability.
214........................... Special Financial 1212-AB53 Final Rule.
Assistance by PBGC.
----------------------------------------------------------------------------------------------------------------
Social Security Administration
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
215........................... Use of Electronic Payroll 0960-AH88 Proposed Rule.
Data To Improve Program
Administration.
216........................... Omitting Food From In- 0960-AI60 Proposed Rule.
Kind Support and
Maintenance Calculations.
217........................... Social Security Number 0960-AI80 Proposed Rule.
Use in Government
Records.
218........................... Revised Medical Criteria 0960-AG65 Proposed Rule.
for Evaluating Digestive
Disorders and Skin
Disorders.
----------------------------------------------------------------------------------------------------------------
Consumer Product Safety Commission
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
219........................... Regulatory Options for 3041-AC31 Final Rule.
Table Saws.
220........................... Petition for Rulemaking 3041-AD31 Final Rule.
to Eliminate Accessible
Cords on Window Covering
Products.
221........................... Furniture Tip Overs: 3041-AD65 Final Rule.
Clothing Storage Units.
----------------------------------------------------------------------------------------------------------------
[[Page 10978]]
Nuclear Regulatory Commission
----------------------------------------------------------------------------------------------------------------
Regulation
Sequence No. Title Identifier No. Rulemaking stage
----------------------------------------------------------------------------------------------------------------
222........................... Enhanced Weapons for 3150-AJ55 Prerule.
Spent Fuel Storage
Installations and
Transportation--Section
161A Authority [NRC-2015-
0018].
223........................... American Society of 3150-AK23 Proposed Rule.
Mechanical Engineers
Code Cases and Update
Frequency [NRC-2018-
0291].
224........................... Risk-Informed, Technology 3150-AK31 Proposed Rule.
Inclusive Regulatory
Framework [NRC-2019-
0062].
225........................... Renewing Nuclear Power 3150-AK32 Proposed Rule.
Plant Operating
Licenses--Environmental
Review [NRC-2018-0296].
226........................... Revision of Fee 3150-AK58 Proposed Rule.
Schedules: Fee Recovery
for FY 2023 [NRC-2021-
0024].
----------------------------------------------------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Statement of Regulatory Priorities
The U.S. Department of Agriculture's (USDA) fall 2022 Regulatory
Agenda and Plan prioritizes initiatives fostering 21st century
innovation like delivering broadband to farmers, ranchers, small
businesses, and rural communities, addressing the effects of climate
change such as drought and wildfire risks via climate-smart
agriculture, expanding economic and market opportunity at home and
abroad, job creation, improving access and delivery of our programs,
particularly among historically underserved people and communities, and
tackling food and nutrition insecurity while maintaining a safe food
supply. Meanwhile, as we've responded to immediate needs during the
past two years, USDA will continue to leverage our existing programs in
response to those unforeseen domestic and international events and
national emergencies that impact the American farm economy, schools,
individual households, and our National Forests. Finally, we note that
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 2022, the USDA:
Risk Management Agency implemented the Pandemic Cover Crop Program
that reduced crop insurance premiums for agricultural producers to help
them maintain cover crop systems, an important conservation practice,
while keeping producers eligible for a premium benefit under the
program.
Food and Nutrition Service (FNS) implemented a final rule that
establishes Standards for Milk, Whole Grains, and Sodium in its Child
Nutrition Programs for school years 2022-2023 and 2023-2024 to give
schools time to transition in the short term as FNS works to develop
long-term nutrition standards--based on the newest Dietary Guidelines
for America and extensive input from a wide range of partners--that
will work for schools, families, and industry alike. In 2022, FNS also
implemented streamlining requirements in its Child Nutrition Programs
to simplify the application process, enhance monitoring requirements,
offer more clarity on existing requirements, and provide more
discretion at the State agency level to manage program operations.
In late 2022, USDA plans to announce Phase 2 of the Emergency
Relief Program that provides assistance to producers who suffered crop
losses due to qualifying disaster events, and the Pandemic Assistance
Revenue Program, a new program that provides support for agricultural
producers impacted by the COVID-19 pandemic. In addition, this action
makes changes to the Coronavirus Food Assistance Program; the Emergency
Conservation Program; the Emergency Assistance for Livestock,
Honeybees, and Farm-Raised Fish Program; the Livestock Forage Disaster
Program; the Livestock Indemnity Program; the Noninsured Crop Disaster
Assistance Program; and general payment eligibility provisions. For
more information about this rule, see RIN 0503-AA75.
Outlined below are some of USDA's most important upcoming
regulatory actions for 2023. These include efforts to restore and
expand economic opportunity; address the climate crisis; 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.
Combat Climate Change To Support America's Working Lands, Natural
Resources and Communities
Special Areas; Roadless Area Conservation; National Forest System
Lands in Alaska: In November 2021, USDA proposed 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. USDA is planning to finalize this proposed rule in
a manner consistent with President Biden's Executive Order 13990,
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis, directing review of Federal regulations
issued during the previous four years that may conflict with protecting
the environment, and in support of efforts to confront the climate
crisis. For more information about this rule, see RIN 0596-AD51.
Foster an Equitable and Competitive Marketplace for All Agricultural
Producers
Inclusive Competition and Market Integrity Rules Under the Packers
and Stockyards Act: In October 2022, USDA proposed to revise
regulations under the Packers and Stockyards (P&S) Act, prohibiting
certain prejudices and disadvantages and unjustly discriminatory
conduct against covered producers in the livestock, meat, and poultry
markets. The proposal identified retaliatory practices that interfere
with lawful communications, assertion of rights, and participation in
associations, among other protected activities. The proposal also
identified unlawfully deceptive practices that violate the P&S Act with
respect to contract formation, contract performance, contract
termination and contract refusal. The purpose of the final rule is to
promote inclusive competition and market integrity in the livestock,
meats, and poultry markets. For more information about this rule, see
RIN 0581-AE05.
Transparency in Poultry Grower Contracting and Tournaments Systems:
The final rule would address the use of poultry grower ranking systems
as a method of payment and settlement grouping for poultry growers
under
[[Page 10979]]
contract in poultry growing arrangements with live poultry dealers. The
final rule 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 final rule. A
proposed rule was published in the Federal Register on June 8, 2022, 87
FR 48091. For more information about this rule, see RIN 0581-AE03.
Unfair Practices, Undue Preferences, and Harm to Competition under
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, including addressing harm to
competition. For more information about this rule, see RIN 0581-AE04.
Poultry Growing Tournament Systems: Fairness and Related Concerns--
Harm to Competition: The proposal seeks to address the use of poultry
grower ranking systems, commonly known as ``tournaments'' in contract
poultry production. Based on inputs from poultry growers, the proposal
will seek to improve the market for poultry grower services. An advance
notice of proposed rulemaking was published in the Federal Register on
June 8, 2022, 87 FR 34814. For more information about this rule, see
RIN 0581-AE18.
Provide All Americans Safe, Nutritious Food
USDA's Food Safety and Inspection Service (FSIS) continues to
ensure that meat, poultry, and egg products are safe, wholesome, and
properly marked, labeled, and packaged, and prohibits the distribution
in-commerce of meat, poultry, and egg products that are adulterated or
misbranded. One of FSIS' top priorities is to develop a more
comprehensive and effective strategy to reduce Salmonella illnesses
associated with poultry products. The agency is gathering the data and
information necessary to support future action and move closer to the
national target of a 25 percent reduction in Salmonella illnesses.
In addition, to enhance the safety of raw beef products, FSIS is
strengthening its sampling and testing programs for shiga-toxin
producing Escherichia coli in these products.
Moreover, 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 and undermine
fair competition. FSIS intends to define 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.
Labeling of Meat or Poultry Products Comprised of or Containing
Cultured Animal Cells; Revision of the Nutrition Facts Panels for Meat
and Poultry Products and Updating Certain Reference Amounts Customarily
Consumed; and Prior Label Approval System: Expansion of Generic Label
Approval: FSIS will propose to establish new requirements for the
labeling of meat or poultry products made using animal cell culture
technology. FSIS also plans to finalize two other labeling 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 in commerce without prior FSIS
review and approval. The rule expanding the categories of generically
approved labels will reduce labeling costs for meat and poultry
establishments, including small and very small establishments. The
three rules will provide additional certainty about what is required
for meat and poultry labeling while ensuring that consumers have
accurate information about the food they buy. For more information
about these rules, see RINs 0583-AD56, 0583-AD78, and 0583-AD89.
National Organic Program; Organic Livestock and Poultry Standards:
The final rule would establish standards that support additional
practice standards for organic livestock and poultry production. This
final 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.
FNS' Child Nutrition Programs: Revisions to Meal Patterns
Consistent with the 2020 Guidelines forAmericans: The proposed
revisions would revise meal patterns in the National School Lunch
Program and School Breakfast Program to make school meals healthier and
more consistent with the most recent Dietary Guidelines for Americans
while reflecting the nutrient needs of children at risk for food
insecurity. For more information about this rule, see RIN 0584-AE88.
FNS' Special Supplemental Nutrition Program for Women, Infants and
Children (WIC): Revisions in the WIC Food Packages: Consistent with
recommendations from the National Academies of Sciences, Engineering,
and Medicine and the latest Dietary Guidelines for Americans, the
proposal seeks to provide participants with greater choices in variety
and food package sizes. For more information about this rule, see RIN
0584-AE82.
FNS' Community Eligibility Provision: Increasing Options for
Schools: The Community Eligibility Provision (CEP) is an option for
schools to offer no-cost meals to all students without the burden of
collecting household applications. This provision saves local
educational agencies time and money by streamlining paperwork and
administrative requirements and facilitates low-income children's
access to nutritious school meals. This rule would lower the minimum
participation threshold, which would expand access to CEP and provide
greater flexibility to States and schools that want to use additional
State and local funds to provide no-cost meals to students. For more
information about this rule, see RIN 0584-AE93.
USDA--AGRICULTURAL MARKETING SERVICE (AMS)
Proposed Rule Stage
1. Unfair Practices, Undue Preferences, and Harm to Competition Under
the Packers and Stockyards Act (AMS-FTPP-21-0046) [0581-AE04]
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: This action proposes to revise regulations issued under
the Packers and Stockyards Act (Act) (7
[[Page 10980]]
U.S.C.181 229c), providing clarity regarding conduct that may violate
the Act. Revisions are intended to support market growth, assure fair
trade practices and competition, and protect livestock and poultry
growers and producers. The action addresses long-standing issues
related to competitiveness and showings of harm or likely harm to
competition.
Statement of Need: Revisions to regulations pertaining to the
Packers and Stockyards Act (Act) clarify the types of conduct by
packers, swine contractors, or live poultry dealers that the
Agricultural Marketing Service (AMS) considers unfair practices or
undue preferences and a violation of sections 202(a) or 202(b) of the
Act.
Sections 202(a) and 202(b) of the P&S Act are broadly written to
prohibit unjustly practices and undue preferences. 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.
Revisions to regulations pertaining to the Packers and Stockyards
Act (Act) that would also 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 or as they may relate to harm or likely harm to
competition as such terms were contemplated under the Act. Such
revisions reflect the Department of Agriculture's (USDA) longstanding
position in this regard.
Summary of Legal Basis: The Packers and Stockyards Act (Act)
authorizes AMS to determine if conduct within the poultry and livestock
industries are unfair practices or undue preferences and, therefore a
violation of the Act.
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 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. 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................................ 12/00/22
------------------------------------------------------------------------
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: 202 720-219.
RIN: 0581-AE04
USDA--AMS
2. Inclusive Competition and Market Integrity Under the Packers and
Stockyards Act (AMS-FTPP-21-0045) [0581-AE05]
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: This final rule would 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 or
advantageous. Supplemental amendments clarify the conduct the
Department considers unfair, preferential unjustly discriminatory, or
deceptive and a violation of sections 202(a) and (b) of the Act. The
rule also clarifies 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) 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 rule also clarifies 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 unjustly 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 rule to be $517 thousand, with decreased costs
each year thereafter, resulting in a ten-year total cost of $2.88
[[Page 10981]]
million. AMS expects this rule to benefit all segments of the industry,
providing greater clarity about what would be considered violations of
the Act. AMS expects this 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................................ 10/03/22 87 FR 60010
NPRM Comment Period Extended........ 11/30/22 87 FR 73507
NPRM Comment Period End............. 12/02/22
NPRM Comment Period Extended End.... 01/17/23
Final Rule.......................... 04/00/23
------------------------------------------------------------------------
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
3. Poultry Growing Tournament Systems: Fairness and Related Concerns--
Harm to Competition (AMS-FTPP-22-0046) [0581-AE18]
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 et seq., 192
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: This action seeks comments on proposed amendments to
regulations that promote transparency in the poultry grower ranking
systems, more commonly known as tournaments, in contract poultry
production. Proposed amendments serve to remove obstacles to fair
contracting.
Statement of Need: Executive Order 14036 Promoting Competition in
the American Economy, directs the Secretary of Agriculture to address
unfair treatment of farmers and improve conditions of competition in
their markets by considering rulemaking to address, among other things,
certain practices related to poultry grower ranking systems. AMS is
responding to numerous complaints from poultry growers about the use of
tournament systems and recognizes that measures beyond disclosure and
transparency may be necessary to address those practices, given the
economic power imbalances and competition concerns that exist in
today's markets. Responses to requests for comment have helped AMS
tailor further policy development and rulemaking under the Packers and
Stockyards Act, as amended, to address, through specific prohibitions,
limits, and/or conventionalities, potential unfairness that may arise
from the use of the tournament contracts in the poultry sector.
Summary of Legal Basis: Sections 202(a) and 202(b) of the Packers
and Stockyards Act prohibits unfair practices and undue preferences.
Alternatives: The alternative considered is to continue with other
efforts already underway to enhance fair and competitive markets in
poultry. These include: (1) a separate rulemaking, under RIN 0581-AE03,
in which USDA proposed a series of new transparency measures designed
to address many grower concerns relating to deception and lack of
access to critical information in connection with poultry contracting
and tournament systems; (2) under the American Rescue Plan Act's
provision to enhance supply chain resiliency, investing directly into
the creation of new, and expansion of existing, local and regional meat
and poultry processing enterprises; and (3) in partnership with DOJ,
through such means as a newly established joint complaints and tips
portal, www.farmerfairness.gov, enhancing enforcement activities
including responding in a more coordinated manner to a range of
competition and fair markets concerns.
Anticipated Cost and Benefits: AMS is at an early stage of
evaluating the costs and benefits of the contemplated regulatory
interventions. However, expected benefits include greater certainty,
investment, and supply of poultry products, greater returns to poultry
growers and enhanced rural economic welfare, and expanded competitive
choices in the poultry sector. Expected costs may include compliance
costs, such as certain contract change costs.
Risks: Agricultural production is an inherently risky endeavor, and
returns have some level of risk no matter the marketing channel or
structural arrangement. Tournament systems do not insulate growers from
the financial risk, liquidity risk, the risk from incomplete contracts,
and the lack of control over inputs and production variables.
Tournaments also introduce new categories of risks to growers: Group
composition risk and added risks of settlement-related deception or
fraud. The risks of deception or fraud as discussed above include the
inability of growers to verify the accuracy of payments, and to detect
discrimination or retaliation.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM: Request for Comments......... 06/08/22 87 FR 34814
ANPRM Comment Period End............ 09/06/22
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Stephen Slinsky, Department of Agriculture,
Agricultural Marketing Service, 1400 Independence Avenue SW,
Washington, DC 20250, Phone: 901 287-9719, Email:
[email protected].
RIN: 0581-AE18
USDA--AMS
Final Rule Stage
4. Transparency in Poultry Grower Contracting and Tournaments (AMS-
FTPP-21-0044) [0581-AE03]
Priority: Other Significant.
Legal Authority: 7 U.S.C. 181 to 229c
CFR Citation: 9 CFR 201.
Legal Deadline: None.
Abstract: This action amends regulations issued under the Packers
and Stockyards Act (P&S Act), revising the list of disclosures and
information live poultry dealers must furnish to poultry growers and
sellers with whom dealers make poultry growing arrangements. The rule
establishes parameters for the use of poultry grower ranking systems by
dealers to determine settlement payments for poultry growers.
Amendments are intended to
[[Page 10982]]
promote transparency in poultry production contracting and to give
poultry growers relevant information with which to make business
decisions.
Statement of Need: 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................................ 06/08/22 87 FR 34980
NPRM Comment Period End............. 08/08/22 .......................
Notice of Reopening of Comment 08/08/22 87 FR 48091
Period.
NPRM Comment Period End............. 08/23/22
Final Rule.......................... 05/00/23
------------------------------------------------------------------------
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
5. Organic Livestock and Poultry Standards (AMS-NOP-21-0073) [0581-
AE06]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 7 U.S.C. 6501 to 7 U.S.C. 6524
CFR Citation: 7 CFR 205.
Legal Deadline: None.
Abstract: This action establishes additional practice standards for
organic livestock and poultry production. The rule amends the USDA
organic regulations related to: livestock and poultry living conditions
(for example, outdoor access, housing environment, and stocking
densities); animal health care (for example, physical alterations,
administering medical treatment, and euthanasia); animal transport; and
slaughter.
Statement of Need: The Organic Livestock and Poultry Standards
(OLPS) 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
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 rule. AMS presents two compliance date alternatives in the
rule that would affect the costs and benefits of the rule.
Additionally, AMS discusses alternatives to specific policies included
in the rule, including alternative indoor and outdoor space
requirements, and non-regulatory alternatives, including consumer
education or no rule.
Anticipated Cost and Benefits: AMS assumes no costs or benefits are
accumulated for clarifying and codifying existing practices. However,
AMS does expect costs and benefits to occur for organic broiler
production through increased indoor space and for organic broilers and
in egg production through increased outdoor access for layers.
AMS estimates that the discounted costs for layer operations would
range between $3.6 million and $8.4 million annually. To monetize the
benefits of this rule, AMS used research that measured consumers'
willingness-to-pay for outdoor access at a premium of between $0.16 and
$0.25 per dozen eggs, controlling for other factors, including the
organic label. Based on this, AMS estimates the annually discounted
benefits falling between $11.6 million to $27.1 million.
AMS estimates that the total annual discounted costs for broiler
compliance would be between $5.7 million and $6.3 million. The benefits
for broilers are calculated using a willingness-to-pay at a premium of
$0.34/lb. With this willingness-to-pay, the annual discounted benefits
range between $97 million and $107 million.
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: This rule is similar to the rule published on January 19,
2017 (82 FR 7042). That rule was subsequently withdrawn and never
became effective. The USDA continues to face two legal challenges
related to the withdrawal of that rule. USDA argued in its
[[Page 10983]]
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.
Publishing a new proposed rule indicated that the USDA is taking
new steps to advance the regulations. This has been viewed favorably by
some, although others would prefer reinstating the January 2017 rule
without the associated steps required to finalize a new rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/09/22 87 FR 48562
NPRM Comment Period End............. 10/11/22
Comment Period Extended............. 10/11/22 87 FR 61268
Comment Period Extended End......... 11/10/22
Final Rule.......................... 04/00/23
------------------------------------------------------------------------
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--FOOD AND NUTRITION SERVICE (FNS)
Proposed Rule Stage
6. Special Supplemental Nutrition Program for Women, Infants and
Children (WIC): Revisions in the WIC Food Packages [0584-AE82]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 1786, sec. 17(f)(11)(C)
CFR Citation: 7 CFR 246.10.
Legal Deadline: None.
Abstract: This proposed rulemaking would amend regulations
governing the WIC food packages to: (1) incorporate recommendations of
the National Academies of Science, Engineering, and Medicine 2017
scientific report, Review of WIC Food Packages: Improving Balance and
Choice; (2) align with 2020 Dietary Guidelines for Americans; and (3)
make other administrative revisions or clarifications to food package
requirements.
Statement of Need: The National Academies of Sciences, Engineering,
and Medicine (NASEM) issued a 2017 report with recommendations to align
the WIC food packages with the available nutrition science and to
reflect the supplemental nature of the Program. In December 2020, the
USDA and the Department of Health and Human Services released the 2020-
2025 Dietary Guidelines for Americans (DGAs). USDA FNS will propose
rulemaking to incorporate NASEM recommendations and align the food
package with the latest DGAs.
Summary of Legal Basis: 42 U.S.C. 1786, sec. 17(f)(11)(C).
Alternatives: N/A.
Anticipated Cost and Benefits: This is discussed in the Regulatory
Impact Analysis which was published on November 21, 2022 as an appendix
to the rule, available at 87 FR 71090.
Risks: N/A.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/21/22 87 FR 71090
NPRM Comment Period End............. 02/21/23
------------------------------------------------------------------------
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: Michael DePiro, Department of Agriculture, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, Phone:
703 305-2876, Email: [email protected].
Maureen Lydon, Department of Agriculture, Food and Nutrition
Service, 1320 Braddock Place, Alexandria, VA 22314, Phone: 703 457-
7713, Email: [email protected].
RIN: 0584-AE82
USDA--FNS
7. Child Nutrition Programs: Revisions to Meal Patterns Consistent With
the 2020 Dietary Guidelines for Americans [0584-AE88]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 1758, sec. 9(f)(1)
CFR Citation: 7 CFR 210.10; 7 CFR 210.11; 7 CFR 215.7a; 7 CFR
220.8; 7 CFR 226.20; . . .
Legal Deadline: None.
Abstract: This rule will propose long-term school nutrition
standards based on the Dietary Guidelines for Americans, 2020-2025, and
feedback from child nutrition program stakeholders. The proposed
revisions are expected to make school meals more nutritious and more
consistent with the goals of the most recent Dietary Guidelines, as
required by statute. In addition, FNS is merging ``Buy American
Provision in the National School Lunch and School Breakfast Programs''
(0584-AE91),which was listed as a long-term rule on the Fall 2021
Regulatory Agenda, with this rule (0584-AE88). When developing this
proposed rule, FNS will consider comments submitted in response to the
February 2022 final rule, ``Child Nutrition Programs: Transitional
Standards for Milk, Whole Grains, and Sodium'' (0584-AE81). FNS will
also consider comments submitted in response to the August 2021
``Request for Information: Buy American in the National School Lunch
Program and School Breakfast Program,'' including feedback on how FNS
can better support local schools as they strive to purchase domestic
foods and food products.
Statement of Need: The proposed revisions are needed to make school
meals more nutritious and more consistent with the goals of the most
recent Dietary Guidelines, as required by statute.
Summary of Legal Basis: 42 U.S.C. 1758, sec. 9(f)(1).
Alternatives: Alternatives not identified to date.
Anticipated Cost and Benefits: These would be addressed in the
Regulatory Impact Analysis for the rule.
Risks: None known at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/23
------------------------------------------------------------------------
[[Page 10984]]
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Local, State.
Federalism: Undetermined.
Agency Contact: Michael DePiro, Department of Agriculture, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, Phone:
703 305-2876, Email: [email protected].
Maureen Lydon, Department of Agriculture, Food and Nutrition
Service, 1320 Braddock Place, Alexandria, VA 22314, Phone: 703 457-
7713, Email: [email protected].
Related RIN: Merged with 0584-AE913
RIN: 0584-AE88
USDA--FNS
8. Community Eligibility Provision: Increasing Options for
Schools [0584-AE93]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 1759a(a)(1)(F)
CFR Citation: 7 CFR 245.9.
Legal Deadline: None.
Abstract: This proposed rule would lower the minimum participation
threshold for Community Eligibility Provision (CEP) elections.
Currently, to elect CEP, a local educational agency (LEA), group of
schools, or individual school must meet a minimum identified student
percentage threshold of 40 percent. This rule would lower the minimum
participation threshold, which would provide an additional option for
LEAs and schools to receive special assistance payments as Federal
reimbursement for meals served to students, in lieu of taking
applications.
Statement of Need: The Community Eligibility Provision (CEP) is an
option for schools to offer no-cost meals to all students without the
burden of collecting household applications. This provision saves local
educational agencies time and money by streamlining paperwork and
administrative requirements and facilitates low-income children's
access to nutritious school meals. Lowering the participation threshold
expands access to CEP and provides greater flexibility to States and
schools that want to use additional State and local funds to provide
no-cost meals to students.
Summary of Legal Basis: Per the Richard B. Russell National School
Lunch Act (42 U.S.C. 1759a(a)(1)(F)(viii)(II)): ``For each school year
beginning on or after July 1, 2014, the Secretary may use a threshold
that is less than 40 percent.''
Alternatives: None.
Anticipated Cost and Benefits: Expanding access to CEP to
additional schools is not expected to measurably increase costs to the
Federal government due to the cost sharing aspect. FNS anticipates that
this provision could impact State and/or local costs. FNS expects that
local educational agencies that choose to elect CEP at lower
eligibility levels will have increased State and/or local obligations.
A cost/benefit analysis will be addressed in the economic analysis
section to be included within the rule.
Risks: No risks have been identified at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Governmental Jurisdictions.
Government Levels Affected: Federal, Local, State, Tribal.
Agency Contact: Michael DePiro, Department of Agriculture, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, Phone:
703 305-2876, Email: [email protected].
Maureen Lydon, Department of Agriculture, Food and Nutrition
Service, 1320 Braddock Place, Alexandria, VA 22314, Phone: 703 457-
7713, Email: [email protected].
RIN: 0584-AE93
USDA--FNS
Final Rule Stage
9. Special Supplemental Nutrition Program for Women, Infants,
and Children (WIC): Implementation of the Access to Baby Formula Act of
2022 and Related Provisions [0584-AE94]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Pub. L. 117-129
CFR Citation: 7 CFR 246.
Legal Deadline: None.
Abstract: This rule would amend 7 CFR 246 to codify the provisions
of the Access to Baby Formula Act of 2022 (ABFA). ABFA amends Section
17 of the Child Nutrition Act of 1966 to (1) add requirements to State
agency infant formula cost containment contracts; and (2) establish
waiver authority to the Secretary of Agriculture to address certain
emergencies, disasters, and supply chain disruptions impacting WIC. FNS
would make other related technical corrections and updates as necessary
to modernize applicable WIC Program regulations.
Statement of Need: This rule would codify requirements for State
agencies to include language in their WIC infant formula rebate
contracts that describes remedies in the event of an infant formula
recall, including how an infant formula manufacturer would protect
against disruption to program participants in the State (i.e., ensure
that WIC participants can purchase formula using WIC benefits). The
rule would also codify permanent expanded waiver authority to aid
participants in obtaining and redeeming WIC benefits during certain
emergencies, disasters, and supply chain disruptions impacting WIC.
Finally, the rule would make other miscellaneous technical corrections
and updates as necessary to update WIC regulations.
Summary of Legal Basis: The Access to Baby Formula Act of 2022
(ABFA, Pub. L. 117-129) amends section 17 of the Child Nutrition Act of
1966 (Pub. L. 89-642).
Alternatives: No alternatives have been identified at this time.
Anticipated Cost and Benefits: The costs associated with
implementing the rule's regulatory requirements are not expected to
significantly add to current program costs at the State and local
levels.
Risks: No risks have been identified at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule With Comment............. 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Local, State.
Agency Contact: Michael DePiro, Department of Agriculture, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, Phone:
703 305-2876, Email: [email protected].
Maureen Lydon, Department of Agriculture, Food and Nutrition
Service, 1320 Braddock Place, Alexandria, VA 22314, Phone: 703 457-
7713, Email: [email protected].
RIN: 0584-AE94
[[Page 10985]]
USDA--FOOD SAFETY AND INSPECTION SERVICE (FSIS)
Proposed Rule Stage
10. Voluntary Labeling of Products With ``Product of USA'' and Similar
Statements [0583-AD87]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601 et seq.; 21 U.S.C. 451 et seq.; 21
U.S.C. 1031 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 products 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 products
and that the current labeling policy may no longer meet consumer
expectations of what the Product of USA claim signifies. In 2021, FSIS
received another petition related to its Product of USA policy. The
Agency wants to ensure that any changes to its current policy are
accomplished by an open and transparent process. Therefore, FSIS
commissioned a consumer survey and decided that, instead of changing
the Policy Book entry, it would initiate rulemaking to define the
conditions under which the labeling of FSIS-regulated products would be
permitted to bear voluntary statements indicating that the product is
of U.S. origin.
Summary of Legal Basis: Under the Federal Meat Inspection Act
(FMIA) (21 U.S.C. 601-695, at 607), the Poultry Products Inspection Act
(PPIA) (21 U.S.C. 451-470, at 457), and the Egg Products Inspection Act
(21 U.S.C. 1031-1056, at 1036) (the Acts), the labels of meat, poultry,
and egg products must be approved by the Secretary of Agriculture, who
has delegated this authority to FSIS, before these products can enter
commerce. The Acts prohibit the sale or offer for sale by any person,
firm, or corporation of any article in commerce under any name or other
marking or labeling that is false or misleading or in any container of
a misleading form or size (21 U.S.C. 607(d); 21 U.S.C. 457(c)). The
Acts also prohibit the distribution in commerce of meat or poultry
products that are adulterated or misbranded. The FMIA and PPIA give
FSIS broad authority to promulgate such rules and regulations as are
necessary to carry out the provisions of the Acts (21 U.S.C. 621 and
463(b)).
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 FSIS-regulated products may be labeled as
Product of USA only if significant ingredients are of domestic origin
and; (2) to amend the FSIS Policy Book to provide that any FSIS
regulated 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 animals that have been born, raised, and
slaughtered in the United States. FSIS is conducting a comprehensive
review of origin labeling claims 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 as well as producers by providing them
more specific information on what Product of USA means for FSIS-
regulated products.
Risks: N/A.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Melissa Hammar, Acting Director, Regulations
Development Staff, Department of Agriculture, Food Safety and
Inspection Service, 1400 Independence Avenue SW, Washington, DC 20250-
3700, Phone: 202 720-2096, Email: [email protected].
RIN: 0583-AD87
USDA--FSIS
11. Labeling of Meat and Poultry Products Made Using Animal Cell
Culture Technology [0583-AD89]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 451 et seq.
CFR Citation: 9 CFR ch. III.
Legal Deadline: None.
Abstract: This notice of proposed rulemaking seeks public comments
to inform future Food Safety and Inspection Service (FSIS) regulations
for the labeling of meat and poultry products made using animal cell
culture technology.
Statement of Need: Many companies, both domestic and foreign, are
currently developing cultured products derived from the cells of food
animals amenable to the Federal Meat Inspection Act (FMIA; 21 U.S.C.
601 et seq.) (cattle, sheep, swine, goats, and fish of the order
Siluriformes, e.g., catfish) or the Poultry Products Inspection Act
(PPIA; 21 U.S.C. 451 et seq.) (chickens, turkeys, ducks, geese,
guineas, ratites, and squabs). Human food products derived from these
species fall under FSIS jurisdiction.
Summary of Legal Basis: The Federal Meat Inspection Act (FMIA; 21
U.S.C. 601 et seq.) and the Poultry Products Inspection Act (PPIA; 21
U.S.C. 451 et seq.) require that meat and poultry products be
truthfully and accurately labeled and that their labels be pre-approved
by FSIS (21 U.S.C. 607(d) and 457(c), respectively), prior to movement
in commerce. FSIS issues labeling regulations and reviews and approves
meat and poultry product labels pursuant to these statutory labeling
requirements. Food products made using animal cell culture technology
and derived from the cells of livestock subject to the FMIA or the PPIA
are subject to the labeling (and other applicable) requirements of
these Acts and the regulations issued thereunder.
Alternatives: FSIS will consider at least three alternatives for
the rule: (1) Adopting a naming convention that is preferred by
cellular agriculture industry; (2) Adopting a naming convention that is
preferred by traditional agriculture industry; (3) Adopting a naming
convention that is preferred by consumers groups.
Anticipated Cost and Benefits: This proposed rule would benefit the
public by providing truthful and accurate labeling of meat and poultry
products produced using animal cell culture technology.
FSIS expects its costs to be minimal and that current FSIS staffing
would meet sketch approval needs.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 09/03/21 86 FR 49491
ANPRM Comment Period End............ 12/02/21
NPRM................................ 08/00/23
------------------------------------------------------------------------
[[Page 10986]]
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Melissa Hammar, Acting Director, Regulations
Development Staff, Department of Agriculture, Food Safety and
Inspection Service, 1400 Independence Avenue SW, Washington, DC 20250-
3700, Phone: 202 720-2096, Email: [email protected].
RIN: 0583-AD89
USDA--FSIS
Final Rule Stage
12. Revision of the Nutrition Facts Panels for Meat and Poultry
Products and Updating Certain Reference Amounts Customarily Consumed
[0583-AD56]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601 et seq.; 21 U.S.C. 451 et seq.
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.
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 is amending 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 for consumers and will improve
efficiency in the marketplace.
Summary of Legal Basis: Under the Federal Meat Inspection Act
(FMIA) (21 U.S.C. 601-695, at 607), the Poultry Products Inspection Act
(PPIA) (21 U.S.C. 451-470, at 457), and the Egg Products Inspection Act
(21 U.S.C. 1031-1056, at 1036) (the Acts), the labels of meat, poultry,
and egg products must be approved by the Secretary of Agriculture, who
has delegated this authority to FSIS, before these products can enter
commerce. The Acts prohibit the sale or offer for sale by any person,
firm, or corporation of any article in commerce under any name or other
marking or labeling that is false or misleading or in any container of
a misleading form or size (21 U.S.C. 607(d); 21 U.S.C. 457(c)). The
Acts also prohibit the distribution in commerce of meat or poultry
products that are adulterated or misbranded. The FMIA and PPIA give
FSIS broad authority to promulgate such rules and regulations as are
necessary to carry out the provisions of the Acts (21 U.S.C. 621 and
463(b)).
To prevent meat and poultry products from being misbranded, the
meat and poultry product inspection regulations require that the labels
of meat and poultry products include specific information, such as
nutrition labels, and that such information be displayed as prescribed
in the regulations (9 CFR part 317 and part 381). The nutrition
labeling requirements for meat and meat food products are in 9 CFR
317.300-317.400, and the nutrition labeling requirements for poultry
products are in 9 CFR 381.400-381.500.
Alternatives: FSIS considered three alternatives for the final
rule: (1.) No action; (2.) A 24-month compliance period for large
businesses and a 36-month compliance period for small businesses (as
proposed); or (3.) A 12-month compliance period for large businesses
and a 24-month compliance period for small businesses for faster label
harmonization.
Anticipated Cost and Benefits: These regulations are expected to
benefit consumers by increasing and improving dietary information
available in the market. Firms will 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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/19/17 82 FR 6732
NPRM Comment Period End............. 04/19/17
Final Action........................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Melissa Hammar, Acting Director, Regulations
Development Staff, Department of Agriculture, Food Safety and
Inspection Service, 1400 Independence Avenue SW, Washington, DC 20250-
3700, Phone: 202 720-2096, Email: [email protected].
RIN: 0583-AD56
USDA--FSIS
13. Prior Label Approval System: Expansion of Generic Label Approval
[0583-AD78]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 601 et seq.; 21 U.S.C. 451 et seq.; 21
U.S.C. 1031 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, poultry, and
egg 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, poultry,
and egg product labeling.
Summary of Legal Basis: The Acts direct the Secretary of
Agriculture to maintain meat, poultry, and egg 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:
[[Page 10987]]
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 and the Egg Products Inspection Act contain
similar language in section 21 U.S.C. 457(c) and 1036(b), respectively.
Alternatives: FSIS considered three alternatives for the 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' 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 will
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.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/14/20 85 FR 56538
NPRM Comment Period End............. 11/13/20
Final Rule.......................... 01/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Melissa Hammar, Acting Director, Regulations
Development Staff, Department of Agriculture, Food Safety and
Inspection Service, 1400 Independence Avenue SW, Washington, DC 20250-
3700, Phone: 202 720-2096, 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 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.
[[Page 10988]]
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, NOAAmay 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 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.
[[Page 10989]]
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
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
[[Page 10990]]
protection for U.S. innovators and entrepreneurs worldwide by working
with ther 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 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)
[[Page 10991]]
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.
DOC--BUREAU OF INDUSTRY AND SECURITY (BIS)
Proposed Rule Stage
14. Section 1758 Technologies: Proposed Controls; Request for Comments
[0694-AH80]
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), Department of
Commerce, which 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), is considering imposing controls pursuant
to Section 1758. 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 (Public Law 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................................ 02/00/23
------------------------------------------------------------------------
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].
[[Page 10992]]
RIN: 0694-AH80
DOC--BIS
15. The Imposition of Emerging Technology Export Controls on
Instruments for the Automated Chemical Synthesis of Peptides [0694-
AI84]
Priority: Other Significant.
Legal Authority: 50 U.S.C. 4817(a)(2)(C)
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: The Bureau of Industry and Security (BIS) has identified
instruments for the automated synthesis of peptides (automated peptide
synthesizers) for evaluation according to the criteria in section 1758
of the Export Control Reform Act of 2018 (ECRA) pertaining to emerging
and foundational technologies. On September 13, 2022, BIS published an
advance notice of proposed rulemaking (87 FR 55930) that requested
public comments on the potential uses of this technology, particularly
with respect to its impact on U.S. national security (e.g., whether
such technology could provide the United States, or any of its
adversaries, with a qualitative military or intelligence advantage).
Taking into consideration the public comments on BIS's September 2022
ANPRM, this rule proposes to implement export controls on certain
automated peptide synthesizers, consistent with the criteria in section
1758 of ECRA.
Statement of Need: Recent advances in peptide synthesis technology
and instrumentation have increased both the speed of peptide synthesis
and the length of peptide products, including peptides and proteins
greater than 100 amino acids in length. Most protein toxins that are
controlled under Export Control Classification Number (ECCN) 1C351 on
the Commerce Control List (CCL) (see Supplement No. 1 to part 774 of
the EAR) are over 100 amino acids in length and have an average length
of 300 amino acids (with the notable exception of conotoxins, which
range between 10-100 amino acids in length). Consequently, absent the
imposition of additional controls on the export, reexport or transfer
(in-country) of certain peptide synthesis technology and
instrumentation (e.g., automated peptide synthesizers), there would be
an increased risk that such technology and instrumentation could be
used to produce controlled toxins for biological weapons purposes.
Summary of Legal Basis: Certain instruments for the automated
synthesis of peptides (automated peptide synthesizers) have been
identified by BIS for evaluation according to the criteria in Section
1758 of the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852) pertaining to emerging and foundational technologies.
Alternatives: Consistent with 5 U.S.C. 603(c), BIS is considering
significant alternatives to the imposition of controls on automated
peptide synthesizers and will assess whether the alternatives would:
(1) accomplish the stated objectives of this rule (consistent with the
Section 1758 requirements in ECRA); and (2) minimize any significant
economic impact of this rule on U.S. industry and academia. BIS could
impose broad controls on automated peptide synthesizers that would
capture most of these instruments. However, that option would have a
greater impact not only on small businesses, but also on research and
development laboratories (both academic and corporate), which are
involved in advancing biological technology. BIS is considering focused
controls on automated peptide synthesizers that are determined to be
capable of posing a greater risk of diversion to biological weapons
activities. BIS considers that this approach would be the least
disruptive alternative for implementing export controls in a manner
consistent with controlling technology that has been determined,
through the Section 1758 technology interagency process authorized
under ECRA, to be essential to U.S. national security.
Anticipated Cost and Benefits: BIS estimates that it will receive
roughly 15 license applications per year if Section 1758 export
controls are imposed on automated peptide synthesizers. To the extent
that compliance with these controls would impose a burden on U.S.
industry and academia, BIS believes the burden would be minimal. In
addition, the reclassification process would need to be done only once
per license applicant for exports, reexports or transfers (in-country)
of these items and, consequently, would constitute a one-time burden
for each applicant. Similarly, assessing the availability of license
exceptions and/or applying for and using BIS licenses would impose some
minimal burden on affected persons. The benefit, from a national
security perspective, would be the imposition of export controls on
those automated peptide synthesizers that are determined to be capable
of posing a greater risk of diversion to biological weapons activities.
Risks: The imposition of overly broad (or otherwise improperly
targeted) Section 1758 export controls on peptides or peptide
synthesizers could impair the ability of companies in the United States
to compete effectively with potential competitors in other countries,
which could adversely affect the leadership of U.S. companies in the
field of peptide manufacturing. On the other hand, failure to impose
controls that effectively target those automated peptide synthesizers
that could be of concern for biological weapons purposes, could
increase the potential threat of terrorist attacks involving toxins
produced by such synthesizers.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 09/13/22 87 FR 5593
ANPRM Comment Period End............ 10/28/22
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: 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-AI84
DOC--NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (NIST)
Final Rule Stage
16. Updates to Bayh-Dole Implementing Regulations [0693-AB66]
Priority: Other Significant.
Legal Authority: 37 U.S.C. 206 et seq.
CFR Citation: 37 CFR 401; 37 CFR 404; 37 CFR 501.
Legal Deadline: None.
Abstract: The revisions will add language to provide additional
clarity in subject invention and utilization reporting requirements,
U.S. industry preference, and other regulations that impact the
transfer of technology from federally funded research and development.
The final rule aims to improve the transition of federally funded
innovations from the laboratory to the marketplace by reducing the
regulatory burdens for technology transfer.
Statement of Need: This rule would revise the Bayh Dole Act
implementing regulations in order to make technical corrections;
reorganize certain
[[Page 10993]]
subsections; remove outdated and/or unnecessary sections; improve
reporting by federal agencies; and provide clarifications.
Summary of Legal Basis: The rule revisions would be promulgated
under the University and Small Business Patent Procedures Act of 1980,
Public Law 96-517 (as amended), codified at 35 U.S.C. 200 et seq.,
commonly known as the Bayh-Dole Act or Bayh-Dole.
Alternatives: There are not alternatives to this rule.
Anticipated Cost and Benefits: The action would remove duplicative
text, streamline the implementing regulations, and reduce regulatory
burdens, all at no additional cost.
Risks: There are no applicable risks to this rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/04/21 86 FR 35
NPRM Comment Period End............. 04/05/21
Final Action........................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Henry N. Wixon, Chief Counsel for NIST, Department
of Commerce, National Institute of Standards and Technology, 100 Bureau
Drive, Stop 1052, Gaithersburg, MD 20899-1052, Phone: 301 975-2803,
Fax: 301 926-6241, Email: [email protected].
RIN: 0693-AB66
DOC--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA)
Final Rule Stage
17. Illegal, Unreported, and Unregulated Fishing; Fisheries
Enforcement; High Seas Driftnet Fishing Moratorium Protection Act
[0648-BG11]
Priority: Other Significant.
Legal Authority: Pub. L. 114-81
CFR Citation: 50 CFR 300.
Legal Deadline: None.
Abstract: This proposed rule would make conforming amendments to
regulations implementing the various statutes amended by the Illegal,
Unreported and Unregulated Fishing Enforcement Act of 2015 (Pub. L.
114-81). The Act amends several regional fishery management
organization implementing statutes as well as the High Seas Driftnet
Fishing Moratorium Protection Act. It also provides authority to
implement two new international agreements under the Antigua
Convention, which amends the Convention for the establishment of an
Inter-American Tropical Tuna Commission, and the United Nations Food
and Agriculture Organization Agreement on Port State Measures to
Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated
Fishing (Port State Measures Agreement), which restricts the entry into
U.S. ports by foreign fishing vessels that are known to be or are
suspected of engaging in illegal, unreported, and unregulated fishing.
This proposed rule would also implement the Port State Measures
Agreement. To that end, this proposed rule would require the collection
of certain information from foreign fishing vessels requesting
permission to use U.S. ports. It also includes procedures to designate
and publicize the ports to which foreign fishing vessels may seek entry
and procedures for conducting inspections of these foreign vessels
accessing U.S. ports. Further, the rule would establish procedures for
notification of: the denial of port entry or port services for a
foreign vessel, the withdrawal of the denial of port services if
applicable, the taking of enforcement action with respect to a foreign
vessel, or the results of any inspection of a foreign vessel to the
flag nation of the vessel and other competent authorities as
appropriate.
Statement of Need: 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 thereby
closing seafood markets to the products of illegal fishing. In
addition, regulations to identify and certify nations for IUU fishing
and other adverse fishing activities under the authority of the High
Seas Driftnet Fishing Moratorium Protection Act must be updated to
conform to statutory changes. NMFS will also propose changes to the
definition of IUU fishing for the purposes of identifying and
certifying nations under that Act.
Summary of Legal Basis: This action is required under several
statutes: Magnuson-Stevens Fishery Conservation and Management Act
(P.L. 94-265 as amended by P.L. 109-479); Illegal, Unreported, and
Unregulated Fishing Enforcement Act of 2015 (P.L. 114-81); Ensuring
Access to Pacific Fisheries Act (P.L. 114-327); High Seas Driftnet
Fishing Moratorium Protection Act (P.L. 104-43). The Secretary of
Commerce is authorized to issue regulations to implement the statutory
obligations to counter IUU fishing by foreign fishing vessels and to
prevent the importation of illegally harvested seafood.
Alternatives: Alternatives to taking action at the port would
include taking action at sea against IUU fishing vessels and in the
supply chain against detected IUU fishing products. At-sea monitoring
and inspection is part of an overall strategy to combat IUU fishing,
but it is extremely expensive, resources are limited, and the U.S. has
limited jurisdiction to board foreign-flag vessels at sea. Likewise,
tracing and removing illegal products already released into the U.S.
seafood market would be difficult and resource intensive.
Preventing entry of IUU fishing vessels into ports or investigating
fishing vessels at the port is an efficient and effective approach to
combat illegal activity and to prevent illegal products from entering
the supply chain. There are no alternatives to the conforming
amendments to the High Seas Driftnet Fishing Moratorium Protection Act.
Without these changes, the implementing regulations would not be
consistent with the revised statute. However, the statute authorizes
the Secretary of Commerce to amend the regulatory definition of IUU
fishing for the purposes of identifying and certifying nations. NMFS
has considered several activities that constitute illegal fishing and
proposes amendments to the definition to counter these forms of IUU
fishing. Alternatives to amending the IUU fishing definition would
include the adoption of binding measures at regional fishery
organizations to counter the activities of concern. While NMFS is
pursuing this approach, amending the definition provides a more direct
means of addressing the problem through the identification of nations
and potential trade restrictions.
Anticipated Cost and Benefits: The anticipated costs will be
minimal in that foreign vessels requesting permission to visit U.S.
ports are already required to report. Under this rule, fishing vessel
masters will have to include more information about the vessel and its
cargo when they submit an electronic notice of arrival to the U.S.
Coast Guard. Based on the information submitted, NMFS may deny port
privileges for vessels known to have engaged in illegal fishing or may
meet the vessel in port to conduct an inspection. The minimal
additional data elements required of foreign fishing vessels will be
submitted through the existing U.S. Coast Guard system for electronic
Notices of Arrival and Departure, thus reporting costs are
[[Page 10994]]
not anticipated to affect shipping patterns, port usage, or
international commerce. In addition, vessel inspections will be
coordinated and planned based on the notice of arrival submitted prior
to entry into port, thus delays for inspection will be minimal and not
result in significant costs to legitimate vessels. Benefits of the rule
will accrue when IUU vessels are denied entry, and illegal seafood
products are precluded from the U.S. supply chain, thereby maintaining
higher prices and market share for legitimate producers of fishery
products. In addition, benefits will accrue from reduced costs of
inspection and monitoring at ports of entry due to the advance notice
provided and the ability of NMFS and Coast Guard to take a risk
management approach to vessel inspection. Should the United States
impose trade restrictions on foreign nations due to the expanded
definition of IUU fishing, some costs would be borne by U.S. importers
who would have to adjust their supply chains. However, many U.S.
importers and seafood dealers are already adjusting supply chains to
respond to consumer demand for lawfully-acquired, sustainable and
environmentally responsible seafood. The benefits of additional steps
to counter IUU fishing will accrue to law-abiding harvesters,
processors and traders as fish stocks are recovered and they no longer
must compete with illegitimate products in the supply chain.
Risks: If the port entry reporting and inspection provisions of
this rule were not implemented, there is an increased risk of IUU
fishing vessels entering U.S. ports and/or the products of IUU fishing
infiltrating the U.S. supply chain. In addition, the U.S. would be out
of compliance with its international obligations under the PSMA. If the
revisions to the High Seas Driftnet Fishing Moratorium Protection Act
are not implemented through conforming amendments to the regulations
and through additions to the definition of IUU fishing, nations might
not be identified under the statute, therefore diminishing the
likelihood of corrective actions to counter IUU fishing.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/08/22 87 FR 40763
NPRM Comment Period End............. 09/06/22
Final Action........................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
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: Alexa Cole, Director, Office of International
Affairs and Seafood Inspection, Department of Commerce, National
Oceanic and Atmospheric Administration, 1315 East-West Highway, Silver
Spring, MD 20910, Phone: 301 427-8286, Email: [email protected].
RIN: 0648-BG11
DOC--NOAA
18. Amendments to the North Atlantic Right Whale Vessel Strike
Reduction Rule [0648-BI88]
Priority: Other Significant.
Legal Authority: 16 U.S.C. 1361 et seq.; 16 U.S.C. 1531 et seq.
CFR Citation: 50 CFR 224.
Legal Deadline: None.
Abstract: NMFS has completed a review of the North Atlantic right
whale vessel speed rule (per 50 CFR 224.105; 78 FR 73726, December 9,
2013). Through this action, NMFS invites comment on the report as well
as information that may inform potential revisions to existing
management strategies and regulations to further reduce the risk of
vessel strikes of North Atlantic right whales.
Statement of Need: This action is needed to further reduce the
likelihood of mortalities and serious injuries to endangered North
Atlantic right whales from vessel collisions, which are a leading cause
of the species' decline and 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 best population
estimate of fewer than 350 individuals. Entanglement in fishing gear
and vessel strikes are 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.
Summary of Legal Basis: NMFS is implementing this rule pursuant to
its rulemaking authority under MMPA section 112(a) (16 U.S.C. 1382(a)),
and ESA section 11(f) (16 U.S.C. 1540(f)).
Alternatives: In January 2021, NMFS released, and solicited public
comment on, an assessment of the current right whale vessel speed rule
(50 CFR 224.105). The assessment highlighted the need to address
collision risk from vessels less than 65 ft in length and modify the
boundaries and timing of Seasonal Management Areas (SMAs) to better
reflect current whale and vessel traffic distribution, along with other
recommendations to improve vessel strike mitigation efforts. In 2022,
NMFS completed a coastwide right whale vessel strike risk model
(Garrison et al. 2022), which informed development of the proposed
modifications to the existing speed rule. At the proposed rule stage,
there are a number of alternatives considered in the draft Regulatory
Impact Review and draft Environmental Assessment. The Preferred
Alternative would modify the spatial and temporal boundaries of the
existing SMAs to create newly proposed Seasonal Speed Zones (SSZs), add
smaller vessels down to 35 ft in length, and establish a mandatory
Dynamic Speed Zone program.
Anticipated Cost and Benefits: Under the Preferred Alternative,
NMFS estimated modifications to the speed rule would cost just over $46
million per year. Estimated costs would be borne primarily by the
owners and operators of vessels currently transiting within newly
expanded portions of SSZs along the U.S. East Coast. Owners and
operators of vessels of applicable size classes that regularly transit
within active SSZs at speeds in excess of 10 knots would be most
affected. Vessels operating in the Northeast and Mid-Atlantic regions
are expected to bear the majority of costs (89%). Potential benefits
stemming from this action include a reduction in North Atlantic right
whale mortalities and serious injuries resulting from collisions with
vessels, with potential reduction in vessel strike risk for other large
whale species.
Risks: This will be a high-profile action and is essential to
ensure long-term recovery of North Atlantic right whales. Given the
endangered status of the North Atlantic right whale, the large
geographic area, and number of stakeholders subject to the updated
regulations, modification to the current speed rule will be both
controversial and of high interest. Changes to the current speed rule
are necessary to: (1) address a misalignment between existing Seasonal
Management Areas and places/times with elevated strike risk, and (2)
mitigate currently unregulated lethal strike risk from vessels 35-65 ft
in length.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/01/22 87 FR 46921
[[Page 10995]]
NPRM Comment Period End............. 09/30/22
NPRM Comment Period Extension....... 09/16/22 87 FR 56925
NPRM Comment Period Extension End... 10/31/22
Final Action........................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Kim Damon-Randall, Director, Office of Protected
Resources, Department of Commerce, National Oceanic and Atmospheric
Administration, 1315 East-West Highway, Silver Spring, MD 20910, Phone:
301 427-8400, Email: [email protected].
Related RIN: Related to 0648-AS36
RIN: 0648-BI88
DOC--PATENT AND TRADEMARK OFFICE (PTO)
Proposed Rule Stage
19. Setting and Adjusting Trademark Fees [0651-AD65]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Pub. L. 112-29
CFR Citation: 37 CFR 2.
Legal Deadline: None.
Abstract: The United States Patent and Trademark Office (USPTO or
Office) takes this action to set and adjust Trademark fee amounts to
provide the Office with a sufficient amount of aggregate revenue to
recover its aggregate cost of operations while helping the Office
maintain a sustainable funding model, ensure the integrity of the
Trademark register, and promote efficiency of processes.
Statement of Need: The purpose of this rule is to set and adjust
trademark fee amounts to provide sufficient aggregate revenue to cover
the agency's aggregate cost of operations. To this end, this rule
creates new or changes existing fees for trademark services.
Summary of Legal Basis: The Leahy-Smith America Invents Act (AIA),
enacted in 2011, provided USPTO with the authority to set and adjust
its fees for patent and trademark services. This authority was extended
by the Study of Underrepresented Classes Chasing Engineering and
Science Success (SUCCESS) Act of 2018. Since then, USPTO has conducted
an internal biennial fee review, in which it undertook internal
consideration of the current fee structure, and considered ways that
the structure might be improved, including rulemaking pursuant to the
USPTO's fee-setting authority. This fee review process involves public
outreach, including, as required by the Act, a public hearing held by
the USPTO's Trademark Public Advisory Committee, as well as public
comment and other outreach to the user community and public in general.
Alternatives: This rulemaking action is currently in development
and alternatives have not yet been determined.
Anticipated Cost and Benefits: This rulemaking action is currently
in development and aggregate annual economic impacts have not yet been
determined. The user fees charged by the USPTO for its services are
considered transfer payments that do not affect the total resources
available to society, and therefore the changes to trademark fees
proposed by this rulemaking are transfers, and are not costs of this
rulemaking.
Risks: The USPTO will set and adjust trademark fee amounts to
provide the Office with a sufficient amount of aggregate revenue to
recover its aggregate cost of operations while helping the Office
maintain a sustainable funding model, ensure the integrity of the
Trademark register, and promote efficiency of processes. Therefore, one
risk of taking no action could be that USPTO might not be able to
recover its aggregate costs of operations in the long run.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/23
NPRM Comment Period End............. 01/00/24
Final Action........................ 07/00/24
Final Action Effective.............. 09/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Organizations.
Government Levels Affected: None.
Agency Contact: Brendan Hourigan, Director, Office of Planning and
Budget, Department of Commerce, Patent and Trademark Office, P.O. Box
1450, Alexandria, VA 22313-1450, Phone: 571 272-8966, Fax: 571 273-
8966, Email: [email protected].
RIN: 0651-AD65
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. To guide this mission, the Secretary of
Defense has outlined three top priorities, which are to defend the
nation, take care of our people, and succeed through teamwork. In
addition, the National Defense Strategy sets out how DoD will
contribute to advancing and safeguarding vital U.S. national
interests--protecting the American people, expanding America's
prosperity, promoting global security, seizing new strategic
opportunities, and realizing and defending our democratic values.
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 issues
this Regulatory Plan and Agenda to provide notice about the DoD's
regulatory and deregulatory actions.
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) 2023 and help support President Biden's regulatory
priorities, the Secretary of Defense's top priorities, and those
priorities set out in the National Defense Strategy. The DoD regulatory
prioritization is focused on initiatives that:
[[Page 10996]]
Promote the country's economic resilience, including
addressing COVID-related and other healthcare issues.
Support underserved communities and improve small business
opportunities.
Promote competition in the American economy.
Promote diversity, equity, inclusion, and accessibility in
the Federal workforce.
Support national security efforts, especially safeguarding
Federal Government information and information technology systems.
Tackle the climate crisis and protect the environment; and
Address military family matters.
Rules That Promote the Country's Economic Resilience
Pandemic COVID-19 Rules
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 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 Coverage of National Institute of Allergy and Infectious
Disease--Coronavirus Disease 2019 Clinical Trials. RIN 0720-AB83
This final rule is required to finalize certain temporary
flexibilities enacted in interim final rules published in 2020 in
response to the COVID-19 pandemic. This rule finalizes provisions
published in two interim final rules (IFRs) with request for comment,
which temporarily added coverage for the treatment use of investigation
drugs under U.S. Food and Drug Administration (FDA) approved expanded
access programs when for the treatment of coronavirus disease 2019
(COVID-19) and permitted coverage of National Institute of Allergy and
Infectious Disease (NIAID)-sponsored clinical trials for the treatment
or prevention of COVID-19.
Expanding TRICARE Access to Care in Response to the COVID-19 Pandemic.
RIN 0720-AB85
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; and (2) adopting Medicare New COVID-19 Treatments Add-on
Payments (NTCAPs). The TRICARE regulation is temporarily being modified
(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 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.
Restriction on Acquisition of Personal Protective Equipment and Certain
Items From Non-Allied Foreign Nations (DFARS Case 2022-D009). RIN 0750-
AL60
This rule implements section 802 of the National Defense
Authorization Act for Fiscal Year 2022, which prohibits acquisition of
personal protective equipment related to healthcare and certain other
healthcare-related items from non-allied foreign nations. Decreasing
dependence on personal protective equipment and certain other items
originating in non-allied foreign nations is a matter of public health
and national security, especially during a declared public health
emergency. The domestic supply chain for personal protective equipment
and certain other items is critical. An adequate continued supply is
vital to ensure domestic control with minimal disruption in production
and to reduce U.S. dependence on non-allied foreign nations. Potential
benefits of this rule will be the elimination of counterfeit covered
items within the domestic supply chain and reduced dependence on
foreign sources that are not allies of the United States. In addition,
this restriction will further promote growth in domestic capabilities
and may provide additional opportunities to domestic small businesses
for future procurement and manufacturing efforts, increasing domestic
sourcing of personal protective equipment and other covered items.
Medical Debt Relief
Collection From Third Party Payers of Reasonable Charges for Healthcare
Services. RIN 0720-AB87
This rule discusses new debt waiver process for medical debt owed
for services rendered at Military Treatment Facilities to civilians who
are not covered beneficiaries and implements section 702 of the FY 2021
NDAA. Under section 702, the Secretary of Defense may waive a fee
charged to a civilian who is not a covered beneficiary if after any
insurance payments the civilian is not able to pay for the trauma or
other medical care provided to the civilian; and the provision of such
care enhanced the medical readiness of the health care provider or
health care providers furnishing such care.
Executive Order 13985, ``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government'' January 20,
2021
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
[[Page 10997]]
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 incorporate the directive of
Executive Order 14035, ``Diversity, Equity, Inclusion, and
Accessibility in the Federal Workforce'' by defining, clarifying,
advancing accessibility throughout DoD programs and activities.
USACE Implementing Procedures for Principles, Requirements, and
Guidelines Applicable to Actions Involving Investment in Water
Resources. RIN 0710-AB41
Section 2031 of the Water Resources Development Act of 2007 (Pub.
L. 110-114) called for revisions to the 1983 Principles and Guidelines
for Water and Land Related Resources Implementation Studies, resulting
in the issuance of the Principles and Requirements (P&R) guidance
document in March 2013 and the Interagency Guidelines in December 2014,
which together comprise the Principles, Requirements, and Guidelines
(PR&G). The PR&G are intended to provide a common framework and
comprehensive policy and guidance for analyzing a diverse range of
water resources projects, programs, activities, and related actions
involving Federal investment in water resources. The U.S. Army Corps of
Engineers (Corps) proposes a regulation to show how it would apply the
PR&G to the Corps' mission and authorities. In this proposed
regulation, the Corps intends to increase consistency and compatibility
in Federal water resources investment decision making to include
considerations such as analyzing a broader range of long-term costs and
benefits, enhancing collaboration, including a more thorough and
transparent risk and uncertainty analyses, and improving resilience for
dealing with emerging challenges, including climate change.
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, by broadening its
applicability to include projects with other purposes (instead of just
flood damage reduction) and the feasibility study of a project (instead
of just design and construction). 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.
Rules That Support Underserved Communities and Improve Small Business
Opportunities
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 Defense Federal Acquisition
Regulation Supplement (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.
Executive Order 14036, ``Promoting Competition in the American
Economy'' July 9, 2021
Rule That Promotes Competition in the American Economy
Past Performance of Subcontractors and Joint Venture Partners (DFARS
Case 2018-D055). RIN 0750-AK16
This rule implements section 823 of the National Defense
Authorization Act for Fiscal Year 2019, which establishes a requirement
for use of the best available information regarding past performance of
subcontractors and joint venture partners when awarding DoD
construction and architect-engineer contracts. Section 823 requires
annual performance evaluations for first-tier subcontractors and
individual parties to joint ventures performing construction and
architect-engineer contracts valued at either $750,000 or more, or 20
percent of the value of the prime contract (whichever is higher), in
accordance with specified conditions. In addition, processes for
exceptions from the annual evaluation requirement will be established
for construction and architect-engineer contracts where submission of
annual evaluations would not provide the best representation of the
performance of a contractor, including subcontractors and joint venture
partners under specified conditions. This rule will make it easier for
subcontractors and individual parties to joint ventures to establish a
record of their past performance. These entities will be able to take
credit for the work they performed on contracts and subcontracts, which
will help them be more competitive when bidding on future DoD
contracts. This will help increase competition for DoD contracts.
[[Page 10998]]
Defense Commercial Solutions Opening (DFARS Case 2022-D006). RIN 0750-
AL57
This rule implements section 803 of the National Defense
Authorization Act for Fiscal Year 2022 (Pub. L. 117-81), which
establishes a permanent authority for the Secretary of Defense and
those of the military departments to acquire innovative commercial
products and commercial services through a competitive selection of
proposals resulting from a general solicitation and the peer review of
such proposals. Products and services purchased under this authority
are treated as commercial. This rule will enable DoD to access
innovative products and services of entities that may not have done
business with DoD in the past. Such entities may compete for additional
DoD contracts, thereby increasing competition for DoD contracts.
Modification of Prize Authority for Advanced Technology Achievements
(DFARS Case 2022-D014). RIN 0750-AL65
This rule implements section 822 of the National Defense
Authorization Act for Fiscal Year 2022 (Pub. L. 117-81). Section 822
revises 10 U.S.C. 2374a regarding the award of prizes for advanced
technology achievement to: (1) authorize the award of procurement
contracts and other agreements ``as another type of prize'' (as in
other than cash prizes); (2) permit the award of prizes, including
procurement contracts and other agreements, in excess of $10,000,000
with the approval of the Under Secretary of Defense for Research and
Engineering; and (3) require DoD provide Congress with notice of an
award of a procurement contract or other agreement under this program
that exceeds $10 million. This rule will help to expand the Defense
Industrial Base, thereby increasing competition for future DoD
contracts.
DFARS Buy American Act Requirements (DFARS Case 2022-D019). RIN 0750-
AL74
This rule implements the requirements of Executive Order 14005,
Ensuring the Future Is Made in All of America by All of America's
Workers. Changes to the Federal Acquisition Regulation (FAR) are being
made via RIN 9000-AO22 (FAR Case 2021-008, Amendments to the FAR Buy
American Act Requirements). This rule proposes conforming changes to
the DFARS.
Rules That Support National Security Efforts
Assessing Contractor Implementation of Cybersecurity Requirements
(DFARS Case 2019-D041). RIN 0750-AK81
The purpose of this rule is to ensure that Defense Industrial Base
(DIB) contractors will adequately protect sensitive unclassified
information at a level commensurate with the risk, accounting for
information flow down to its subcontractors in a multi-tier supply
chain.
Cybersecurity Maturity Model Certification (CMMC) Program. RIN 0790-
AL49
This rule establishes a requirement for Defense Industrial Base
(DIB) contractors to be assessed against the Cybersecurity Maturity
Model Certification (CMMC) 2.0 in order to qualify for award of
designated future DoD contracts. This model is designed to provide
increased assurance to the Department that contractors are compliant
with existing information security standards for Federal Contract
Information (FCI) and Controlled Unclassified Information (CUI) and are
fully capable of protecting such information at a level commensurate
with risk from cybersecurity threats.
Department of Defense (DoD)-Defense Industrial Base (DIB) Cybersecurity
(CS) Activities. RIN: 0790-AK86
This rule will allow a broader community of defense contractors to
access to relevant cyber threat information the Department believes is
critical in defending unclassified networks and information systems and
protecting DoD warfighting capabilities. These revisions seek to
address the increasing cyber threat targeting all defense contractors
by expanding eligibility to defense contractors that process, store,
develop, or transmit DoD Controlled Unclassified Information (CUI).
This rule is part of DoD's approach to collaborate with industry to
counter cyber threats through information sharing.
Rules That Tackle the Climate Crisis and Protect the Environment
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.
These alterations may be proposed by local or state governments, other
federal agencies, private corporations, or private citizens, for
example. 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.
Natural Disaster Procedures: Preparedness, Response, and Recovery
Activities of the Corps of Engineers. RIN 0710-AA78
The U.S. Army Corps of Engineers (Corps) is proposing to update the
Federal regulation that covers the procedures that the Corps uses under
section 5 of the Flood Control Act of 1941, as amended (33 U.S.C.
701n), commonly referred to as Public Law 84-99. The Corps relies on
this program to prepare for, respond to, and help communities recover
from a flood, hurricane, or other natural disaster, including the
repair of damage to eligible flood risk reduction infrastructure. The
Corps initiated this rulemaking process through an advanced notice of
proposed rulemaking (ANPRM) on February 13, 2015. As a next step, the
Corps is planning to propose revisions to the program to address
statutory changes under various Water Resources Development Act
provisions and to formalize certain agency guidance relating to natural
disaster procedures. Hurricane Katrina (2005), Hurricane Sandy (2012),
flooding on the Mississippi and Missouri Rivers (2008, 2011, and 2013),
and Hurricanes Harvey, Irma, and Maria (2017) have provided a more
detailed understanding of the nature and severity of risk associated
with flood control projects. In addition, the maturation of risk-
informed decision-making approaches and technological advancements
influenced the outlook on the implementation of Public Law 84-99
activities, with a shift toward better
[[Page 10999]]
alignment with Corps Levee Safety and National Flood Risk Management
Programs, as well as the National Preparedness and Response Frameworks.
Through these programs, the Corps works with non-Federal sponsors and
stakeholders to assess, communicate, and manage the risks to people,
property, and the environment associated with levee systems and flood
risks.
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.
Appendix C Procedures for the Protection of Historic Properties. RIN
0710-AB46
The U.S. Army Corps of Engineers (Corps) considers the effects of
its actions on historic properties pursuant to section 106 of the
National Historic Preservation Act (NHPA). The Corps' Regulatory
Program's regulations for complying with the NHPA are outlined at 33
CFR 325 Appendix C. Since these regulations were promulgated in 1990,
there have been amendments to the NHPA and revisions to the Advisory
Council on Historic Preservation's (ACHP) regulations at 36 CFR part
800. In response, the Corps issued interim guidance until rulemaking
could be completed in order to ensure full compliance with the NHPA and
ACHP's regulations. Appendix C is intended to provide the implementing
procedures for the Regulatory Program's compliance with Section 106 of
the National Historic Preservation Act.
Rulemaking is required to ensure the Regulatory Program is
compliant with the NHPA and ACHP's implementing regulations at 36 CFR
800 for federal agency compliance with Section 106.
Revised Definition of ``Waters of the United States''--Rule 1 RIN:
0710--AB40. Related RIN: 2040-AG19
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
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
definition is consistent with the best available science, protects the
environment, ensures access to clean water, considers how climate
change resiliency may be affected by the definition of waters of the
United States, and ensures environmental justice is prioritized in the
rulemaking process. 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 of the United States''
(80 FR 37054, June 29, 2015), updated to be consistent with relevant
Supreme Court Decisions, and reflect a reasonable interpretation based
on the record before the agencies, including the best available
science. 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 That Address Military Family Matters
Definitions of Gold Star Family and Gold Star Survivor. RIN 0790-AL56
This rule implements section 626 of the FY 2022 NDAA to define the
terms ``gold star family'' and ``gold star survivor'' for consistent
use across all military departments. The Defense Department treats all
surviving family members equally and survivor benefits are the same
across the board unless their Service member is killed or dies from
causes under dishonorable conditions.
TRICARE; Reimbursement of Ambulatory Surgery Centers and Outpatient
Services Provided in Cancer and Children's Hospitals. RIN 0720-AB73
This final rule will revise: (1) 32 CFR 199.2 by adding, in
alphabetical order, the definitions of ``Ambulatory Surgery Center'',
``Cancer hospital'', and ``Children's hospital''; (2) 32 CFR 199.6 to
include news requirements that Ambulatory Surgery Centers (ASC)
participating in Medicare must meet all program requirements; and (3)
32 CFR 199.14 to implement Medicare's payment methodologies for
reimbursing ambulatory surgery centers and Cancer and Children's
Hospitals. The combined impact of is rule is a cost-saving of
approximately $45 million, which would be offset by $1.5 million in
administrative costs to implement the changes. This estimated reduction
in costs of $45 million is a transfer from providers to DoD.
DOD--OFFICE OF THE SECRETARY (OS)
Proposed Rule Stage
20. Department of Defense (DOD)-Defense Industrial Base (DIB)
Cybersecurity (CS) Activities [0790-AK86]
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 currently provides cyber threat
information to cleared defense contractors. Proposed revisions would
allow all defense contractors who process, store, develop, or transit
DoD controlled unclassified information to
[[Page 11000]]
be eligible for the program and to receive cyber threat information.
Expanding participation will allow a broader community of defense
contractors to participate in the DIB CS Program and is in alignment
with the National Defense Strategy.
Statement of Need: The unauthorized access and compromise of DoD
unclassified information and operations poses an imminent threat to
U.S. national security and economic security interests and contractors
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 Program enables DoD contractors to access Government Furnished
Information and collaborate with the DoD Cyber Crime Center (DC3) to
better respond to and mitigate cyber threats. In order to join the DIB
CS Program, there is an initial labor burden to apply to the program
and provide point of contact information which is estimated to take 20
minutes per company. In addition, there is a cost for defense
contractors to voluntarily share cyber indicator information. DoD
estimates that each response will take a respondent two hours to
complete. The costs are under review as part of 0704-0489 and 0704-
0490. For DIB participants, this program provides cyber threat
information and technical assistance through analyst-to-analyst
exchanges, mitigation and remediation strategies, and cybersecurity
best practices in a collaborative environment for participating
companies.
Risks: Threats to unclassified information systems represent a risk
of compromise of DoD information and mission. This threat is
particularly acute for small and medium size companies with less mature
cybersecurity capabilities. 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................................ 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Agency Contact: McKay Tolboe, Director, Cybersecurity Policy and
Partnerships CIO, Department of Defense, Office of the Secretary, 4800
Mark Center, Alexandria, VA 22311, Phone: 571 372-4640, Email:
[email protected].
RIN: 0790-AK86
DOD--OS
21. Cybersecurity Maturity Model Certification (CMMC) Program [0790-
AL49]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
PL 104-4.
Legal Authority: 5 U.S.C. 301; Pub. L. 116-92, sec. 1648
CFR Citation: 32 CFR 170.
Legal Deadline: None.
Abstract: DOD is proposing to implement the Cybersecurity Maturity
Model Certification (CMMC) Framework, to help assess a Defense
Industrial Base (DIB) contractor's compliance with and implementation
of cybersecurity requirements to safeguard Federal Contract Information
(FCI) and Controlled Unclassified Information (CUI) transiting non-
federal systems and mitigate the threats posed by Advanced Persistent
Threats--adversaries with sophisticated levels of expertise and
significant resources.
Statement of Need: CMMC is designed to provide increased assurance
to the DoD that a DIB contractor can adequately protect sensitive
unclassified information (i.e., FCI and CUI) at a level commensurate
with the risk, and accounting for information flow down to its
subcontractors in a multi-tier supply chain.
Summary of Legal Basis: 5 U.S.C. 301 authorizes the head of an
Executive department or military department to prescribe regulations
for the government of his or her department, the conduct of its
employees, the distribution and performance of its business, and the
custody, use, and preservation of its records, papers, and property.
41 U.S.C 1303; Pub. L. 116-92, sec. 1648 directs the Secretary of
Defense to develop a consistent, comprehensive framework to enhance
cybersecurity for the U.S. defense industrial base. Developing the CMMC
Program was as an important first step toward meeting these
requirements.*
Alternatives: DoD considered and adopted several alternatives
during the development of this rule that reduce the burden on the DIB
community and still meet the objectives of the rule. These alternatives
include: (1) maintaining status quo, leveraging only the current
requirements implemented in DFARS provision 252.204-7019 and DFARS
clause 252.204-7020 requiring DIB contractors and offerors to self-
assess utilizing the DoD Assessment Methodology and entering a Basic
Summary Score; (2) revising CMMC 1.0 to CMMC 2.0 in response to public
comments, to reduce the burden for small businesses and contractors who
do not process, store or transmit critical CUI by eliminating the
requirement to hire a C3PAO and instead allow self-assessment with
annual affirmations to maintain compliance at CMMC Level 1, and llowing
triennial self-certification with an annual affirmation to maintain
compliance for some CMMC Level 2 programs; (3) exempting contracts and
orders exclusively for the acquisition of commercially available off-
the-shelf items; and (4) implementing a phased implementation for CMMC.
In addition, the Department took into consideration the timing of
the requirement to achieve a specified CMMC level: (1) at time of
proposal or offer submission, (2) post contract award, or (3) at the
time of contract award.
Anticipated Cost and Benefits: The theft of intellectual property
and sensitive information, including FCI and CUI, from all U.S.
industrial sectors due to malicious cyber activity threatens U.S.
economic and national security. The Council of Economic Advisors
estimates that malicious cyber activity cost the U.S. economy between
$57 billion and $109 billion in 2016. Over a ten-year period, that
burden would equate to an estimated $570 billion to $1.09 trillion
dollars in costs.
Risks: The aggregate loss of intellectual property and certain
unclassified information from the DoD supply chain can undercut U.S.
technical advantages and innovation, as
[[Page 11001]]
well as significantly increase risk to national security.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
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: Diane L. Knight, Senior Management and Program
Analyst, Department of Defense, Office of the Secretary, 4800 Mark
Center Drive, Suite 12E08, Alexandria, VA 22350, Phone: 202 770-9100,
Email: [email protected].
RIN: 0790-AL49
DOD--OS
Final Rule Stage
22. 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 [0790-AJ04]
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 is finalizing revisions to implement
Section 504 of the Rehabilitation Act of 1973, which prohibits
discrimination on the basis of disability in programs or activities
receiving Federal financial assistance from DoD and those programs or
activities conducted by DoD. The regulation also implements section 508
of the Rehabilitation Act, which requires DoD make its electronic and
information technology accessible to individuals with disabilities.
Additionally, the regulation implements the Architectural Barriers Act
of 1968, which requires that DoD make facilities accessible to
individuals with disabilities. Finally, the regulation updates the
complaint resolution and enforcement procedures pursuant to section 504
and the complaint resolution and enforcement procedures pursuant to
section 508.
Statement of Need: Finalization of this Department-wide rule will
clarify the longstanding policy of the Department. It will modernize
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 incorporates the directive of Executive Order 14035,
Diversity, Equity, Inclusion, and Accessibility in the Federal
Workforce by defining, clarifying, advancing accessibility throughout
DoD programs and activities.
Summary of Legal Basis: Title 28, Code of Federal Regulations, part
41, implementing Executive Order 12250, assigns the DOJ responsibility
to coordinate implementation of section 504 of the Rehabilitation Act.
This rule is being finalized 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
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: TBD.
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........................ 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: DoD internal guidance will be located in
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''). This Instruction will
publish after the finalization of this rule.
Agency Contact: Randy Cooper, Director, Department of Defense
Disability EEO Policy and Compliance Department of Defense, Office of
the Secretary 4000 Defense Pentagon Room 5D64, Washington, DC 20301-
4000, Phone: 703 571-9327, Email: [email protected].
RIN: 0790-AJ04
DOD--OS
23. Definitions of Gold Star Family and Gold Star Survivor [0790-AL56]
Priority: Other Significant.
Legal Authority: Pub. L. 117-81
CFR Citation: 32 CFR 46.
Legal Deadline: Final, Statutory, December 27, 2022, Sec 626 of the
NDAA 2022 (Pub. L. 117-81).
Section 626 of the NDAA 2022 (Pub. L. 117-81) requires publication
of an interim final rule no later than one year after the date of the
enactment of this Act.
Abstract: This rule implements section 626 of the National Defense
Authorization Act for Fiscal Year 2022 (Pub. L. 117-81) to establish
standard definitions, for use across the military departments, of the
terms ``gold star family'' and ``gold star survivor.''
Statement of Need: The objective of the rule is to establish
standard definitions, for use across the military departments, of the
terms gold star family and gold star survivor.
Summary of Legal Basis: This rule is proposed under the authorities
of section 626(c) of Public Law 117-81, FY 2022 NDAA.
Alternatives: The alternative is to take no action.
Anticipated Cost and Benefits: The cost to publish this new rule
and update the Defense Department's policies is estimated at $900,000.
This includes the public's time to review the proposed rule and
resources needed to respond to any public comments, publish the
[[Page 11002]]
interim rule, revise policies, and possibly revamp the Navy and Coast
Guard's long-term case management programs.
Risks: This action does not reduce risks to public health, safety,
or the environment, or effect other risks within the jurisdiction of
the Defense Department.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Deborah S. Skillman, Director, Department of
Defense, Office of the Secretary, 1500 Defense Pentagon, Washington, DC
20301-1500, Phone: 571 372-5333, Email:
[email protected].
RIN: 0790-AL56
DOD--DEFENSE ACQUISITION REGULATIONS COUNCIL (DARC)
Proposed Rule Stage
24. Assessing Contractor Implementation of Cybersecurity Requirements
(DFARS Case 2019-D041) [0750-AK81]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 41 U.S.C. 1303; Pub. L. 116-92, sec. 1648
CFR Citation: 48 CFR 204; 48 CFR 212; 48 CFR 217; 48 CFR 252.
Legal Deadline: None.
Abstract: DoD is amending an interim rule to implement the CMMC
framework 2.0 in order to protect against the theft of intellectual
property and sensitive information from the Defense Industrial Base
(DIB) sector. The CMMC framework is a DoD certification process that
measures a company's institutionalization of processes and
implementation of cybersecurity practices. This rule provides the
Department with assurances that a DIB contractor can adequately protect
sensitive unclassified information at a level commensurate with the
risk, accounting for information flow down to its subcontractors in a
multi-tier supply chain.
Statement of Need: The purpose of this DFARS rule is to ensure that
Defense Industrial Base (DIB) contractors will adequately protect
sensitive unclassified information at a level commensurate with the
risk, accounting for information flow down to its subcontractors in a
multi-tier supply chain.
Summary of Legal Basis: This rule is being implemented under the
authority of 41 U.S.C. 1303 and section 1648 of the National Defense
Authorization Act for Fiscal Year (FY) 2020 (Pub. L. 116-92). The USD
(A&S) has the authority and responsibility for promulgating DoD
procurement rules under the OFPP statute, codified at title 41 of the
U.S. Code. Section 1648 of the National Defense Authorization Act for
Fiscal Year 2020 (Pub. L. 116-92) directs the Secretary of Defense to
develop a risk-based cybersecurity framework for the DIB sector, such
as CMMC, as the basis for a mandatory DoD standard.
Alternatives:DoD considered and adopted several alternatives during
the development of the interim rule that reduced the burden on small
entities and still meet the objectives of the rule. DoD will consider
similar alternatives for the amendment rule. These alternatives
include: (1) exempting contracts and orders exclusively for the
acquisition of commercially available off-the-shelf items; and (2)
implementing a phased rollout and stipulating that the inclusion a CMMC
requirement in new contracts until that time be approved by the Office
of the Under Secretary of Defense for Acquisition and Sustainment.
Anticipated Cost and Benefits: The annualized value of costs
beginning in fiscal year 2021 (calculated in perpetuity in 2016 dollars
at a 7 percent discount rate) associated with implementing the CMMC
Framework in the interim is $4 billion. The primary benefit of this
rule is improving the protection of the Department's sensitive
information and reducing the threat to DIB sector intellectual property
by:
Enabling assessments at the entity-level of contractor
implementation of cyber security processes and practices that should
already be in place;
Requiring comprehensive implementation of cybersecurity
requirements rather than plans of action to accomplish implementation;
Verifying DIB sector contractor and subcontractor
cybersecurity postures; and
Reducing duplicative or repetitive assessments of our
industry partners through standardization.
Risks: The theft of intellectual property and sensitive information
from all U.S. industrial sectors due to malicious cyber activity
threatens economic security and national security. Malicious cyber
actors have and continue to target the DIB sector and the supply chain
of the Department of Defense. These attacks not only focus on the large
prime contractors, but also target subcontractors that make up the
lower tiers of the DoD supply chain. Many of these subcontractors are
small entities that provide critical support and innovation. The
aggregate loss of intellectual property and certain unclassified
information from the DoD supply chain can undercut U.S. technical
advantages and innovation, as well as significantly increase risk to
national security.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 09/29/20 85 FR 48513
Interim Final Rule Effective........ 11/30/20
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
Public Compliance Cost: Base Year for Dollar Estimates: 2021.
Agency Contact: Jennifer D. Johnson, Office of the Under Secretary
of Defense for Acquisition and Sustainment, Department of Defense,
Defense Acquisition Regulations Council, Defense Pricing and
Contracting, Defense Acquisition Regulations System, Room 3B938, 3060
Pentagon, Washington, DC 20301-3060, Phone: 703 717-8226, Email:
[email protected].
Related RIN: Split from 0750-AL68, Related to 0790-AL49
RIN: 0750-AK81
DOD--DARC
25. Small Business Innovation Research Program Data Rights (DFARS Case
2019-D043) [0750-AK84]
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
[[Page 11003]]
Business Administration (SBA) policies 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 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 and STTR
programs. 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 research and development 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 a contractor'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................................ 12/19/22 87 FR 77680
NPRM Comment Period End............. 02/17/23
Final Action........................ 11/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Agency Contact: Jennifer D. Johnson, Office of the Under Secretary
of Defense for Acquisition and Sustainment, Department of Defense,
Defense Acquisition Regulations Council, Defense Pricing and
Contracting, Defense Acquisition Regulations System, Room 3B938, 3060
Pentagon, Washington, DC 20301-3060, Phone: 703 717-8226, Email:
[email protected].
RIN: 0750-AK84
DOD--DARC
26. Defense Commercial Solutions Opening (DFARS Case 2022-D006) [0750-
AL57]
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303; Pub. L. 117-81, sec. 803; 10
U.S.C. 2380(c)
CFR Citation: 48 CFR 212.
Legal Deadline: None.
Abstract: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement to implement section 803 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81)
that amends 10. U.S.C. 2380 to establish a permanent authority for the
Secretary of Defense and those of the military departments to acquire
innovative commercial products and commercial services through a
competitive selection of proposals resulting from a general
solicitation and the peer review of such proposals. Products and
services purchased under this authority are treated as commercial.
Statement of Need: This rule is necessary to implement section 803
of the National Defense Authorization Act for Fiscal Year 2022 (Pub. L.
117-81), which establishes a permanent authority for the Secretary of
Defense and those of the military departments to acquire innovative
commercial products and commercial services through a competitive
selection of proposals resulting from a general solicitation and the
peer review of such proposals. Products and services purchased under
this authority are treated as commercial.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and section 803 of Public Law 117-81.
Alternatives: There are no alternatives that would meet the
requirements of section 803 of Public Law 117-81.
Anticipated Cost and Benefits: This rule will enable DoD to access
innovative products and services of entities that may not have not done
business with DoD in the past. Such entities may compete for additional
DoD contracts, thereby increasing competition for DoD contracts.
Risks: The difficulty of accessing innovative products and services
of these entities creates a risk for DoD with regard to finding
solutions and obtaining products and services that meet the
Department's needs.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Agency Contact: Jennifer D. Johnson, Office of the Under Secretary
of Defense for Acquisition and Sustainment, Department of Defense,
Defense Acquisition Regulations Council, Defense Pricing and
Contracting, Defense Acquisition Regulations System, Room 3B938, 3060
Pentagon, Washington, DC 20301-3060, Phone: 703 717-8226, Email:
[email protected].
RIN: 0750-AL57
DOD--DARC
27. Modification of Prize Authority for Advanced Technology
Achievements (DFARS Case 2022-D014) [0750-AL65]
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303; 10 U.S.C. 2374a; Pub. L. 117-81,
sec. 822
CFR Citation: 48 CFR 235.
Legal Deadline: None.
Abstract: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement to implement section 822 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81),
which revises 10 U.S.C. 2374a regarding the award of prizes for
advanced technology achievement to: (1) authorize the award of
procurement contracts and other agreements ``as an other type of
prize'' (as in other than cash prizes); (2) permit the award of prizes,
including procurement contracts and other agreements, in excess of
$10,000,000 with the approval of the Under Secretary of Defense for
Research and Engineering; and (3) require DoD provide Congress with
notice of an award of a procurement contract or other agreement under
this program that exceeds $10 million.
Statement of Need: This rule is necessary to implement section 822
of the National Defense Authorization Act for Fiscal Year 2022 (Pub. L.
117-81). Section 822 revises 10 U.S.C. 2374a regarding the award of
prizes for advanced technology achievement to: (1) authorize the award
of procurement contracts and other agreements as an other type of prize
(as in other than cash prizes); (2) permit the award of prizes,
including procurement contracts and other agreements, in excess of
$10,000,000 with the approval of the
[[Page 11004]]
Under Secretary of Defense for Research and Engineering; and (3)
require DoD provide Congress with notice of an award of a procurement
contract or other agreement under this program that exceeds $10
million.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and section 822 of Public Law 117-81.
Alternatives: There are no alternatives that would meet the
requirements of section 822 of Public Law 117-81.
Anticipated Cost and Benefits: This rule will help to expand the
Defense Industrial Base, thereby increasing competition for future DoD
contracts.
Risks: The difficulty of accessing advanced technologies creates a
risk for DoD with regard to finding solutions and obtaining products
and services that meet the Department's needs.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
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-AL65
DOD--DARC
28. DFARS Buy American Act Requirements (DFARS Case 2022-D019)
[0750-AL74]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 41 U.S.C. 1303
CFR Citation: 48 CFR 225; 48 CFR 252.
Legal Deadline: None.
Abstract: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement the requirements of
Executive Order 14005, Ensuring the Future Is Made in All of America by
All of America's Workers. Changes to the Federal Acquisition Regulation
(FAR) are being made via RIN 9000-AO22 (FAR Case 2021-008, Amendments
to the FAR Buy American Act Requirements). This rule proposes
conforming changes to the DFARS.
Statement of Need: This rule is necessary to implement Executive
Order 14005, Ensuring the Future Is Made in All of America by All of
America's Workers, which increases the required percentage of domestic
content for end products and construction material. Changes to the
Federal Acquisition Regulation (FAR) are being made via RIN 9000-AO22
(FAR Case 2021-008, Amendments to the FAR Buy American Act
Requirements). This rule proposes conforming changes to the DFARS.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and Executive Order 14005, Ensuring the Future Is Made in All of
America by All of America's Workers.
Alternatives: There are no alternatives that would meet the
requirements of Executive Order 14005.
Anticipated Cost and Benefits: This rule increases the percentage
for use in the domestic content text applied to offers of end products
and construction materials to determine domestic or foreign origin. The
rule will strengthen domestic preferences under the Buy American
statute. It is expected that this rule will benefit large and small
U.S. manufacturers supplying domestic end products and materials.
Risks: There is a risk that U.S. manufacturers would experience a
competitive disadvantage without the increase in the required domestic
content.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Agency Contact: Jennifer D. Johnson, Office of the Under Secretary
of Defense for Acquisition and Sustainment, Department of Defense,
Defense Acquisition Regulations Council, Defense Pricing and
Contracting, Defense Acquisition Regulations System, Room 3B938, 3060
Pentagon, Washington, DC 20301-3060, Phone: 703 717-8226, Email:
[email protected].
RIN: 0750-AL74
DOD--DARC
Final Rule Stage
29. Past Performance of Subcontractors and Joint Venture Partners
(DFARS Case 2018-D055) [0750-AK16]
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303; Pub. L. 115-232, sec. 823
CFR Citation: 48 CFR 215; 48 CFR 236; 48 CFR 242; 48 CFR 252.
Legal Deadline: Final, Statutory, February 9, 2019, 180 days after
enactment.
Abstract: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 823 of
the National Defense Authorization Act for Fiscal Year 2019, which
establishes a requirement for use of the best available information
regarding past performance of subcontractors and joint venture partners
when awarding DoD construction and architect-engineer (A&E) contracts.
Section 823 requires annual performance evaluations for first-tier
subcontractors and individual partners of joint venture construction
and A&E contracts valued at either $750,000 or more, or 20 percent of
the value of the prime contract (whichever is higher), in accordance
with specified conditions. In addition, processes for exceptions from
the annual evaluation requirement will be established for construction
and A&E contracts where submission of annual evaluations would not
provide the best representation of the performance of a contractor,
including subcontractors and joint venture partners under specified
conditions. This rule will amend DFARS part 242 to incorporate these
new requirements and processes.
Statement of Need: This rule is necessary to implement section 823
of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L.
115-232), which establishes a requirement for use of the best available
information regarding past performance of subcontractors and joint
venture partners when awarding DoD construction and architect-engineer
contracts. Section 823 requires annual performance evaluations for
first-tier subcontractors and individual parties to joint ventures
performing construction and architect-engineer contracts valued at
either $750,000 or more, or 20 percent of the value of the prime
contract (whichever is higher), in accordance with specified
conditions. In addition, processes for exceptions from the annual
evaluation requirement will be established for construction and
architect-engineer contracts where submission of annual evaluations
would not provide the best representation of the performance of a
contractor, including subcontractors and joint venture partners under
specified conditions.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and section 823 of Public Law 115-232.
Alternatives: There are no alternatives that would meet the
requirements of section 823 of Public Law 115-232.
[[Page 11005]]
Anticipated Cost and Benefits: This rule will make it easier for
subcontractors and individual parties to joint ventures to establish a
record of their past performance. These entities will be able to take
credit for the work they performed on contracts and subcontracts, which
will help them be more competitive when bidding on future DoD
contracts. This will help increase competition for DoD contracts.
Risks: Due to the difficulty of establishing a record of past
performance on DoD contracts, there is a risk of reduced
competitiveness for subcontractors and individual parties to joint
ventures.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/20/21 86 FR 27358
NPRM Comment Period End............. 07/19/21
Final Action........................ 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
Agency Contact: Jennifer D. Johnson, Office of the Under Secretary
of Defense for Acquisition and Sustainment, Department of Defense,
Defense Acquisition Regulations Council, Defense Pricing and
Contracting, Defense Acquisition Regulations System, Room 3B938, 3060
Pentagon, Washington, DC 20301-3060, Phone: 703 717-8226, Email:
[email protected].
RIN: 0750-AK16
DOD--DARC
30. Restriction on Acquisition of Personal Protective Equipment and
Certain Items From Non-Allied Foreign Nations (DFARS Case 2022-D009)
[0750-AL60]
Priority: Other Significant.
Legal Authority: 41 U.S.C. 1303; Pub. L. 117-81 sec. 802; 10 U.S.C.
2533e
CFR Citation: 48 CFR 225; 48 CFR 252.
Legal Deadline: None.
Abstract: DoD is issuing an interim rule to amend the Defense
Federal Acquisition Regulation Supplement to implement section 802 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022
NDAA (Pub. L. 117-81). Section 802 adds 10 U.S.C. 2533e which prohibits
the acquisition of personal protective equipment and certain other
items from non-allied foreign nations. An exception applies if: (1) the
Secretary of Defense determines that a covered item of satisfactory
quality and quantity, in the required form, cannot be procured as and
when needed from nations other than a covered country to meet
requirements at a reasonable price; (2) a covered item is for use
outside of the United States; or (3) if the procurement for a covered
material is at or below $150,000. A limitation provides that a proposed
procurement in an amount greater than $150,000 may not be divided into
several purchases or contracts for lesser amounts in order to qualify
for an exception.
Statement of Need: This rule is needed to implement section 802 of
the National Defense Authorization Act for Fiscal Year 2022 (Pub. L.
117-81), which prohibits the acquisition of personal protective
equipment related to healthcare and certain other healthcare-related
items from non-allied foreign nations. The prohibition does not apply
to items for use outside of the United States or if the procurement is
valued at or below $150,000. In addition, the prohibition does not
apply if the Secretary of Defense determines that a covered item of
satisfactory quality and quantity, in the required form, cannot be
procured as and when needed from nations other than non-allied nations
to meet requirements at a reasonable price.
Summary of Legal Basis: The legal basis for this rule is 41 U.S.C.
1303 and section 802 of Public Law 117-81.
Alternatives: There are no alternatives that would meet the
requirements of section 802 of Public Law 117-81.
Anticipated Cost and Benefits: Decreasing dependence on personal
protective equipment and certain other items, as identified in section
802, originating in non-allied foreign countries is a matter of public
health and national security especially during a declared public health
emergency. The domestic supply chain for personal protective equipment
and certain other items is critical. An adequate continued supply is
vital to ensure domestic control with minimal disruption in production
and to reduce U.S. dependence on non-allied foreign countries. This
restriction is similar to other domestic sourcing restrictions required
by 10 U.S.C. 2533 in effect to reduce dependence on non-allied foreign
sources and to continue to promote growth in domestic capability.
This rule restricts the acquisition of covered items (personal
protective equipment for use in preventing the spread of disease and
certain other items) from non-allied foreign nations. The restriction
will not apply--
To acquisitions of the covered items for use outside of
the United States;
For acquisitions at or below $150,000; or
If it is determined that covered items of satisfactory
quality and quantity, in the required form, cannot be procured as and
when needed from nations other than the covered countries to meet the
requirements at a reasonable price.
Estimated impacts to industry may include minor compliance costs to
validate with suppliers the origin of covered items to comply with the
prohibition. Based on data from the Federal Procurement Data System for
fiscal years 2019, 2020, and 2021 for contracts awarded in Product
Service Code 65 (Medical, Dental, and Veterinary Equipment and
Supplies) in the United States valued at or above $150,000, DoD awarded
an average of 1,677 such contracts to 192 unique entities, of which 105
were small businesses. It is not known what percentage of these awards
might involve personal protective equipment and other covered items
from the covered countries.
Potential benefits of this rule will be the elimination of
counterfeit covered items within the domestic supply chain and reduced
dependence on foreign sources that are not allies of the United States.
In addition, this restriction will further promote growth in domestic
capabilities and may provide additional opportunities to domestic small
businesses for future procurement and manufacturing efforts, increasing
domestic sourcing of personal protective equipment and other covered
items.
Risks: A shortage of supply of personal protective equipment and
certain other items would put at risk public health and the safety and
well-being of the general public. A shortage of these items also would
hinder DoD's mission readiness.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
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:
[[Page 11006]]
571 372-6100, Email: [email protected].
RIN: 0750-AL60
DOD--U.S. ARMY CORPS OF ENGINEERS (COE)
Proposed Rule Stage
31. Natural Disaster Procedures: Preparedness, Response, and Recovery
Activities of the Corps of Engineers [0710-AA78]
Priority: Other Significant.
Legal Authority: 33 U.S.C. 701n
CFR Citation: 33 CFR 203.
Legal Deadline: None.
Abstract: The U.S. Army Corps of Engineers (Corps) is proposing to
update the Federal regulation that covers the procedures that the Corps
uses under section 5 of the Flood Control Act of 1941, as amended (33
U.S.C. 701n), commonly referred to as Public Law 84-99. The Corps
relies on this program to prepare for, respond to, and help communities
recover from a flood, hurricane, or other natural disaster, including
the repair of damage to eligible flood risk reduction infrastructure.
The Corps initiated this rulemaking process through an advanced notice
of proposed rulemaking (ANPRM) on February 13, 2015. As a next step,
the Corps is planning to propose revisions to the program to address
statutory changes under various Water Resources Development Act
provisions and to formalize certain agency guidance relating to natural
disaster procedures. The notice of proposed rulemaking (NPRM) would
also include a summary of the comments to the ANPRM.
Statement of Need: Since the last revision in 2003, significant
disasters, including Hurricane Katrina (2005), Hurricane Sandy (2012),
flooding on the Mississippi and Missouri Rivers (2008, 2011, and 2013),
and Hurricanes Harvey, Irma, and Maria (2017) have provided a more
detailed understanding of the nature and severity of risk associated
with flood control projects. In addition, the maturation of risk-
informed decision making approaches and technological advancements
influenced the outlook on the implementation of Public Law 84-99
activities, with a shift toward better alignment with Corps Levee
Safety and National Flood Risk Management Programs, as well as the
National Preparedness and Response Frameworks. Through these programs,
the Corps works with non-Federal sponsors and stakeholders to assess,
communicate, and manage the risks to people, property, and the
environment associated with levee systems and flood risks. Revisions to
part 203 are necessary to implement statutes that amended or otherwise
affected Public Law 84-99, as explained in the next section.
Summary of Legal Basis: Public Law 84-99 authorizes an emergency
fund to be expended at the discretion of the Chief of Engineers for
preparation for natural disasters, flood fighting, rescue operations,
repairing or restoring flood control works, emergency protection of
federally authorized hurricane or shore protection projects, and the
repair and restoration of federally authorized hurricane and shore
protection projects damaged or destroyed by wind, wave, or water of
other than ordinary nature.
1. Subsection 3029(a) of the Water Resources Reform and Development
Act of 2014 (WRRDA 2014) (Pub. L. 113-121) authorized the Chief of
Engineers, under certain circumstances, to make modifications to flood
control and hurricane or shore protections works damaged during flood
or coastal storms events, as well as the authority to implement
nonstructural alternatives in the repair and restoration of hurricane
or shore protection works.
2. Subsection 3029(b) of WRRDA 2014 authorized the Secretary of the
Army to undertake a review of implementation of Public Law 84-99 to
ensure the safety of affected communities to future flooding and storm
events; the resiliency of water resources development projects to
future flooding and storm events; the long-term cost-effectiveness of
water resources development projects that provide flood control and
hurricane and storm damage reduction benefits; and the policy goals and
objectives that were the President outlined as a response to recent
extreme weather events at that time are met.
3. Section 3011 of WRRDA 2014 states that a levee system shall
remain eligible for rehabilitation assistance under Public Law 84-99,
as long as the system sponsor continues to make satisfactory progress,
as determined by the Secretary of the Army, on an approved system wide
improvement framework or letter of intent.
4. Section 1176 of the Water Resources Development Act of 2016
(WRDA 2016) (Pub. L. 114-322, title I) provided an express definition
of nonstructural alternatives, as that term is used in Public Law 84-
99, and authorized the Chief of Engineers, under certain circumstances,
to increase the level of protection of flood control or hurricane or
shore protection works or increase the capacity of a pumping station
when conducting repair or restoration activities to such works under
Public Law 84-99.
Alternatives:
1. No rule update: Implement all changes through agency discretion.
Alternative not selected because the Public Law 84-99 amendments are
very prescriptive, and it is inappropriate for those conflicts to
exist.
2. Modify: Evaluate required changes and determine which require
implementation via agency discretion and those requiring an update to
the rule. Alternative not selected because of inconsistent
implementation that would result and the repeal and replace alternative
is the most straightforward, given the number of update changes
throughout this CFR section.
3. Repeal and replace (Selected Alternative): Incorporate and
integrate the current state of practice for flood risk management
principles and concepts through the provision of agency policy codified
in a federal rule. The intended benefit is to encourage broader
community flood risk management activities, as undertaken by non-
Federal project sponsors. The rule alternative also consolidates recent
Public Law 84-99 amendments into one comprehensive rule, ensuring the
public understands how the Corps would implement them.
Anticipated Cost and Benefits: Overall, the purpose of the proposed
changes to this regulation are expected to improve the effectiveness of
federal and local investments to reduce flood risks in both riverine
and coastal settings. These proposed changes take advantage of our
increased understanding of project risks, moving from an assessment of
how the project is expected to perform to a focus on a broader set of
actions to reduce risk to life, including operations, maintenance,
planning, and execution actions to improve emergency warning and
evacuation and other activities to improve the ability of communities
and individuals to understand and manage project-related risks.
Informed by more detailed understanding of risk for levee systems, the
Federal Government and non-Federal sponsors should be able to apply the
available resources to the risk management activities that most
effectively reduce riverine flood risk and avoid expenditures that have
little risk reduction benefit.
Risks: The rule is not expected to have a significant effect on
risks to public health and safety. It would revise and update 33 CFR
203 and reflect the current state of practice for flood risk management
principles and concepts. It would also amend and clarify the current
role of the Corps in preparing
[[Page 11007]]
for, and responding a natural disaster, and in helping in the recovery
effort. The rule may also encourage broader community flood risk
management activities, as undertaken by non-Federal project sponsors.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 02/13/15 80 FR 8014
ANPRM Comment Period End............ 04/14/15
NPRM................................ 11/15/22 87 FR 68386
NPRM Comment Period End............. 01/17/23
Final Action........................ 11/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Willem Helms, Department of Defense, U.S. Army
Corps of Engineers, CECW-HS, 441 G Street NW, Washington, DC 20314,
Phone: 202 761-5909, Email: [email protected].
RIN: 0710-AA78
DOD--COE
32. Policy and Procedures for Processing Requests To Alter U.S. Army
Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408
[0710-AB22]
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. It is anticipated that a form would be developed for
submission of requests which would trigger the Paperwork Reduction Act
compliance process and any associated costs will be evaluated at that
time.
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................................ 04/00/23
------------------------------------------------------------------------
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
33. Flood Control Cost-Sharing Requirements Under the Ability To Pay
Provision [0710-AB34]
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, by broadening its applicability to
include projects with other purposes (instead of just flood damage
reduction) and 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
[[Page 11008]]
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 is 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 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................................ 11/00/23
------------------------------------------------------------------------
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
34. USACE Implementing Procedures for Principles, Requirements, and
Guidelines Applicable to Actions Involving Investment in Water
Resources [0710-AB41]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: Sec. 2031 of Pub. L. 110-114
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: Section 2031 of the Water Resources Development Act of
2007 (Pub. L. 110-114) called for revisions to the 1983 Principles and
Guidelines for Water and Land Related Resources Implementation Studies,
resulting in the issuance of the Principles and Requirements (P&R)
guidance document in March 2013 and the Interagency Guidelines in
December 2014, which together comprise the Principles, Requirements,
and Guidelines (PR&G). The PR&G are intended to provide a common
framework and comprehensive policy and guidance for analyzing a diverse
range of water resources projects, programs, activities, and related
actions involving Federal investment in water resources. The U.S. Army
Corps of Engineers (Corps) proposes a regulation to show how it would
apply the PR&G to the Corps' mission and authorities. In this proposed
regulation, the Corps intends to increase consistency and compatibility
in Federal water resources investment decision making to include
considerations such as analyzing a broader range of long-term costs and
benefits, enhancing collaboration, including a more thorough and
transparent risk and uncertainty analyses, and improving resilience for
dealing with emerging challenges, including climate change.
Statement of Need: The Corps needs to develop implementing
procedures for the Principles, Requirements, and Guidelines (PR&G) per
a requirement under section 110 of the Water Resources Development Act
of 2020.
Summary of Legal Basis: Section 110 of the Water Resources
Development Act of 2020 directed the Corps to implement the PR&G. Also
see section 2031 of Public Law 110-114.
Alternatives: The Corps could implement PR&G with guidance rather
than through rulemaking; however, such procedures would not be binding
on the Corps or the public as any procedures would not have undergone
APA rulemaking. The Corps would not develop procedures to implement
PR&G and instead rely solely on the PR&G documents to implement. This
could result in confusion and a lack of consistency for the Corps and
the public as to how and when to apply PR&G to Civil Works authorities.
The Corps proposes to conduct rulemaking to ensure the PR&G
implementing procedures are clear for the Corps and the public as well
as binding.
Anticipated Cost and Benefits: As this rulemaking action is
implementing procedures for the Corps to ensure compliance with the
PR&G, there may be some administrative costs incurred to the Corps for
implementation and training. There would be benefits accrued to the
public in the form of reduced confusion and assurance of consideration
of comprehensive benefits for water resource development projects. The
rulemaking action would also result in more net beneficial project
outcomes from improved decision making.
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 statutory
requirement in WRDA as well as Administration policy. The Corps will
comply with all statutory requirements when implementing PR&G.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
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-AB41
DOD--COE
35. Appendix C Procedures for the Protection of Historic Properties
[0710-AB46]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 401; 33 U.S.C. 1344; 33 U.S.C. 1413
CFR Citation: 33 CFR 325.
Legal Deadline: None.
Abstract: The U.S. Army Corps of Engineers (Corps) considers the
effects
[[Page 11009]]
of its actions on historic properties pursuant to section 106 of the
National Historic Preservation Act (NHPA). The Corps' Regulatory
Program's regulations for complying with the NHPA are outlined at 33
CFR 325 appendix C. Since these regulations were promulgated in 1990,
there have been amendments to the NHPA and revisions to the Advisory
Council on Historic Preservation's (ACHP) regulations at 36 CFR part
800. In response, the Corps issued interim guidance until rulemaking
could be completed in order to ensure full compliance with the NHPA and
ACHP's regulations. The Corps proposes to revise its regulations to
conform to the ACHP regulations.
Statement of Need: Appendix C intends to provide the implementing
procedures for the Regulatory Program's compliance with section 106 of
the National Historic Preservation Act. Rulemaking is required to
ensure the Regulatory Program is compliant with the NHPA and ACHP's
implementing regulations at 36 CFR 800 for federal agency compliance
with Section 106. The NHPA and the ACHP regulations have been updated
since Appendix C was promulgated.
Summary of Legal Basis: Appendix C was promulgated through an APA
rulemaking process intended to provide compliance with section 106 of
the NHPA specific to the Regulatory Program.
Alternatives: Alternatives considered include retaining appendix C,
which in its current state is not compliant with the updates to NHPA or
the ACHP implementing regulations for federal agencies. The current
appendix C is also not compliant with the NHPA and Administration
policies regarding Tribal Nations. Another alternative is to rescind
Appendix C and have the Regulatory Program rely on the ACHP
implementing regulations. This would ensure consistency with the Civil
Works program of the Corps and ensure compliance with the statutory and
regulation language. Another alternative is to modify appendix C to
update the regulation incorporating changes made since promulgation to
the NHPA and ACHP implementing regulations. The goal would be to ensure
compliance with NHPA and the ACHP implementing regulations but the end
result would be comparable to the rescission alternative with more
resource and workload effort. It would also result in continued
confusion for the public with the differing name from ACHP's
regulations and Civil Works implementation.
Anticipated Cost and Benefits: As this rulemaking action is
implementing procedures for the Corps to ensure compliance with the
NHPA, there may be some administrative costs incurred to the Corps for
training. There would be benefits accrued to the public in the form of
reduced confusion and assurance of consideration of potential adverse
effects to historic properties and items and areas of cultural/
religious significance.
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 statutory
requirement. The Corps will comply with all statutory requirements when
reviewing permit applications.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Federalism: Undetermined.
Agency Contact: Margaret Gaffney-Smith, Regulatory Program Manager,
Department of Defense, U.S. Army Corps of Engineers, Attn: CECW-CO, 441
G Street NW, Washington, DC 20314, Phone: 202 761-4229.
RIN: 0710-AB46
DOD--COE
36. Revised Definition of ``Waters of the United States''--Rule 2
[0710-AB47]
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 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 develop regulations that are founded on the
familiar framework of the pre-2015 regulations, are consistent with the
statute and informed by relevant Supreme Court decisions, and that
reflect a reasonable interpretation based on the record before the
agencies, including the best available science. This second rule
proposes to include revisions reflecting on additional stakeholder
engagement and implementation considerations, scientific developments,
and environmental justice values. This effort would 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................................ 09/00/23
------------------------------------------------------------------------
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
DOD--COE
Final Rule Stage
37. Credit Assistance for Water Resources Infrastructure Projects
[0710-AB31]
Priority: Other Significant.
Legal Authority: Pub. L. 114-94; Pub. L. 114-322; Pub. L. 115-270;
33 U.S.C. 3901
[[Page 11010]]
CFR Citation: 33 CFR 386.
Legal Deadline: None.
Abstract: The U.S. Army Corps of Engineers (Corps) is implementing
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 will 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, essentially dams where the primary owner is a state, local
government, public utility, or private owner.
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. WIFIA compliance costs likely include costs associated with
application and transaction processing fees, which are waived or
reduced for small and disadvantaged communities, obtaining a credit
rating letter, any consultant fees (not required), completing
applications, reporting requirements, and record keeping. These costs
are not anticipated to represent a significant economic impact,
especially given that participation in the program is voluntary.
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................................ 06/10/22 87 FR 35473
NPRM Comment Period End............. 08/09/22
Final Action........................ 04/00/23
------------------------------------------------------------------------
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
38. Revised Definition of ``Waters of the United States''--Rule 1
[0710-AB40]
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
initiated the development of regulations that are founded on the
familiar framework of the pre-2015 regulations, are consistent with the
statute and informed by relevant Supreme Court decisions, and that
reflect a reasonable interpretation based on the record before the
agencies, including the best available science. The proposal was open
for public comment between Dec 2021 and Feb 2022. It is planned that
this rule will be finalized by the end of the calendar year (2022).
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
[[Page 11011]]
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................................ 12/07/21 86 FR 69372
NPRM Comment Period End............. 02/07/22
Final Action........................ 12/00/22
------------------------------------------------------------------------
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--OFFICE OF ASSISTANT SECRETARY FOR HEALTH AFFAIRS (DODOASHA)
Final Rule Stage
39. TRICARE Reimbursement of Ambulatory Surgery Centers and Outpatient
Services Provided in Cancer and Children's Hospitals [0720-AB73]
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, Defense Health Agency, is
revising its regulation on the reimbursement of ambulatory surgery
centers (ASC) and outpatient services provided in Cancer and Children's
Hospitals (CCHs). Revisions are in accordance with the statutory
provision at title 10 of the U.S.C., section 1079(i)(2) that requires
TRICARE's payment methods for institutional care be determined, to the
extent practicable, in accordance with the same reimbursement rules as
apply to payments to providers of services of the same type under
Medicare. In accordance with this requirement, TRICARE will: (1) adopt
Medicare's payment methodology for Ambulatory Surgery Centers (ASC) and
(2) adopt Medicare's payment methodology for outpatient services
provided in Cancer and Children's Hospitals (CCHs). Although Medicare's
reimbursement methods for ASC and CCHs are different, it is prudent to
adopt both the Medicare ASC system and to adopt the Outpatient
Prospective Payment System (OPPS) with hold-harmless adjustments
(meaning the provider is not reimbursed less than their costs) for CCHs
simultaneously to align with our statutory requirement to reimburse
like Medicare at the same time. This rule makes the modifications
necessary to implement TRICARE reimbursement methodologies similar to
those applicable to Medicare beneficiaries for outpatient services
rendered in ASCs and CCHs.
Statement of Need: The rule finalizes modifications to TRICARE
regulation necessary to implement Medicare-similar reimbursement
methods for Ambulatory Surgery Centers (ASCs) and Cancer and Children's
Hospitals (CCHs). This is outlined in 10 U.S.C. 1079(i)(2) which
requires TRICARE's payment methods for institutional care be
determined, to the extent practicable, in accordance with the same
reimbursement rules as apply to payments to providers of services of
the same type under Medicare.
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) Permitting a transition period for Ambulatory Surgery Centers
(ASCs). DHA explored the use of a transition period that blended the
current reimbursement method with the proposed method. This would
slowly shift the rates to be fully aligned with Medicare at the end of
the transition and would protect providers from lower payments. After
comparing the differences in rates, DHA found that many providers are
likely to see an increase in reimbursement, which would not be
effective until the end of the transition period. Some providers may
see a decrease in payments, but on the whole, Medicare's payments have
been found to be adequate based upon a Medicare Payment Advisory
Committee (MedPAC) review. As a result, DHA will not adopt a transition
period.
(3) Permitting a transition period for Cancer and Children's
Hospitals (CCHs). DHA explored the use of a transition period that
blended the current reimbursement method with the proposed, and slowly
shifted the rates to be fully aligned with Medicare at the end of the
transition. This would be done to protect providers from payments below
their cost, in the event that the rates are significantly affected. To
protect CCHs, DHA will ensure that CCHs are reimbursed the greater of
100% of their costs or the OPPS payment. Because many CCH providers
will receive payment increases, a transition period would not be
beneficial for them. Historically, transitions are done to protect
providers from payments below their costs. However, in this case,
providers will be held-harmless, so no transition is necessary.
Anticipated Cost and Benefits: Economic impact of this rule is
based on analysis of expected outcomes had the rule been implemented in
2021. The overall impact to the DoD, for ASC reimbursement, would be
$10 million in reduced payments for ASCs. The overall impact to the
DoD, for adopting OPPS for CCHs, would be $35 million in reduced
payments to these providers. The combined impact is a cost-saving of
approximately $45 million, which would be offset by $1.5 million in
administrative costs to implement the changes. This estimated reduction
in costs of $45 million is a transfer from providers to DoD.
Risks: None. DHA is adopting the new Ambulatory Surgery Center
(ASC) and Cancer and Children's Hospital (CCH) reimbursement systems to
be consistent with Medicare's, as required by statute. Although DHA
expects a decrease in total TRICARE payments for ASCs; however, rates
for almost half the high-volume ASC surgeries will increase under the
new ASC payment system. DHA also notes that even if some ASCs deny
access to some surgeries, TRICARE beneficiaries would be largely
protected from access problems as these patients could have their
surgeries performed in hospital outpatient departments (HOPDs).
Additionally, CCHs will be held harmless, as they will receive, at a
minimum, one-hundred percent of its costs, or the higher payment under
Outpatient Prospective Payment System (OPPS). Under the new method,
CCHs may be eligible for the General Temporary Military Contingency
Payment Adjustments (GTMCPA) that will ensure network adequacy during
military contingency operations. These GTMCPAs will be issued in the
same manner as those made currently under TRICARE's OPPS.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/29/19 84 FR 65718
NPRM Comment Period End............. 01/28/20
Final Action........................ 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
[[Page 11012]]
Agency Contact: Jahanbakhsh Badshan, Department of Defense, Office
of Assistant Secretary for Health Affairs, 16401 East Centretech
Parkway, Aurora, CO 80011, Phone: 303 676-3881, Email:
[email protected].
RIN: 0720-AB73
DOD--DODOASHA
40. TRICARE Coverage of National Institute of Allergy and Infectious
Disease Coronavirus Disease 2019 Clinical Trials [0720-AB83]
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 rule finalizes provisions published in two interim
final rules with request for comment, which temporarily added coverage
for the treatment use of investigation drugs under U.S. Food and Drug
Administration (FDA) approved expanded access programs when for the
treatment of coronavirus disease 2019 (COVID-19) and permitted coverage
of National Institute of Allergy and Infectious Disease (NIAID)-
sponsored clinical trials for the treatment or prevention of COVID-19.
Statement of Need: This final rule is required to finalize certain
temporary flexibilities enacted in interim final rules published in
2020 in response to the COVID-19 pandemic.
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 modified 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.
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 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: Any cost to beneficiaries would be
consistent with existing costs under the TRICARE Program (such as cost-
shares and copayments). Finalizing TRICARE coverage of clinical trials
will benefit TRICARE beneficiaries by ensuring they continue to have
access to emerging therapies in the safest setting possible.
In the interim final rule, DoD estimated the total cost for TRICARE
participation in NIAID-sponsored COVID-19 clinical trials would 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 the 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........................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Jennifer Stankovic, Department of Defense, Office
of Assistant Secretary for Health Affairs, 16401 E Centretech Parkway,
Aurora, CO 80011-9066, Phone: 303 676-3742, Email:
[email protected].
Related RIN: Related to 0720-AB81, Related to 0720-AB82
RIN: 0720-AB83
DOD--DODOASHA
41. Expanding TRICARE Access to Care in Response to the COVID-19
Pandemic [0720-AB85]
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
[[Page 11013]]
provider and modifying the reimbursement for such facilities; and (2)
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 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.
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: $8.08 million. 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.
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.
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.................. 03/00/23
------------------------------------------------------------------------
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].
RIN: 0720-AB85
DOD--DODOASHA
42. Collection From Third Party Payers of Reasonable Charges for
Healthcare Services; Amendment [0720-AB87]
Priority: Other Significant.
Legal Authority: NDAA 2021, sec. 702
CFR Citation: 32 CFR 220.
Legal Deadline: None.
Abstract: The National Defense Authorization Act (NDAA) section 702
for Fiscal Year (FY) 2021 provides authority to waive fees charged for
certain civilian non-beneficiary patients: (1) after the patient's
insurance pays, if any, the civilian is not able to pay for the trauma
or other medical care provided to the civilian; and (2) the provision
of such care enhances the knowledge, skills, and abilities of health
care providers, as determined by the Secretary. The amendment of 32 CFR
220.7 would delegate authority to the Secretary of Defense or a
Secretary of Defense established representative to waive medical debt
owed for services rendered at Military Treatment Facilities (MTF) if
the patient requests a medical debt waiver and meets the two specified
criteria.
This amendment should be made as current legislation and policies
can lead to an undue financial burden on non-beneficiary patients who
have incurred medical debt from treatment at MTFs. The Debt Collection
Improvement Act of 1996 and the Digital Accountability and Transparency
act of 2014 drive federal collection activities and can place
individuals indebted to the government at risk of financial hardship.
By making these changes, the Secretary of Defense would have the
ability to waive non-beneficiary civilian debt in cases where the
patient is unable to pay as determined using U.S. Treasury guidelines
and when the care provided enhances the knowledge, skills, and
abilities of health care providers.
Statement of Need: Section 702 of the FY 2021 NDAA amends 10 U.S.C.
1079b by inserting a new subsection regarding the waiver of fees. Under
section 702,
[[Page 11014]]
the Secretary of Defense may waive a fee charged to a civilian who is
not a covered beneficiary if after insurance payments, if any, the
civilian is not able to pay for the trauma or other medical care
provided to the civilian; and the provision of such care enhanced the
medical readiness of the health care provider or health care providers
furnishing such care. This rule prescribes a new debt waiver process
for medical debt owned for services rendered at Military Treatment
Facilities to civilians who are not covered beneficiaries.
Summary of Legal Basis: Section 702 of the FY 2021 NDAA amends 10
U.S.C. 1079b by inserting a new subsection regarding the waiver of
fees. Under section 702, the Secretary of Defense may waive a fee
charged to a civilian who is not a covered beneficiary if after
insurance payments, if any, the civilian is not able to pay for the
trauma or other medical care provided to the civilian; and the
provision of such care enhanced the medical readiness of the health
care provider or health care providers furnishing such care.
Alternatives:
Alternative #1: The first alternative will use an outside agency,
the Centralized Receivable Service (CRS) to complete the patient
ability-to-pay assessment and make a recommendation to the DHA Cost
Accounting Division (CAD) Financial Operations (FO). CAD FO will then
make the final determination based on that recommendation. This
alternative will utilize DHA's existing relationship with CRS, a
program under the U.S. Department of Treasury focused on managing pre-
delinquent debt and debt in the early stages of delinquency before it
is referred to the U.S. Treasury.
Alternative #2: The DoD considered a second alternative in which
the DHA UBO will stand up a cell to complete the ability-to-pay
assessments and make a recommendation. The recommendations will be
directed to either the DHA CAD FO for accounts under $100,000 or to the
Deputy Assistant Director (DAD) FO for accounts over $100,000.
Alternative #3: Option 3, which is DoD's preferred approach due to
operational efficiency gains, would leverage existing partnerships with
CRS and U.S. Treasury. For active or non-delinquent debt, the MTF UBO
will direct all uninsured non-beneficiary accounts to CRS for billing.
The patient can request a waiver by contacting CRS as directed on their
invoice, the MTF will direct the account information to CRS to complete
the financial analysis. If a patient is deemed financially culpable,
collections will be pursued by CRS. If not, CRS will calculate an
amount the debtor can pay within 3-5 years and waive the remaining
debt. CRS would report decisions to DHA following established business
rules and guidelines including monthly accounting of all waiver and
compromise agreements to DHA, and immediately report waived amounts
over $100,000. Any additional business rules will be decided by DHA FO
and DHA General Counsel.
Anticipated Cost and Benefits: This cost will be the fee paid to
CRS for their services, totaling an estimated $145, 711. Time required
for this alternative is an estimated 17 days based on CRS reported
process completion estimates from the DAMP program. This would include
time for the civilian to compile required documents, for CRS to draft
the package and assess ability to pay, as well as CRS response time for
a decision and any other follow-up activities for each request for
waiver.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: DeLisa Prater, DHA Uniform Business Office Program
Manager, Department of Defense, Office of Assistant Secretary for
Health Affairs, 8111 Gatehouse Road, Suite #221, Falls Church, VA
22042-5101, Phone: 703 275-6380, Email: [email protected].
RIN: 0720-AB87
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 2021-22 school year, about 56 million students attended
an estimated 129,000 elementary and secondary schools in approximately
13,600 districts, and about 20 million students enrolled in
postsecondary institutions of higher education. Many of these students
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 organizations,
[[Page 11015]]
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 time 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. Our regulatory agenda covers 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.
Postsecondary Education/Federal Student Aid
The Department's upcoming higher education regulatory efforts
include the following areas:
Improving Income Driven Repayment
Gainful Employment
These rulemakings are focused on improving the rules governing
student loan repayment and protecting students and taxpayers from
career-training programs that fail to provide sufficient value, among
other topics. These rulemakings reflect the Department's commitment to
helping borrowers successfully manage their student loans and
protecting students 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 delinquency, and
default, as well as the returns students receive for their investments.
For its higher education rulemakings, generally the Department uses a
negotiated rulemaking process. We 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.
The Department used this negotiated rulemaking process for its
rulemakings on Improving Income Driven Repayment and Gainful
Employment. On Improving Income Driven Repayment, the Department plans
to create or adjust an income driven repayment plan that would allow
borrowers to more easily afford their student loan payments. 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.
Civil Rights/Title IX
The Secretary proposed 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.
Recently Completed Rulemakings
Additionally, the Department has recently concluded a number of
critical rulemakings, including Public Service Loan Forgiveness;
Borrower Defense to Repayment; Improving Discharges for Total and
Permanent Disabilities, Closed Schools, and False Certification;
Determining the Amount of Federal Education Assistance Funds Received
by Institutions of Higher Education (90/10); and Pell Grants for Prison
Education Programs. For Public Service Loan Forgiveness, the Department
streamlined the process for receiving loan forgiveness after 10 years
of qualifying payments on qualifying loans while engaging in public
service. For
[[Page 11016]]
Borrower Defense, the Secretary amended 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 Discharges for Total and
Permanent Disabilities, Closed Schools, and False Certification, the
Department improved 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 amended the regulations relating to
borrower eligibility and streamlined application requirements and the
application and certification processes. On the 90/10 rule, in response
to changes to the HEA made by the American Rescue Plan Act of 2021, the
Department amended 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. To increase access to educational opportunities, the
Department also issued 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.
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
43. Nondiscrimination on the Basis of Sex in Athletics
Education Programs or Activities Receiving Federal Financial Assistance
[1870-AA19]
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 issue a final rule amending 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.
Statement of Need: This rulemaking is necessary to align the Title
IX regulations to fully implement the statute.
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 costs and benefits at this time.
Risks: We have limited information about the risks at this time.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Alejandro Reyes, Department of Education, Office
for Civil Rights, 400 Maryland Avenue SW, Room PCP-6125, Washington, DC
20202, Phone: 202 245-7272, Email: [email protected].
RIN: 1870-AA19
ED--OCR
Final Rule Stage
44. Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance [1870-AA16]
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 issue a final rule amending 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. The proposed amendments include, among others,
revisions to 34 CFR 106.2 (Definitions), 106.6 (Effect of other
requirements and preservation of rights), 106.8 (Designation of
coordinator, dissemination of policy, and adoption of grievance
procedures), 106.10 (Scope), 106.11 (Application), 106.30
(Definitions), 106.31 (Education programs or activities), 106.40
(Parental,
[[Page 11017]]
family, or marital status; pregnancy or related conditions), 106.44
(Action by a recipient to operate its education program or activity
free from sex discrimination), 106.45 (Grievance procedures for the
prompt and equitable resolution of complaints of sex discrimination),
106.46 (Grievance procedures for the prompt and equitable resolution of
complaints of sex-based harassment involving student complainants or
student respondents at postsecondary institutions); 106.51
(Employment), 106.57 (Parental, family, or marital status; pregnancy or
related conditions), 106.60 (Pre-employment inquiries), and 106.71
(Retaliation).
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: This was discussed in the notice of proposed
rulemaking (NPRM) and will be discussed in the final regulations.
Anticipated Cost and Benefits: This was discussed in the notice of
proposed rulemaking (NPRM) and will be discussed in the final
regulations.
Risks: This was discussed in the notice of proposed rulemaking
(NPRM) and will be discussed in the final regulations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/12/22 87 FR 41390
Final Action........................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: State.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Alejandro Reyes, Department of Education, Office
for Civil Rights, 400 Maryland Avenue SW, PCP-6125, Washington, DC
20202, Phone: 202 245-7705, Email: [email protected].
RIN: 1870-AA16
ED--OFFICE OF POSTSECONDARY EDUCATION (OPE)
Proposed Rule Stage
45. Gainful Employment [1840-AD57]
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................................ 04/00/23
------------------------------------------------------------------------
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
46. Improving Income Driven Repayment [1840-AD81]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 20 U.S.C. 1070g; 20 U.S.C. 1087a, et seq.
CFR Citation: 34 CFR 685.
Legal Deadline: None.
Abstract: The Secretary plans to propose amendments to the
regulations governing income-contingent repayment plans by amending the
Revised Pay as You Earn (REPAYE) repayment plan, and to restructure and
rename the repayment plan regulations under the William D. Ford Federal
Direct Loan (Direct Loan) Program, including combining the Income
Contingent Repayment (ICR) and the Income-Based Repayment (IBR) plans
under the umbrella term of Income-Driven Repayment (IDR) plans.
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: 20 U.S.C. 1070g, 1087a, et seq., unless
otherwise noted.
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................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Tamy Abernathy, Department of Education, Office of
Postsecondary Education, 400 Maryland Avenue SW, 2C-232, Washington, DC
20202, Phone: 202 453-5970, Email: [email protected].
[[Page 11018]]
RIN: 1840-AD81
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.
Energy Efficiency Program for Consumer Products and Commercial
Equipment
The Energy Policy and Conservation Act (EPCA) 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 tackling its
backlog of rulemakings with missed statutory deadlines and advancing
rulemakings with upcoming statutory deadlines. In 2022, DOE has
published 55 actions relating to energy conservation standards,
including nine final actions; 45 actions relating to test procedures,
including 18 final rules; and four actions related to coverage
determinations, including three final rules. DOE tentatively plans to
publish three additional actions relating to energy conservation
standards and seven actions relating to test procedures by the end of
the year. These rulemakings are expected to save American consumers
billions of dollars in energy costs over a 30-year timeframe.
The Department is highlighting one important energy conservation
standard rule entitled ``Energy Conservation Standards for Residential
Non-Weatherized Gas Furnaces and Mobile Home Gas Furnaces.'' For non-
weatherized gas furnaces and mobile home gas furnaces, DOE estimates
that energy savings for active mode operation (in terms of annual fuel
utilization efficiency (AFUE)) will be 5.48 quads over 30 years and
that the net benefit to the Nation will be between $6.2 billion and
$21.6 billion. DOE estimates that energy savings for standby mode and
off mode operation will be 0.28 quads over 30 years and that the net
benefit to the Nation will be between $1.1 billion and $3.4 billion.
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 ``Clean
Energy Rule for New Federal Buildings and Major Renovations'' (Clean
Energy Rule), which implements a provision of the Energy Independence
and Security Act of 2007 (EISA) that requires the Department to
establish revised-performance standards for the construction of all new
Federal buildings, including commercial buildings, multi-family high-
rise residential buildings, and low-rise residential buildings.
Consistent with the requirements in EISA, this rule presents revised
Federal building energy performance standards that would require
reductions in Federal agencies' on-site use of fossil fuels (which
include coal, petroleum, natural gas, oil shales, bitumens, tar sands,
and heavy oils) consistent with the targets of EPCA and EISA, and
provides processes by which agencies can petition DOE for the downward
adjustment of these targets for buildings. For covered buildings for
which design for construction or whole building renovation begins in
fiscal year 2030 or beyond, the fossil fuel-generated energy
consumption of the building must be zero for all building types and
climate zones, based on the calculation established in the regulations.
Investing in Clean Energy Projects
The ``Loan Guarantees for Clean Energy Projects'' interim final
rule would amend DOE's regulations implementing the Title XVII loan
guarantee program to incorporate new categories of eligible projects
and other provisions of the Energy Act of 2020, the Infrastructure
Investment Act of 2021, and the Inflation Reduction Act of 2022. The
rule would also include other changes to the existing regulations based
on experiences gained implementing the Title XVII program and on
comments recently received from stakeholders in response to DOE's
Request for Information. The rule would enable DOE's use of nearly $300
billion of additional loan authority for a broad range of energy
projects.
DOE--ENERGY EFFICIENCY AND RENEWABLE ENERGY (EE)
Proposed Rule Stage
47. Clean Energy Rule for New Federal Buildings and Major Renovations
[1904-AB96]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 6834(a)(3)(D)
CFR Citation: 10 CFR 433; 10 CFR 435.
Legal Deadline: Other, Statutory, Subject to the requirements in 42
U.S.C. 6834(a)(3)(D).
Abstract: This rulemaking implements provisions of the Energy
Independence and Security Act of 2007 that require the U.S. Department
of Energy (DOE) to establish revised-performance standards for the
construction of all new Federal buildings, including commercial, multi-
family high-rise residential and low-rise residential buildings. This
rulemaking will specifically address the reduction of fossil fuel-
generated energy consumption in new buildings and buildings undergoing
major renovations, as well as how agencies may petition DOE for a
downward adjustment of the requirements if they believe meeting
required energy reduction levels would be technically impracticable.
This effort was previously reported as the Fossil Fuel-Generated Energy
Consumption Reduction for New Federal Buildings and Major Renovations
of Federal Buildings rulemaking.
Statement of Need: The Energy Independence and Security Act of 2007
(EISA 2007) requires certain new
[[Page 11019]]
Federal buildings and Federal buildings undergoing major renovations to
meet fossil fuel-generated consumption reduction targets based on
fiscal year.
Summary of Legal Basis: Section 433(a) of EISA 2007 2007 (Pub. L.
110-140) amended section 305 of the Energy Conservation and Production
Act (ECPA) and directed the DOE to establish regulations that require
fossil fuel-generated energy consumption reductions for certain new
Federal buildings and Federal buildings undergoing major renovations.
(42 U.S.C. 6834(a)(3)(D)(i)) For these buildings, section 305 of ECPA,
as amended by EISA 2007, mandates that the buildings be designed so
that a building's fossil fuel-generated energy consumption is reduced
as compared with such energy consumption by a similar building in
fiscal year (FY) 2003 (as measured by Commercial Buildings Energy
Consumption Survey (CBECS) or Residential Energy Consumption Survey
(RECS) data from the DOE's Energy Information Administration (EIA)) by
55 percent beginning in FY2010, 65 percent beginning in FY2015, 80
percent beginning in FY2020, 90 percent beginning in FY2025, and 100
percent beginning in FY2030. (42 U.S.C. 6834(a)(3)(D)(i)(I)).
Alternatives: The statute requires DOE to establish regulations
implementing the specific fossil fuel-generated energy consumption
targets for certain new Federal buildings and Federal buildings
undergoing major renovations. The targets may be adjusted with respect
to a specific building upon petition from an agency, with agreement
from the DOE Secretary. In implementing these regulations, DOE
considers the technologies available to achieve the statutory targets
and those relevant for petitions submitted by agencies.
Anticipated Cost and Benefits: The cumulative net present value
(NPV) of the proposed Clean Energy Rule compliant buildings ranges from
-$16.0 Million (at a 7-percent discount rate) to -$85.3 Million (at a
3-percent discount rate).DOE also analyzed an additional case where the
future grid emission factors were assumed to follow a 95% reduction by
2035 (95 by 2035) profile as defined in the National Renewable Energy
Laboratory's (NREL) 2021 Standard Scenarios Report: A U.S. Electricity
Sector Outlook. This case represents a change in national electricity
generation which assumes national power sector CO\2\ emissions reach
95% below 2005 levels by 2035 and are eliminated on a net basis by
2050. The cumulative NPV of the proposed Clean Energy Rule compliant
buildings in the 95 by 2035 case ranges from $104.6 Million (at a 7-
percent discount rate) to $83.4 Million (at a 3-percent discount rate).
Risks: Optional field--no response.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/15/10 75 FR 63404
NPRM Comment Period End............. 12/14/10
Supplemental NPRM................... 10/14/14 79 FR 61693
Supplemental NPRM Comment Period End 12/15/14
Supplemental Notice of Proposed 12/00/22
Rulemaking (NPRM).
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
URL For More Information: www.energy.gov/eere/femp/notices-and-rules.
URL For Public Comments: www.regulations.gov.
Agency Contact: Ashley Armstrong, Director Regulatory Buildings,
EE-5B, Department of Energy, Energy Efficiency and Renewable Energy,
Building Technologies Office, 1000 Independence Avenue SW, Washington,
DC 20585, Phone: 202 586-6590, Email: [email protected].
RIN: 1904-AB96
DOE--EE
Final Rule Stage
48. Energy Conservation Standards for Residential Non-Weatherized Gas
Furnaces and Mobile Home Gas Furnaces [1904-AD20]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 6295(f)(4)(C); 42 U.S.C. 6295(m)(1); 42
U.S.C. 6295(gg)(3)
CFR Citation: 10 CFR 429; 10 CFR 430.
Legal Deadline: NPRM, Judicial, April 24, 2015, Final Rule,
Judicial, the later date of April 24, 2016, or one year after the
issuance of the proposed rule.
Abstract: The Energy Policy and Conservation Act, as amended,
(EPCA) prescribes energy conservation standards for various consumer
products and certain commercial and industrial equipment, including
residential furnaces. EPCA also requires the U.S. Department of Energy
(DOE) to determine whether more-stringent amended standards would be
technologically feasible and economically justified and would save a
significant amount of energy. DOE proposes amended and new energy
conservation standards for non-weatherized gas furnaces and mobile home
gas furnaces pursuant to a court-ordered remand of DOE's 2011
rulemaking for these products and other statutory requirements.
Statement of Need: EPCA requires minimum energy efficiency
standards for certain appliances and commercial equipment, including
residential furnaces.
Summary of Legal Basis: Title III of the Energy Policy and
Conservation Act of 1975 (EPCA), Public Law 94-163 (42 U.S.C. 6291-
6309, as codified), established the Energy Conservation Program for
Consumer Products Other Than Automobiles. Pursuant to EPCA, any new or
amended energy conservation standard that the U.S. Department of Energy
(DOE) prescribes for certain products, such as residential furnaces,
shall be designed to achieve the maximum improvement in energy
efficiency that is technologically feasible and economically justified
(42 U.S.C. 6295(o)(2)(A)) and result in a significant conservation of
energy (42 U.S.C. 6295(o)(3)(B)).
Alternatives: The statute requires DOE to conduct rulemakings to
review standards and to revise standards to achieve the maximum
improvement in energy efficiency that the Secretary determines is
technologically feasible and economically justified. In making this
determination, DOE conducts a thorough analysis of the alternative
standard levels, including the existing standard, based on the criteria
specified in the statute.
Anticipated Cost and Benefits: DOE finds that the benefits to the
Nation of the proposed energy standards for Residential Non-Weatherized
Gas Furnaces and Mobile Home Gas Furnaces (such as energy savings,
consumer average lifecycle cost savings, an increase in national net
present value, and emission reductions) outweigh the burdens (such as
loss of industry net present value). For non-weatherized gas furnaces
and mobile home gas furnaces, DOE estimates that energy savings for
active mode operation (in terms of annual fuel utilization efficiency
(AFUE)) will be 5.48 quads over 30 years and that the net benefit to
the Nation will be between $6.2 billion and $21.6 billion. DOE
estimates that energy savings for standby mode and off mode operation
will be 0.28 quads over 30 years and that the net benefit to the Nation
will be between $1.1 billion and $3.4 billion.
[[Page 11020]]
Risks: Optional field--no response.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice of Public Meeting............ 10/30/14 79 FR 64517
NPRM and Notice of Public Meeting... 03/12/15 80 FR 13120
NPRM Comment Period Extended........ 05/20/15 80 FR 28851
NPRM Comment Period Extended End.... 07/10/15
Notice of Data Availability (NODA).. 09/14/15 80 FR 55038
NODA Comment Period End............. 10/14/15
NODA Comment Period Reopened........ 10/23/15 80 FR 64370
NODA Comment Period Reopened End.... 11/06/15
Supplemental NPRM and Notice of 09/23/16 81 FR 65720
Public Meeting.
Supplemental NPRM Comment Period End 11/22/16
SNPRM Comment Period Reopened....... 12/05/16 81 FR 87493
SNPRM Comment Period End............ 01/06/17
Notice of NPRM Withdrawal........... 01/15/21 86 FR 3873
NPRM................................ 07/07/22 87 FR 40590
Notification of data availability 08/30/22 87 FR 52861
(NODA), public meeting, and
extension of the comment period.
NPRM Comment Period End............. 10/06/22
Final Action........................ 09/00/23
------------------------------------------------------------------------
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/72.
URL For Public Comments: www.regulations.gov/#!docketDetail;D=EERE-
2014-BT-STD-0031.
Agency Contact: Julia Hegarty, Department of Energy, 1000
Independence Avenue SW, Washington, DC 20585, Phone: 240 597-6737,
Email: [email protected].
RIN: 1904-AD20
DOE--DEPARTMENTAL AND OTHERS (ENDEP)
Final Rule Stage
49. Loan Guarantees for Clean Energy Projects [1901-AB59]
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 16511 et seq.
CFR Citation: 10 CFR 609.
Legal Deadline: None.
Abstract: The Inflation Reduction Act (IRA) has added new
categories of eligible projects to the U.S. Department of Energy (DOE)
Loan Programs Office's program authorized by Title XVII of the Energy
Policy Act of 2005, as amended (42 U.S.C. 16511 et seq.). This requires
immediate and material changes to DOE's existing regulations (10 CFR
part 609) implementing the Title XVII program for DOE to be able to
accept applications and issue loan guarantees for those categories of
projects. The loan authority and appropriations authorized under the
IRA are available through September 30, 2026, making the implementation
of the authority time-sensitive. The rule would also include changes to
the existing regulations based on experience gained implementing the
Title XVII loan guarantee program and to reflect amendments to Title
XVII enacted by the Energy Policy Act of 2020 and the Infrastructure
Investment and Jobs Act of 2021.
Statement of Need: The existing regulations governing Title XVII do
not contemplate certain categories of projects and terms applicable to
Title XVII, as amended by recent legislation. As such, DOE must revise
its regulations in order to effectuate the new categories of eligible
projects and terms.
Summary of Legal Basis: Title XVII of the Energy Policy Act of
2005, Public Law 109-58 (42 U.S.C. 16511 et seq.) established a program
for the Department of Energy to guarantee loans for innovative projects
that avoid, reduce, or sequester air pollutants or anthropogenic
emissions of greenhouse gases. Title XVII has since been amended,
including most recently under the Consolidated Appropriations Act of
2021 (Energy Act of 2020), Public Law 116-260, the Infrastructure
Investment and Jobs Act of 2021, Public Law 117-158 (IIJA), and the
Inflation Reduction Act of 2022, Public Law 117-169 (IRA).
Alternatives: This rulemaking seeks to codify recent legislative
changes to the Title XVII program and make changes to DOE's regulations
to improve implementation of the program. DOE recently solicited input
from stakeholders to understand how it could improve the Title XVII
program.
Anticipated Cost and Benefits: The Title XVII rule sets forth the
policies and procedures DOE uses for the application process, which
includes receiving, evaluating, and approving loan guarantees to
support eligible projects under Title XVII. While the rule itself will
not have a direct economic impact, it will enable DOE's use of nearly
$300 billion of additional loan authority provided under the IIJA and
IRA.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Rebecca Limmer, Chief Counsel, Department of
Energy, 1000 Independence Avenue SW, Washington, DC 20585, Phone: 202
586-1174, Email: [email protected].
RIN: 1901-AB59
BILLING CODE 6450-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Statement of Regulatory Priorities for Fiscal Year 2023
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 (FY) 2023 is
focused on expanding access to health care, tackling disparities and
advancing equity, increasing the nation's public health preparedness,
and supporting the wellbeing of families and communities. To highlight
a few of these regulatory priorities:
This Plan expands access to health care and strengthens
behavioral health, with rules that expand evidence-based behavioral
health treatment via telehealth and streamline enrollment and improve
access to care for children and families through the Medicaid
[[Page 11021]]
program and the Children's Health Insurance Program (CHIP), among
others.
The Department is also taking action to advance equity in
health and social outcomes, including through rules designed to prevent
discrimination and protect every person's ability to equitably obtain
health care and human services, regardless of where they live, who they
are, or their background.
Forthcoming rules would also increase the nation's public
health preparedness, such as measures aimed at ensuring Americans are
able to access safe produce and imported foods, and rules that would
bolster the Department's ability to respond to the spread of COVID-19
and prevent future public health threats.
This Plan supports the wellbeing of families and
communities by including rules that would strengthen services for older
Americans to allow them to live in their communities, as well as ensure
that children and youth receive the care and support they need to
thrive.
In short, the Department's Regulatory Plan reflects the Biden-
Harris Administration's commitment to continue building a better,
healthier America, through rules designed to help protect the public
health and to improve the health and wellbeing of every person touched
by HHS programs.
I. Building and Expanding Access to Affordable Health Care
The Biden-Harris Administration is committed to ensuring that high-
quality health care is accessible and affordable for every American.
The Inflation Reduction Act of 2022 (IRA), signed by President Biden in
August, lowers costs for American families by continuing increased
premium tax credits for plans under the Affordable Care Act (ACA),
allowing the federal government to negotiate prices for certain drugs
under Medicare, and more. The Bipartisan Safer Communities Act of 2022,
signed by President Biden in June, expands capacity and advances access
to behavioral health treatment, particularly for children and youth.
Additionally, President Biden's Executive Order on Continuing to
Strengthen Americans' Access to Affordable, Quality Health Coverage
(E.O. 14070) calls on federal agencies--including the Department--to
continue to expand the availability of health care coverage, improve
its quality, strengthen benefits, and help more Americans enroll.
Charged with overseeing federal health programs such as Medicare,
Medicaid, CHIP, and the ACA Marketplace, the Department plays a central
role in the Administration's agenda to protect and strengthen access to
health care. From day one of this Administration, the Department has
worked closely with states to expand Medicaid to hundreds of thousands
of newly eligible people and to allow Medicaid enrollees who are
pregnant to keep their coverage for up to one year after pregnancy. The
Department has also maximized opportunities to enroll a record number
of people in ACA coverage and strengthened policies related to coverage
and benefits in the ACA Marketplace. These actions, alongside others,
have contributed to an all-time low uninsured rate among Americans.
Over the next year, the Department will build upon its previous
efforts by pursuing rules aimed at enhancing coverage and access to
benefits in the ACA Marketplaces and the Medicaid, CHIP, and Medicare
programs; expanding the accessibility and affordability of drugs and
medical products; addressing behavioral health needs; and streamlining
the secure exchange of health information.
a. Enhancing Coverage and Access in the ACA Marketplaces, Medicaid,
CHIP, and Medicare
The Department will take several regulatory actions in the next
year to improve access to care for Americans in the ACA Marketplace,
Medicaid, CHIP, and Medicare. For example, the Department expects to
finalize a rule on eligibility and enrollment processes in Medicaid and
CHIP that will streamline the application, eligibility determination,
enrollment, and renewal processes for these programs and create new
pathways to maximize enrollment and retention of eligible individuals.
Additional rules would promote access to care in Medicaid and CHIP
and raise standards for hospitals, providers, and other entities
participating in Medicare and Medicaid. For example, the Department
plans to issue a proposed rule that would establish cultural competency
and person-centered care requirements for all provider and supplier
types that participate in the Medicare and Medicaid programs.
The HHS Regulatory Plan also includes regulations aimed at
improving access to care for consumers in the ACA Marketplaces. For
instance, the Department plans to propose a rule on provider
nondiscrimination requirements for certain health plans and issuers.
This rule would protect patients' access to care and promote
competition by ensuring that plans do not engage in unlawful
discrimination against health care providers. 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. Finally, the Department will propose to amend
regulations on short-term limited duration plans to better ensure
access to comprehensive coverage for Americans, especially those with
pre-existing conditions.
In addition to the above, the Centers for Medicare & Medicaid
Services (CMS) will issue several annual payment rules and notices over
the next year that affect federal health programs, including Medicare
and the ACA Marketplace. These rules, though they are not included in
the HHS Regulatory Plan, will include policies that further the
Secretary's priority of expanding access to affordable, high-quality
health care.
b. Expanding the Accessibility and Affordability of Drugs and Medical
Products
Over the next year, the Department will continue expanding the
accessibility and affordability of drugs and other medical products for
Americans. For example, the Department expects to issue a final rule to
set requirements for nonprescription drug products with an additional
condition to ensure appropriate self-selection or appropriate actual
use (or both) for consumers. This rule is expected to increase consumer
access to nonprescription drugs, which could mean a reduction in under-
treatment of certain diseases and conditions. The Department also plans
to propose updates to the Food and Drug Administration (FDA) biologics
regulations to support competition and enhance consumer choice through
changes that would prevent efforts to delay or block competition from
biosimilars and interchangeable products.
The Department is also working to implement the IRA through
policies aimed at reducing the high cost of prescription drugs for
people with Medicare. Furthermore, the Department is committed to
making sure Medicare beneficiaries are able to access emerging
technologies and will initiate notice and comment rulemaking in the
coming months to explore policy options that would create an
accelerated approval pathway. This pathway would build on prior
initiatives, including coverage with evidence development.
In addition, in November 2022, the Department issued a proposed
rule on the Administrative Dispute Resolution
[[Page 11022]]
(ADR) process used to settle certain disputes among covered entities
and manufacturers arising under the 340B Drug Pricing Program. This
rule would establish new requirements and procedures for the Program's
ADR process, making the process more equitable and accessible for
participation by program participants, and supporting the Program's
mission to expand access to health care for underserved communities.
c. Addressing Behavioral Health Needs
The Secretary remains committed to expanding access to integrated
and equitable behavioral health services, including by addressing the
impacts of the COVID-19 pandemic on mental health and substance use,
which have disproportionately affected young people and underserved
communities. This commitment will guide the Department's planned
regulatory activity for FY 2023, which includes several rules aimed at
tackling mental health challenges and substance use disorders.
For example, the HHS Regulatory Plan includes a proposed rule that
is intended to make permanent certain telehealth flexibilities for
substance use disorder treatments that were granted during the COVID-19
public health emergency. This rule would allow certain providers to
provide buprenorphine via telehealth, as well as provide extended take-
home doses of methadone to patients, when it is safe and appropriate to
do so. Both changes are intended to increase access to comprehensive
opioid use disorder treatment and may address barriers to treatment
such as transportation, geographic proximity, employment, or other
required activities of daily living.
Working closely with the Departments of Labor and the Treasury, the
Department will also issue a proposed rule to implement portions of 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.
In November 2022, the Department also announced a proposed rule on
the confidentiality of substance use disorder patient records.
Consistent with the CARES Act, this rule would align HHS regulations
governing the disclosure and use of substance use disorder patient
records (42 CFR part 2) with aspects of the HIPAA Privacy, Breach
Notification, and Enforcement Rules; strengthen 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.
d. Streamlining the Secure Exchange of Health Information
The secure exchange of health information and interoperability
among health care providers and other entities improves patient care,
promotes competition, reduces costs, and provides more accurate public
health data.
To help ensure greater interoperability and transparency, the HHS
Regulatory Plan includes rules focused on addressing and preventing
information blocking, consistent with the 21st Century Cures Act (Cures
Act). For instance, the Department plans to finalize a rule that would,
among other things, empower the HHS Office of the Inspector General
(OIG) to investigate claims of information blocking and impose civil
monetary penalties on health IT developers and health information
networks where appropriate. Another complementary proposed rule would
implement the Secretary's authority under the Cures Act to establish
appropriate disincentives for health care providers found to have
committed information blocking. The Department is also proposing a rule
on the Electronic Health Record (EHR) Reporting Program condition and
maintenance of certification requirements under the Office of the
National Coordinator for Health Information Technology (ONC) Health IT
Certification Program, which would include enhancements to support
information sharing under the information blocking regulations.
The Department is also advancing interoperability policies in the
context of the federal health programs it administers and oversees. For
example, the Department will propose rules to improve the electronic
exchange of health care data and streamline processes related to prior
authorization for Medicare Advantage (MA) organizations, Medicaid
managed care plans, CHIP managed care entities, state Medicaid and CHIP
fee-for-service (FFS) programs, and Qualified Health Plan (QHP) issuers
on the Federally Facilitated Exchange (FFE). Similarly, the
Department's upcoming proposed rule on strengthening and improving the
Medicare Advantage and prescription drug programs will include
provisions proposing to enhance interoperability within Medicare.
II. Tackling Disparities and Advancing 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,
queer, and intersex (LGBTQI+) 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 and social outcomes and in 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. The
Department's regulatory priority of tackling disparities and advancing
equity includes rules aimed at preventing and remedying discrimination;
strengthening health and safety standards for consumer products that
impact underserved communities; and promoting equity in federally
supported health care services.
In addition to the specific rulemakings identified in this section,
HHS is committed to advancing equity in all aspects of the Department's
work. 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's efforts in this area
include an ongoing assessment of whether underserved communities face
barriers in accessing benefits and opportunities in HHS programs and
whether policy changes are necessary to advance equity. This process
continues to inform the Department's broader regulatory agenda.
a. Preventing and Remedying Discrimination
The HHS Regulatory Plan includes actions to eliminate
discrimination as a barrier for historically marginalized communities
seeking access to HHS programs and activities. For instance, the
Department plans to finalize its rule
[[Page 11023]]
on nondiscrimination in health programs and activities, which would
amend the existing regulations implementing section 1557 of the ACA,
ensuring that the regulations reflect the proper scope of the statute'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 addressing
discrimination on the basis of disability in 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 HHS-funded health and
human services programs. Topics that HHS may cover include
nondiscrimination in medical treatment, child welfare programs and
services, value assessment methodologies, accessible medical equipment,
information and communication technology, and other relevant health and
human services activities.
b. Strengthening Health and Safety Standards for Consumer Products That
Impact Underserved Communities
To protect the public health and advance equity, the Department
continues to pursue regulatory action with respect to consumer products
that harm the health of underserved groups.
Over the next year, the Department plans to finalize two rules that
prohibit menthol as a characterizing flavor in cigarettes and prohibit
all characterizing flavors (other than tobacco) in cigars. These and
other potential future regulatory actions have the potential to
significantly reduce disease and death from combusted tobacco product
use, the leading cause of preventable death in the United States.
The regulations are also expected to promote better health outcomes
across population groups. Evidence shows that tobacco is
disproportionately marketed to underserved communities and vulnerable
populations--such as disproportionate storefront and outdoor marketing,
as well as point-of-sale marketing, in Black, Hispanic, and low-income
communities. The disparities in tobacco marketing and use shape
disparities in tobacco-related disease and death. These planned
regulatory actions by the Department on tobacco are expected not only
to benefit the population as a whole, but, in doing so, also
substantially decrease tobacco-related health disparities.
c. Promoting Equity in Federally Supported Health Care Services
The Department continues to seek out opportunities to embed equity
throughout HHS programs and policies, including in federally supported
health care services. The World Trade Center (WTC) Health Program is a
limited federal health program that provides no-cost medical monitoring
and treatment for certified WTC-related health conditions to those
directly affected by the 9/11 attacks. The Department plans to issue a
proposed rule to add uterine cancer to the List of WTC-Related Health
Conditions.Permitting the Program to pay for medically necessary
treatment, this rule would advance health equity for those WTC Health
Program members who are found to have WTC-related uterine cancer.
III. Increasing Public Health Preparedness
Protecting the nation's public health is a primary responsibility
of the Department. This responsibility includes ensuring that the right
protections and infrastructure are in place to help the nation to
respond to public health threats and outbreaks quickly and effectively,
including COVID-19. It also includes ensuring healthy and safe food for
every American through protections against foodborne illness in the
food supply chain.
In service of this regulatory priority, over the next year, the
Department is pursuing rules that would bolster the nation's resilience
to handle COVID-19 and future public health threats and improve
Americans' access to safe and nutritious food.
a. Bolstering the Nation's Resilience To Handle COVID-19 and Future
Public Health Threats
The Department continues to play 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, Secretary Becerra has leveraged the Department's full
resources to pursue a comprehensive strategy to combat COVID-19.
In the context of COVID-19 and other disease outbreaks, it is
crucial for public health authorities to be able to identify and
evaluate persons who may have been exposed to a communicable disease.
Currently, on an interim basis, the Centers for Disease Control and
Prevention (CDC) is authorized to require airlines to collect certain
data regarding passengers and crew arriving from foreign countries for
the purposes of health education, treatment, prophylaxis, or other
appropriate public health interventions, including contact tracing and
travel restrictions. The Department intends to finalize this regulation
in FY 2023. This would allow the Department to continue to receive data
in a timely manner and more effectively provide critical public health
services in response to COVID-19 and other communicable diseases that
may put Americans' health at risk.
In addition to strengthening the public health system, the
Department is continuing to address the need for flexibility in HHS
programs to minimize disruptions and alleviate burdens that may be
caused by COVID-19 or future emergencies. To that end, the Department
also plans to finalize its rule allowing current grantees under the
Administration for Native Americans (ANA) 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.
b. Improving Access to Safe and Nutritious Food
To help ensure healthy and safe food for every American, the HHS
Regulatory Plan includes rules that improve the Department's ability to
identify foodborne illnesses, prevent them from reoccurring, and remove
unsafe products from the market. It also supports the goals of the
White House Conference on Hunger, Nutrition, and Health, by advancing
work to improve consumers' ability to access nutritious food to prevent
disease and protect public health.
For example, the Department will finalize a rule intended to
improve the safety of produce by requiring farms to conduct
comprehensive assessments of pre-harvest agricultural water that would
help farms identify and mitigate hazards in water used to grow produce.
Moreover, the Department is proposing a rule that would require
importers of certain foods to certify, or otherwise provide appropriate
assurances, that these imported foods comply with U.S. safety
requirements. This rule would help prevent potentially harmful imported
foods from reaching consumers and thereby improve the safety of the
U.S. food supply. In November 2022, the Department finalized its rule
establishing additional recordkeeping requirements for persons
[[Page 11024]]
who manufacture, process, pack, or hold foods identified on the Food
Traceability List (FTL). This rule is intended to make it easier to
rapidly and effectively track the movement of a food to prevent or
mitigate a foodborne illness outbreak.
In addition, the Department seeks to improve dietary patterns in
the United States to help reduce the burden of diet-related chronic
diseases. One way HHS is working towards creating a healthier food
supply is by proposing a rule that would permit use of salt
substitutes, rather than salt, to help reduce the amount of sodium in
standardized foods.
IV. Supporting the Wellbeing of Families and Communities
The Department strives to support the wellbeing of Americans by
funding and providing access to a range of critical social services.
Millions of people benefit from HHS programs that help older adults and
people with disabilities participate fully in their communities,
promote opportunity and economic security for families, help refugees
and other eligible newcomers integrate and thrive, and provide care for
unaccompanied children. The Secretary recognizes that these programs
and forms of assistance are more important than ever due to the COVID-
19 pandemic and its economic consequences, which have had an outsized
impact on people of color and other underserved communities.
To sustain and strengthen these essential benefits and services,
the Department is prioritizing regulations that would improve their
quality and accessibility while reducing burdens and increasing the
efficiency of service delivery. The Secretary's regulatory priority in
this area includes rules aimed at strengthening high-quality services
for older adults, expanding opportunities for children and youth to
thrive, and providing pathways to economic success.
a. Strengthening High-Quality Services for Older Adults
The HHS Regulatory Plan includes rules aimed at enhancing the
ability of Administration for Community Living (ACL) programs to
protect the rights and wellbeing of older adults. For instance, the
Department plans to propose regulations for Adult Protective Services
(APS) programs that will strengthen services for older adults and
adults with disabilities that experience adult maltreatment.
Additionally, the Department will propose changes to its Older
Americans Act (OAA) regulations to support long-term care services,
nutrition, caregiver supports, and more, for older adults. In both
rulemakings, the Department plans to incorporate applicable elements
E.O. 13985 and ensure access to services for individuals with the
greatest social and economic need.
Furthermore, consistent with the Biden-Harris Administration's
Nursing Home Reform Action Plan, the Department's Regulatory Plan
includes efforts to improve the safety and quality of care in the
nation's nursing homes. For example, in the next year, the Department
plans to issue proposed rules that are intended to institute minimum
staffing standards in nursing homes, protect residents, and prevent
fraud, waste, and abuse.
b. Expanding Opportunities for Children and Youth To Thrive
The Department's mission to provide effective human services
includes a focus on protecting the wellbeing of children and youth.
This focus has special significance given the COVID-19 pandemic and its
economic consequences, which have deeply affected the lives of children
and youth--particularly Black, Latino, Indigenous, Native American, and
other underserved youth with disproportionate involvement in the child
welfare system. Several rules planned for FY 2023 are aimed at
enhancing programs and protections for youth and families experiencing
foster care, unaccompanied children in the Department's care, and
individuals entitled to child support.
As part of its focus on the foster care and the child welfare
system, the Department will propose changes to the Adoption and Foster
Care Analysis and Reporting System (AFCARS) regulations that would help
the Department to administer foster care and adoption assistance
programs more effectively and better serve children and families. This
rule would require title IV-E agencies to collect and report for AFCARS
additional information related to the Indian Child Welfare Act of 1978
and the sexual orientation of youth in the reporting population and
their foster parents, adoptive parents, and legal guardians. The
Department will also propose a rule allowing licensing standards for
relative or kinship foster family homes that are different from non-
relative or non-kinship homes. 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. Additionally, the Department will issue a proposed rule 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.
Moreover, the Department's commitment to children and youth
includes rules intended to ensure the highest level of services and
care for unaccompanied children in the Department's custody. For
instance, the Department will propose a new rule to strengthen and
codify protections and service provisions for children cared for by the
Office of Refugee Resettlement's (ORR's) Unaccompanied Children
Program. Furthermore, the Department will issue a proposed rule that
would provide new regulations governing the federal licensing of ORR
facilities, which may be used in certain situations when state
governments do not provide state licensing for such facilities.
Finally, the Department is taking action to protect the
sustainability of tribal child support programs. The Department's
forthcoming proposed rule on tribal child support programs would modify
the non-federal share of the program expenditures requirement,
including 90/10 and 80/20 cost sharing rates.
c. Providing Pathways to Economic Success
In administering the Temporary Assistance for Needy Families (TANF)
program, the Department works with states, territories, and tribes to
help children and families achieve economic success. The COVID-19
pandemic highlighted the importance of using federal investments and
existing program flexibilities strategically to reduce family poverty
and alleviate economic crises, especially for families of color and
underserved communities. In the next year, the Department plans to
issue a proposed rule to reform the TANF program to strengthen the
safety net and work preparation program for families and individuals
with the lowest income, change allowable uses of TANF funds to refocus
on the intended purposes of TANF, improve work program effectiveness,
and reduce administration burden. These changes are intended to improve
the overall wellbeing of families while addressing inequities in
program services and policies.
[[Page 11025]]
HHS--OFFICE OF THE INSPECTOR GENERAL (OIG)
Final Rule Stage
50. Amendments to Civil Monetary Penalty Law Regarding Grants,
Contracts, and Information Blocking [0936-AA09]
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's 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: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/24/20 85 FR 22979
NPRM Comment Period End............. 06/23/20
Final Action........................ 03/00/23
------------------------------------------------------------------------
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
51. Rulemaking on Discrimination on the Basis of Disability in Health
and Human Services Programs or Activities [0945-AA15]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: sec. 504 of the Rehabilitation Act of 1973; 29
U.S.C. 794
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 vital HHS-funded health
and human services programs. Covered topics may include
nondiscrimination in medical treatment, child welfare programs and
activities, value assessment methods, accessible medical equipment,
information and communication technology, 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), case law, 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.
Summary of Legal Basis: 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
[[Page 11026]]
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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
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: 800
368-1019, TDD Phone: 800 537-7697, Email: [email protected].
RIN: 0945-AA15
HHS--OCR
Final Rule Stage
52. Nondiscrimination in Health Programs And Activities [0945-AA17]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: sec. 1557 of the Patient Protection and Affordable
Care Act (42 U.S.C. 18116); 42 U.S.C. 1302; 42 U.S.C. 1395; 42 U.S.C.
1395eee(f); 42 U.S.C. 1396u-4(f); 42 U.S.C. 2000d-1; 20 U.S.C. 1405; 29
U.S.C. 794; 42 U.S.C. 290dd-2; 21 U.S.C. 1174; 42 U.S.C. 300gg to
300gg-63; 42 U.S.C. 300gg-91; 42 U.S.C. 300gg-92; 42 U.S.C. 300gg-111
to 300gg-139 as amended, sec. 3203; Pub. L. 116-136, 134 Stat. 281; 42
U.S.C. 18021 to 18024; 42 U.S.C. 18031 to 18033; 42 U.S.C. 18041 to
18042; 42 U.S.C. 18044; 42 U.S.C. 18051; 42 U.S.C. 18054; 42 U.S.C.
18061; 42 U.S.C. 18063; 42 U.S.C. 18071; 42 U.S.C. 18081 to 18083; 26
U.S.C. 36B
CFR Citation: 42 CFR 438; 42 CFR 440; 42 CFR 457; 42 CFR 460; 45
CFR 80; 45 CFR 84; 45 CFR 86; 45 CFR 91; 45 CFR 92; 45 CFR 147; 45 CFR
155; 45 CFR 156; . . .
Legal Deadline: None.
Abstract: This rule will address 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 l of the PPACA.
Statement of Need: The Biden-Harris Administration has made
advancing health equity and nondiscrimination in health care 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 are consistent with the statutory text and 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
that are difficult to quantify, 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 estimates annualized costs over a 5-
year time horizon of about $551 million or $560 million; however, it is
important to recognize that this rule 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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/04/22 87 FR 47751
NPRM Comment Period End............. 10/03/22 .......................
Final Action........................ 03/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State.
URL For More Information: https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.
URL For Public Comments: https://www.regulations.gov/document/HHS-OS-2022-0012-0001.
Agency Contact: Dylan Nicole De Kervor, Senior Advisor to the
Director, Department of Health and Human Services, Office for Civil
Rights, 200 Independence Avenue SW, Washington, DC 20201, Phone: 202
240-3110, Email: [email protected]">1557[email protected].
Related RIN: Related to 0945-AA02, Related to 0945-AA11
RIN: 0945-AA17
[[Page 11027]]
HHS--OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION
TECHNOLOGY (ONC)
Proposed Rule Stage
53. 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
[0955-AA03]
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 the United States
Core Data for Interoperability, real-time benefit tools, 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 proposals for new standards and certification
criteria under the Certification Program related to the United States
Core Data for Interoperability, 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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
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--ONC
54. Establishment of Disincentives for Health Care Providers
Who Have Committed Information Blocking [0955-AA05]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 300jj-52; 42 U.S.C. 1315a; 42 U.S.C.
1395jjj; 42 U.S.C. 1395ww; 42 U.S.C. 1395f; 42 U.S.C. 1395w-4; 42
U.S.C. 1395yy; 42 U.S.C. 1395rr; 42 U.S.C. 1395f; 42 U.S.C. 1395l; 42
U.S.C. 195fff
CFR Citation: 45 CFR 171; 42 CFR 495; 42 CFR 413; 42 CFR 41.
Legal Deadline: None.
Abstract: The rulemaking implements certain provisions of the 21st
Century Cures Act to establish appropriate disincentives for health
care providers determined by the Inspector General to have committed
information blocking. Consistent with the 21st Century Cures Act, the
rulemaking establishes a first set of disincentives using HHS
authorities under applicable Federal law, including authorities
delegated to the Centers for Medicare & Medicaid Services, and includes
related policies necessary to implement these provisions.
Statement of Need: The rulemaking would implement a provision of
the 21st Century Cures Act which requires OIG to refer health care
providers that OIG determines to have committed information blocking to
the appropriate agency to be subject to appropriate disincentives using
authorities under applicable Federal law, as the Secretary sets forth
through notice and comment rulemaking. Release of the proposed rule is
needed to implement this critical component of the Cures Act and ensure
effective enforcement of information blocking rules.
Summary of Legal Basis: The provisions would be implemented under
the authority of the Public Health
[[Page 11028]]
Service Act, as amended by the 21st Century Cures Act.
Alternatives: ONC will consider different available authorities
under which appropriate disincentives could be established to minimize
regulatory burden for health care providers.
Anticipated Cost and Benefits: The costs of this proposed rule
would be minimal. Investigated parties may incur some costs in response
to an OIG investigation or enforcement action by an HHS agency, however
this would depend on the frequency of prohibited conduct. The expected
benefits of the regulation are deterring information blocking conduct
that interferes with effective health information exchange and
negatively impacts many important aspects of health care, including
patient access, duplicative testing and costs, and the availability and
quality of care.
Risks: We anticipate that health care providers will express
concern with the potential complexity of the approach (i.e., the
application of a range of disincentives based on available authorities)
as compared to a range of civil monetary penalties or fines. ONC will
continue to consider additional potential risks, identify them for
stakeholders, and seek comment from stakeholders during the comment
period for the proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Alex Baker, Federal Policy Branch Chief, Department
of Health and Human Services, Office of the National Coordinator for
Health Information Technology, 330 C Street SW, 7th Fl., Washington, DC
20201, Phone: 202 260-2048, Email: [email protected].
RIN: 0955-AA05
HHS--ONC
55. Patient Engagement, Information Sharing, and Public Health
Interoperability [0955-AA06]
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
CFR Citation: 45 CFR 170; 45 CFR 171.
Legal Deadline: None.
Abstract: The rulemaking builds on policies adopted in the 21st
Century Cures Act: Interoperability, Information Blocking, and the ONC
Health IT Certification final rule (85 FR 25642) and included in the
Health Information Technology: 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 proposed rule (0955-AA03). The rulemaking advances
electronic health information sharing through proposals for: standards
adoption; the certification of health IT to support expanded uses of
application programming interfaces (APIs), such as electronic prior
authorization, patient engagement, and interoperable public health
exchange; and supporting patient engagement and other information
sharing principles under the information blocking regulations.
Statement of Need: The rulemaking builds on policies adopted in the
21st Century Cures Act: Interoperability, Information Blocking, and the
ONC Health IT Certification final rule (85 FR 25642) and included in
the Health Information Technology: 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 proposed rule (0955-AA03). The rulemaking is needed
to advance electronic health information sharing through proposals for:
standards adoption; the certification of health IT to support expanded
uses of application programming interfaces (APIs), such as electronic
prior authorization, patient engagement, and interoperable public
health exchange; and supporting patient engagement and other
information sharing principles under the information blocking
regulations.
Summary of Legal Basis: The regulatory proposals 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 to improve
electronic health information interoperability and sharing 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. We also expect that implementation of new
standards for interoperability and information sharing requirements may
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 improved
interoperability and the access, exchange, and use of 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
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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
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-AA06
HHS--SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA)
Proposed Rule Stage
56. Medications for the Treatment of Opioid Use Disorder [0930-AA39]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 21 U.S.C. 823(g)(1)
CFR Citation: 42 CFR 8.
Legal Deadline: None.
Abstract: The Substance Abuse and Mental Health Services
Administration (SAMHSA) will revise 42 CFR part 8 to make permanent
some regulatory flexibilities for Opioid Treatment Programs (OTPs)
granted under the COVID-19 Public Health Emergency (PHE), and to expand
access to care for people with Opioid Use Disorder (OUD). Specifically,
SAMHSA will propose making permanent those flexibilities pertaining to
unsupervised
[[Page 11029]]
doses of methadone and also initiation of buprenorphine via
telemedicine. To expand access to care, SAMHSA will also review
admission criteria, particularly rules that may limit timely access to
treatment in an OTP. To achieve this, sections of 42 CFR part 8 will
require updating. SAMHSA's changes will impact roughly 1900 opioid
treatment programs and state opioid treatment authorities.
Statement of Need: These proposed changes 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 and stakeholder feedback indicate that flexibilities granted
under the COVID-19 PHE have been well received by treatment programs
and patients. There are very few reports of diversion or overdose, and
the flexibilities have been shown to facilitate patient engagement in
activities, such as employment, that support recovery. Moreover, those
with limited access to transportation benefit from these flexibilities
since they are not required to attend the OTP as frequently. In this
way, making permanent the methadone extended take home flexibility and
buprenorphine initiation via telehealth flexibility will facilitate
treatment engagement. To further support this and to help surmount
increasing mortality and morbidity due to the growing fentanyl-driven
overdose crisis, it is necessary to review OTP admission criteria. This
will further expand access to care.
Summary of Legal Basis: The current OTP flexibilities allow OTPs to
operate in a manner that is otherwise inconsistent with existing OTP
regulations, and therefore, a permanent extension of such exemptions
would effectively revise the OTP regulations. If such action is pursued
without rulemaking, it could be interpreted as inconsistent with
SAMHSA's exemption authority under 42 CFR 8.11(h) and the
Administrative Procedures Act, which requires agencies to go through
notice and comment rulemaking before establishing legally binding
rules. Therefore, incorporating the OTP flexibilities at issue into 42
CFR part 8 through rulemaking is the optimal approach for making the
OTP flexibilities permanent.
Alternatives: Congressional action; allowing the flexibilities to
lapse.
Anticipated Cost and Benefits: This change will help facilitate
access to opioid use disorder treatment in SAMHSA-regulated OTPs.
Programs have already incorporated COVID-19 flexibilities into practice
and have systems in place that support their delivery in a cost
effective, safe, and patient centered manner. This proposed rule is not
expected to impart a cost to patients. In fact, the proposed rule
allows patients to more readily engage in employment and necessary
daily activities. This supports patient workforce participation, income
generation, and also recovery. Further to this, expanded access will
potentially limit the long-term effects of opioid misuse among those
seeking rapid access to treatment.
Risks: Patients seeking extended take-home doses of methadone or
who have been reviewed via telehealth for initiation of buprenorphine
should still be required to have an in-person visit at the OTP at
intermittent intervals. Without this provision, there is risk of
patients receiving a lower standard of care and increased risk of
diversion of medications.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
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
57. Control of Communicable Diseases; Foreign Quarantine [0920-AA75]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 264; 42 U.S.C. 265
CFR Citation: 42 CFR 71.
Legal Deadline: None.
Abstract: This rulemaking amends current regulation to enable CDC
to require airlines to collect and provide to CDC certain data elements
regarding passengers and crew arriving from foreign countries under
certain circumstances.
Statement of Need: In order to control the introduction,
transmission, and spread of communicable diseases such as COVID-19 into
the United States, the collection of traveler contact information helps
ensure that CDC and state and local health authorities are able to
identify and locate persons arriving in, or transiting through, the
United States from a foreign country who may have been exposed to a
communicable disease abroad.
Summary of Legal Basis: The Public Health Service Act (42 U.S.C.
264 and 268) authorizes the Secretary of the Department of Health and
Human Services to make and enforce regulations necessary to prevent the
introduction, transmission, or spread of communicable diseases from
foreign countries into the United States, or from one State or
possession into any other State or possession. Regulations that
implement federal quarantine authority are currently promulgated in 42
CFR parts 70 and 71. CDC's authority for collecting these data fields
is contained in 42 CFR 71.4.
Alternatives: The transmission of disease, as seen during the
COVID-19 pandemic, has the potential to lead to thousands or millions
of deaths in addition to the significant healthcare and economic costs.
Follow-up with passengers arriving from foreign countries who may be
infectious or exposed to a communicable disease is critical. The
alternative to collecting traveler contact information before their
flight is to collect the information from airlines following the
passenger's flight. When this was done in the past, some airlines took
several days to respond to a single request if the information was
available. In addition, there is significant time and labor required
for CDC to obtain additional information from federal databases and
process the received information into a format suitable for
distribution to state and local health authorities in the United
States. As a result, obtaining contact information after a flight,
assuming that information is available, can lead to a delay of several
days before health authorities can start contacting potentially exposed
travelers. This time delay allows for travelers to be lost to follow-up
or become symptomatic or infectious. The time required and costs
incurred under this alternative increase exponentially with multiple
post-flight manifest requests to airlines.
Anticipated Cost and Benefits: The annual, ongoing costs to collect
traveler contact information, in the form of airline and travel agency
staff time and passenger time, are estimated to be approximately $285
million. This does not include the initial costs for updating IT
systems and employee training, which have already been incurred. The
costs to the government are minimal, as
[[Page 11030]]
the vast majority of passenger information that is being collected is
transmitted to the government via established data systems that are
already in use for other purposes.
The benefits to this rulemaking include rapid follow-up by public
health authorities with passengers who may be infectious or exposed to
a communicable disease, resulting in less spread and transmission of
disease into and throughout the United States, helping to prevent
public health and economic costs. The availability of passenger contact
data may be used by public health authorities to slow the introduction
and transmission of novel infectious diseases, including new variants
of the SARS-CoV-2 virus, which causes COVID-19 disease.
Risks: The risk to not collecting this information is that CDC
would have to revert back to previous ways of obtaining this
information for public health follow up. Some of those methods were
time intensive and resulted in delays in follow up.
The risk, although minimal, in collecting this information is that
airlines and international passengers often do not want to comply (or
may not want to comply) with the requirement. To date, however, CDC has
found instances of noncompliance have been very limited.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule Effective........ 02/07/20
Interim Final Rule.................. 02/12/20 85 FR 7874
Interim Final Rule Comment Period 03/13/20
End.
Final Action........................ 11/00/23
------------------------------------------------------------------------
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.
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-AA75
HHS--CDC
58. World Trade Center Health Program; Addition of Uterine Cancer to
the List of WTC-Related Health Conditions [0920-AA81]
Priority: Other Significant.
Legal Authority: Pub. L. 111-347; Pub. L. 114-113
CFR Citation: 42 CFR 88.15.
Legal Deadline: NPRM, Statutory, February 28, 2022.
Authorizing statute requires publication of a rulemaking in the
Federal Register not later than 90 days after receipt of advisory
committee recommendation.
Abstract: With this rulemaking, HHS/CDC proposes to add uterine
cancer to the List of WTC-Related Health Conditions.
Statement of Need: Uterine cancer is the only type of cancer not
included on the List of WTC-Related Health Conditions (List) eligible
for coverage by the WTC Health Program. Following requests from WTC
responders and survivors, as well as a letter from five WTC Health
Program Clinical Centers of Excellence requesting the addition of
uterine cancer to the List, the Program reviewed the available
scientific evidence of an association between uterine cancer and 9/11
exposures in accordance with the WTC Health Program's Policy and
Procedures for Adding Cancers to the List of WTC-Related Health
Conditions. The disproportionately low representation of women in the
most studied cohorts of exposed responders makes it unlikely that a
definitive association between toxic exposure arising from the
September 11, 2001, terrorist attacks and the occurrence of uterine
cancer will be identified during the lifetimes of most WTC Health
Program members.
The Administrator of the WTC Health Program exercised discretion to
seek a recommendation from the Program's Scientific/Technical Advisory
Committee (STAC) and asked the STAC to review the available scientific
evidence concerning potential associations between 9/11 exposures and
uterine cancer. During public meetings, the STAC considered public
comments and deliberated on whether there is a reasonable basis to
recommend the addition of uterine cancer to the List, ultimately
providing the Administrator with its recommendation and rationale for
the addition. Based on the STAC's recommendation and the Program's
evaluation of the available scientific literature, the Administrator
determined that there is a sufficient evidentiary basis to propose the
addition of uterine cancer to the List. This action will promote equity
for Program members who are found to have WTC-related uterine cancer.
Summary of Legal Basis: Title I of the James Zadroga 9/11 Health
and Compensation Act of 2010 amended the Public Health Service (PHS)
Act to establish the WTC Health Program within HHS. See 42 U.S.C. 300mm
to 300mm61. The WTC Health Program provides medical monitoring and
treatment benefits to eligible responders to the September 11, 2001,
terrorist attacks in New York City, at the Pentagon, and in
Shanksville, Pennsylvania (responders), and eligible survivors in the
New York City disaster area (survivors). Treatment is available under
the Program for specified health conditions included on the List.
Section 3312(a)(6) of the PHS Act requires the Administrator of the WTC
Health Program to conduct rulemaking to propose the addition of a
health condition to the List codified in 42 CFR 88.15.
Alternatives: If the WTC Health Program did not add uterine cancer
to the List of WTC-Related Health Conditions, current and future WTC
Health Program members who have or develop uterine cancer likely
related to 9/11 exposures will not be eligible to receive treatment
services from the Program.
Anticipated Cost and Benefits: This final rulemaking is estimated
to cost the WTC Health Program between $1,718,691 and $3,617,447 per
annum for 2022-2025. Due to the implementation of provisions of the
Patient Protection and Affordable Care Act and as required under the
authorizing statute for the WTC Health Program, all of the members and
future members are assumed to have or have access to medical insurance
coverage other than through the WTC Health Program. Therefore, all
treatment costs to be paid by the WTC Health Program are considered
transfer payments. This final rulemaking will not impose costs on
Program members or any other interested party.
WTC Health Program members with certified WTC-related uterine
cancer are expected to experience better treatment outcomes with
Program physicians as compared to receiving care outside of the
Program. Members may experience higher survival rates compared with
those not enrolled and have improved access to timely care, which is
associated with improved treatment outcomes.
Risks: The WTC Health Program may be perceived as a policy decision
as a result of this rulemaking because the
[[Page 11031]]
science informing proposed additions to the List is limited by
incomplete information on 9/11 exposures, health outcomes, and the
relationships they share. For example, the exposures experienced by the
responders and survivors on and after September 11, 2001 were not
measured and can only be estimated. Also, there are relatively few
women in the 9/11-exposed populations; therefore, studies lack the
statistical power needed to observe a causal association among women
with a high degree of certainty. Given incomplete information, some may
argue against the sufficiency of the science supporting the addition of
uterine cancer to the List.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/10/22 87 FR 27961
NPRM Comment Period End............. 06/24/22 .......................
Final Action........................ 01/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Agency Contact: Rachel Weiss, Public Health Analyst, Department of
Health and Human Services, Centers for Disease Control and Prevention,
1090 Tusculum Avenue, MS C-46, Cincinnati, OH 45226, Phone: 404 498-
2500, Email: [email protected].
RIN: 0920-AA81
HHS--FOOD AND DRUG ADMINISTRATION (FDA)
Proposed Rule Stage
59. Biologics Regulation Modernization [0910-AI14]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 262; 21 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) helping 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
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NPRM................................ 10/00/23 .......................
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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
60. Certifications Concerning Imported Foods [0910-AI66]
Priority: Other Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 21 U.S.C. 381; 21 U.S.C. 371(b); 42 U.S.C. 243; 42
U.S.C. 264; 42 U.S.C. 271; . . .
CFR Citation: 21 CFR 1, Subpart F.
Legal Deadline: None.
Abstract: This regulation, if finalized, will help prevent
potentially harmful imported foods from reaching consumers and thereby
improve the safety of the U.S. food supply by allowing the agency to
require, as a condition of importation of food with known safety risk,
a certification or such other assurances as the Agency determines
appropriate, that imported food complies with U.S food safety
requirements.
Statement of Need: Imported food is increasingly implicated in U.S.
foodborne illness outbreaks. These illnesses emphasize the importance
of ensuring imported food meets applicable requirements of the Act.
Historically, FDA has relied on its staff to detect safety problems
with imported food by intercepting and examining food products when
they are offered for import into the United States or by performing
inspections of foreign facilities that produce food for export to the
United States. This rule, if finalized, would establish requirements
for implementing import certification as a condition of granting
admission to an article of food imported into the United States,
pursuant to section 801(q) of the FD&C Act. We anticipate that this
regulation, if finalized, will help prevent potentially harmful
imported foods from reaching consumers and thereby improve the safety
of the U.S. food supply.
Summary of Legal Basis: Section 303 of FSMA, Authority to Require
Import Certifications for Food, amended section 801 of the FD&C Act (21
U.S.C. 381) to create a new subsection (q) entitled, Certifications
Concerning Imported Foods. Section 801(q) gives FDA authority to
require import certification based on the risk of the food. FDA also
derives authority for these proposed requirements from section 701(b)
of the FD&C Act (21 U.S.C. 371(b)), which authorizes the Secretaries of
Treasury and Health and Human Services to jointly prescribe regulations
for the efficient enforcement of section 801 of the FD&C Act.
Additionally, sections 311, 361, and 368 of the Public Health Service
Act (PHS Act) (42 U.S.C. 243, 264, and 271, respectively), which relate
[[Page 11032]]
to communicable disease, provide FDA with authority to make and enforce
such regulations as in FDA's judgment are necessary to prevent the
introduction, transmission, or spread of communicable diseases from
foreign countries into the States or possessions, or from one State or
possession into any other State or possession (see section 361(a) of
the PHS Act) (42 U.S.C. 264(a)).
Alternatives: None.
Anticipated Cost and Benefits: The primary estimate for annualized
costs is $74.3 million, including costs from third-party audits,
foreign government inspections, and foreign government certification
associated with complying with an import certification requirement.
The primary estimate for annualized benefits is $109.7 million,
including food safety benefits to consumers, cost savings from reduced
transit and storage time, and cost savings from reduced food testing.
Risks: During 1996-2014, 195 outbreaks with 10,685 associated
illnesses were reported where the implicated food was imported into the
U.S., representing an increasing percentage of reported outbreaks
during that timeframe. These illnesses underscore the importance of
ensuring imported food meets applicable requirements of the FD&C Act.
This rule, if finalized, would implement a risk-based approach to
requiring import certification for food as a condition of
admissibility. FDA would obtain assurances that imported food meets
applicable requirements of the FD&C Act and implementing regulations
before the food is offered for import into the U.S. This rule is
intended to protect public health by strengthening FDA's import
oversight activities for foods and preventing unsafe foods from
reaching domestic markets.
Timetable:
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Action Date FR Cite
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NPRM................................ 04/00/23 .......................
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Peter Fox, Regulatory Counsel, Department of Health
and Human Services, Food and Drug Administration, 12420 Parklawn Drive,
ELEM, RM 41416, Rockville, MD 20857, Phone: 240 402-1857, Email:
[email protected].
RIN: 0910-AI66
HHS--FDA
61. Use of Salt Substitutes To Reduce the Sodium Content in
Standardized Foods [0910-AI72]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 21 U.S.C. 321; 21 U.S.C. 331; 21 U.S.C. 336; 21
U.S.C. 346; 21 U.S.C. 343; 21 U.S.C. 348; 21 U.S.C. 371; 21 U.S.C. 379e
CFR Citation: 21 CFR 130; 21 CFR 131; 21 CFR 133; 21 CFR 136; 21
CFR 155; . . .
Legal Deadline: None.
Abstract: The Food and Drug Administration (FDA) is proposing to
amend its regulations to permit the use of salt substitutes in
standardized foods in which salt (sodium chloride) is a required or
optional ingredient. The proposed rule, if finalized, would support
industry efforts to reduce sodium content in standardized foods and
improve dietary patterns by helping to reduce consumer sodium
consumption.
Statement of Need: FDA seeks to improve dietary patterns in the
United States to help reduce the burden of diet-related chronic
diseases and advance health equity. We are committed to accomplishing
this by, in part, creating a healthier food supply for all. One way FDA
is working towards this goal is by helping to reduce sodium across the
food supply.
FDA is proposing to amend 80 standards of identity (SOI) that
include salt as a required or optional ingredient to allow the use of
salt substitutes. Salt substitutes are ingredients that can help to
reduce sodium in the food supply. FDA is proposing to permit the use of
salt substitutes to reduce the sodium content in standardized foods.
Most SOI regulations that include salt as a required or optional
ingredient do not allow the use of salt substitutes. Therefore, food
manufacturers are currently precluded from using salt substitutes in
the production of these standardized foods. The proposed rule does not
identify specific salt substitutes, but rather, proposes a broad
definition to provide flexibility and facilitate industry innovation.
The proposed rule would permit the use of salt substitutes across
80 SOI that require salt as an ingredient or provide for salt as an
optional ingredient. In addition, the proposed rule would update the
incorporation by reference (IBR) information of several SOI to refer to
the most recent versions of the IBR materials and to provide up-to-date
contact information for obtaining the IBR materials. The proposed rule
would also make technical amendments to correct typographical errors in
some SOI regulations.
Summary of Legal Basis: FDA is issuing this proposed rule under
sections 201, 401, 402, 409, and 701 of the Federal Food, Drug, and
Cosmetic Act (FD&C Act) (21 U.S.C. 321, 341, 342, 348, 371). These
sections authorize FDA to issue regulations establishing a reasonable
definition and standard of identity to promote honesty and fair dealing
in the interest of consumers; define food additives, provide
authorizations and exemptions from regulation as a food additive, and
allow the agency to issue regulations for the efficient enforcement of
the FD&C Act.
Alternatives: The rule is a voluntary or permitting rule with no
regulatory costs. Therefore, we did not consider alternatives designed
to reduce the regulatory impact.
Anticipated Cost and Benefits: Voluntary or permitting rules
generate potential for social benefits that depend on voluntary
behavior for their realization. Being voluntary, they do not generate
regulatory costs. Net social costs are possible if the newly allowed
voluntary behavior generates net social costs, in which case we should
not have permitted that behavior. In this case, we can identify only a
potential social benefit. However, the size of any actually occurring
benefit is unknown. Because we cannot rule out economic significance,
we set the primary estimated annualized benefits at the minimum that
would make the rule economically significant, which is $165 M. That
social benefit is calculated net of the cost of the voluntary activity
that generates those benefits. We set the uncertainty range to give
that figure as the mean, so it runs from $0 to $330 M.
Risks: There are no known risks.
Timetable:
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Action Date FR Cite
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NPRM................................ 03/00/23 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Jeanmaire Hryshko, Lead Consumer Safety Officer,
Department of Health and Human Services, Food and Drug Administration,
Center for Food Safety and Applied Nutrition, 5001 Campus
[[Page 11033]]
Drive, HFS-265, College Park, MD 20740, Phone: 240 402-2371, Email:
[email protected].
RIN: 0910-AI72
HHS--FDA
62. Tobacco Product Standard for Nicotine Level of Certain Tobacco
Products [0910-AI76]
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: 21 CFR 1160.
Legal Deadline: None.
Abstract: The proposed rule is a tobacco product standard that
would establish a maximum nicotine level in cigarettes and certain
other finished tobacco products.
Statement of Need: Each year, 480,000 people die prematurely from a
smoking-attributed disease, making tobacco use the leading cause of
preventable disease and death in the United States. Nearly all these
adverse health effects are ultimately the result of addiction to the
nicotine in combusted tobacco products, leading to repeated exposure to
toxicants from those products. Nicotine is powerfully addictive. The
U.S. Surgeon General has reported that 87 percent of adult smokers
start smoking before age 18, and half of adult smokers become addicted
before age 18. This proposed rule is a tobacco product standard that
would establish a maximum nicotine level in cigarettes and certain
other finished tobacco products. Because tobacco-related harms
primarily result from addiction to products that repeatedly expose
users to toxins, FDA would take this action to reduce addictiveness of
certain tobacco products, thus giving addicted users a greater ability
to quit. This product standard would also help to prevent experimenters
(mainly youth) from initiating regular use, and, therefore, from
becoming regular smokers. The proposed product standard is anticipated
to benefit the population as a whole, while also advancing health
equity by addressing disparities associated with cigarette smoking,
dependence, and 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, and includes authority related to provisions for nicotine
yields in tobacco product standards.
Alternatives: In addition to the costs and benefits of the product
standard as proposed, FDA plans to assess the costs and benefits of a
different effective date for the rule and the impact of including
additional tobacco products in the product standard.
Anticipated Cost and Benefits: The anticipated benefits of the
product standard include benefits from reduced death and disease
resulting from decreased tobacco use among adult consumers, reduced
death and disease from secondhand smoke, and reduced death and disease
among youth who are deterred from initiating under the product
standard. The qualitative benefits of the proposed rule include impacts
such as reduced illness and increased productivity for smokers and
nonsmokers, as well as reduced smoking-related fires, cigarette litter,
and other environmental impacts.
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 and importing practices; and costs to some
consumers, such as search and temporary withdrawal costs.
Risks: None.
Timetable:
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Action Date FR Cite
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NPRM................................ 10/00/23 .......................
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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.
Agency Contact: Courtney Smith, Senior Regulatory Counsel,
Department of Health and Human Services, Food and Drug Administration,
Center for Tobacco Products, Document Control Center Building 71, Room
G335, 10903 New Hampshire Avenue, Silver Spring, MD 20993, Phone: 877
287-1373, Fax: 877 287-1426, Email: [email protected].
RIN: 0910-AI76
HHS--FDA
Final Rule Stage
63. Mammography Quality Standards Act [0910-AH04]
Priority: Other Significant. Major under 5 U.S.C. 801.
Legal Authority: 21 U.S.C. 360i; 21 U.S.C. 360nn; 21 U.S.C. 374(e);
42 U.S.C. 263b
CFR Citation: 21 CFR 900.
Legal Deadline: None.
Abstract: FDA is amending its regulations governing mammography.
The amendments will update the regulations issued under the Mammography
Quality Standards Act of 1992 (MQSA) and the Federal Food, Drug, and
Cosmetic Act (FD&C Act). FDA is taking this action to address changes
in mammography technology and mammography processes that have occurred
since the regulations were published in 1997 and to address breast
density reporting to patient and healthcare providers.
Statement of Need: FDA is updating the mammography regulations that
were issued under the Mammography Quality Standards Act of 1992 (MQSA)
and the FD&C Act. FDA is taking this action to address changes in
mammography technology and mammography processes.
FDA is also updating to modernize the regulations by incorporating
current science and mammography best practices, including addressing
breast density reporting to patients and healthcare providers. These
updates are intended to improve the delivery of mammography services.
Summary of Legal Basis: The MQSA (Pub. L. 102-539) is codified
under the Public Health Service (PHS) Act (42 U.S.C. 263b; section 354
of the PHS Act). Under the MQSA, all mammography facilities, except
facilities of the Department of Veterans Affairs, must be accredited by
an approved accreditation body and certified by FDA (or an approved
State certification agency) to provide mammography services (42 U.S.C.
263b(b)(1), (d)(1)(iv)). FDA is amending the mammography regulations
(set forth in part 900 (21 CFR part 900)) under section 354 of the PHS
Act (42 U.S.C. 263b), and sections of the FD&C Act (sections 519, 537,
and 704(e); 21 U.S.C. 360i, 360nn, and 374(e)).
Alternatives: The Agency will consider different options so that
the health benefits to patients are maximized and the economic burdens
to mammography facilities are minimized.
Anticipated Cost and Benefits: The benefits and costs associated
with this final rule include qualitative benefits related to reduced
mortality, morbidity and breast cancer treatment costs resulting from
the breast density reporting requirements. Additional benefits that we
are not able to quantify include improvements in the accuracy of
mammography by improving quality control and strengthening the medical
audit, and effects on morbidity.
Risks: None.
[[Page 11034]]
Timetable:
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Action Date FR Cite
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NPRM................................ 03/28/19 84 FR 11669
NPRM Comment Period End............. 06/26/19 .......................
Final Rule.......................... 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Laurie Sternberg, Regulatory Counsel, Department of
Health and Human Services, Food and Drug Administration, 10903 New
Hampshire Avenue, Building 66, Room 5517, Silver Spring, MD 20993,
Phone: 240 402-0425, Email: [email protected].
RIN: 0910-AH04
HHS--FDA
64. Nonprescription Drug Product With an Additional Condition for
Nonprescription Use [0910-AH62]
Priority: Other Significant.
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; . . .
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 final rule is intended to increase access to
nonprescription drug products. The final 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: Currently, nonprescription drug products are
limited to drugs that can be labeled with sufficient information for
consumers to appropriately self-select and use the drug product. For
certain drug products, limitations of labeling present challenges for
adequate communication of information needed for consumers to
appropriately self-select or use the drug product without the
supervision of a healthcare practitioner. FDA is finalizing regulations
that would establish the 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.
Summary of Legal Basis: FDA's 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 final rule would
include increased consumer access to drug products and reduced access
costs to these products as compared to their prescription alternatives.
Benefits to industry would arise from the flexibility in drug product
approval and the potential expansion of market revenue. Other benefits
would include a reduction in repetitive meetings with industry and the
Agency regarding this approval pathway. In addition, private and
government-sponsored drug coverage plans may experience cost savings.
Although applicants would incur the costs to develop and submit an
application for a nonprescription drug with an ACNU, they would likely
submit applications only when they expect that the profits from the
approval would exceed the costs of the application. Lastly, we
anticipate one-time costs of reading and understanding the rule that
potential applicants would incur.
Risks: None.
Timetable:
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Action Date FR Cite
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NPRM................................ 06/28/22 87 FR 38313
NPRM Comment Period End............. 10/26/22 .......................
Final Rule.......................... 10/00/23 .......................
------------------------------------------------------------------------
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
65. Tobacco Product Standard for Characterizing Flavors in Cigars
[0910-AI28]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect State, local or tribal
governments and the private sector.
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: This rule is a tobacco product standard that would
prohibit 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. 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 these products easier to use. Over a
half million youth in the United States use flavored cigars, placing
these youth at risk for cigar-related death and disease.
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 will prohibit 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 will reduce the appeal of cigars,
particularly to youth and young adults, and thereby decrease the
likelihood of experimentation, development of nicotine dependence, and
progression to regular use. This product standard will improve public
health by increasing the likelihood of cessation among existing cigar
smokers; this product standard will also improve health outcomes within
groups that experience disproportionate levels of tobacco use,
including certain vulnerable populations.
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
[[Page 11035]]
standard is appropriate for the protection of 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 906(d) of the FD&C Act authorizes the
Secretary to issue regulations requiring restrictions on the sale and
distribution of a tobacco product, including restrictions on the access
to, and the advertising and promotion of, the tobacco product, if the
Secretary determines that such regulation would be appropriate for the
protection of the public health. 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 product
standard, FDA will assess the costs and benefits of, among other
things, a different effective date for the rule, and including pipe
tobacco in the product standard.
Anticipated Cost and Benefits: The anticipated benefits of the
product standard include those coming from reduced death and disease
that are the result of cigar use among adult cigar smokers, reduced
death and disease from secondhand smoke, and reduced death and disease
among youth who are deterred from initiating under the product
standard.
Risks: None.
Timetable:
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Action Date FR Cite
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ANPRM............................... 03/21/18 83 FR 12294
ANPRM Comment Period End............ 07/19/18 .......................
NPRM................................ 05/04/22 87 FR 26396
NPRM Comment Period Extended........ 06/21/22 87 FR 36786
NPRM Comment Period End............. 07/05/22 .......................
NPRM Comment Period Extended End.... 08/02/22 .......................
Final Rule.......................... 08/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Agency Contact: Nathan Mease, Regulatory Counsel, Department of
Health and Human Services, Food and Drug Administration, 10903 New
Hampshire Avenue, Center for Tobacco Products, Document Control Center,
Building 71, Room G335, Silver Spring, MD 20993, Phone: 877 287-1373,
Email: [email protected].
RIN: 0910-AI28
HHS--FDA
66. Standards for the Growing, Harvesting, Packing, and Holding of
Produce for Human Consumption Relating to Agricultural Water [0910-
AI49]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 321; 21 U.S.C. 331; 21 U.S.C. 342; 21
U.S.C. 350h; 21 U.S.C. 371; 42 U.S.C. 243; 42 U.S.C. 264; 42 U.S.C.
271; . . .
CFR Citation: 21 CFR 112.
Legal Deadline: None.
Abstract: This rulemaking would revise certain requirements for
agricultural water in the Standards for the Growing, Harvesting,
Packing, and Holding of Produce for Human Consumption (produce safety)
regulation for covered produce other than sprouts.
Statement of Need: Agricultural water can be a major conduit of
pathogens that can contaminate produce. Recent produce outbreaks
potentially linked to agricultural water have emphasized the importance
of ensuring that FDA's agricultural water standards are workable across
the diversity of domestic and foreign farms and account for the variety
of factors that impact water sources and uses. FDA plans to amend its
produce safety regulation to address concerns about the practical
challenges of implementing certain agricultural water requirements,
while protecting the public health.
Summary of Legal Basis: FDA's authority for issuing this rule is
provided by sections 402, 419, and 701(a) of the Federal Food, Drug,
and Cosmetic Act (FD&C Act) (21 U.S.C. 342, 350h, and 371(a)) and
sections 311, 361, and 368 of the Public Health Service Act (PHS Act)
(42 U.S.C. 243, 264, and 271).
Specifically, this rulemaking would amend certain agricultural
water requirements in the produce safety regulation, codified at 21 CFR
part 112, and issued under the following authorities: Section
419(c)(1)(A) of the FD&C Act (21 U.S.C. 350h(c)(1)(A)) authorizes FDA
to establish science-based minimum standards for the safe production
and harvesting of those types of fruits and vegetables that are raw
agricultural commodities for which such standards minimize the risk of
serious adverse health consequences or death. Section 419(c)(1)(B) of
the FD&C Act (21 U.S.C. 350h(c)(1)(B)) further requires that these
minimum standards provide sufficient flexibility to be practicable for
all sizes and types of businesses. Section 402(a)(3) of the FD&C Act
(21 U.S.C. 342(a)(3)) provides that a food is adulterated if it
consists in whole or in part of any filthy, putrid, or decomposed
substance, or if it is otherwise unfit for food. Section 402(a)(4) of
the FD&C Act (21 U.S.C. 342(a)(4)) provides that a food is adulterated
if it has been prepared, packed, or held under insanitary conditions
whereby it may have become contaminated with filth, or whereby it may
have been rendered injurious to health. Additionally, section 701(a) of
the FD&C Act (21 U.S.C. 371(a)) grants the authority to promulgate
regulations for the efficient enforcement of the FD&C Act. Sections
311, 361, and 368 of the PHS Act (21 U.S.C. 243, 264, and 271), provide
authority for FDA to issue regulations to prevent the spread of
communicable diseases from one State to another.
Alternatives: None.
Anticipated Cost and Benefits: FDA anticipates costs associated
with complying with the proposed water risk assessment provisions for
non-sprout covered produce.
This final rule would generate unquantified benefits stemming from
increasing flexibility and addressing practical implementation
challenges associated with certain agricultural water provisions in the
produce safety regulation and quantified benefits resulting from fewer
illnesses caused by pre-harvest agricultural water.
Risks: In a 2019 Report, the Interagency Food Safety Analytics
Collaboration (IFSAC) estimated that produce commodities cause 65
percent of foodborne E. coli O157 illnesses and over 40 percent of
foodborne Salmonella illnesses. Agricultural water can be a major
conduit for produce contamination. This rule is intended to address the
practical implementation challenges of certain agricultural water
requirements, while protecting public health by setting forth standards
to minimize the risk of serious adverse health consequences or death,
including those reasonably necessary to prevent the introduction of
known or reasonably foreseeable biological hazards into or onto
produce, and provide reasonable assurances that the produce is not
adulterated on account of those hazards.
Timetable:
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Action Date FR Cite
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NPRM................................ 12/06/21 86 FR 69120
[[Page 11036]]
NPRM Comment Period End............. 04/05/22 .......................
Supplemental NPRM................... 07/19/22 87 FR 42973
Supplemental NPRM Comment Period End 09/19/22 .......................
Final Rule.......................... 10/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Samir Assar, Supervisory Consumer Safety Officer,
Department of Health and Human Services, Food and Drug Administration,
Center for Food Safety and Applied Nutrition, Office of Food Safety,
5001 Campus Drive, College Park, MD 20740, Phone: 240 402-1636, Email:
[email protected].
RIN: 0910-AI49
HHS--FDA
67. Tobacco Product Standard for Menthol in Cigarettes [0910-AI60]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect State, local or tribal
governments and the private sector.
Legal Authority: 21 U.S.C. 387g; 21 U.S.C 371; 21 U.S.C 387f
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: This final 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 prohibit menthol as a
characterizing flavor in cigarettes. The standard would reduce the
appeal of cigarettes, particularly to youth and young adults, and
thereby decrease the likelihood that nonusers who would otherwise
experiment with menthol cigarettes would progress to regular cigarette
smoking. In addition, the tobacco product standard would improve the
health and reduce the mortality risk of current menthol cigarette
smokers by decreasing cigarette consumption and increasing the
likelihood among current menthol cigarette smokers, the 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 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 product standard, and prohibiting
menthol as an intentional additive in cigarette products rather than
prohibiting menthol as a characterizing flavor.
Anticipated Cost and Benefits: The 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 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 rule include
impacts such as reduced illness for smokers and non-smokers.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 07/24/13 78 FR 44484
ANPRM Comment Period End............ 09/23/13 .......................
NPRM................................ 05/04/22 87 FR 26454
NPRM Comment Period Extended........ 06/21/22 87 FR 36786
NPRM Comment Period End............. 07/05/22 .......................
NPRM Comment Period Extended End.... 08/02/22 .......................
Final Rule.......................... 08/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
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
HHS--CENTERS FOR MEDICARE & MEDICAID SERVICES (CMS)
Proposed Rule Stage
68. Provider Nondiscrimination Requirements for Group Health Plans and
Health Insurance Issuers in the Group and Individual Markets (CMS-9910)
[0938-AU64]
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, Statutory
Deadline for Issuing a Proposed Rule.
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................................ 05/00/23 .......................
------------------------------------------------------------------------
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
[[Page 11037]]
HHS--CMS
69. Short-Term Limited Duration Insurance; Update (CMS-9904) [0938-
AU67]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 111-148, title I
CFR Citation: 45 CFR 144; 45 CFR 146; 45 CFR 148.
Legal Deadline: None.
Abstract: This rule would propose amendments to the definition of
`short-term, limited-duration insurance' under section 2791(b)(5) of
the Public Health Service Act. The rule's proposals would be designed
to ensure this type of coverage does not undermine the Affordable Care
Act, including its protections for people with pre-existing conditions,
the Health Insurance Exchanges, or the individual, small group, or
large group markets for health insurance in the United States.
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-300gg-63, 300gg-91, 300gg-92, 300gg-94, 300gg-
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................................ 04/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
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-AU67
HHS--CMS
70. Assuring Access to Medicaid Services (CMS-2442) [0938-AU68]
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.
Legal Deadline: None.
Abstract: This rule proposes to address elements related to
assuring access in Medicaid and/or the Children's Health Insurance
Program (CHIP). These elements could include processes that support the
implementation of a comprehensive access strategy as well as payment
processes, such as those related to specific payment systems.
Statement of Need: In order to assure equitable access to health
care for all Medicaid and 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 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. CMS 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).
Summary of Legal Basis: 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: Risks of the proposals in this rule are still under
development and will be included in the published rule for comment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23 .......................
------------------------------------------------------------------------
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
71. Transitional Coverage for Emerging Technologies (CMS-3421) [0938-
AU86]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 263a; 42 U.S.C. 405(a); 42 U.S.C. 1302;
42 U.S.C. 1320b-12; . . .
CFR Citation: 42 CFR 405.
Legal Deadline: None.
Abstract: This proposed rule would establish the criteria for an
expedited coverage pathway to provide Medicare beneficiaries with
faster access to innovative and beneficial technologies. This pathway
would build off of prior initiatives, including coverage with evidence
development. The proposed rule will meet the following principles
previously published by CMS:
(1) Manufacturers may enter the process on a voluntary basis. This
process will be limited to medical devices that fall within the
Medicare statute and that are relevant to the Medicare population.
(2) CMS may conduct early evidence review (before the device
secures FDA marking authorization) and discuss with the manufacturer
the best Medicare coverage pathway, depending upon the strength of the
evidence collected.
(3) At the manufacturer's request, CMS may initiate the coverage
process before FDA market authorization, which could require developing
an additional evidence development plan and confirming that there are
appropriate safeguards and protections for Medicare beneficiaries.
(4) If CMS determines that further evidence development is the best
coverage pathway, the agency would explore how to reduce the burden on
manufactures, clinicians and patients
[[Page 11038]]
while maintaining rigorous evidence requirements.
Statement of Need: This rule is necessary to codify the Coverage
with Evidence Development (CED) coverage pathway in regulation and aims
to incresase predictability, transparency, and timeliness of
Transitional Coverage for Emerging Technologies (TCET).
Summary of Legal Basis: This rule would be proposed under the
authority of sections 1862(a)(1)(A) and 1862(a)(1)(E) of the Social
Security Act.
Alternatives: Not yet determined.
Anticipated Cost and Benefits: Not yet determined.
Risks: Not yet determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: Federal, State.
Federalism: Undetermined.
Agency Contact: Lori Ashby, Senior 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: 410 786-6322, Email:
[email protected].
RIN: 0938-AU86
HHS--CMS
72. Interoperability and Prior Authorization for MA Organizations,
Medicaid and CHIP Managed Care and State Agencies, FFE QHP Issuers,
MIPS Eligible Clinicians, Eligible Hospitals and CAHs (CMS-0057) [0938-
AU87]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 1395hh
CFR Citation: 42 CFR 422; 42 CFR 431; 42 CFR 435; 42 CFR 438; . . .
Legal Deadline: None.
Abstract: This proposed rule would place new requirements on
Medicare Advantage (MA) organizations, Medicaid managed care plans,
Children's Health Insurance Program (CHIP) managed care entities, state
Medicaid and CHIP fee-for-service (FFS) programs, and Qualified Health
Plan (QHP) issuers on the Federally-facilitated Exchanges (FFEs) to
improve the electronic exchange of health care data and streamline
processes related to prior authorization, while continuing CMS' drive
toward interoperability, and reducing burden in the health care market.
This proposed rule would also add a new measure for eligible hospitals
and critical access hospitals under the Medicare Promoting
Interoperability Program and for Merit-based Incentive Payment System
(MIPS) eligible clinicians under the Promoting Interoperability
performance category of MIPS. These policies taken together would play
a key role in reducing overall payer and provider burden and improving
patient access to health information.
Statement of Need: The proposed changes further support CMS'
efforts to improve the electronic exchange of healthcare data and
streamline processes related to prior authorization, while continuing
CMS' drive toward interoperability in the healthcare market. The
proposals in this rule build on the foundation we laid out in the CMS
Interoperability and Patient Access final rule to move the healthcare
system toward increased interoperability and reduced burden by
proposing to enhance the data sharing capabilities of impacted payers
and providers through the use of innovative technologies. The proposals
also empower patients by making health-related data more easily
available through standards-based technology.
Summary of Legal Basis: This rule addresses multiple sections of
the Social Security Act, as well as Executive Order 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government.
Alternatives: We carefully considered alternatives to the policies
we are proposing in this rule and concluded that none of the
alternatives would adequately or immediately begin to address the
critical issues related to patient access to health information and
interoperability or help to address the processes that contribute to
payer, provider, and patient burden. Alternatives considered will be
included in the proposed rule.
Anticipated Cost and Benefits: We believe that the proposed
policies, if finalized, would result in some financial burdens for
impacted payers and providers. We have weighed these potential burdens
against the potential benefits, and believe the potential benefits
outweigh any potential costs. We anticipate the long-term savings to be
significant. As we move toward publication, estimates of costs and
benefits will be included in the proposed rule.
Risks: Risks of the proposals in this rule are still under
development and will be included in the published rule for comment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Agency Contact: Alexandra Mugge, Director & Deputy Chief Health
Informatics Officer, Health Informatics and Interoperability Group,
Department of Health and Human Services, Centers for Medicare &
Medicaid Services, Office of Burden Reduction and Health Informatics,
MS: C5-02-00, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 410
786-4457, Email: [email protected].
RIN: 0938-AU87
HHS--CMS
73. Medicare and Medicaid Program Integrity (CMS-6084) [0938-AU90]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 1302; 42 U.S.C. 1395hh
CFR Citation: 42 CFR 400; 42 CFR 402; 42 CFR 405; 42 CFR 406; . . .
Legal Deadline: None.
Abstract: This proposed rule includes provisions that would promote
payment accuracy and efficiency and help CMS identify and deter fraud,
waste, and abuse in a timely, effective manner, enabling the Agency to
protect the Medicare and Medicaid programs and the Children's Health
Insurance Program (CHIP). This rule would implement portions of section
6101(a) of the Patient Protection and Affordable Care Act (Affordable
Care Act), which require the disclosure of certain ownership,
managerial, and other information regarding Medicare skilled nursing
facilities (SNFs) and Medicaid nursing facilities.
Statement of Need: This rule is necessary to strengthen CMS's
program integrity efforts across Medicare, Medicaid, and the CHIP and
increase transparency and accountability.
Summary of Legal Basis: The proposals included in this rule will
address several sections of title XVIII of the Social Security Act.
Alternatives: Alternatives considered will be described in the
rule.
Anticipated Cost and Benefits: As many of the provisions to be
included in this rule are still under development, it is not possible
at this time to provide cost and benefit estimates. As it is
[[Page 11039]]
developed further, such estimates will be included in the proposed
rule.
Risks: The proposed provisions included in this rule would address
a number of program integrity vulnerabilities. Risks of the proposals
are still under development and will be included in the rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Federalism: Undetermined.
Agency Contact: John Spiegel, Senior Advisor, Department of Health
and Human Services, Centers for Medicare & Medicaid Services, Center
for Program Integrity, MS: AR-19-15, 7500 Security Boulevard,
Baltimore, MD 21244, Phone: 410 786-1909, Email:
[email protected].
RIN: 0938-AU90
HHS--CMS
74. Culturally Competent and Person-Centered Requirements To Increase
Access to Care and Improve Quality for All (CMS-3418) [0938-AU91]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 1821; 42 U.S.C 1832(a)(2)(F)(I); 42
U.S.C. 1861(dd)(1); 42 U.S.C. 1905(a)
CFR Citation: 42 CFR 403; 42 CFR 416; 42 CFR 418; 42 CFR 441; . . .
Legal Deadline: None.
Abstract: The proposed rule would establish culturally competent
and person-centered requirements for all provider and supplier types
that participate in Medicare and Medicaid programs. These requirements
revise the Conditions of Participations/Conditions for Coverage (CoPss/
CfCs) pertaining to governance, patient/resident/client rights (such as
nondiscrimination and accessibility), clinical quality standards,
quality assessment and performance improvement, staff training,
discharge planning, and care planning in an effort to increase quality
and improve access to health care. These proposals also include
additional requirements for transplant programs, organ procurement
organizations, and end-stage renal disease facilities that would
advance equity and reduce disparities in organ transplantation and
organ donation.
Statement of Need: This rule would advance health equity, increase
access to care, improve quality of care, and reduce health disparities
for all individuals. The proposals are in accordance with Executive
Orders 13985, 13988, 13995, and 14301 on Advancing Racial Equity and
Support for Underserved Communities through the Federal Government,
Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation, Ensuring an Equitable Pandemic Response and
Recovery, and on Advancing Equity, Justice, and Opportunity for Asian
Americans, Native Hawaiians, and Pacific Islanders, respectively.
Despite the existence of Federal civil rights laws, disparities in care
still persist. Revising the CoPs/CfCs by adding culturally competent
and person-centered requirements will incentivize providers to address
disparities that exist within their facilities by requiring specific
actions or face a noncompliance determination that may affect their
participation status in the Medicare and Medicaid programs.
Discrimination, or even the fear of discriminatory behavior by
healthcare providers, negatively impacts a patient's health and safety
and health outcomes, and presents barriers to accessing quality health
care. The establishment of culturally competent and person-centered
requirements are a necessary step to protect an individual's health and
safety. The provisions of this rule would help ensure that everyone has
a fair and just opportunity to attain their optimal health regardless
of race, ethnicity, disability, sexual orientation, gender identity,
socioeconomic status, geography, preferred language, or other factors
that affect access to care and health outcomes. Further, culturally
competent and person-centered focused health and safety requirements
could lead to improved access to care, improved quality of care, and
better health outcomes for all.
Summary of Legal Basis: The statutory authority to revise the
health and safety standards for Medicare and Medicaid participating
providers and suppliers is contained within Section 1102 (42 U.S.C.
1302) of the Social Security Act. In addition, this rule revises the
health and safety regulations to advance health equity and reduce
disparities for all individuals in accordance with Executive Orders
13985, 13988, 13995, and 14301 on Advancing Racial Equity and Support
for Underserved Communities through the Federal Government, Preventing
and Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation, Ensuring an Equitable Pandemic Response and Recovery, and
on Advancing Equity, Justice, and Opportunity for Asian Americans,
Native Hawaiians, and Pacific Islanders, respectively.
Alternatives: In developing the policies contained in this rule, we
considered numerous alternatives to the presented proposal. These
alternatives will be included in the proposed rule.
Anticipated Cost and Benefits: The provisions in this rule aim to
advance health equity, increase access to care, improve quality of
care, and reduce health disparities for all individuals. This
regulation will ultimately remove barriers to access health care,
ensure that all individuals have equitable care, and improve quality of
care for all. As we move toward publication, estimates of the cost and
benefits of these provisions will be included in the rule.
Risks: This action furthers the goals of the Executive Orders on
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government (E.O. 13985), Executive Order on Preventing and
Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation (E.O. 13988), Executive Order on Ensuring an Equitable
Pandemic Response and Recovery (E.O. 13995), and Executive Order on
Advancing Equity, Justice, and Opportunity for Asian Americans, Native
Hawaiians, and Pacific Islanders (E.O. 14301). While there may be some
risks associated with an increased burden on providers as a result of
these regulations, we believe benefits related to addressing the
challenges that historically underserved populations (those that have
been subject to racism, discrimination, or systemic disadvantage) face
when accessing and receiving care from a health care organization,
would far outweigh any risks.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, State.
Agency Contact: Alpha-Banu Wilson, Health Insurance Specialist,
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-
8687, Email: [email protected].
RIN: 0938-AU91
[[Page 11040]]
HHS--CMS
75. Mental Health Parity and Addiction Equity Act and the Consolidated
Appropriations Act, 2021 (CMS-9902) [0938-AU93]
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. The
amendments would clarify plans' and issuers' obligations under the law,
promote compliance with MHPAEA, and update requirements taking 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.
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................................ 12/00/22 .......................
------------------------------------------------------------------------
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
76. Coverage of Certain Preventive Services Under the Affordable Care
Act (CMS-9903) [0938-AU94]
Priority: Other Significant.
Legal Authority: Pub. L. 111-148, sec. 1001
CFR Citation: 45 CFR 147; 45 CFR 156.
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................................ 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State.
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-AU94
HHS--CMS
77. Contract Year 2024 Changes to the Medicare Advantage, Medicare
Prescription Drug Benefit, Medicare Cost Plan Programs, Medicare
Overpayment Provisions of the Affordable Care Act, and PACE (CMS-4201)
[0938-AU96]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 115-271
CFR Citation: 42 CFR 422; 42 CFR 423.
Legal Deadline: None.
Abstract: This proposed rule would implement changes to strengthen
and improve the Medicare Advantage (Part C) and prescription drug (Part
D) programs. It also proposes changes to the Medicare Cost Plan
Program, Medicare Parts A, B, C, and D Overpayment Provisions of the
Affordable Care Act, and Programs of All-Inclusive Care (PACE).
Statement of Need: This rule is necessary to make revisions to the
Medicare Advantage (Part C), Medicare Prescription Drug Benefit (Part
D), and PACE regulations to implement changes related to Star Ratings,
medication therapy management, marketing and communications, health
equity, provider directories, prior authorization, passive enrollment,
network adequacy, identification of overpayments, formulary changes,
and other programmatic areas. This proposed rule would also codify
regulations implementing Section 118 of the Consolidated Appropriations
Act of 2021 and includes a large number of provisions that would codify
existing sub-regulatory guidance in the Part C, Part D, and PACE
programs. This proposed rule would also amend the existing regulations
for Medicare Parts A, B, C, and D regarding the standard for an
identified overpayment.
Summary of Legal Basis: This rule addresses multiple sections of
the Social Security Act, the Bipartisan Budget Act of 2018, the
Substance Use-Disorder Prevention that Promotes Opioid Recovery and
Treatment for Patients and Communities (SUPPORT) Act, and the
Consolidated Appropriations Act of 2021.
Alternatives: This rule implements provisions that require public
notice and comment and are necessary for the upcoming contract year. We
continue to explore alternatives as we develop the rule.
Anticipated Cost and Benefits: As we move toward publication,
estimates of costs and benefits will be included in the proposed rule.
[[Page 11041]]
Risks: Risks of the proposals in this rule are still under
development and will be included in the published rule for comment.
Timetable:
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Action Date FR Cite
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NPRM................................ 12/00/22 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Christian Bauer, Director, Division of Part D
Policy, Department of Health and Human Services, Centers for Medicare &
Medicaid Services, Center for Medicare, MS: C1-26-16, 7500 Security
Boulevard, Baltimore, MD 21244, Phone: 410 786-6043, Email:
[email protected].
Related RIN: Related to 0938-AV01
RIN: 0938-AU96
HHS--CMS
78. FY 2024 Skilled Nursing Facility (SNFs) Prospective
Payment System and Consolidated Billing and Updates to the Value-Based
Purchasing and Quality Reporting Programs (CMS-1779) [0938-AV02]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C 1395hh; 42 U.S.C. 1302
CFR Citation: 42 CFR 413.
Legal Deadline: Final, Statutory, October 1, 2023, By statute, rule
must be effective by October 1 annually.
Abstract: This annual proposed rule would update the payment rates
used under the prospective payment system for SNFs for fiscal year
2024. The rule also includes proposals for the SNF Quality Reporting
Program (QRP) and for the Skilled Nursing Facility Value-Based
Purchasing (VBP) Program that will affect Medicare payment to SNFs. In
addition, this rule also proposes to establish new minimum staffing
requirements that facilities must meet to ensure safe and quality care.
Statement of Need: This proposed rule would update the SNF
prospective payment rates as required under the Social Security Act
(the Act). The Act requires the Secretary to provide, before the August
1 that precedes the start of each FY, the unadjusted Federal per diem
rates, the case-mix classification system, and the factors to be
applied in making the area wage adjustment.
Summary of Legal Basis: In accordance with sections
1888(e)(4)(E)(ii)(IV) and 1888(e)(5) of the Act, the Federal rates in
this proposed rule would reflect an update to the rates that we
published in the SNF PPS final rule for FY 2023. These changes would be
applicable to services furnished on or after October 1, 2023.
Alternatives: None. This is a statutory requirement.
Anticipated Cost and Benefits: Total expenditures will be adjusted
for FY 2024.
Risks: None. The rule is necessary for SNF services to be paid
appropriately.
Timetable:
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Action Date FR Cite
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NPRM................................ 04/00/23 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Tammy Luo, Health Insurance Specialist, Department
of Health and Human Services, Centers for Medicare & Medicaid Services,
Center for Medicare, MS: C5-06-17, 7500 Security Boulevard, Baltimore,
MD 21244, Phone: 410 786-4325, Email: [email protected].
RIN: 0938-AV02
HHS--CMS
Final Rule Stage
79. Streamlining the Medicaid and CHIP Application, Eligibility
Determination, Enrollment, and Renewal Processes (CMS-2421) [0938-AU00]
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 final rule streamlines eligibility and enrollment
processes for all Medicaid and Children's Health Insurance Program
(CHIP) populations and creates 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 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 will
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 will 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 will reduce the risk of improper payments.
Timetable:
[[Page 11042]]
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Action Date FR Cite
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NPRM................................ 09/07/22 87 FR 54760
NPRM Comment Period End............. 11/07/22 .......................
Final Action........................ 11/00/23 .......................
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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--ADMINISTRATION FOR CHILDREN AND FAMILIES (ACF)
Proposed Rule Stage
80. Foster Care Legal Representation [0970-AC89]
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
permanency 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 only
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,
but not in other civil proceedings (See 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 $2,731
billion in FFP over 10 years. 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:
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Action Date FR Cite
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NPRM................................ 01/00/23 .......................
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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, 330 C Street SW,
Room 3411, Washington, DC 20201, Phone: 202 401-5789, Fax: 202 205-
8221, Email: [email protected].
RIN: 0970-AC89
HHS--ACF
81. Separate Licensing Standards for Relative or Kinship Foster Family
Homes [0970-AC91]
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 IV-E, all foster family homes must meet the same
licensing standards, regardless of whether the foster family 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.
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:
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Action Date FR Cite
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NPRM................................ 01/00/23 .......................
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Regulatory Flexibility Analysis Required: No.
[[Page 11043]]
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, 330 C Street SW,
Room 3411, Washington, DC 20201, Phone: 202 401-5789, Fax: 202 205-
8221, Email: [email protected].
RIN: 0970-AC91
HHS--ACF
82. Unaccompanied Children Program Foundational Rule [0970-AC93]
Priority: Other Significant.
Legal Authority: sec. 462 of the Homeland Security Act (6 U.S.C.
279)
CFR Citation: 45 CFR 410.
Legal Deadline: None.
Abstract: This rule would establish the regulatory framework for a
variety of activities currently conducted by the Office of Refugee
Resettlement's Unaccompanied Children (UC) Program. The rule would
target activities currently mandated under the Flores Settlement
Agreement (FSA), and it would further strengthen and codify additional
protections and service provisions for unaccompanied children.
Statement of Need: Historically, the UC Program has operated
largely without authorizing regulations enacted under the
Administrative Procedures Act or subject to notice-and-comment
rulemaking. Instead, virtually all ORR policies and procedures are
contained in an ORR Policy Guide, and more recently, official ORR Field
Guidance.
The UC Program is currently subject to the FSA, a consent decree
which was first agreed to on January 28, 1997, in the United States
District Court for the Central District of California. The court
continues to supervise the agreement, which, based on a subsequent
amendment, cannot terminate until 45 days after the agency publishes
rules implementing the agreement.
At this time, ORR seeks to promulgate a new UC Program Foundational
Rule, which will govern ORR activities that are currently governed by
the FSA along with the federal statutes concerning the UC program, and
address additional areas not contemplated in 1997 when the FSA was
instituted.
It is important to note that this rule will codify new and vital
protections for all children in ORR care, most of which currently are
only provided in ORR policies and procedures. Upon promulgation of the
final UC Program Foundational Rule, ORR will seek to terminate the FSA.
The long-term goal is for ORR to codify FSA requirements and provide
programmatic enhancements that will result in better and more durable
protections for all children in ORR care, including greater
transparency of ORR policies.
Summary of Legal Basis: ORR has broad statutory authority
concerning the care and custody of UC through the Homeland Security Act
of 2002 (HSA), 6 U.S.C. 279, and the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA), 8 U.S.C. 1232.
Alternatives: The agency could choose to not issue regulations and
continue to be governed by the FSA. However, as noted above, although
the FSA provides important protections, it was never intended to
permanently govern the program, and regulations are needed to codify
enhancements that will result in better and more durable protections
for all children in ORR care.
Anticipated Cost and Benefits: ORR anticipates new costs associated
with this rule particularly those associated with staffing increases
(e.g., related to administrative hearings as part of due process
protections) and will work to estimate the costs based on updated
staffing requirements, costs associated with promulgation of the
federal rule, and any other associated costs.
Risks: No programmatic risks are anticipated.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses, Organizations.
Government Levels Affected: None.
Agency Contact: Toby Biswas, Senior Supervisory Policy Counsel,
Department of Health and Human Services, Administration for Children
and Families, 330 C Street SW, Washington, DC 20201, Phone: 202 555-
4440, Email: [email protected].
RIN: 0970-AC93
HHS--ACF
83. Federal Licensing of Office of Refugee Resettlement Facilities
[0970-AC94]
Priority: Other Significant.
Legal Authority: sec. 462 of the Homeland Security Act (6 U.S.C.
279)
CFR Citation: 45 CFR 412.
Legal Deadline: None.
Abstract: This rule would provide the regulatory framework for new
Federal licensing of shelter care providers for unaccompanied children.
This framework would be used when State governments do not provide
State licensing for such providers under certain circumstances. The new
office created to manage the Federal licensing will be proposed to be
located within the Administration for Children and Families, but not
within the Office of Refugee Resettlement.
Statement of Need: ORR's Unaccompanied Children (UC) Program is
responsible for the administration of childcare shelters that provide
care to UC arriving in the United States, prior to being placed with
vetted sponsors. As of December 2021, ORR supports over 250 licensed
care provider shelters in 25 states under approximately 150 separate
grants between ORR and its network of care providers.
In addition, the Flores Settlement Agreement (FSA) generally
requires that UC be placed in a state-licensed shelters subject to
certain exceptions and expresses a specific preference for placements
in geographic locations in which a majority of children are
apprehended. Critically, none of ORR's authorizing statutes mandate
placement in state-licensed shelters.
ORR has cultivated a large network of state-licensed shelters and
developed close, cooperative relationships with many of the partner
states that oversee and enforce their own licensing processes for ORR
care providers. Accordingly, ORR has not attempted to fulfill all of
the functions of, nor provide the services typically performed by,
state agencies involved in the licensure and oversight of child care
facilities with respect to compliance with state licensing
requirements, such as conducting facility inspections, facilitating and
processing background checks, and investigating child abuse/neglect
allegations.
Recent actions by Texas and Florida to restrict or exempt from
state licensure of ORR UC care provider facilities have required ORR to
re-evaluate how to continue providing care for UC consistent with the
FSA's expectation that children be placed in state-licensed shelters in
those states, which represent a significant proportion of ORR's overall
UC bed space. ACF has determined that the HSA's and TVPRA's broad grant
of authority to ORR to manage the care and custody of UC authorizes the
Department of Health and Human Services (HHS) to federally license
shelters that house UC where states abdicate their traditional
licensing responsibilities. This authority has been further delegated
to ACF. ACF believes this change is necessary because
[[Page 11044]]
additional states have recently taken steps to sever ORR grantees'
access to state licensure through executive action. ACF has determined
that implementing federal licensure in these states can substantively
address concerns underlying the FSA's requirement that UC shelters be
state licensed (e.g. establishment and monitoring of facility standards
not addressed by ORR policies, by authorities that are independent of
ORR).
To continue serving UC and maintain quality of care in states that
have restricted the availability of licensure to UC care providers, ORR
has determined that the most effective response is for HHS, through
ACF, to develop federal licensing standards for its care provider
facilities under certain circumstances.
ORR will propose that this function be carried out by the proposed
Office of Residential Licensure for Unaccompanied Children (ORLUC), to
sit within ACF but independent of ORR. That office would oversee the
issuance of licensing standards, implement monitoring, and oversee
associated processes including federal license revocations.
Summary of Legal Basis: ORR has broad statutory authority
concerning the care and custody of UC through the Homeland Security Act
of 2002 (HSA), 6 U.S.C. 279, and the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA), 8 U.S.C. 1232.
Alternatives: If this rule is not issued, ACF will lack the legal
authority to issue licenses and enforce licensing requirements in
states that have acted to restrict the availability of licensure to
organizations funded by ORR to carry out the UC program. This would
limit ACF's ability to ensure the safety and well-being of children in
its care, and to comply with the intent of the FSA.
Anticipated Cost and Benefits: The proposed regulations would
result in costs to federal licensees, prospective federal licensees,
ORR, and to ACF in implementing the proposed federal licensure program.
Based on ACF's analysis, costs associated with the proposed regulations
range from approximately $153 to $220 per licensee for submitting
licensure applications and corrective action plans, as necessary. In
addition, ACF conducted a regulatory impact analysis to assess costs
associated with other requirements in the proposed rule such as
updating policy and/or training staff, hiring additional staff, and
implementing facility changes. At this time, ACF lacks the ability to
estimate the potential costs specific to potentially affected care
providers, especially with regard to changes to facilities. Therefore,
ACF is required to make assumptions general to all prospective federal
licensees in implementing any necessary changes. On average, ACF
estimates that updates to affected facility policies or staff training
will cost licensees between $17.32 and $34.68 per childcare worker.
Should a federal licensee need to hire additional staff in order to
come into compliance with federal licensure standards, ACF estimates
the average cost to be $36,361 per year per worker.
The proposed rule would also result in associated federal costs of
the establishment and operation of ORLUC. Based on ACF's analysis, the
federal costs associated with the proposed regulations would be
approximately $6.4 million in the first fiscal year once they are
finalized. ACF also notes that many potential federal licensees
discussed in this proposed rule are ACF grantees and the costs of
maintaining compliance with licensing requirements are allowable costs
to grant awards under the Basic Considerations for cost provisions at
45 CFR part 75, sections 403 through 405, if that the costs are
reasonable, necessary, ordinary, treated consistently, and are
allocable to the award. Additional costs associated with the policies
discussed in this proposed rule that were not budgeted, and cannot be
absorbed within existing budgets, would be allowable for the grant
recipient to submit a request for supplemental funds to cover the
costs, and may therefore result in additional federal costs.
Risks: No programmatic risks are anticipated.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23 .......................
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Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses, Organizations.
Government Levels Affected: None.
Agency Contact: Toby Biswas, Senior Supervisory Policy Counsel,
Department of Health and Human Services, Administration for Children
and Families, 330 C Street SW, Washington, DC 20201, Phone: 202 555-
4440, Email: [email protected].
RIN: 0970-AC94
HHS--ACF
84. Strengthening TANF as a Safety Net and Work Program [0970-
AC97]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 609
CFR Citation: 45 CFR 260.
Legal Deadline: None.
Abstract: This rule would strengthen the Temporary Assistance for
Needy Families (TANF) program as a safety net and a work preparation
program, make changes to allowable uses of TANF funds, improve work
program effectiveness, and reduce administrative burden. The rule
responds to the President's Executive Order on Advancing Racial Equity
and Support for Underserved Communities Through the Federal Government,
as well as the Biden-Harris Administration's priority to build a bridge
towards economic recovery. The rule aims to increase support for
families with the greatest needs and the services most integral to the
safety net, including cash assistance, and help to reduce racial
inequities across states. Additionally, the rule aims to help states to
tailor effective workforce services to the needs of each family and
reduce administrative burden.
Statement of Need: In fiscal year (FY) 2020, combined federal TANF
and state maintenance-of-effort (MOE) expenditures and transfers
totaled $31.6 billion. Of that amount only 22 percent was spent on
basic assistance, compared to 71 percent in FY 1997. As a result, TANF
currently serves less than 25 percent of eligible families across the
country, as compared to 1997 when TANF served almost 70 percent of
eligible families. States in which the lowest proportion of families in
poverty receive cash benefits also have proportionally larger shares of
Black and Latinx children. The rule aims to address these shortcomings
and would align with the Administration's efforts to address equity,
focus on upstream preventions, and increase opportunities for economic
mobility for low-income families. The NPRM may consider changes around
use of funds, eligible families, state MOE spending, and work
flexibilities.
Summary of Legal Basis: The proposed regulations will relate to
allowable spending, eligible work activities and penalties, and
administrative simplification. The NPRM would be issued under the
Secretary's authority to issue regulations where Congress has charged
the Department with enforcing penalties, 42 U.S.C. 609.
Alternatives: Without these regulatory changes around allowable
uses of funds, states will continue to underinvest in services most
integral to the safety net, including cash assistance, and supports for
families with the greatest needs. Without regulatory changes to improve
work program effectiveness, states will
[[Page 11045]]
have less flexibility to tailor employment and training services to the
needs of each family. Lastly, in the absence of these regulatory
changes, states will not experience any relief in their administrative
burden to operate the TANF program.
Anticipated Cost and Benefits: This NPRM imposes no costs on the
federal government nor does it change overall funding amounts or
spending requirements for states, territories, and tribes, as TANF is a
fixed block grant. We anticipate a benefit in the transfer of funding
toward critical supports to families experiencing economic hardships.
Risks: While we expect more low-income families to receive TANF
benefits and receive more effective work-related services, this action
may result in states having to increase their own spending to fund
activities previously funded by federal TANF dollars or previously
counted as state MOE spending.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23 .......................
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Deborah List, Associate Deputy Director, Office of
Family Assistance, Department of Health and Human Services,
Administration for Children and Families, 330 C Street SW, Washington,
DC 20201, Phone: 202 401-5488, Email: [email protected].
RIN: 0970-AC97
HHS--ACF
85. Adoption and Foster Care Analysis and Reporting System
(AFCARS) [0970-AC98]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 679
CFR Citation: 45 CFR 1355.41 et seq.
Legal Deadline: None.
Abstract: To ensure equitable treatment of all children and youth
in child welfare, including Native American and LGBTQ+ children and
youth, this rule will propose to require title IV-E agencies to collect
and report for AFCARS additional information related to youth, foster
parents, adoptive parents, and legal guardians. AFCARS data is used for
planning, technical assistance, discretionary service grants, and
research and evaluation, all with the goal of reducing entry into and
improving outcomes of children in foster care.
Statement of Need: This NPRM is consistent with the
Administration's priority of advancing equity for those historically
underserved and adversely affected by persistent poverty and
inequality. Native and LGBTQI+ children are over-represented
populations in the child welfare system; however, the experiences of
LGBTQI+ children in foster care and Native children are not fully
captured in current child welfare data systems. As such, adding sexual
orientation and ICWA data elements removed from the 2020 rule would
make the experiences of these children more visible and may provide
better insight into the trajectory of LGBTQI+ and Native children in
foster care. It will also provide avenues for collaboration between
states and tribes, in areas such as technical assistance, training and
resource allocation that would be informed by the additional ICWA data
elements. We anticipate that this is a critical step in addressing the
needs of this population, and also will assist title IV-E agencies in
recruiting and training foster care providers in meeting the needs of
these youth. We will also consider potentially adding other elements
that were removed by a May 2020 AFCARS Final Rule, such as health and
education data.
Summary of Legal Basis: AFCARS is authorized by section 479 of the
Social Security Act (the Act), which mandates that the Department of
Health and Human Services (HHS) regulate a data collection system for
national adoption and foster care data. Section 474(f) of the Act
requires HHS to impose penalties for non-compliant AFCARS data. 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, title IV-E agencies
are required to report to AFCARS (beginning 10/1/22 under the 2020
final rule) related to ICWA: the child's tribal membership and name of
Tribe; tribal membership for the child's the parents, foster parents,
adoptive parents, and legal guardians; whether the state made inquiries
if the child is an Indian child as defined in ICWA; whether ICWA
applies for the child and if yes, the date that the state was notified
by the Indian tribe or state or tribal court that ICWA applies; and
whether the child's tribe(s) was sent legal notice. Title IV-E agencies
are not required to report on sexual orientation in AFCARS currently.
Anticipated Cost and Benefits: There will be new state/tribe and
federal costs associated with requiring title IV-E agencies to report
additional AFCARS data elements, and the cost is contingent on the
scope of the NPRM.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/23 .......................
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Local, State.
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, 330 C Street SW,
Room 3411, Washington, DC 20201, Phone: 202 401-5789, Fax: 202 205-
8221, Email: [email protected].
RIN: 0970-AC98
HHS--ACF
86. Modification of the Tribal Non-Federal Share Requirement
[0970-AC99]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 1302; 42 U.S.C. 655(f)
CFR Citation: 45 CFR 309; 45 CFR 310.
Legal Deadline: None.
Abstract: This rule would modify the non-Federal share of program
expenditures requirement, including the 90/10 and 80/20 cost sharing
rates, for Tribal child support enforcement programs.
Statement of Need: The requirement to provide the non-Federal share
of program expenditures has been a longstanding issue for Tribal child
support enforcement programs. It limits growth, causes disruptions, and
creates instability. Modifying the non-Federal share requirement
prevents existing Tribal child support enforcement programs from
closing. It implements guidance provided by the Secretary that the
match rate would be revised if it were disruptive and imposed hardship
(see 65 Fed Reg. at 50823). It also removes a major barrier that
hinders prospective Tribes and Tribal organizations from administering
a Tribal child support enforcement program. Most importantly, it
ensures the opportunity for Tribal families to
[[Page 11046]]
receive child support services that reflect and affirm their Tribal
cultures and traditions, promote parental responsibility, create
financial stability, and lift Tribal families out of poverty. In FY
2020, Tribal child support enforcement programs collected $58 million
in child support payments and 96 percent went to families.
Summary of Legal Basis: Section 455(f) of the Social Security Act
(the Act) requires the Secretary to issue regulations governing the
grants to Tribes and Tribal organizations operating child support
enforcement programs. Additionally, 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 the NPRM is not published, many Tribal child
support enforcement programs will continue to reduce services, delay
filling vacancies, forgo system upgrades, and operate at a limited
capacity so that they can meet the non-Federal share of program
expenditures. Some Tribal child support enforcement programs will
continue to face the danger of closing and may eventually be forced to
close. Additionally, many prospective Tribes and Tribal organizations
will be unable to apply for funding to operate a Tribal child support
enforcement program due to the non-Federal share requirement.
Anticipated Cost and Benefits: ACF estimates that a modification to
the regulation will result in increased costs to the Federal government
but will also result in additional tribal child support programs added
to serve children and families.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Chad Sawyer, Senior Policy Specialist, Department
of Health and Human Services, Administration for Children and Families,
330 C Street SW, Washington, DC 20201, Phone: 202 774-2323, Email:
[email protected].
RIN: 0970-AC99
HHS--ACF
Final Rule Stage
87. ANA Non-Federal Share Emergency Waivers [0970-AC88]
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 2991b
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 (NAPA),
as amended, 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 the 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 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
(NAPA), as amended, 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
the 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. This final rule is responsive to the
President's Executive Order 13995 (Ensuring an Equitable Pandemic
Response and Recovery) and Executive Order 14002 (Economic Relief
Related to the COVID-19 Pandemic), as well as responsive to the needs
of Native American communities. Existing regulations state 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................................ 12/07/21 86 FR 69215
NPRM Comment Period End............. 02/07/22 .......................
Final Action........................ 04/00/23 .......................
------------------------------------------------------------------------
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
[[Page 11047]]
HHS--ADMINISTRATION FOR COMMUNITY LIVING (ACL)
Proposed Rule Stage
88. Older Americans Act, Titles III, VI, and VII [0985-AA17]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 3001 et seq.
CFR Citation: 45 CFR 1321 to 1324.
Legal Deadline: None.
Abstract: The proposed rule would amend the regulations
implementing programs under the Older Americans Act (OAA) (42 U.S.C.
3001 et seq.): 45 CFR part 1321 (Grants to State and Community Programs
on Aging); 45 CFR part 1322 (Grants to Indian Tribes for Support and
Nutrition Services); 45 CFR part 1323 (Grants for Supportive and
Nutritional Services to Older Hawaiian Natives); and 45 CFR part 1324
(Allotments for Vulnerable Elder Rights Protection Activities,
including Subpart A State Long-Term Care Ombudsman Program). The
proposed rule would make revisions to these regulations to align with
the OAA as reauthorized in 2020. Current OAA regulations are more than
30 years old (issued in 1988), other than portions of 45 CFR part 1321
and 1324 regarding the State Long-Term Care Ombudsman Program, which
were issued in 2015.
Statement of Need: The proposed rule would make important revisions
to these regulations following the reauthorization of the Act in 2020.
The majority of the current regulations associated with this Act are
more than 30 years old, so updates to these regulations will allow for
an overall alignment of regulations with current statutory language,
related regulatory language and circumstances in the field. These
regulations also provide an important opportunity to advance equity in
the OAA programs as envisioned by the statute and consistent with
current executive orders.
Summary of Legal Basis: Development, promulgation and
implementation of regulations for OAA programs have been and will be
carried out consistently with the statute. This particular regulatory
action is not required by the reauthorization of the statute or court
order.
Alternatives: ACL considers sub-regulatory guidance, information
and education outreach, and voluntary approaches as alternatives to
regulatory action. None of these alternatives are the appropriate
option for promulgating and administering the provisions that will be
included in the regulations consistent with statute. Economic
incentives and instruments are not an option.
Anticipated Cost and Benefits: To be determined. A regulatory
impact analysis is concurrently underway.
Risks: These regulations would update past and establish new
regulatory provisions consistent with the reauthorization of the OAA in
2020. Promulgating this NPRM and obtaining public feedback in order to
issue a new final rule will result in decreased risk for administering
agencies at the federal, state and local level in ensuring the
administration of the OAA programs consistent with the statute, and in
also supporting the statute's purpose of reducing the risk of injury,
disease, disability and institutional placement of older adults.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Request for Information (RFI)....... 05/06/22 87 FR 27160
Request for Information Comment 06/06/22
Period End.
NPRM................................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Local, State, Tribal.
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-AA17
HHS--ACL
89. Adult Protective Services Functions and Grant Programs
[0985-AA18]
Priority: Other Significant.
Legal Authority: Elder Justice Act (SSA sec. 2042. [42 U.S.C.
1397m-1] (a) Secretarial Responsibilities)
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: The proposed rule would create federal regulations for
Adult Protective Services (APS) programs as authorized by the Elder
Justice Act. APS programs were originally recognized by federal law in
1975 under title XX of the Social Security Act via the Social Services
Block Grant (SSBG). States have wide discretion whether to allocate any
funding to APS via the SSBG program, and there are no regulations
pertaining to APS under SSBG. Since 1975, all 50 states, the District
of Columbia, and four territories have developed APS programs in
accordance with local needs, structures, and laws. Historic investments
through the Coronavirus Relief and Response Supplemental Appropriations
Act (CRRSA) and the American Rescue Plan Act (ARPA) provided the very
first funding for APS program formula funding to states as authorized
by the Elder Justice Act (EJA). These regulations would promote an
effective APS response across the country so that all older adults and
adults with disabilities, regardless of the state or jurisdiction in
which they live, have similar protections and service delivery from APS
systems.
Statement of Need: The proposed rule would create federal
regulations for Adult Protective Services (APS) programs as authorized
by the Elder Justice Act (EJA). These regulations are critical in
establish consistent national requirements and standards for EJA APS
program formula funding to states.
Summary of Legal Basis: Development, promulgation and
implementation of this regulation will be carried out consistently with
the statute; however, this regulatory action is not required by the
statute or a court order.
Alternatives: ACL considers sub-regulatory guidance, information
and education outreach, and voluntary approaches as alternatives to
regulatory action. Prior to the availability of appropriations for
formula funding for this program ACL utilized guidance and voluntary
approach for the establishment of a national data system and in
supporting the establishment and dissemination of program best
practices. However, now that federal funding is available to all states
and territories, none of these alternatives are the appropriate option
for promulgating and administering the provisions that will be included
in the regulations consistent with statute. Economic incentives and
instruments are not an option.
Anticipated Cost and Benefits: To be determined. A regulatory
impact analysis is concurrently underway.
Risks: These regulations would establish first ever regulations for
APS programs consistent with the Elder Justice Act passed in 2010.
Promulgating this NPRM and obtaining public feedback in order to issue
a new final rule will result in decreased risk for administering
agencies at the federal, state and local level in ensuring the
administration of appropriations for APS programs consistent with the
statute, and in also supporting the
[[Page 11048]]
statute's programmatic purpose of detecting, preventing and reducing
the abuse, neglect and exploitation of adults, including older adults.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: State.
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-AA18
BILLING CODE 4150-03-P
DEPARTMENT OF HOMELAND SECURITY (DHS)
Fall 2022 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 provides the following:
``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 those words. 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 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 an 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.
There are six overarching homeland security missions that 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, 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. We are reducing administrative burdens
and simplifying our processes. 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
2022 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. Also, these regulations
address legislative initiatives such as the ones found in the
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11
Act) and the FAA Extension, Safety, and Security Act of 2016.
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 remain faithful
to law, protect civil rights and civil liberties, integrate our
actions, listen to those affected by our actions, build coalitions and
partnerships, 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. 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,
[[Page 11049]]
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 2022 regulatory plan for DHS includes regulations from
multiple DHS components, including the Federal Emergency Management
Agency (FEMA), 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), U.S. Immigration
and Customs Enforcement (ICE), and the Cybersecurity and Infrastructure
Security Agency (CISA). We next describe the regulations that comprise
the DHS fall 2022 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 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 (Executive Order 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. Property owners in participating
communities are eligible to purchase NFIP flood insurance. 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 homeowners of 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 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government. 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 in the program, FEMA will propose to amend application
of ``safe, sanitary, and functional'' for the Individuals and
Households Program Home Repair assistance; re-evaluate the requirement
to apply for a Small Business Administration loan prior to receipt of
certain types of Other Needs Assistance; add eligibility criteria for
its Serious Needs and 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, child care assistance, maximum assistance limits, and
waiver authority. Finally, FEMA will propose allowing self-employed
individuals to receive assistance for essential tools under Other Needs
Assistance, allowing certain home repair accessibility-related items,
and allowing the reopening of the registration period when the
President adds new counties to the major disaster declaration.
In addition, FEMA will propose a regulation titled Update of FEMA's
Public Assistance Regulations. FEMA proposes to revise its Public
Assistance program regulations to reflect current statutory authorities
and implement program improvements. The proposed rule would incorporate
changes brought about by amendments to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act. FEMA is also proposing
clarifications and corrections to improve the efficiency and
consistency of the Public Assistance program.
Additionally, FEMA will propose a regulation titled Updates to
Floodplain Management and Protection of Wetlands Regulations consistent
with President Biden's Executive Order on Climate Related Financial
Risk (Executive Order 14030). FEMA proposes to amend its existing
regulations to incorporate amendments that have been made to Executive
Order 11988 and the Federal Flood Risk Management Standard (FFRMS). The
FFRMS is a flexible framework allowing agencies to choose among three
approaches to define the floodplain and corresponding flood elevation
requirements for federally funded projects. Existing regulations
describe FEMA's process for determining whether the proposed location
for an action falls within a floodplain and how to complete the action
in the floodplain, in light of the risk of flooding. The proposed rule
would change how FEMA defines a floodplain with respect to certain
actions. Additionally, under the proposed rule, FEMA would use natural
systems, ecosystem process, and nature-based approaches, where
practicable, when developing alternatives to locating the proposed
action in the floodplain.
Finally, FEMA continues to engage with the public related to its
floodplain management standards. 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. FEMA's authority under the
National Flood Insurance Act requires the agency to, from time to time,
develop comprehensive criteria designed to encourage the adoption of
adequate State and local measures. The agency is reviewing potential
actions to better align the NFIP minimum floodplain management
standards with FEMA's current understanding of flood risk, flood
insurance premium rates, and risk reduction approaches to make
communities safer, stronger, and more resilient to increased flooding.
FEMA is considering revisions to the minimum standards to better
protect people and property in a nuanced manner that balances community
needs with the
[[Page 11050]]
national scope of the NFIP while also incorporating opportunities for
improving resilience in communities that have been historically
underserved. FEMA is also considering revisions to the minimum
standards that would advance the conservation of threatened and
endangered species and their habitat. In response to a separate Request
for Information, FEMA is also reviewing ways to further promote
enhanced resilience efforts through the Community Rating System.
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 with integrity and
respect for all we serve. To the extent permitted by law, USCIS is
committed to meeting the economic needs of U.S. employers, reducing
unnecessary barriers to legal immigration, increasing access to legally
authorized immigration benefits, and reinvigorating the size and scope
of humanitarian relief. In the coming year, USCIS intends to pursue
several regulatory actions that support these goals while balancing
this work with our fiscal stability goals.
Employment Issues, Economic Needs, and Lawful Pathways. USCIS is
focused on promulgating policies that are responsive to the needs of
the U.S. economy and U.S. employers, while providing lawful pathways to
work in the United States and also protecting the rights of both U.S.
and noncitizen workers. USCIS will propose a rule to modernize and
reform the H-2A and H-2B programs. The proposed rule will incorporate
necessary program efficiencies and meet the legitimate needs of U.S.
employers; it will include provisions designed to protect against the
exploitation or other abuse of H-2A and H-2B workers. (Modernization
and Reform of the H-2 Programs.)
Improvements to the Overall Immigration System. USCIS will propose
adjustments to certain immigration and naturalization benefit request
fees (after performing the required biennial fee review) to ensure that
fees recover full costs borne by USCIS. In doing so, USCIS will adhere
to the ideals of removing unjustified barriers and promoting access to
the immigration system (to promote, among other things, economic needs
and economic growth); improving and expanding naturalization
processing; and implementing the administration's humanitarian
priorities. (USCIS Fee Schedule and Changes to Certain Other
Immigration Benefit Request Requirements.) In addition, USCIS plans to
take steps to reform the regulations governing the adjustment of status
to lawful permanent residence to improve the efficiency and
administration of that program. USCIS will propose a rule that updates
outdated regulations, reduces the potential for visa retrogression, and
promotes the efficient use of immediately available immigrant visas.
(Improving the Regulations Governing the Adjustment of Status to Lawful
Permanent Residence and Related Immigration Benefits.) Lastly, USCIS
will propose a rule to clarify and update eligibility requirements
governing citizenship and naturalization. (Citizenship and
Naturalization and Other Related Flexibilities.)
Humanitarian Relief. USCIS will propose reforms to the U
nonimmigrant visa classification. The U nonimmigrant status is for
noncitizen victims of certain qualifying criminal activities, and their
eligible family members, who have been, are, or are likely to be
helpful in the investigation or prosecution of those crimes. To
streamline the procedures and enhance operational efficiency, USCIS
will propose a rule to update eligibility, procedural and filing
requirements governing U nonimmigrant status, and adjustment of status
for those nonimmigrants. (Victims of Qualifying Criminal Activities;
Eligibility Requirements for U Nonimmigrant Status and Adjustment of
Status). In addition, USCIS will propose a rule to update the
regulations governing self-petitions in cases where the noncitizen has
been subjected to battery or extreme cruelty by their U.S. citizen
spouse, parent, son, or daughter, or lawful permanent resident spouse
or parent. USCIS will also propose to update the regulations to align
with statutory updates made as a result of subsequent reauthorizations
of the Violence Against Women Act. (Relief Under the Violence Against
Women Act of 1994 and Subsequent Legislation.)
Asylum Reforms. USCIS is focused on pursuing regulations to
strengthen, rebuild, and (where appropriate) streamline the asylum
system, consistent with law and mission imperatives. For example, USCIS
and DOJ will take steps to remove regulatory provisions that are
currently enjoined (Bars to Asylum Eligibility and Related Procedures),
propose updates to clarify eligibility for asylum and withholding of
removal (Particular Social Group and Related Definitions and
Interpretations for Asylum and Withholding of Removal), and propose
modifications or withdrawal of other asylum-related regulatory
provisions (Security Bars and Processing).
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:
[[Page 11051]]
Cybersecurity in the Marine Transportation System. The Coast Guard
is proposing to update its maritime security regulations by adding
cybersecurity requirements to existing regulations. This proposed
rulemaking is part of an ongoing effort to address emerging
cybersecurity risks and threats to maritime security by including
additional security requirements to safeguard the marine transportation
system.
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 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.
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. 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 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 travel 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. CBP highlights one those
projects below.
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 mission in
monitoring and tracing the contacts for persons involved in health
incidents. 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. In the
coming fiscal year, TSA is prioritizing the following actions that are
required to meet statutory mandates or that are necessary for national
security.
Enhancing Surface Cyber Risk Management. TSA intends to issue a
rulemaking that will permanently codify critical cybersecurity
requirements for pipeline and rail modes of transportation. On January
28, 2021, the President issued the National Security Memorandum on
Improving Cybersecurity for Critical Infrastructure Controls Systems.
Consistent with this priority of the Administration and in response to
the ongoing cybersecurity threat to surface transportation systems, TSA
issued security directives to owners and operators of TSA-designated
critical pipeline systems and facilities,
[[Page 11052]]
and higher-risk rail operations (freight, passenger, and mass transit)
to implement several urgently needed protections against cyber
intrusions. Through these directives, TSA has imposed measures to
report cybersecurity incidents; designate a cybersecurity coordinator;
review current cybersecurity measures; identify and report any gaps and
related remediation measures to address cyber-related risks; implement
specific mitigation measures to protect against cyber-attacks; develop
and implement a cybersecurity incident response plan; and develop an
assessment program to proactively address and audit cybersecurity
measures. TSA is committed to enhancing and sustaining cybersecurity
for all modes of transportation and intends to issue a rulemaking that
may codify these and other requirements.
Vetting of Certain Surface Transportation Employees. Consistent
with the Implementing Recommendations of the 9/11 Commission Act of
2007, TSA will propose a rule requiring 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 through 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, TSA will be able to conduct a more thorough check against
terrorist watch-lists of individuals in security-sensitive positions.
Flight Training Security Program. TSA published an interim final
rule in 2004 related to flight schools. The IFR 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 and questions raised during operation of the program since 2004.
TSA published a notice reopening the comment period on May 18, 2018.
Based on the comments and questions received, TSA is finalizing the
rule with modifications that may include changing 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. These and other changes would provide
significant cost-savings to the industry and individuals seeking flight
training while also enhancing security.
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 will propose a
rule to revise current vetting requirements to enhance eligibility
requirements 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 processing
improvements, including the rules mentioned below.
Immigration Bond Notifications and Electronic Service. ICE is
revising regulations that authorize the means to serve decisions and
other notices in-person or by mail, to include electronic and other
means of service. This rule is consistent with Executive Order 14058,
which directs agencies to take actions that improve service delivery
and customer experience by decreasing administrative burdens, enhancing
transparency, and improving the efficiency and effectiveness of
government. Current regulations limit ICE to serve documents in-person,
or by certified, registered, or ordinary mail, which is time consuming,
inefficient, and unreliable. This interim final rule would enable ICE
to issue and serve certain notices, decisions, and other documents
electronically to noncitizens, parties, attorneys, or other persons of
interest who voluntarily opt-in to be served electronically. The intent
is to improve convenience, transparency, and provide quicker
information and communication to both the public and the government.
Optional Alternative to the Physical Examination Associated With
Employment Eligibility Verification (Form I-9). In August of 2022, ICE
published a proposed rule that would revise employment eligibility
verification regulations to allow the Secretary to authorize
alternative document examination procedures in certain circumstances or
with respect to certain employer. As explained in the rule, future
exercises of such authority may reduce burdens on employers and
employees while maintaining the integrity of the employment
verification process. DHS will complete this rulemaking following
review of public comments received. This rulemaking is consistent with
Executive Order 14058, which directs agencies to take actions that
improve service delivery and customer experience by decreasing
administrative burdens, enhancing transparency, and improving the
efficiency and effectiveness of government.
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 an Notice of Proposed Rulemaking in 2011.
CISA is planning to issue a Supplemental Notice of Proposed Rulemaking.
Chemical Facility Anti-Terrorism Standards (CFATS). This rule would
update CFATS' Risk Based Performance Standards to enhance cybersecurity
requirements, modify the counting rules associated with release-
flammable chemicals, remove release-explosive chemicals, and adjust the
Screening Threshold Quantities of Appendix A to account for the updated
risk analysis methodology. CISA previously invited public comment on an
Advance Notice of Proposed Rulemaking (ANPRM)
[[Page 11053]]
during August 2014 for potential revisions to the CFATS regulations.
The ANPRM provided an opportunity for the public to provide
recommendations for possible program changes. In June 2020, CISA
published for public comment a retrospective analysis of the CFATS
program. And in January 2021, CISA invited additional public comment
through an ANPRM concerning the removal of certain explosive chemicals
from CFATS. CISA intends to address many of the subjects raised in both
ANPRMs and the retrospective analysis in this regulatory action,
including potential updates to CFATS cybersecurity requirements and
Appendix A to the CFATS regulations. CISA is planning to issue a 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
90. Victims of Qualifying Criminal Activities; Eligibility Requirements
for U Nonimmigrant Status and Adjustment of Status [1615-AA67]
Priority: Other Significant.
Legal Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C. 1101; 8
U.S.C. 1101 (note); 8 U.S.C. 1102; Pub. L. 113-4
CFR Citation: 8 CFR 214; 8 CFR 274a; 8 CFR 103; 8 CFR 299.
Legal Deadline: None.
Abstract: This proposed rule would clarify and update eligibility,
procedural, and filing requirements for U nonimmigrant status (commonly
known as the ``U'' visa) and adjustment of status for U nonimmigrants.
U nonimmigrant status is for noncitizen victims of certain qualifying
criminal activities who have been, are being, or are likely to be
helpful in the investigation or prosecution of those crimes and
eligible family members. There is a statutory limit of 10,000 U visas
per year for principal petitioners. DHS published an interim final rule
in 2007 (72 FR 53013) to establish the procedures to be followed in
order to petition the U nonimmigrant status and published an interim
final rule in 2008 (73 FR 75540) to establish the procedures for
applying for adjustment of status as a U nonimmigrant, and this rule
would address relevant comments and stakeholder feedback received since
publication of those interim final rules, as well as update the
regulations for changes in legislation.
Statement of Need: This regulation is necessary to allow noncitizen
victims of certain crimes to petition for U nonimmigrant status and to
adjust status to that of a lawful permanent resident. The U
classification is for noncitizen victims of certain qualifying criminal
activities who have been, are being, or are likely to be helpful in the
investigation or prosecution of those crimes. This rule would address
the eligibility requirements that must be met for classification as a U
nonimmigrant and implements statutory amendments to these requirements,
streamlines the procedures to petition for U nonimmigrant status,
provides evidentiary guidance to assist in the petition process, and
clarifies adjustment of status requirements.
Summary of Legal Basis: This regulation is necessary to allow
noncitizen victims of certain crimes to petition for U nonimmigrant
status and to adjust status to that of a lawful permanent resident. The
U classification is for noncitizen victims of certain qualifying
criminal activities who have been, are, or are likely to be helpful in
the investigation or prosecution of those crimes. This rule would
address the eligibility requirements that must be met for
classification as a U nonimmigrant and implements statutory amendments
to these requirements, streamlines the procedures to petition for U
nonimmigrant status, provides evidentiary guidance to assist in the
petition process, and clarifies adjustment of status requirements.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
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Interim Final Rule.................. 09/17/07 72 FR 53013
Interim Final Rule Effective........ 10/17/07
Interim Final Rule Comment Period 11/17/07
End.
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, Local, State.
Additional Information: Transferred from RIN 1115-AG39.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Rena Cutlip-Mason, Chief, Division of Humanitarian
Affairs, OP&S, Department of Homeland Security, U.S. Citizenship and
Immigration Services, 5900 Capital Gateway Drive, Camp Springs, MD
20746, Phone: 240 721-3000.
RIN: 1615-AA67
DHS--USCIS
91. Improving the Regulations Governing the Adjustment of Status to
Lawful Permanent Residence and Related Immigration Benefits [1615-AC22]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103(a); 8 U.S.C. 1153 to
1155; 8 U.S.C 1160; 8 U.S.C 1254a; 8 U.S.C. 1255 and 1324a; . . .
CFR Citation: 8 CFR 204.5; 8 CFR 204.12; 8 CFR 205.1; 8 CFR 209.1;
8 CFR 209.2; 8 CFR 244.15; 8 CFR 245.1; 8 CFR 245.2; 8 CFR 245.5; 8 CFR
245.11; 8 CFR 245.15; 8 CFR 245.18; 8 CFR 249.2; 8 CFR 264.2; 8 CFR
274a.12; . . .
Legal Deadline: None.
Abstract: The Department of Homeland Security (DHS) proposes to
amend its regulations governing adjustment of status to lawful
permanent residence in the United States. The proposed changes include
permitting concurrent filing of a visa petition and the application for
adjustment of status for the employment-based 4th preference (certain
special immigrants) category, including religious workers; permitting
the transfer of underlying basis of a pending adjustment of status
application; amending the definition relating to ineligibilities under
section 245(c) of the INA; changing the age calculation under the Child
Status Protection Act; and authorizing employment authorization for
certain derivative beneficiaries waiting for immigrant visa
availability when they present compelling circumstances. DHS also
proposes to amend the regulations relating to temporary protected
status and travel authorization and the impact on the adjustment of
status eligibility. The intent of these proposed changes is to reduce
processing times, improve the quality of inventory data provided to
partner agencies, reduce the potential for visa retrogression, and
promote the efficient use of immediately available immigrant visas.
Statement of Need: This rulemaking is necessary to address outdated
regulations and to improve the efficiency and the administration of the
adjustment of status of immigrants to
[[Page 11054]]
lawful permanent residence in the United States, improve the quality of
inventory data that DHS provides to agencies, reduce the potential for
visa retrogression, and promote the efficient use of immediately
available immigrant visas. This proposed rule would revise travel
authorization regulations for temporary protected status beneficiaries
and clarify the impact on adjustment of status eligibility. This rule
also changes eligibility requirements for certain classifications for
what constitutes compelling circumstances for employment authorization.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
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-AC22
DHS--USCIS
92. Particular Social Group and Related Definitions and Interpretations
for Asylum and Withholding of Removal [1615-AC65]
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) (collectively, ``the
Departments'') 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 and the interpretation of various other
elements of eligibility for asylum, including some that are often
determinative in particular social group claims, such as the
requirements for failure of State protection, and determinations about
whether persecution is on account of a protected ground. The rule will
also propose to modify or rescind portions of the Procedures for Asylum
and Withholding of Removal; Credible Fear and Reasonable Fear Review
final rule (RINs 1125-AA94 and 1615-AC42). This rule is consistent with
Executive Order 14010 of February 2, 2021, which directs the
Departments 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.
Statement of Need: The Departments propose this rule to clarify
standards governing numerous elements of eligibility for asylum,
withholding of removal under section 241(b)(3) of the Immigration and
Nationality Act, and protection from removal under the regulations that
implement U.S. obligations in immigration cases under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. The rule proposes to rescind certain
provisions of the Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review final rule, which had
addressed many of the same issues. See 85 FR 80274. The previous rule
was the subject of multiple suits challenging the rule on numerous
procedural and substantive grounds, and was preliminarily enjoined
before it became effective. Pangea Legal Servs. v. U.S. Dep't of
Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). In some
circumstances the Departments have decided to republish changes made in
the Global Asylum Rule without amendment. The purpose of doing so is to
remedy any alleged procedural deficiencies with the enactment of those
provisions. In other instances, the Departments now propose different
provisions with the goal of adopting clearer and simpler analyses that
would reduce burdens on adjudicators and applicants, and result in more
consistent and accurate adjudications. The Departments believe that the
existing standards governing these issues have become confusing, overly
complex, and subject to inconsistent interpretations among adjudicators
and across federal circuit courts on numerous issues. The Departments
propose this rule to rectify these problems.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23
------------------------------------------------------------------------
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: Rena Cutlip-Mason, Chief, Division of Humanitarian
Affairs, OP&S, Department of Homeland Security, U.S. Citizenship and
Immigration Services, 5900 Capital Gateway Drive, Camp Springs, MD
20746, Phone: 240 721-3000.
Related RIN: Related to 1615-AC42, Related to 1125-AB13, Related to
1125-AA94
RIN: 1615-AC65
DHS--USCIS
93. U.S. Citizenship and Immigration Services Fee Schedule and Changes
to Certain Other Immigration Benefit Request Requirements [1615-AC68]
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 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
[[Page 11055]]
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................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: None.
Agency Contact: Kika 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:
240 721-3000.
RIN: 1615-AC68
DHS--USCIS
94. Bars to Asylum Eligibility and Related Procedures [1615-AC69]
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), and Asylum Eligibility and Procedural Modifications
(RINs 1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17, 2020), final
rules. The Departments will propose to modify or rescind the regulatory
changes promulgated in these two 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 Executive Order 14010 and Executive Order 14012.
Anticipated Cost and Benefits: The Departments are currently
considering the specific cost and benefit impacts of the proposed
provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Rena Cutlip-Mason, Chief, Division of Humanitarian
Affairs, OP&S, Department of Homeland Security, U.S. Citizenship and
Immigration Services, 5900 Capital Gateway Drive, Camp Springs, MD
20746, 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-AB12
RIN: 1615-AC69
DHS--USCIS
95. Modernization and Reform of the H-2 Programs [1615-AC76]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 8 U.S.C. 1103(a)(3); 8 U.S.C.
1001(a)(15)(H)(ii)(a) and (b); 8 U.S.C. 1184(a), (c) and (g)
CFR Citation: 8 CFR 214; 8 CFR 274a.
Legal Deadline: None.
Abstract: DHS plans to issue a notice of proposed rulemaking that
will modernize and reform the H-2A and H-2B nonimmigrant worker
programs. DHS will propose to incorporate policies that produce program
efficiencies, address current aspects of the program that may
unintentionally result in exploitation or other abuse of persons
seeking to come to this country as H-2A and H-2B workers, build upon
existing protections against prohibited payments or other assessment of
fees and/or salary deductions by H-2A and H-2B workers in connection
with recruitment and/or employment, and otherwise add protections for
workers. This rule would not revise the temporary labor certification
process or the regulations contained in 20 CFR part 655 or 29 CFR part
501 and 503.
Statement of Need: This rulemaking is needed to enhance protections
for workers and better ensure the integrity of the H-2A and H-2B
programs. In addition, this proposed rule is necessary to improve H-2
program efficiencies and remove certain barriers to program access.
Summary of Legal Basis: The Immigration and Nationality Act (INA)
charges the Secretary of Homeland Security with the administration and
enforcement of the immigration laws and provides that the Secretary
shall establish such regulations and perform such other acts as he
deems necessary for carrying out his authority under the INA. See INA
section 103(a)(1),(3), 8 U.S.C. 1103(a)(1), (3). In addition, the
Homeland Security Act of 2002, also charges the Secretary with
establishing and administering rules governing the granting of visas or
other forms of permission to enter the United States to individuals who
are not a citizen, or an alien lawfully admitted for permanent
residence in the United States. See Public Law 107-296, 116 Stat. 2135,
6 U.S.C. 202(4). With respect to nonimmigrants in particular, the INA
provides that the admission to the United States of any alien as a
nonimmigrant shall be for such time and under such conditions as the
Secretary may by regulations prescribe. See INA section 214(a)(1), 8
U.S.C. 1184(a)(1). The INA also tasks DHS with approving petitions
filed by the importing employers of nonimmigrants, including those in
the H nonimmigrant visa classification, before a nonimmigrant visa may
be granted. See INA section 214(c)(1), 8 U.S.C. 1184(c)(1).
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
[[Page 11056]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Charles Nimick, Chief, Business and Foreign Workers
Division, Office of Policy and Strategy, Department of Homeland
Security, U.S. Citizenship and Immigration Services, 5900 Capital
Gateway Drive, Suite 4S190, Camp Springs, MD 20588-0009, Phone: 240
721-3000.
RIN: 1615-AC76
DHS--USCIS
96. Citizenship and Naturalization and Other Related
Flexibilities [1615-AC80]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: sec. 102 of the Homeland Security Act of 2002; 6
U.S.C. 112(a)(3); 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1151; 8 U.S.C.
1153; 8 U.S.C. 1154; 8 U.S.C. 1159; 8 U.S.C. 1182; 8 U.S.C. 1255; 8
U.S.C. 1401; 8 U.S.C. 1409; 8 U.S.C. 1421; 8 U.S.C. 1423; 8 U.S.C.
1427; 8 U.S.C. 1429 to 1431; 8 U.S.C. 1433; 8 U.S.C. 1435; 8 U.S.C.
1438 to 1440; 8 U.S.C. 1443; 8 U.S.C. 1445 to 1449; 8 U.S.C. 1452; 8
U.S.C. 1454; 8 U.S.C. 1481
CFR Citation: 8 CFR 1.2; 8 CFR 103; 8 CFR 106; 8 CFR 204; 8 CFR
209; 8 CFR 245; 8 CFR 300; 8 CFR 306; 8 CFR 312; 8 CFR 316; 8 CFR 318;
8 CFR 319; 8 CFR 320; 8 CFR 322; 8 CFR 324; 8 CFR 329; 8 CFR 333; 8 CFR
334; 8 CFR 335; 8 CFR 336; 8 CFR 337; 8 CFR 338; 8 CFR 339; 8 CFR 341;
8 CFR 343a; 8 CFR 349; . . .
Legal Deadline: None.
Abstract: The Department of Homeland Security (DHS) will propose to
amend its regulations governing citizenship and naturalization. This
includes clarifying the testing requirements, updating eligibility
requirements, and proposing amendments to clarify definitions. DHS will
also propose removing certain outdated provisions and amending other
provisions to align with current statutory framework, such as updating
the adoption-related regulatory provisions consistent with the
Intercountry Adoption Universal Accreditation Act of 2012.
Statement of Need: These proposed changes, some of which were
requested by the public, are needed to improve the efficiency,
effectiveness, accessibility, uniformity, and consistency of
adjudications.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
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-AC80
DHS--USCIS
97. Relief Under the Violence Against Women Act of 1994 and
Subsequent Legislation [1615-AC81]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 8.U.S.C. 1103; 8 U.S.C. 1154; 8 U.S.C. 1155; 8
U.S.C. 1182; 8 U.S.C. 1183a; 8 U.S.C. 1186; 8 U.S.C. 1324a; 8 U.S.C.
1225; 8 U.S.C. 1255; . . .
CFR Citation: 8 CFR 103; 8 CFR 204; 8 CFR 205; 8 CFR 213a; 8 CFR
216; 8 CFR 245; 8 CFR 274a; . . .
Legal Deadline: None.
Abstract: This proposed rule would amend regulations governing
self-petitions for immigrant classification and related relief
available to certain spouses, children, and parents who have been
subjected to battery or extreme cruelty by their U.S. citizen spouses,
parents, sons, or daughters, or lawful permanent resident spouses or
parents. DHS also proposes to amend regulations governing petitions to
remove conditions on permanent residence in which conditional permanent
residents (CPR) request a waiver of the joint filing requirement due to
battery or extreme cruelty by their U.S. citizen or lawful permanent
resident (LPR) spouses or parents.
Statement of Need: The Violence Against Women Act of 1994 (VAWA)
provides noncitizens who have been abused by their U.S. citizen or
lawful permanent resident relative the ability to independently
petition for themselves for immigrant classification without the
abuser's knowledge, consent, or participation in the immigration
process. Current VAWA regulations, which were codified to implement the
Immigration Act of 1990 and the Violence Against Women Act of 1994,
were published in the Federal Register on May 16, 1991, and March 26,
1996. Subsequently, Congress has reauthorized VAWA through the Victims
of Trafficking and Violence Protection Act of 2000, the Violence
Against Women and Department of Justice Reauthorization Act of 2005 and
the Violence Against Women and Department of Justice Reauthorization
Act of 2005 Technical Amendments, and the Violence Against Women
Reauthorization Act of 2013. This rule is necessary to update USCIS
regulations to comport with these subsequent reauthorizations of VAWA.
The amendments contained in this proposed rule would reflect the
subsequent legislative enactments and incorporate current USCIS policy.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Rena Cutlip-Mason, Chief, Division of Humanitarian
Affairs, OP&S, Department of Homeland Security, U.S. Citizenship and
Immigration Services, 5900 Capital Gateway Drive, Camp Springs, MD
20746, Phone: 240 721-3000.
RIN: 1615-AC81
DHS--USCIS
Final Rule Stage
98. Security Bars and Processing [1615-AC57]
Priority: Other Significant.
Legal Authority: Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (``IIRIRA''), Pub. L. 104-208, 110 Stat.
3009, sec. 604(a) (codified at INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C)); INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B); Foreign
Affairs
[[Page 11057]]
Reform and Restructuring Act (``FARRA''), Pub. L. 105-277, 112 Stat.
2681-822, sec. 2242 (1998); INA 235(b), 8 U.S.C. 1225(b)
CFR Citation: 8 CFR 208; 8 CFR 1208.
Legal Deadline: None.
Abstract: On December 23, 2020, DHS and the DOJ (collectively, the
Departments) published a final rule to clarify that the danger to the
security of the United States statutory bar to eligibility for asylum
and withholding of removal encompasses certain emergency public health
concerns and make certain other changes. As of December 28, 2021, the
rule's effective date was delayed to December 31, 2022. The Departments
plan to further delay the effective date and to propose modification or
withdrawal of the December 23, 2020, rule.
Statement of Need: The Departments are reviewing and reconsidering
whether the Security Bars and Processing final rule is consistent with
the goals of ensuring the safe and orderly reception and processing of
asylum seekers consistent with public health and safety, with the
additional context of the complex relationship between the Procedures
for Asylum and Withholding of Removal; Credible Fear and Reasonable
Fear Review final rule (RINs 1125-AA94 and 1615-AC42) and the Security
Bars rule. The Departments are reevaluating whether the Security Bars
rule provides the most appropriate and effective framework for
achieving its goals of mitigating the spread of communicable diseases,
including COVID-19, among certain noncitizens in the credible fear
screening process, as well as DHS personnel and the public. Based on
such reconsideration, the Departments will publish rules to delay the
effective date of the Security Bars rule and propose to modify or
withdraw the Security Bars rule.
Anticipated Cost and Benefits: DHS is currently considering the
specific cost and benefit impacts of the proposed provisions.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/09/20 85 FR 41201
NPRM Comment Period End............. 08/10/20
Final Action........................ 12/23/20 85 FR 84160
Final Action Effective.............. 01/22/21
Final Rule; Delay of Effective Date. 01/25/21 86 FR 6847
Final Rule; Effective Date Delayed 03/22/21
Until.
Interim Final Rule; Delay of 03/22/21 86 FR 15069
Effective Date.
Interim Final Rule Comment Period 04/21/21
End.
Interim Final Rule Effective Date 12/31/21
Delayed Until.
Interim Final Rule; Delay of 12/28/21 86 FR 73615
Effective Date.
Interim Final Rule Comment Period 02/28/22
End.
Interim Final Rule Effective Date 12/31/22
Delayed Until.
NPRM................................ 02/00/23
Interim Final Rule; Delay of 12/00/22
Effective Date.
------------------------------------------------------------------------
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: Ashley Caudill-Mirillo, Acting Asylum Division,
Office of Refugee, Asylum, and International Operations, Department of
Homeland Security, U.S. Citizenship and Immigration Services, 5900
Capital Gateway Drive, Camp Springs, MD 20746, Phone: 240 721-3000.
Related RIN: Related to 1125-AB08, Related to 1615-AC69
RIN: 1615-AC57
DHS--U.S. COAST GUARD (USCG)
Proposed Rule Stage
99. Cybersecurity in the Marine Transportation System [1625-AC77]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 46 U.S.C. 70101; 46 U.S.C. 70102; 46 U.S.C. 70104;
46 U.S.C. 70124; . . .
CFR Citation: 33 CFR 101; . . .
Legal Deadline: None.
Abstract: The Coast Guard proposes to update its maritime security
regulations by adding cybersecurity requirements to existing Maritime
Security regulations in 33 CFR part 101 et seq. This proposed
rulemaking is part of an ongoing effort to address emerging
cybersecurity risks and threats to maritime security by including
additional security requirements to safeguard the marine transportation
system.
Statement of Need: The purpose of this rulemaking is to set minimum
cybersecurity requirements for vessels and facilities to safeguard the
Marine Transportation System (MTS) from cybersecurity vulnerabilities.
Summary of Legal Basis: The Coast Guard exercises the Maritime
Transportation Security Act of 2002 (MTSA) authorities of Chapter 701
of Title 46 of the U.S. Code. This includes the authority to promulgate
Chapter 701 regulations under 46 U.S.C. 70124. This statute provides
that the DHS Secretary may issue regulations necessary to implement
Chapter 701 of Title 46.
Anticipated Cost and Benefits: The regulatory analysis for the
proposed rule is still being developed.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: 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, STOP 7509, Washington, DC 20593-7509, Phone: 202 372-1375, Email:
[email protected].
RIN: 1625-AC77
DHS--USCG
100. MARPOL Annex VI; Prevention of Air Pollution From Ships [1625-
AC78]
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 rule 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 rule would apply
to U.S.-flagged ships. It would also apply to
[[Page 11058]]
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.
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 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................................ 10/00/23
------------------------------------------------------------------------
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, STOP 7509, Washington, DC 20593-7509, Phone: 202 372-1375, Email:
[email protected].
RIN: 1625-AC78
DHS--U.S. CUSTOMS AND BORDER PROTECTION (USCBP)
Proposed Rule Stage
101. Advance Passenger Information System: Electronic Validation of
Travel Documents [1651-AB43]
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 contact-trace health
incidents. This rule is consistent with Executive Order 14058, which
directs agencies to take actions that improve service delivery and
customer experience by decreasing administrative burdens, enhancing
transparency, and improving the efficiency and effectiveness of
government.
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. While in the case of
security threats CBP may require an air carrier to deny boarding to the
passenger. CBP recommends that air carriers deny boarding to those
likely to be deemed inadmissible upon arrival in the United States. To
further improve CBP's vetting processes with respect to identifying and
preventing passengers with fraudulent or improper documents from
traveling to 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
costs to CBP, air carriers, and passengers for additional time spent
coordinating to resolve a passenger's status should there be a security
issue upon checking in for a flight. In addition, CBP will incur 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................................ 12/00/22
------------------------------------------------------------------------
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].
[[Page 11059]]
RIN: 1651-AB43
DHS--TRANSPORTATION SECURITY ADMINISTRATION (TSA)
Prerule Stage
102. Enhancing Surface Cyber Risk Management [1652-AA74]
Priority: Other Significant.
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. In response to the ongoing threat to
pipeline systems, TSA used its authority under 49 U.S.C. 114 to issue
emergency 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. TSA also issued security directives in the freight,
passenger, and transit-rail sectors under the same statutory authority.
TSA is committed to enhancing and sustaining industry's resilience to
cybersecurity attacks. TSA intends to issue a rulemaking that will
permanently codify critical cybersecurity requirements for pipeline and
rail 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.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 11/30/22 87 FR 73527
ANPRM Comment Period End............ 01/17/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Agency Contact: Victor Parker, Chief, Policy Development Section,
Surface Division, 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].
James Ruger, 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-
5519, Email: [email protected].
David Kasminoff, 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: 571 227-3583, Email:
[email protected].
RIN: 1652-AA74
DHS--TSA
Proposed Rule Stage
103. Vetting of Certain Surface Transportation Employees [1652-AA69]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 49 U.S.C. 114; Public Law 108-90, sec. 520; 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. Also, 6 U.S.C. 469
requires TSA to collect fees to recover the costs of the vetting
services. Through this rulemaking, the Transportation Security
Administration (TSA) intends to propose the standards and procedures to
conduct the required vetting and recover costs. 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: The vetting of freight rail, public
transportation, and over-the-road bus employees covered under the rule
will result in costs to TSA and to industry. TSA is proposing to
establish fees to recover vetting costs. TSA also anticipates ancillary
costs (e.g., updating contact information, compliance inspections)
associated with compliance with the rule. Anticipated benefits include
reducing security risks by identifying and/or mitigating potential
insider threats through vetting.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses.
Government Levels Affected: Local.
URL For More Information: www.regulations.gov.
URL For Public Comments: www.regulations.gov.
Agency Contact: Victor Parker, Chief, Policy Development Section,
Surface Division, Department of Homeland Security, Transportation
Security Administration, Policy, Plans and Engagement, 6595 Springfield
Center Drive, Springfield, VA 20398-6028, Phone: 571 227-3664, Email:
[email protected].
James Ruger, 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-
5519, 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
104. Amending Vetting Requirements for Employees With Access to a
Security Identification Display Area (SIDA) [1652-AA70]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: Pub. L. 114-190, sec. 3405
[[Page 11060]]
CFR Citation: 49 CFR 1542.209; 49 CFR 1544.229.
Legal Deadline: Final, Statutory, January 11, 2017, Rule for
individuals with unescorted access to any Security Identification
Display Area (SIDA) due 180 days after date of enactment. Section 3405
of title III of the FAA Extension, Safety, and Security Act of 2016
(FESSA) Extension, Public Law 114-190 (130 Stat. 615, July 15, 2016),
requires the Transportation Security Administration (TSA) to revise the
regulations issued under 49 U.S.C. 44936 within 180 days after the date
of enactment.
Abstract: As required by the FESSA, TSA will propose a rule to
revise its regulations, reflecting current knowledge of insider threat
and intelligence, to enhance the eligibility requirements and
disqualifying criminal offenses for individuals seeking or having
unescorted access to any SIDA of an airport. Consistent with the
statutory mandate, TSA will consider adding to the list of
disqualifying criminal offenses and criteria, develop an appeal and
waiver process for the issuance of credentials for unescorted access,
and propose an extension of the lookback period for disqualifying
crimes. As part of TSA's reevaluation of the eligibility and redress
standards for aviation workers required by the Act, TSA is also
reevaluating the current vetting process to minimize any security risks
that may exist.
Statement of Need: Employee vetting is an important and effective
tool for averting or mitigating potential attacks by those with
malicious intent who wish to target aviation and plan or perpetrate
actions that may cause significant injuries, loss of life, or economic
disruption. Enhancing eligibility standards for airport workers will
improve transportation and national security.
Anticipated Cost and Benefits: TSA anticipates costs associated
with implementing and administering revised aspects of aviation vetting
including potential changes to the list of disqualifying criminal
offenses, the lookback period for convictions, and new waiver
eligibility. Anticipated benefits include reducing security risks
through enhanced vetting of aviation workers while also providing
greater flexibility and access through waivers as well as increased
efficiencies of the vetting process.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Kevin Knott, Branch Manager, Airports Policy
Branch-Aviation Division, Department of Homeland Security,
Transportation Security Administration, Policy, Plans, and Engagement,
6595 Springfield Center Drive, Springfield, VA 20598-6028, Phone: 571
227-4370, Email: [email protected].
James Ruger, 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-
5519, 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-AA11
RIN: 1652-AA70
DHS--TSA
Final Rule Stage
105. Flight Training Security Program [1652-AA35]
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 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) (Vision 100 Act),
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, transferred responsibility for the vetting of
flight school candidates from the Department of Justice to TSA, with
certain modifications to the program, as required by the Vision 100
Act. This IFR applied to training providers and to individuals who
apply for or receive flight training. Flight schools are required to
notify TSA when non-U.S. citizens, non-U.S. nationals, and other
individuals designated by TSA, apply for flight training or recurrent
flight training. TSA issued exemptions and interpretations in response
to comments on the IFR and questions raised during operation of the
program since 2004. TSA published a notice reopening the comment period
on May 18, 2018. Based on the comments and questions received, TSA is
finalizing the rule 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 advanced through technology and other enhancements. 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 training providers would upload
certain information to a TSA-managed website (https://fts.tsa.dhs.gov/
). Also at industry's request, TSA is considering changing the interval
for a Security Threat Assessment of each non-U.S. citizen and non-U.S.
national flight student, by 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 this revision.
The change in the interval of the Security Threat Assessment would
result in immediate cost savings to flight providers and students who
are neither U.S. citizens nor U.S. nationals without compromising the
security process.
[[Page 11061]]
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.......................... 03/00/23 .......................
------------------------------------------------------------------------
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: Stephanie Hamilton, Manager, Vetting Programs
Branch, Department of Homeland Security, Transportation Security
Administration, Enrollment Services & Vetting Programs, 6595
Springfield Center Drive, Springfield, VA 20598-6010, Phone: 571 227-
2851, Email: [email protected].
James Ruger, 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-
5519, 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--U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (USICE)
Final Rule Stage
106. Immigration Bond Notifications and Electronic Service [1653-AA85]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: Government Paperwork Elimination Act, 44 U.S.C.
3504 note; Electronic Signatures in Global and National Commerce Act,
15 U.S.C. 7001 to 7031; 8 U.S.C. 1103(a)(3)
CFR Citation: 8 CFR 103.
Legal Deadline: None.
Abstract: DHS is revising regulations that authorize the means to
serve decisions and other notices in-person or by mail, to include
electronic and other means of service. This rule is consistent with
Executive Order 14058, which directs agencies to take actions that
improve service delivery and customer experience by decreasing
administrative burdens, enhancing transparency, and improving the
efficiency and effectiveness of government. Current regulations limit
ICE, a component of DHS, to serve documents in-person, or by certified,
registered, or ordinary mail, which is time consuming, inefficient, and
unreliable.
This interim final rule would enable ICE to issue and serve certain
notices, decisions, and other documents electronically to noncitizens,
parties, attorneys, or other persons of interest who voluntarily opt-in
to be served electronically. The intent is to improve convenience,
transparency, and provide quicker information and communication to both
the public and the government. This interim final rule would also
permit ICE to issue bond-related notifications to obligors
electronically for immigration bonds.The ICE transition to electronic
notifications for bond-related documents is part of an electronic bonds
system ICE developed to simplify the posting of bonds.
Statement of Need: This interim final rule is needed for ICE to
begin transforming from a paper environment to electronic or other
means to streamline processes and increase efficiency.
Anticipated Cost and Benefits: ICE is in the process of assessing
the anticipated impacts of this rule. This interim final rule is
expected to result in cost-savings and benefits to both the government
and private parties due to the optional electronic servicing of bond-
related notifications, including expedited delivery, improved
reliability, and other modernization features. It may impose nominal
use and familiarization costs to those who elect to create accounts and
use the system.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 10/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Sharon Hageman, 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-AA85
DHS--USICE
107. Optional Alternative to the Physical Examination Associated With
Employment Eligibility Verification (Form I-9) [1653-AA86]
Priority: Other Significant.
Legal Authority: 8 U.S.C. 1101, 1103
CFR Citation: 8 CFR 274a.
Legal Deadline: None.
Abstract: On August 18, 2022, DHS published a proposed rule that
would revise employment eligibility verification regulations to allow
the Secretary to authorize alternative document examination procedures
in certain circumstances or with respect to certain employers. DHS
explained that future exercises of such authority may reduce burdens on
employers and employees while maintaining the integrity of the
employment verification process. DHS will complete this rulemaking
following review of public comments received. This rulemaking is
consistent with Executive Order 14058, which directs agencies to take
actions that improve service delivery and customer experience by
decreasing administrative burdens, enhancing transparency, and
improving the
[[Page 11062]]
efficiency and effectiveness of government.
Statement of Need: DHS is exploring alternative options for
examining employees' identity and employment authorization documents
because of lessons learned during the COVID-19 pandemic, and because
more employers are adopting telework and remote work arrangements as a
result of advances in technology and new work arrangements where more
employees work without physically reporting to a company location on a
regular basis.
Anticipated Cost and Benefits: DHS proposed allowing the Secretary
to authorize alternative options for document examination procedures
with respect to some or all employers when they are hired, have their
employment authorization reverified, or rehired, as part of a pilot
program, or as a temporary measure to address a public health emergency
declared by the Secretary of Health and Human Services or a national
emergency declared by the President. The rule does not itself implement
an alternative procedure to physical examination, therefore DHS is
unable to fully quantify the potential impacts due to a lack of
information about the specifics of a possible future alternative
procedure. DHS proposed changes to the Form I-9, Employment Eligibility
Verification, and its accompanying instructions that would allow
employers to indicate that alternative procedures were used (should
such alternative procedures be authorized in the future). These changes
would increase the time for employers to complete the form.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/18/22 87 FR 50786
NPRM Comment Period End............. 10/17/22 .......................
Final Rule.......................... 05/00/23 .......................
------------------------------------------------------------------------
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: Sharon Hageman, 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-AA86
DHS--FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)
Proposed Rule Stage
108. National Flood Insurance Program: Standard Flood Insurance Policy,
Homeowner Flood Form [1660-AB06]
Priority: Economically Significant. Major under 5 U.S.C. 801.
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. Property owners in participating communities are eligible to
purchase NFIP flood insurance. 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 homeowners of 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
[[Page 11063]]
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 fulfillment of customer
expectations through 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, FEMA, States, and insurance providers will incur costs for
implementation and familiarization of the rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
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
109. Individual Assistance Program Equity [1660-AB07]
Priority: Economically Significant. Major under 5 U.S.C. 801.
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: 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 in the Program, FEMA proposes to
amend application of `safe, sanitary, and functional' for the
Individuals and Households Program (IHP) Home Repair assistance; re-
evaluate the requirement to apply for a Small Business Administration
loan prior to receipt of certain types of Other Needs Assistance (ONA);
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, child care assistance,
maximum assistance limits, and waiver authority. Finally, FEMA proposes
allowing self-employed individuals to receive assistance for essential
tools under ONA, allowing certain home repair accessibility-related
items, and allowing the reopening of the registration period when the
President adds new counties to the major disaster declaration.
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
previously addressed at the time the regulations were first developed.
Anticipated Cost and Benefits: FEMA estimates that this rulemaking
would result in an increase in transfer payments from FEMA and States
in the form of disaster assistance to individuals and households. It
would also result in additional costs to States for familiarization of
the rule and to FEMA and applicants for paperwork burden. The proposed
rule would ensure disaster assistance is more equitably distributed and
assist applicants to more quickly and fully recover from disasters by
expanding eligibility for, and access to, certain types of assistance.
Lastly, the rulemaking would improve clarity and align FEMA regulations
with statutory changes improving the efficiency and the consistency of
IHP assistance.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State.
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--FEMA
110. Update of FEMA's Public Assistance Regulations [1660-AB09]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 5121 to 5207
CFR Citation: 44 CFR 206.
Legal Deadline: None.
Abstract: The Federal Emergency Management Agency (FEMA) proposes
to revise its Public Assistance (PA) program regulations to reflect
current statutory authorities and implement program improvements. The
proposed rule would incorporate changes brought about by amendments to
the Robert T. Stafford Disaster Relief and Emergency Assistance Act.
FEMA is also proposing clarifications and corrections to improve the
efficiency and consistency of the Public Assistance program.
Statement of Need: The Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act), Public Law 100-707, 102 Stat.
4689, authorizes the President to provide Federal assistance when the
severity and magnitude of an incident or threatened incident, exceeds
the affected State, local, Indian Tribal, and Territorial government's
(SLTT's) capabilities to effectively respond or recover. 42 U.S.C. 5170
and 5191. If the President declares an emergency or major disaster
authorizing the Public Assistance
[[Page 11064]]
program, FEMA may award Public Assistance grants to assist SLTTs and
certain private nonprofit (PNP) organizations so communities can
quickly respond to and recover from the major disaster or emergency.
FEMA proposes to amend its Public Assistance and Community Disaster
Loan program regulations to incorporate statutory changes that have
amended sections of the Stafford Act relating to Public Assistance and
Community Disaster Loans and to improve program administration. These
include the Post-Katrina Emergency Management Reform Act of 2006
(PKEMRA), Public Law 109-295, 120 Stat. 1394, the Security and
Accountability for Every Port Act of 2006 (SAFE Port Act), Public Law
109-347, 120 Stat. 1884, the Pets Evacuation and Transportation
Standards Act of 2006 (PETS Act), Public Law 109-308, 120 Stat. 1725,
the Sandy Recovery Improvement Act of 2013 (SRIA), Public Law 113-2,
127 Stat. 39, the Emergency Information Improvement Act of 2015, Public
Law 114-111, 129 Stat. 2240, the Bipartisan Budget Act of 2018, Public
Law 115-123, 132 Stat. 64, and the FAA Reauthorization Act of 2018,
Division D, Disaster Recovery Reform Act of 2018 (DRRA), Public Law
115-254, 132 Stat. 3438. FEMA also proposes to implement program
improvements and make clarifications and corrections to existing
regulations.
Anticipated Cost and Benefits: FEMA estimates that this rulemaking
would result in benefits to SLTTs and FEMA from improving clarity and
aligning FEMA regulations with statutory changes and current practices.
Such increased clarity and understanding would improve the efficiency
and the consistency of FEMA's PA programs. Additionally, proposed
improvements to State/Tribal administrative plans would better position
SLTTs to respond to and to recover from emergencies and disasters.
Lastly, FEMA estimates increases in costs for SLTTs due to additional
paperwork burden and familiarization of the rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State, Tribal.
Agency Contact: Ana Montero, Public Assistance Division Recovery
Directorate, Department of Homeland Security, Federal Emergency
Management Agency, 500 C Street SW, Washington, DC 20472-3100, Phone:
202 646-3834, Email: [email protected].
RIN: 1660-AB09
DHS--FEMA
111. Updates to Floodplain Management and Protection of Wetlands
Regulations [1660-AB12]
Priority: Other Significant.
Legal Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42
U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR,
1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR,
1977 Comp., p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967
CFR Citation: 44 CFR 9.
Legal Deadline: None.
Abstract: Consistent with President Biden's Executive Order on
Climate Related Financial Risk (E.O. 14030), the Federal Emergency
Management Agency (FEMA) proposes to amend its regulations at 44 CFR
part 9 Floodplain Management and Protection of Wetlands to incorporate
amendments to Executive Order 11988 and the Federal Flood Risk
Management Standard (FFRMS). The FFRMS is a flexible framework allowing
agencies to choose among three approaches to define the floodplain and
corresponding flood elevation requirements for federally funded
projects. 44 CFR part 9 describes FEMA's process under Executive Order
11988 for determining whether the proposed location for an action falls
within a floodplain and how to complete the action in the floodplain,
in light of the risk of flooding. The proposed rule would change how
FEMA defines a floodplain with respect to certain actions.
Additionally, under the proposed rule, FEMA would use natural systems,
ecosystem process, and nature-based approaches, where practicable, when
developing alternatives to locating the proposed action in the
floodplain.
Statement of Need: The United States is experiencing increased
flooding and flood risk from changing conditions. The Federal Emergency
Management Agency (FEMA) has not made significant updates to its
regulations governing floodplain management to reflect the challenges
faced because of increased flooding and changing conditions since
initial publication in 1980. As a result, FEMA is now proposing to
amend 44 CFR part 9, Floodplain Management and Protection of Wetlands,
to implement the Federal Flood Risk Management Standard (FFRMS) and
update the agency's 8-step process. The FFRMS is a flood resilience
standard that is required for federally funded projects and provides a
flexible framework to increase resilience against flooding and help
preserve the natural values of floodplains and wetlands. A floodplain
is any land area that is subject to flooding and refers to geographic
features with undefined boundaries. 44 CFR part 9 describes the 8-step
process FEMA uses to determine whether a proposed action would be
located within or affect a floodplain, and if so, whether and how to
continue with or modify the proposed action. Executive Order 11988, as
amended, and the FFRMS changed the Executive Branch-wide guidance for
defining the floodplain with respect to federally funded projects
(i.e., actions involving the use of Federal funds for new construction,
substantial improvement, or to address substantial damage to a
structure or facility). This proposed rule would ensure that actions
subject to the FFRMS are designed to be resilient to both current and
future flood risks to minimize the impact of floods on human health,
safety, and welfare and to protect Federal investments by reducing the
risk of flood loss.
Anticipated Cost and Benefits: FEMA estimates that this rulemaking
would result in benefits to grant recipients (States, Local, Tribes,
Territories, and Individuals) and to FEMA, mostly through the reduction
in damage to properties and contents from future floods, potential
lives saved, public health and safety benefits, reduced recovery time
from floods, and increased community resilience to flooding. FEMA
estimates project cost increases for FEMA and grant recipients due to
increased elevation or floodproofing requirements of the proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State, Tribal.
Agency Contact: Portia Ross, Office of Environmental and Historic
Preservation, Department of Homeland Security, Federal Emergency
Management Agency, 400 C Street SW, Washington, DC 20472, Phone: 202
646-2741, Email: [email protected].
RIN: 1660-AB12
[[Page 11065]]
DHS--FEMA
Long-Term Actions
112. 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 [1660-AB11]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 4001 et seq.
CFR Citation: 44 CFR 59 to 60.
Legal Deadline: None.
Abstract: The Federal Emergency Management Agency (FEMA) issued a
Request for Information to receive the public's input on revisions to
the National Flood Insurance Program's (NFIP) floodplain management
standards for land management and use regulations. FEMA's authority
under the National Flood Insurance Act requires the agency to, from
time to time, develop comprehensive criteria designed to encourage the
adoption of adequate State and local measures. The agency is reviewing
potential actions to better align the NFIP minimum floodplain
management standards with our current understanding of flood risk,
flood insurance premium rates, and risk reduction approaches to make
communities safer, stronger, and more resilient to increased flooding.
FEMA is considering revisions to the minimum standards to better
protect people and property in a nuanced manner that balances community
needs with the national scope of the NFIP while also incorporating
opportunities for improving resilience in communities that have been
historically underserved. The agency is also reviewing ways to further
promote enhanced resilience efforts through the Community Rating System
and to strengthen NFIP compliance with Section 7 of the Endangered
Species Act.
Statement of Need: FEMA issued 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 to
inform any action to revise the NFIP minimum floodplain management
standards.
FEMA is also re-evaluating the implementation of the NFIP under the
Endangered Species Act at the national level. FEMA is reviewing
potential actions based on the comments received on this Request for
Information to better align the NFIP minimum floodplain management
standards with our current understanding of flood risk, flood insurance
premium rates, and risk reduction approaches to make communities safer,
stronger, and more resilient to increased flooding.
Anticipated Cost and Benefits: FEMA is currently considering the
cost and benefit impacts of potential proposed actions.
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..
-----------------------------------
Next Action Undetermined............ To Be Determined
------------------------------------------------------------------------
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--CYBERSECURITY AND INFRASTRUCTURE SECURITY AGENCY (CISA)
Proposed Rule Stage
113. Ammonium Nitrate Security Program [1670-AA00]
Priority: Other Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: This action may affect the private sector under
Public Law 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.
[[Page 11066]]
Supplemental NPRM................... 09/00/23
------------------------------------------------------------------------
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
DHS--CISA
114. Chemical Facility Anti-Terrorism Standards (CFATS) [1670-AA01]
Priority: Other Significant.
Legal Authority: 6 U.S.C. 621 to 629
CFR Citation: 6 CFR 27.
Legal Deadline: None.
Abstract: The Cybersecurity and Infrastructure Security Agency
(CISA) previously invited public comment on an Advance Notice of
Proposed Rulemaking (ANPRM) during August 2014 for potential revisions
to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations.
The ANPRM provided an opportunity for the public to provide
recommendations for possible program changes. In June 2020, CISA
published for public comment a retrospective analysis of the CFATS
program. And in January 2021, CISA invited additional public comment
through an ANPRM concerning the removal of certain explosive chemicals
from CFATS. CISA intends to address many of the subjects raised in both
ANPRMs and the retrospective analysis in this regulatory action,
including potential updates to CFATS cybersecurity requirements and
Appendix A to the CFATS regulations.
Statement of Need: The Chemical Facility Anti-Terrorism Standards
(CFATS) program regulates facilities possessing large quantities of
dangerous chemicals. The particular chemicals listed and threshold
quantities were established in 2007, and were based on EPA's threshold
quantities for Hazardous Substances published under its Release
Management Program. In the 15 years since implementation of the
program, CISA has gained extensive experience in analyzing chemical
holdings and determining which facilities should be classified as high-
risk and subject to further regulation. Given its experience, CISA has
determined that it should adjust its list of regulated chemicals,
threshold quantities, and counting methods to better reflect the
security issues implicated by these chemicals. Additionally, CISA
believes that the CFATS security performance guidelines, first issued
in 2009, should be updated to better reflect lessons learned over the
past decade, including substantially updating the guidelines for
cybersecurity performance metrics.
Summary of Legal Basis: This regulation is authorized pursuant to 6
U.S.C. 621 et seq.
Alternatives: CISA considered an alternative version of this NPRM
where we updated only the performance guidance but not the chemical
listings. Additionally, we considered an alternative version where
changes to certain toxic chemical listings were omitted.
Anticipated Cost and Benefits: CISA is developing the cost and
benefits estimates for this rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 08/18/14 79 FR 48693
ANPRM Comment Period End............ 10/17/14
ANPRM............................... 01/06/21 86 FR 495
Announcement of Availability; 06/22/20 85 FR 37393
Retrospective Analysis.
Announcement of Availability; 09/21/20
Retrospective Analysis Comment
Period End.
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State.
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-AA69, Merged with 1670-
AA03
RIN: 1670-AA01
BILLING CODE 9110-9B-P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Statement of Regulatory Priorities for Fiscal Year 2023
Introduction
The Regulatory Plan for the Department of Housing and Urban
Development (HUD) for Fiscal Year (FY) 2023 highlights two of 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.
The rules highlighted in HUD's regulatory plan for FY 2023 reflect
HUD's efforts to continue its work in building strong and sustainable
communities, addressing the housing needs of all Americans, and
providing for equal access to housing opportunities. Additionally, HUD
notes that its Fall 2022 Semiannual Regulatory Agenda includes
additional rules that advance the Administration's priorities,
including rules to advance racial equity and civil rights and rules to
provide economic relief to homeowners and renters.
[[Page 11067]]
Floodplain Management and Protection of Wetlands; Minimum Property
Standards for Flood Hazard Exposure; Building to the Federal Flood Risk
Management Standard
On January 20, 2021, President Biden issued Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis,'' which declared the Administration's policy
to bolster resilience to the impacts of climate change, and which
directed all executive department and agencies to immediately commence
work to confront the climate crisis. Executive Order 14008, ``Tackling
the Climate Crisis at Home and Abroad,'' signed on January 27, 2021,
noted that it is the Administration's policy to increase resilience to
the impacts of climate change. HUD's proposed rule titled ``Floodplain
Management and Protection of Wetlands; Minimum Property Standards for
Flood Hazard Exposure; Building to the Federal Flood Risk Management
Standard'' would improve the resilience of HUD-assisted or financed
projects to the effects of climate change and natural disasters,
This proposed rule would revise HUD's regulations governing
floodplain management and the protection of wetlands to implement the
Federal Flood Risk Management Standard (FFRMS), in accordance with
Executive Order 13690 (Establishing a Federal Flood Risk Management
Standard and a Process for Further Soliciting and Considering
Stakeholder Input) (2015) and provide for greater flexibility in the
use of HUD assistance in floodways under certain circumstances. Among
other revisions, the rule would provide a process for determining the
FFRMS Floodplain that would establish a preference for the climate-
informed science approach (CISA), and it would revise HUD's floodplain
and wetland regulations to streamline them, improve overall clarity,
and modernize standards.
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.
Elevating HUD-assisted structures located in and around the FFRMS
floodplain will lessen damage caused by flooding and avoid relocation
costs to tenants associated with temporary moves when HUD-assisted
structures sustain flood damage and are temporarily uninhabitable.
These benefits, which are realized throughout the life of HUD-assisted
structures, are offset by the one-time increase in construction costs,
borne only at the time of construction.
Statement of Need
The rule is part of HUD's commitment under HUD's 2021 Climate
Action Plan. HUD committed to completing rulemaking to update 24 CFR
part 55 of its regulations and implement FFRMS as a key component of
its plan to increase climate resilience and climate justice across the
Department, noting that low-income families and communities of color
are disproportionately impacted by climate change. Additionally, HUD
notes that affordable housing is increasingly at risk from both extreme
weather events and sea-level rise, and that coastal communities are
especially at risk.
HUD's existing regulations currently rely on Flood Insurance Rate
Maps, which are critical resources when assessing flood risk, but are
not intended to reflect changes in future flood risk influenced by a
changing climate. This rule would ensure that HUD projects are designed
with a more complete picture of a proposed project site's flood risk
over time. Building to the standards discussed in this proposed rule
would increase resiliency, reduce the risk of flood loss, minimize the
impact of floods on human safety, health, and welfare, and promote
sound, sustainable, long-term planning informed by a more accurate
evaluation of risk that takes into account possible sea level rise and
increased development associated with population growth.
Alternatives: An alternative to promulgating this rule would be to
maintain HUD's existing regulations governing floodplain management and
the protection of wetlands. However, doing so would ignore the threats
that increasing flood risks pose to life and taxpayer-funded property.
Additionally, HUD would not be in compliance with Executive Order 13960
and implementing guidance if HUD did not revise its regulations. Other
alternatives include higher additional elevation standards for HUD
projects without using a CISA approach. HUD prefers the CISA approach
because it provides a forward-looking assessment of flood risk based on
likely or potential climate change scenarios, regional climate factors,
and an advanced scientific understanding of these effects.
Risks: This rule could increase construction costs for HUD projects
where it leads to additional elevation requirements, thereby increasing
the cost of constructing affordable housing. However, these costs are
offset by the decreased damage caused by flooding a project will endure
throughout its lifetime, and the avoidance of relocation costs when
HUD-assisted structures sustain flood damage.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Proposed Rule....................... 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Federalism Affected: No.
Energy Affected: No.
International Impacts: No.
Violence Against Women Act Reauthorization Act of 2022 (VAWA 2022)
Through this proposed rule, HUD would amend its VAWA regulations to
implement the requirements of the Violence Against Women Act (``VAWA'')
as reauthorized on March 15, 2022, under the Violence Against Women Act
Reauthorization Act of 2022 (``VAWA 2022''). These revisions will
assist in ensuring that survivors of domestic violence, dating
violence, sexual assault, and stalking (``survivors'') can access and
maintain affordable housing as well as homeless assistance services.
Specifically, HUD is focused on protecting survivors' housing rights,
enforcing VAWA's requirements and protections, and providing access to
safe, stable, and affordable housing for survivors.
This proposed rule will seek to ensure that HUD's regulatory
definitions account for the changes to VAWA's statutory definitions and
are interpreted broadly enough to include the additional acts referred
to in the VAWA 2022 reauthorization. For example, VAWA 2022 expands the
definition of ``domestic violence'' by, in part, adding (as well as
separately defining) the concepts of ``economic abuse'' and
``technological abuse''. Additionally, following the direction provided
in VAWA 2022, this proposed rule will establish VAWA compliance review
processes for VAWA-covered HUD programs (``covered housing programs''),
and further address VAWA standards of compliance and standards of
corrective actions, where compliance standards have not been met. VAWA
2022 also establishes substantive rights and protections for survivors,
including anti-retaliation and anti-coercion
[[Page 11068]]
requirements, and protections for individuals against being penalized
for seeking emergency assistance or for criminal activity where they
are a victim or otherwise not at fault. HUD has existing enforcement
mechanisms that have been used to enforce VAWA rights and protections,
but this proposed rule would provide HUD and survivors with direct
enforcement authority of VAWA's housing rights.
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. Unlike
HUD's VAWA 2013 final rule that was published in 2016 (``VAWA 2013
rule''), which had costs that were ``primarily paperwork costs,'' this
rulemaking has fewer paperwork costs. The benefits of HUD's rulemaking
include codifying in regulation the protections that VAWA 2022 provides
to applicants and tenants of covered housing programs; strengthening
the rights of survivors accessing and living in covered housing
programs, including existing emergency transfer rights and new rights
against retaliation and prohibition and the right to report crime from
one's home; and improving and streamlining HUD's VAWA compliance
monitoring and review processes. HUD grantees are already familiar with
HUD's VAWA regulations as instituted by the 2016 final rule; this
proposed rule will largely build on that regulatory framework and
related forms and documents. HUD is also planning to publish a notice
in the Federal Register in the Fall of 2022 that will provide initial
guidance on VAWA 2022, its impact on VAWA-covered HUD programs, and
HUD's planned implementation actions. HUD believes that grantees' prior
experience with HUD's implementation of other VAWA reauthorization
legislation and HUD's advanced notice will reduce costs by helping
grantees to understand the new protections and requirements ahead of
rulemaking.
Statement of Need
The rule is needed to conform HUD regulations with statutory
standards and amendments, and to ensure consistency in application and
enforcement of VAWA protections and requirements across HUD's covered
housing programs. This proposed rule would consider HUD's VAWA 2013
rule published on November 16, 2016, and improve upon its framework and
impose less regulatory burden.
Alternatives: HUD has no alternative to implementing the provisions
of VAWA 2022. VAWA 2022 requires stakeholder consultation and
rulemaking to establish VAWA compliance review processes, and to
incorporate this process into existing compliance review processes,
where possible. Therefore, HUD does not have the discretion to choose
an alternative to rulemaking for compliance review processes. HUD has
also determined that rulemaking is needed to implement new and revised
statutory protections and requirements. Furthermore, prior VAWA
reauthorizations were implemented through rulemaking.
Risks: Previous and unfinished implementations of prior VAWA
reauthorizations have resulted in challenges for grantees. HUD must
seek to complete implementation of VAWA 2013, the Justice for All
Reauthorization Act of 2016's amendments to VAWA's lease bifurcation
provisions, and VAWA 2022, to fully implement changes to VAWA and
clarify which requirements and changes HUD grantees are expected to
comply with, and when those requirements and changes go into effect.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Proposed Rule....................... 10/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: No.
Federalism Affected: No.
Energy Affected: No.
International Impacts: No.
HUD--OFFICE OF THE SECRETARY (HUDSEC)
Proposed Rule Stage
115. Violence Against Women Act Reauthorization Act of 2022: Compliance
in HUD Housing Programs (FR-6319) [2501-AE05]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 1437a,c,d,f; 42 U.S.C. 1437n; 42 U.S.C.
3535(d); sec. 327, Pub. L. 109-115,119; Stat 2936; 42 U.S.C. 14043e et;
sec. 601, Pub. L. 11304, 127 Stat 101; Pub. L. 117-103
CFR Citation: 24 CFR 5, 92, 93, 200, 247, 574, 576 578; 24 CFR 880,
882, 883, 884, 886, 891; 24 CFR 905, 960, 966, 982, 983.
Legal Deadline: None.
Abstract: This proposed rule would amend HUD's regulations to fully
implement the requirements of the Violence Against Women Act (VAWA) as
reauthorized on March 15, 2022, under the Violence Against Women Act
Reauthorization Act of 2022 (VAWA 2022). VAWA 2022 in part requires
that HUD issue regulations to define standards of compliance for
covered housing programs, address prohibitions on retaliation, and
update certain definitions. HUD will also consider other revisions to
update its VAWA regulations.
Statement of Need: The rule is needed to conform HUD regulations
with statutory standards and amendments, and to ensure consistency in
application and enforcement of VAWA protections and requirements across
HUD's covered housing programs. This proposed rule would consider HUD's
VAWA 2013 rule published on November 16, 2016, and improve upon its
framework and impose less regulatory burden.
Summary of Legal Basis: These regulatory revisions would implement
the requirements of the Violence Against Women Act (VAWA) as
reauthorized on March 15, 2022, under the Violence Against Women Act
Reauthorization Act of 2022 (VAWA 2022).
Alternatives: HUD has no alternative to implementing the provisions
of VAWA 2022. VAWA 2022 requires stakeholder consultation and
rulemaking to establish VAWA compliance review processes, and to
incorporate this process into existing compliance review processes,
where possible. Therefore, HUD does not have the discretion to choose
an alternative to rulemaking for compliance review processes. HUD has
also determined that rulemaking is needed to implement new and revised
statutory protections and requirements. Furthermore, prior VAWA
reauthorizations were implemented through rulemaking.
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. Unlike HUD's VAWA 2013 final rule that
was published in 2016 (VAWA 2013 rule), which had costs that were
primarily paperwork costs, this rulemaking has fewer paperwork costs.
The benefits of HUD's rulemaking include codifying in regulation the
protections that VAWA 2022 provides to applicants and tenants of
covered housing programs; strengthening the rights of survivors
[[Page 11069]]
accessing and living in covered housing programs, including existing
emergency transfer rights and new rights against retaliation and
prohibition and the right to report crime from one's home; and
improving and streamlining HUD's VAWA compliance monitoring and review
processes. HUD grantees are already familiar with HUD's VAWA
regulations as instituted by the 2016 final rule; this proposed rule
will largely build on that regulatory framework and related forms and
documents. HUD is also planning to publish a notice in the Federal
Register in the Fall of 2022 that will provide initial guidance on VAWA
2022, its impact on VAWA-covered HUD programs, and HUD's planned
implementation actions. HUD believes that grantees' prior experience
with HUD's implementation of other VAWA reauthorization legislation and
HUD's advanced notice will reduce costs by helping grantees to
understand the new protections and requirements ahead of rulemaking.
Risks: Previous and unfinished implementations of prior VAWA
reauthorizations have resulted in challenges for grantees. HUD must
seek to complete implementation of VAWA 2013, the Justice for All
Reauthorization Act of 2016's amendments to VAWA's lease bifurcation
provisions, and VAWA 2022, to fully implement changes to VAWA and
clarify which requirements and changes HUD grantees are expected to
comply with, and when those requirements and changes go into effect.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Local, State.
Agency Contact: Karlo Ng, Director on Gender-based Violence
Prevention and Equity, Department of Housing and Urban Development,
Office of the Secretary, 451 Seventh Street SW, Washington, DC 20410,
Phone: 202 288-1850.
RIN: 2501-AE05
HUD--OFFICE OF COMMUNITY PLANNING AND DEVELOPMENT (CPD)
Proposed Rule Stage
116. Floodplain Management and Protection of Wetlands (FR-6272) [2506-
AC54]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 3535(d); E.O. 11990; E.O. 11988; E.O.
13690
CFR Citation: 24 CFR 50; 24 CFR 55; 24 CFR 58; 24 CFR 200.
Legal Deadline: None.
Abstract: This proposed rule would revise HUD's regulations
governing floodplain management and the protection of wetlands to
implement the Federal Flood Risk Management Standard (FFRMS), in
accordance with Executive Order 13690 (Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input), improve the resilience of HUD-assisted
or financed projects to the effects of climate change and natural
disasters, and provide for greater flexibility in the use of HUD
assistance in floodways under certain circumstances. This rule would
also revise HUD's floodplain and wetland regulations to streamline
them, improve overall clarity, and modernize standards.
Statement of Need: The rule is part of HUD's commitment under HUD's
2021 Climate Action Plan. HUD committed to completing rulemaking to
update 24 CFR part 55 of its regulations and implement FFRMS as a key
component of its plan to increase climate resilience and climate
justice across the Department, noting that low-income families and
communities of color are disproportionately impacted by climate change.
Additionally, HUD notes that affordable housing is increasingly at risk
from both extreme weather events and sea-level rise, and that coastal
communities are especially at risk.
HUD's existing regulations currently rely on Flood Insurance Rate
Maps, which are critical resources when assessing flood risk, but are
not intended to reflect changes in future flood risk influenced by a
changing climate. This rule would ensure that HUD projects are designed
with a more complete picture of a proposed project site's flood risk
over time. Building to the standards discussed in this proposed rule
would increase resiliency, reduce the risk of flood loss, minimize the
impact of floods on human safety, health, and welfare, and promote
sound, sustainable, long-term planning informed by a more accurate
evaluation of risk that takes into account possible sea level rise and
increased development associated with population growth.
Summary of Legal Basis: These regulatory revisions would implement
the Federal Flood Risk Management Standard (FFRMS), in accordance with
Executive Order (E.O.) 13690 (Establishing a Federal Flood Risk
Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input) (2015).
Alternatives: An alternative to promulgating this rule would be to
maintain HUD's existing regulations governing floodplain management and
the protection of wetlands. However, doing so would ignore the threats
that increasing flood risks pose to life and taxpayer-funded property.
Additionally, HUD would not be in compliance with Executive Order 13960
and implementing guidance if HUD did not revise its regulations. Other
alternatives include higher additional elevation standards for HUD
projects without using a CISA approach. HUD prefers the CISA approach
because it provides a forward-looking assessment of flood risk based on
likely or potential climate change scenarios, regional climate factors,
and an advanced scientific understanding of these effects.
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. Elevating HUD-assisted structures
located in and around the FFRMS floodplain will lessen damage caused by
flooding and avoid relocation costs to tenants associated with
temporary moves when HUD-assisted structures sustain flood damage and
are temporarily uninhabitable. These benefits, which are realized
throughout the life of HUD-assisted structures, are offset by the one-
time increase in construction costs, borne only at the time of
construction.
Risks: This rule could increase construction costs for HUD projects
where it leads to additional elevation requirements, thereby increasing
the cost of constructing affordable housing. However, these costs are
offset by the decreased damage caused by flooding a project will endure
throughout its lifetime, and the avoidance of relocation costs when
HUD-assisted structures sustain flood damage.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Kristin L. Fontenot, Director, Office of
Environment and
[[Page 11070]]
Energy, Department of Housing and Urban Development, Office of
Community Planning and Development, 451 Seventh Street SW, Washington,
DC 20410, Phone: 202 402-7077.
RIN: 2506-AC54
BILLING CODE 4210-67-P
UNITED STATES DEPARTMENT OF THE INTERIOR
Fall 2022 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 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 year 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; and
Investing in Healthy Lands, Waters and Local Economies and
Strengthening Conservation of the Nation's Lands, Waters and Wildlife.
Tackling the Climate Crisis, Strengthening Climate Resiliency, and
Facilitating the Transition to Renewable Energy
The Biden-Harris administration remains committed to combatting
climate change and reducing greenhouse gas emissions while improving
public health, protecting the environment, and ensuring access to clean
air and water. Under this administration, the Department has been a key
leader in tackling the climate crises. Pursuant to Executive Order
(E.O.) 13990 ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis,'' (signed on Jan. 20,
2021) and E.O. 14008, ``Tackling the Climate Crisis at Home and
Abroad,'' (signed January 27, 2021), the Department has advanced
multiple policy and regulatory efforts to reduce climate pollution;
improve and increase adaptation and resilience to the impacts of
drought, wildfire, and extreme weather; address current and historic
environmental injustice; protect public health; and conserve
Department-managed lands and waters.
The historic Infrastructure Investment and Jobs Act of 2021 (BIL)
and the Inflation Reduction Act (IRA), which President Biden signed
respectively on November 15, 2021, and August 16, 2022, will enable
transformational outcomes on these clean energy and resilience
priorities while driving the creation of good-paying union jobs. In
referring to the BIL Secretary Haaland said, ``The infrastructure law
invests in areas where we, working closely together, have a chance to
make a better future for the people we serve in the areas of wildfire,
drought, legacy pollution clean-up, and restoration of the outdoors
that we all love.''
In accordance with E.O.s 13990 and 14008, as well as E.O. 14052,
``Implementation of the Infrastructure Investment and Jobs Act,''
(signed on Nov. 15, 2021), several bureaus within the Department are
pursuing regulatory actions to implement these administration
priorities, including steps to increase renewable energy production by
improving siting and permitting processes on public lands and in
offshore waters.
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. The Department will meet these
ambitious goals while also ensuring appropriate protection of public
lands, waters, and biodiversity and creating good jobs. As Secretary
Haaland has stated, ``The Department of the Interior continues to make
significant progress in our efforts to spur a clean energy revolution,
strengthen and decarbonize the nation's economy, and help communities
transition to a clean energy future.''
As part of these ongoing efforts, the Bureau of Ocean Energy
Management's (BOEM) most important regulatory initiative is focused on
expanding offshore wind energy's role in strengthening U.S. energy
security and independence, creating jobs, providing benefits to local
communities, and further developing 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. In FY 2023, BOEM will propose a rule, the
``Renewable Energy Modernization Rule'' (1010-AE04). This rule would
substantially update existing renewable energy regulations to more
efficiently facilitate responsible development of renewable energy
resources on the Outer Continental Shelf (OCS) and strengthen U.S.
energy independence. The rule also aims to significantly reduce costs
to developers for expanding renewable energy development in an
environmentally sound manner.
[[Page 11071]]
Similarly, the Bureau of Land Management (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 with a proposed rule, ``Rights-of-way, Leasing and Operations for
Renewable Energy and Transmission Lines'' (1004-AE78). This rule aims
to improve permitting activities and processes to facilitate increased
renewable energy production on public lands.
To advance the deployment of clean energy infrastructure while also
meeting obligations to conserve habitats and wildlife, the Department
will improve permitting frameworks for bird conservation. On September
30, 2022 (87 FR 59598), the U.S. Fish and Wildlife Service (FWS)
proposed the ``Eagle Permits; Incidental Take'' rule (108-BE70) to
revise the regulations authorizing eagle incidental take and eagle nest
take permits to increase the efficiency and effectiveness of
permitting, facilitate and improve compliance, and increase the
conservation benefit for eagles. The FWS will also propose a rule, the
``Migratory Bird Permits; Authorizing the Incidental Take of Migratory
Birds'' (1018-BF71), to clarify the MBTA's prohibitions on taking and
killing migratory birds and consider establishing a straight-forward
process to secure authorizations for otherwise prohibited take of
migratory birds.
The BIL enables the Department to establish important regulations
governing carbon transportation and storage on the OCS. The orderly
implementation of negative emissions technologies, such as carbon
capture, utilization, and storage, is necessary to reduce hard-to-abate
emissions from the industrial sector, which emits nearly 25 percent of
all carbon dioxide released into the atmosphere in the United States.
In implementing the BIL the Bureau of Safety and Environmental
Enforcement (BSEE) and BOEM are drafting a joint proposed rule that
would address the transportation and geologic sequestration aspects of
carbon capture utilization and storage development on the OCS,
including leasing, geological, and geophysical exploration for
appropriate storage reservoirs; environmental plans and mitigations;
facility and infrastructure design and installation; injection
operations; long-term site stewardship (i.e., monitoring and response);
financial assurance; and safety.
The Department is also committed to modernizing its oversight of
oil and gas leasing and development to help address the climate and
biodiversity crises and to advance environmental justice. In November
2021, the Department released its report on federal oil and gas leasing
and permitting practices, following a review of onshore and offshore
oil and gas programs called for in E.O. 14008. The report identified
significant reforms needed to ensure the programs provide a fair return
to taxpayers, discourage speculation, hold operators responsible for
remediation, and more fully include communities and Tribal, state, and
local governments in decision-making. As Secretary Haaland stated about
the report, ``Our nation faces a profound climate crisis that is
impacting every American. The Interior Department has an obligation to
responsibly manage our public lands and waters--providing a fair return
to the taxpayer and mitigating worsening climate impacts--while staying
steadfast in the pursuit of environmental justice.''
In the coming year, the Department will pursue regulations to
implement important reforms, including the report's recommendations and
reforms included in the IRA regarding oil and gas resources on public
lands. For example, BLM will propose 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 Oil and Gas
Leases and Leasing Process 43 CFR parts 3100 and 3400'' (1004-AE80),
known as the Oil and Gas Leasing Rule. The Waste Prevention Rule would
prevent waste of federal resources with an additional benefit of
reducing methane emissions in the oil and gas sector. The Oil and Gas
Leasing Rule would incorporate many urgent fiscal and programmatic
reforms included in the report and IRA, such as updating BLM's process
for leasing to ensure the protection and proper stewardship of the
public lands, including potential climate and other impacts associated
with oil and gas leasing activities.
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.
To advance the Department's trust responsibilities, the Bureau of
Indian Affairs (BIA) has identified opportunities, following
consultation and in close collaboration with Tribal governments, 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.
In consultation with Tribes, BIA 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. These efforts
included improving the consultation process, identifying best
practices, and strengthening relationships with Tribal governments. The
BIA 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. As a result of these
consultations and this review, BIA is preparing a proposed rule,
``Agricultural Leasing of Indian Land,'' which would revise the
regulations governing leases of Indian land for agricultural purposes
found at 25 CFR part 162 (1076-AF66). This proposed rule would
streamline how leases are obtained and increase the agricultural usage
of Indian land.
The Department is also committed to improving regulations meant to
protect sacred and cultural resources. To this end, the Assistant
Secretary for Indian Affairs and the Assistant Secretary for Fish and
Wildlife and Parks are 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 part 10 (1024-
AE19). This proposed rule, the ``Native American Graves Protection and
Repatriation Act Systematic Process for Disposition and Repatriation of
Native American Human Remains, Funerary Objects, Sacred Objects, and
Objects of Cultural Patrimony,'' which published on October 18, 2022
(87 FR 63202), 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
[[Page 11072]]
organizations to initiate the process and add a requirement for museums
and Federal agencies to complete the process.
On November 15, 2021, Secretary Haaland signed joint SO 3403,
``Joint Secretarial Order on Fulfilling the Trust Responsibility to
Indian Tribes in the Stewardship of Federal Lands and Waters,'' with
the Secretary of Agriculture to ensure that the Department of the
Interior, the Department of Agriculture, and their component Bureaus
and Offices are managing Federal lands and waters in a manner that
seeks to protect the treaty, religious, subsistence, and cultural
interests of federally recognized Indian Tribes, including the Native
Hawaiian community; that such management is consistent with the nation-
to-nation relationship between the United States and federally
recognized Indian Tribes; and, that such management fulfills the United
States' unique trust obligation to federally recognized Indian Tribes
and their citizens.
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 E.O.
13985, ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government.'' This E.O. 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. On February 17, 2022, Secretary
Haaland issued SO 3406, ``Establishment of a Diversity, Equity,
Inclusion and Accessibility Council.'' This council is working to
identify policies and/or revisions to existing policies or practices
that are needed, and make recommendations on how diversity, equity,
inclusion and accessibility may be prioritized in policymaking and
budget processes and decisions in accordance with the E.O.s related to
equity. In response to E.O. 13985 and the SO 3406, the Department
issued its Equity Action Plan on April 14, 2022. The Equity Action Plan
is a key part of the Department's efforts to implement E.O. 13985,
which calls on Federal agencies to advance equity by identifying and
addressing barriers to equal opportunity that underserved communities
may face as a result of Government policies and programs. Highlighting
the importance of this initiative, Secretary Haaland said, ``We must
continue to proactively ensure that historically underrepresented
communities benefit from our efforts to address the climate crisis and
make our nation's public lands and waters accessible and welcoming to
everyone.''
In FY 2023, the Department will undertake a number of regulatory
actions that will assist people who reside in underserved communities.
In support of SO 3406 and the Equity Action Plan, the Department
published a final rule on April 8, 2022 (87 FR 20761), ``Acquisition
Regulations; Buy Indian Act; Procedures for Contracting'' (RIN 1090-
AB21). This final rule better implements the Buy Indian Act, which
provides the Department with authority to set aside procurement
contracts for Indian-owned and controlled businesses. These revisions
will eliminate barriers that inhibit Indian Economic Enterprises (IEEs)
from competing on certain construction contracts, expand IEEs' ability
to subcontract construction work consistent with other socio-economic
set-aside programs, and give greater preference to IEEs when a
deviation from the Buy Indian Act is necessary, among other updates.
The BLM (1004-AE60), FWS (1018-BD78), and NPS (1024-AE75) are
proposing right-of-way (ROW) rules that would streamline and improve
efficiencies in the permitting process for electric transmission,
distribution facilities, and broadband facilities. These rules should
result in increased services, such as broadband connectivity, with
resulting benefits to underserved communities and visitors to
Departmental lands and promote good governance. These proposed rules
are expected to publish in FY 2023 as well as implement several
provisions of the BIL.
Investing in Healthy Lands, Waters and Local Economies and
Strengthening Conservation of the Nation's Lands, Waters and Wildlife
The Department's 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 as well
as the BIL and IRA which provide the Department with historic
resilience and restoration investments, include expanding opportunities
for outdoor recreation, such as hunting and fishing, for all Americans;
enhancing conservation stewardship; and improving the management of
species and their habitat.
Per section 2 of E.O. 13990 and the ``Fact Sheet: List of Agency
Actions for Review,'' the Departments of Commerce and the Interior
(Departments) initiated a review of the August 27, 2019, final rule,
``Endangered and Threatened Wildlife and Plants; Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat,'' (1018-BF95) (84 FR 45020) that revised the regulations for
adding and removing species from the Lists of Endangered and Threatened
Wildlife and Plants and the procedures for designating critical
habitat. On July 5, 2022, the 2019 rule was vacated and remanded by the
U.S. District Court for the Northern District of California. In
response to the court order, the Departments will propose a new
rulemaking for FY 2023.
Also, per section 2 of E.O. 13990 and the ``Fact Sheet: List of
Agency Actions for Review,'' the Departments initiated a review of the
August 27, 2019, final rule, ``Endangered and Threatened Wildlife and
Plants; Regulations for Interagency Cooperation,'' (1018-BC87) (84 FR
44976) that revised portions of the regulations that implement section
7 of the ESA, as amended. On July 5, 2022, the 2019 rule was vacated
and remanded by the U.S. District Court for the Northern District of
California. In response to the court order, the Departments will
propose a new rulemaking for FY 2023.
Under section 4(d) of the Endangered Species Act (ESA), FWS plans
to promulgate several species-specific rules to protect threatened
species. Of particular note, the FWS issued a proposed rule on November
17, 2022, (87 FR 68975) that would revise the rule for the African
elephant (Loxodonta africana) promulgated under section 4(d) of the
ESA. The proposed rule intends to increase domestic protection for
African elephants in light of the recent rise in global trade of live
African elephants from range countries by establishing ESA permit
requirements and enhancement standards for trade in live African
elephants. This rulemaking action would also clarify the existing
enhancement requirement during our evaluation of the application for a
permit to import African elephant sport-hunted trophies and incorporate
a Party's designation under the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) National Legislation
Project into the decision-making process for the import of live African
elephants, African elephant sport-hunted trophies,
[[Page 11073]]
and African elephant parts and products other than ivory.
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, personal watercraft and bicycling, within
appropriate, designated areas of certain National Park System units.
These regulations would promote appropriate visitor use while
supporting long-term preservation of park resources and quality visitor
experiences.
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 not only to
protect and recover America's imperiled wildlife, but to ensure the ESA
is helping meet 21st century challenges.
In Fiscal Year (FY) 2022, FWS reviewed several ESA rules that were
finalized prior to January 20, 2021, to continue improving
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. As a result of that review, FWS
finalized two critically important ESA rules. The FWS and the National
Marine Fisheries Service (NMFS) finalized the rule, ``Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat,'' which published on June 24, 2022 (87 FR 37757), removing the
regulatory definition of ``habitat.'' The FWS also finalized the rule,
``Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat,'' which published on July 21, 2022 (87 FR
43433). This rule sets forth the process for excluding areas of
critical habitat under section 4(b)(2) of the ESA, which mandates
consideration of the impacts of designating critical habitat and
permits exclusions of particular areas following a discretionary
exclusion analysis.
FWS published a final rule on September 16, 2022 (87 FR 57838),
``2022-2023 Station-Specific Hunting and Sport Fishing Regulations,''
(1018-BF66) and opened, for the first time, two National Wildlife
Refuges (NWRs) that are currently closed to hunting and sport fishing.
In addition, FWS opened or expanded hunting or sport fishing at 16
other NWRs and added pertinent station-specific regulations for other
NWRs that pertain to migratory game bird hunting, upland game hunting,
big game hunting, or sport fishing for the 2022-2023 season. The FWS
also changed existing station-specific regulations to reduce regulatory
burden on the public and increase access for hunters and anglers on FWS
lands and waters.
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
Elections of Officers of the Osage Minerals Council (1076-AF58)
BIA finalized revisions to its regulations governing elections of
the Osage Nation (86 FR 54364, October 1, 2021). These revisions update
and limit the Secretary's role to the task of compiling a list of
voters for Osage Minerals Council elections. These changes reaffirm the
inherent sovereign rights of the Osage Nation to determine its
membership and form of government.
In the coming year, BIA will prioritize the following rulemakings:
Procedures for Federal Acknowledgment of Indian Tribes (1076-AF67)
This rule will update the regulations in response to recent Federal
court decisions to address whether previously denied petitioners for
Federal acknowledgment may petition again.
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, Bureau of Indian Education, and Office of the Special Trustee for
American Indians (collectively, Indian Affairs). The rule would advance
the purposes of E.O. 14058 to effectively reduce administrative
burdens, simplify both public-facing and internal processes to improve
efficiency, and empower the Federal workforce to solve problems. The
rule would streamline the process for appeals of Tribal government
representative decisions, to ensure the continued government-to-
government relations with the appropriate Tribal leadership is not
unduly interrupted.
Mining of the Osage Mineral Estate for Oil and Gas (1076-AF59)
The regulations in 25 CFR part 226 would be revised to allow BIA to
strengthen management of the Osage Mineral Estate by updating bonding,
royalty payment and reporting, production valuation and measurement,
site security, and operational requirements to address the changes in
technology and industry standards that have occurred in the 48 years
since the regulations were last revised and ensure consistency with
Departmental regulations governing oil and gas development throughout
the rest of Indian country.
Land Acquisitions (1076-AF71)
This rule would advance the purposes of E.O. 13985 and address the
Department's jurisdiction to acquire land in trust for certain Tribes,
streamline acquisitions on existing reservations, clarify Tribal
jurisdiction, and promote Tribal conservation of lands.
Class III Tribal State Gaming Compact Process (1076-AF68)
This rule would provide States and Tribes with a better
understanding of how the Department reviews their compacts by codifying
longstanding Departmental policy and interpretations of existing case
law.
Self-Governance PROGRESS Act Regulations (1076-AF62)
This rule would implement the requirements of the Practical Reforms
& Other Goals to Reinforce the Effectiveness of Self Governance & Self
Determination for Indian Tribes Act (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
[[Page 11074]]
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.
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.
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
In the coming year, the BLM will prioritize the following
rulemaking actions:
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 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 will propose 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 powerline ROWs on public lands and
national forests. The regulatory amendments would also codify statutory
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 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, which published on November 7, 2022 (87 FR
67306) 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 which published on November 30, 2022, (87 FR
73588) 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 E.O. 14008. In addition, in accordance with E.O. 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 Oil and Gas Leases and
Leasing Process 43 CFR Parts 3100 and 3400 (1004-AE80)
This proposed rule would revise BLM's oil and gas 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 oil and gas activities. This rule
would implement provisions of the IRA regarding oil and gas resources
on public lands.
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 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.
Revisions to the Oil and Gas Site Security, Oil Measurement, and Gas
Measurement Regulations (1004-AE87)
This rule would update BLM's existing rules governing site security
and measurement of oil and gas from onshore Federal and Indian oil and
gas leases. Since BLM adopted the existing rules in November 2016, the
agency has
[[Page 11075]]
encountered significant challenges in implementing them. This
regulatory action would rectify gaps and inconsistencies in the current
regulations and improve measurement accuracy, verifiability, and
accountability on Federal and Indian minerals.
Wildfire Prevention (1004-AE88)
This rule would revise BLM's fire-trespass and cost recovery
regulations. The changes would help prevent wildfires by creating a
more effective deterrent to human-caused wildfires and unauthorized
burning of public lands and make it easier for the agency to recover
damages from wildfires.
Closure and Restriction Orders (1004-AE89)
This proposed rule would help BLM to better protect persons,
property, and public lands and resources by allowing the agency to
close or restrict the use of public lands in a timelier manner. The
rule would also make BLM's regulations more consistent with other
Federal land management agencies' closure and restriction authorities.
Sustained Yield and Land Health (1004-AE92)
The BLM is drafting a rule to clarify and support the principles of
multiple use and sustained yield in the management of the public lands
pursuant to FLPMA and other relevant authorities. This proposed rule
rests within 43 CFR 6000 and would provide an overarching framework
governing multiple resource areas to ensure land health and sustained
yield. This rule would affirm the important role of restoration and
conservation actions in building and maintaining sustainable land
management practices to ensure healthy and productive ecosystems for
current and future generations.
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. In accordance with its statutory mandate under Outer Continental
Shelf Lands Act (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 its programs related
to the offshore development of energy and mineral resources. The BOEM
is working with the Department 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 the coming year, BOEM will prioritize the following rulemaking
actions:
Renewable Energy Modernization Rule (1010-AE04)
The BOEM will propose a rule that would update 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 also.
Bureau of Ocean Energy Management, and Bureau of Safety and
Environmental Enforcement Renewable Energy Split Final Rule (1082-AA03)
The Department updated the Departmental Manual, which transferred
the safety, environmental enforcement, and compliance functions
relevant to renewable energy activities on the OCS from BOEM to BSEE.
BSEE and BOEM will amend their respective regulations to reflect the
split of functions between the two Bureaus.
Risk Management and Financial Assurance for OCS Lease and Grant
Obligations (1010-AE14)
The BOEM has reconsidered the financial assurance policies
expressed in the joint proposed rule (85 FR 65904) issued with BSEE
(1082-AA02) and has determined that it would be appropriate to issue a
new proposed rule that will better protect the American taxpayers from
shouldering liability for the decommissioning of offshore oil and gas
facilities. The proposed rule would ensure that facilities no longer
needed for oil or gas exploration, or development are shut down in a
safe and environmentally responsible manner. The proposed rule would
modify the evaluation criteria for determining whether oil, gas and
sulfur lessees, right-of-use and easement grant holders, and pipeline
ROW grant holders may be required to provide bonds or other financial
assurance, above the regulatorily prescribed amounts for base bonds, to
ensure compliance with their OCS obligations.
Carbon Sequestration (1082-AA04)
In accordance with the BIL, BOEM and BSEE are jointly proposing to
establish regulations governing carbon transportation and storage on
the OCS. Carbon capture, utilization, transport and storage (CCUTS)
technologies are necessary to reduce hard-to-abate emissions from the
industrial sector, which emits nearly 25 percent of all carbon dioxide
released into the atmosphere in the United States. The CCUTS is likely
needed to achieve mid-century climate goals and has the potential to
drive regional economic development, technological innovation, and
high-wage employment.
Protection of Marine Archaeological Resources (1010-AE11)
The BOEM is tasked to consider the effects of its undertakings on
significant cultural resources. Title 36 section 800.4(b)(1)
(Protection of Historic Properties) of the Code of Federal Regulations
requires that ``the agency official shall make a reasonable and good
faith effort to carry out appropriate identification efforts, which may
include background research, consultation, oral history interviews,
sample field investigation, and field survey.'' The BOEM would propose
a rule that would revise when lessees and operators would need to
conduct archaeological surveys. It would clarify when operators would
submit an archaeological report with their applications and clarify the
source and extent of the data utilized.
Bureau of Safety and Environmental Enforcement
The BSEE's 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
In the coming year, BSEE will prioritize the following rulemaking
actions:
[[Page 11076]]
Oil-Spill Response Requirements for Facilities Located Seaward of the
Coast Line Proposed Rule (1014-AA44)
The oil spill response requirements regulations found in 30 CFR
part 254 were last updated over 20 years ago (62 FR 13996, Mar. 25,
1997). This proposed rule would update existing regulations 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 to
update those regulations to align 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 it 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 final rule will 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 (RIN
This rulemaking would revise BSEE regulations published in the 2019
final rule ``Oil and Gas and Sulfur Operations in the Outer Continental
Shelf Blowout Preventer Systems and Well Control Revisions,'' 84 FR
21908 (May 15, 2019), for drilling, workover, completion, and
decommissioning operations.
Revisions to Decommissioning Requirements on the OCS (1014-AA53)
This proposed rule would address issues relating to: (1) idle iron
by adding a definition of this term to clarify that it applies to idle
wells and structures on active leases; (2) abandonment in place of
subsea infrastructure by adding regulations addressing when BSEE may
approve decommissioning-in-place instead of removal of certain subsea
equipment; and (3) other operational considerations.
Risk Management, Financial Assurance and Loss Prevention--
Decommissioning Activities and Obligations (1082-AA02)
On October 12, 2020, BOEM and BSEE published the joint proposed
rule in the Federal Register (85 FR 65904). The BSEE will continue to
pursue this rulemaking as a BSEE-only final rule to revise policies and
procedures concerning compliance with decommissioning obligations for
OCS oil and gas. The final rule will clarify and streamline specific
regulatory requirements associated with the operational and procedural
aspects of applicable decommissioning responsibilities of OCS lessees
and grant holders. The BOEM will continue to evaluate and develop a
comprehensive set of regulations to manage the risks and financial
obligations associated with industry activities on the OCS and pursue
these actions in a separate rulemaking under RIN 1010-AE14.
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 various chapters in the
Departmental Manual 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 will 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 (IT). To successfully serve the
Department's multiple missions, the OCIO applies modern IT 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.
In 2022, OCIO finalized the following rules:
Insider Threat Program System of Records (1090-AB15)
This final rule, which published on February 15, 2022 (87 FR 8427),
revised 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.
Social Security Number Fraud Prevention Act of 2017 Implementation
(1090-AB24)
This direct final rule, which published on July 14, 2022 (87 FR
42097), amends 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.
For the coming year, OCIO will prioritize the following 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.
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.
Office of Acquisition and Property Management
The Office of Acquisition and Property Management (PAM) coordinates
Department-wide implementation of Federal policy and regulations for
acquisition, including real, personal, and museum property. The PAM
also directs activities in other essential areas including motor
vehicle fleet management, space management, energy efficiency, water
conservation,
[[Page 11077]]
renewable energy programs, and capital planning for real and personal
property assets.
For the coming year, PAM will prioritize the following rules:
Department of the Interior Acquisition Regulation, Governance Titles
(1090-AB25)
The PAM proposes changes to the Department of the Interior
Acquisition Regulation to update its nomenclature to align with recent
changes to agency procurement governance. The senior GS-1102
contracting subject matter expert in a Department Bureau or Office has
been designated as the Head of the Contracting Activity (formerly
designated as the Bureau Procurement Chief). The Senior Executive who
is accountable for the contracting activity has been designated as the
Bureau Procurement Executive (this position was formerly designated as
the Head of the Contracting Activity). These amendments enable
acquisition programs to more efficiently meet the Department's mission
needs and comply with all applicable law and regulations.
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 made by 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)
On December 2021, OHA published this final rule (86 FR 72068) that
makes regulatory changes relating to efficiency and streamlining of
probate processes. This rule ensures that the Department meets its
trust obligations and helps achieve the American Indian Probate Reform
Act/statutory goal of reducing fractionalization of trust property
interests.
For the coming year, OHA will prioritize the following regulatory
action:
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
the OHA Director to issue interim orders in emergency circumstances,
and to allow 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 Hearings and Appeals (OHA) Rule (1094-AA57)
This proposed rule will update outdated provisions, make process
improvements, and provide a more modernized hearings and appeals
process for proceedings before OHA. This is a comprehensive proposal to
provide a more efficient process for OHA and the parties who appear
before it, including external stakeholders and Departmental bureaus.
The rule will build upon the Direct Final Rule to incorporate a new
electronic filing and docket management system into OHA's processes and
will update a number of other procedural rules. Included in this
proposed rule are comprehensive changes to special rules for the
Interior Board of Land Appeals, Departmental Cases Hearings Division,
and the Director's office. Other provisions address specific needs of
the Interior Board of Indian Appeals and the Probate Hearings Division.
Office of Natural Resources Revenue
The Office of Natural Resources Revenue (ONRR) is responsible for
collecting, accounting for, and disbursing 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 completed the following rulemakings:
ONRR 2020 Valuation Reform and Civil Penalty Rule: Final Withdrawal
Rule (1012-AA27)
ONRR published a final rule on September 30, 2021, withdrawing the
ONRR 2020 Valuation Reform and Civil Penalty Rule. The final rule
became effective on November 1, 2021.
ONRR 2020 Valuation Reform and Civil Penalty Rule: Final Withdrawal
Rule (1012-AA27)
On September 20, 2021, ONRR published a final rule withdrawing the
ONRR 2020 Valuation Reform and Civil Penalty Rule. The final rule
became effective on November 1, 2021 (86 FR 54045).
In the coming year, ONRR will prioritize the following rulemaking
actions:
Electronic Provision of Records During an Audit (1012-AA32)
The ONRR will publish a proposed rule to amend its regulations to
allow ONRR and other authorized Departmental representatives the option
to require that an auditee use electronic means to provide records
requested during an audit of natural resources revenue reporting and
payment.
ONRR Designation Form for Payment Responsibility (1012-AA33)
The ONRR will publish a proposed rule to amend its regulations and
revise its form for designating a designee for a Federal oil and gas
lease. This action opens a 60-day comment period to allow interested
parties to comment on the proposed rule and its information collection
requirements.
Partial Repeal of Consolidated Federal Oil & Gas and Federal & Indian
Coal Reform Final Rule (1012-AA34)
The ONRR is reissuing certain regulations for the valuation of
Federal and Indian coal to implement a court order that vacates the
coal valuation portions of a 2016 rule. These republished regulations
implement the court's order by recodifying the regulations that were in
effect prior to the vacated 2016 rule.
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 restoring much-needed wildlife habitat.
[[Page 11078]]
Regulatory and Deregulatory Actions
OSMRE completed the following rulemaking:
On August 24, 2022, OSMRE published its Abandoned Mine Land (AML)
Fee Renewal final rule (87 FR 51904), making amendments to its
regulations governing the AML Fund to be consistent with the BIL, which
included the Abandoned Mine Land Reclamation Amendments of 2021. The
final rule reflects the extension of OSMRE's statutory authority to
collect reclamation fees for an additional 13 years, the 20 percent
reduction in fee rates, and a change to maintain the existing the grant
distribution formula for eligible States and Tribes.
For coming year, OSMRE will prioritize the following regulatory
actions:
Ten Day Notices (1029-AC81)
This rule would amend OSMRE's regulations on the ten-day notices
rule that went into effect on December 24, 2020. The proposed rule
would also amend the existing rules about when OSMRE sends ten-day
notices to State regulatory authorities regarding possible SMCRA
violations.
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 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 568 NWRs, with at least 1 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
2020, more than 61 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
FWS completed the following rulemakings:
Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Northern Spotted Owl (1018-BF01)
This final rule, which published on November 10, 2021 (86 FR
62606), withdrew and revised the final rule published on January 15,
2021 (86 FR 4820) to redesignate 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 2021 final rule that would have excluded approximately 3.4
million acres (1.4 million hectares) of designated critical habitat for
the northern spotted owl. Instead, on August 11, 2020 (85 FR 48487),
the FWS proposed exclusions under section 4(b)(2) of the ESA and then
finalized revisions to the species' designated critical habitat by
excluding approximately 204,294 acres (82,675 hectares) in Oregon.
Endangered and Threatened Wildlife and Plants; Revision of the
Regulations for Listing Endangered and Threatened Species and
Designation of Critical Habitat (1018-BE69)
On June 24, 2022 (87 FR 37757), FWS and the NMFS rescinded the
final rule titled, ``Endangered and Threatened Wildlife and Plants;
Regulations for Listing Endangered and Threatened Species and
Designating Critical Habitat'' (87 FR 37757, December 1, 2020). The
2022 final rule removed the regulatory definition of ``habitat''
established by the 2020 rule.
Endangered and Threatened Wildlife and Plan; Revision of the
Regulations for Designating Critical Habitat (1018-BD84)
On July 21, 2022, FWS published the final rule, ``Endangered and
Threatened Wildlife and Plants; Regulations for Designating Critical
Habitat'' (87 FR 43433). The final rule rescinded the rule,
``Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat,'' that published on December 18, 2020,
(85 FR 82376) and became effective January 19, 2021. The rule set forth
new regulations addressing how we exclude areas of critical habitat
under section 4(b)(2) of the ESA, outlining when and how FWS will
undertake an exclusion analysis. The 2022 rule removed the regulations
established by the 2020 rule.
Regulations Governing Take of Migratory Birds (1018-BD76)
On January 7, 2021, 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 (86 FR 1134). On October 4, 2021, FWS published a final rule
revoking the January 7, 2021, rule (86 FR 54642). The effect of this
rule is a return to implementing the MBTA as prohibiting incidental
take and applying enforcement discretion, consistent with judicial
precedent.
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)
On February 23, 2022, FWS published a final rule, ``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,'' (87 FR 10073).
The final rule revised regulations that implement CITES by
incorporating certain non-controversial provisions adopted at the 16th
through 18th meetings of the Conference of the Parties (CoP16-CoP18) to
CITES and clarifying and updating certain other provisions. These
changes bring U.S. regulations in line with certain revisions adopted
at the three most recent
[[Page 11079]]
meetings of the CoP, which took place in March 2013 (CoP16), September-
October 2016 (CoP17), and August 2019 (CoP18). The revised regulations
also enable FWS to 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.
2022-2023 Station-Specific Hunting and Sport Fishing Regulations (1018-
BF09)
This rule made additions and revisions to station-specific
regulations and expanded hunting and sport fishing opportunities for
the 2022-23 hunting and sport fishing season. This action is part of an
annual update for the national wildlife refuge system and the national
fish hatchery system that ensures adequate public notice of openings
and changes. These changes and openings enhance conservation
stewardship and outdoor recreation and improve the management of game
species and their habitat. The FWS operates hunting and sport fishing
programs on refuges to implement Congressional directives to facilitate
compatible priority wildlife-dependent recreational opportunities.
Although hatcheries are not part of the national wildlife refuge
system, by regulation, the administrative provisions of refuge
regulations are applied to national fish hatchery areas.
In the coming year, FWS will prioritize the following rulemaking
actions:
Regulations Under the Endangered Species Act
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 (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.
Endangered and Threatened Wildlife and Plants; Regulations for Listing
Endangered and Threatened Species and Designating Critical Habitat
(1018-BF95)
Per section 2 of E.O. 13990 and the ``Fact Sheet: List of Agency
Actions for Review,'' the Departments of Commerce and the Interior
(Departments) initiated a review of the August 27, 2019, final rule (84
FR 45020) that revised the regulations for adding and removing species
from the Lists of Endangered and Threatened Wildlife and Plants and the
procedures for designating critical habitat. On July 5, 2022, the 2019
rule was vacated and remanded by the U.S. District Court for the
Northern District of California. In response to the court order, the
Departments will propose a new rulemaking.
Endangered and Threatened Wildlife and Plants; Interagency Cooperation
(1018-BF96)
Per section 2 of E.O. 13990 and the ``Fact Sheet: List of Agency
Actions for Review,'' the Departments initiated a review of the August
27, 2019, final rule (84 FR 44976) that revised portions of the
regulations that implement section 7 of the ESA, as amended. On July 5,
2022, the 2019 rule was vacated and remanded by the U.S. District Court
for the Northern District of California. In response to the court
order, the Departments will propose a new rulemaking.
Regulations Under the Migratory Bird Treaty Act and the Bald and Golden
Eagle Protection Act: Migratory Bird Permits; Authorizing the
Incidental Take of Migratory Birds (1018-BF71)
This proposed rulemaking action would amend FWS regulations by
providing definitions to terms used in the MBTA, as amended. 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 proposed rule would also
establish authorizations for otherwise prohibited take of migratory
birds.
Eagle Permits; Incidental Take (1018-BE70)
FWS published this proposed rule on September 30, 2022 (87 FR
59598). This proposed rule seeks public and regulated-community input
on potential approaches for further expediting and simplifying the
permit process authorizing incidental take of eagles. The proposed rule
would revise the regulations authorizing eagle incidental take and
eagle nest take permits to increase the efficiency and effectiveness of
permitting, facilitate and improve compliance, and increase the
conservation benefit for eagles. The proposed rule would create general
eagle permits for certain activities under prescribed conditions in
addition to specific eagle permits authorized under current
regulations.
Possession of Migratory Bird Feathers (1018-BB88)
This proposed rule will seek public comments on: (1) authorized
possession of naturally molted migratory bird feathers, including those
from bald eagles and golden eagles; (2) collection, possession, and use
of migratory birds by enrolled members of federally recognized Tribes;
and (3) administrative changes to the current 50 CFR 22.60, Eagle
Indian Religious Permits.
National Park Service
The 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
NPS completed the following rulemakings:
Colonial National Historical Park; Vessels and Commercial Passenger-
Carrying Motor Vehicles (1024-AE39)
This final rule published, which published on December 15, 2021 (86
FR 71148), amended the special regulations for Colonial National
Historical Park. The rule removed a regulation that prevents the
Superintendent from designating sites within the park for launching and
landing private vessels and removed outdated permit and fee
requirements for commercial passenger-carrying vehicles.
Pictured Rocks National Lakeshore; Snowmobiles (1024-AE53)
This final rule, which published on February 1, 2022, (87 FR 5402),
clarified where snowmobiles may be used within the boundaries of the
Lakeshore by replacing general language allowing snowmobiles on
unplowed roads and
[[Page 11080]]
the shoulders of plowed roads with a comprehensive list of designated
snowmobile routes.
Saint Croix National Scenic Riverway; Bicycling (1024-AE64)
This final rule, which published on February 17, 2022, allows the
use of bicycles on approximately 0.25 miles of new trail in Saint Croix
National Scenic Riverway.
Curation of Federally Owned and Administered Archeological Collections
(1024-AE58)
This final rule, which published on April 15, 2022 (87 FR 22447),
amends 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 promotes more efficient and effective curation of these
archeological collections.
In FY 2023, NPS will prioritize the following rulemaking actions:
Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony (1024-AE19)
This rule which published on October 18, 2022 (87 FR 63202), 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.
Alaska; Hunting and Trapping in National Preserves (1024-AE70)
This rule would amend NPS regulations for sport hunting and
trapping in national preserves in Alaska. This rule would prohibit
certain harvest practices, including bear baiting; and prohibit
predator control or predator reduction on national preserves.
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 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
In FY 2023, Reclamation will prioritize the following rulemaking
action:
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, update
regulations on camping, swimming, and winter recreation for the wide
range of circumstances found across Reclamation; and would clarify the
permitting of memorials and reburials on Reclamation lands.
Departmental
Paleontological Resources Preservation (1093-AA25)
In FY 2022, the Department published a final rule on August 2,
2022, (87 FR 47296) that 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.
DOI--BUREAU OF LAND MANAGEMENT (BLM)
Final Rule Stage
117. Onshore Oil and Gas Operations-Annual Civil Penalties
Inflation Adjustments [1004-AE91]
Priority: Other Significant.
Legal Authority: Pub. L. 114-74, sec. 701
CFR Citation: 43 CFR part 3160.
Legal Deadline: Final, Statutory, January 15, 2023, Required by the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015.
By statute, the rule must publish by January 15th each year.
Abstract: This rule adjusts the level of civil monetary penalties
contained in the Bureau of Land Management's (BLM) regulations
governing onshore oil and gas operations and coal trespass as required
by the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Act). The penalty adjustments made by this final rule
constitute the 2023 annual inflation adjustments, accounting for 1 year
of inflation spanning the period from October 2021 through October
2022. The adjustments made by this final rule constitute the annual
inflation adjustments contemplated by the Act.
Statement of Need: This rule adjusts the level of civil monetary
penalties contained in the Bureau of Land Management's (BLM)
regulations governing onshore oil and gas operations and coal trespass
as required by the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Act). The penalty adjustments made by this
final rule constitute the 2023 annual inflation adjustments, accounting
for 1 year of inflation spanning the period from October 2021 through
October 2022. The adjustments made by this final rule constitute the
annual inflation adjustments contemplated by the Act.
Summary of Legal Basis: This action is mandated by the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub.
L. 114-74, sec. 701).
Alternatives: N/A.
Anticipated Cost and Benefits: TBD.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Action........................ 01/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Sheila Mallory, Acting Division Chief, Fluid
Minerals Division, Department of the Interior, Bureau of Land
Management, 20 M Street SE, Washington, DC 20003, Phone: 775 287-3293,
Email: [email protected].
Related RIN: Previously reported as 1004-AE77
RIN: 1004-AE91
BILLING CODE 4334-63-P
[[Page 11081]]
DEPARTMENT OF JUSTICE (DOJ)--FALL 2022
Statement of Regulatory Priorities
The mission of the Department of Justice is to uphold the rule of
law, to keep our country safe, and to protect civil rights. 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
protect the public against foreign and domestic threats, strengthen
enforcement of civil rights laws, defend against domestic and
international terrorism, combat gun violence, prevent and control
crime, 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.
Regulatory action is, however, a significant aspect of the law
enforcement mission of the Department. The regulatory priorities of the
Department include initiatives in the areas of criminal justice reform,
immigration, and gun violence reduction, and are effectuated through
rulemaking by the various components of the Department. These
initiatives, as well as others important to components' accomplishing
key law enforcement priorities, are summarized below.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
ATF issues regulations to enforce and implement federal laws
relating to the manufacture, importation, sale, and other commerce in
firearms and explosives. Such regulations are designed to promote the
ATF mission to curb illegal traffic in, and criminal use of, firearms
and explosives, to assist state, local, Tribal, territorial, and other
federal law enforcement agencies in reducing violent crime.
ATF will continue, as a priority during fiscal year 2022, to seek
modifications to its regulations governing commerce in firearms and
explosives in furtherance of these important goals.
The Department has proposed to amend ATF's regulations 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). 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 and implement federal laws
relating to its mission: to protect public safety by ensuring that
federal offenders serve their sentences of imprisonment in facilities
under conditions that are safe, humane, cost-efficient, and
appropriately secure, and to provide rehabilitative and reentry
programming to ensure their successful return to their communities.
BOP continues to sustain 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, so do
elements of BOP's Incident Action Plan. BOP also relies upon guidance
from the World Health Organization (WHO), the Centers for Disease
Control and Prevention, the Office of Personnel Management, DOJ, and
the Office of the Vice President. BOP's Health Services of Division
closely monitors the spread of monkeypox, and is prepared to respond,
accordingly.
The First Step Act (FSA) of 2018, Public Law 115-391, 132 Stat.
5194 (2018) brings a host of regulatory changes for BOP. The BOP has
enacted regulations for eligible inmates to earn FSA Time Credits
towards prerelease custody or early transfer to supervised release.
Inmates earn FSA Time Credits for successfully completing approved
Evidence-Based Recidivism Reduction Programs or Productive Activities
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 set aside
inmate pay for prerelease purposes. BOP will also finalize a rule to
clarify that the Director has authority to allow prisoners placed in
home confinement under the CARES Act to remain in home confinement
after the expiration of the covered emergency period (RIN 1120-AB79).
The Bureau is actively pursuing proposed rules to update the inmate
disciplinary code, inmate legal activities rules, and inmate financial
responsibility program procedures. Final rules are soon to be issued to
grant District of Columbia inmates good conduct time credits for
educational programs, update technical sections of tort claims and
administrative procedures programs, clarify use of force policy for
less-than-lethal munitions to align with Executive Order 14074, and
provide for more rapid infectious disease testing for new inmates.
Civil Rights Division (CRT)
CRT works to uphold the civil and constitutional rights of all
persons in the United States, particularly some of the most vulnerable
members of our society. Consistent with this mission, CRT plans to
engage in five separate rulemakings on disability rights.
First, CRT plans to propose technical standards for public
entities' websites under title II of the Americans with Disabilities
Act (ADA) to help public entities meet their existing ADA obligations
to ensure their websites are accessible to people with disabilities
(RIN 1190-AA79). Second, CRT plans to amend the current DOJ regulation
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 it up to date (RIN 1190-AA73). Third,
CRT will propose standards that address the accessibility of medical
diagnostic equipment under titles II and III of the ADA (RIN 1190-
AA78). Fourth, CRT intends to propose requirements for pedestrian
facilities in the public right-of-way, such as sidewalks and
crosswalks, 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 to help public
entities meet their existing ADA obligations to make those facilities
accessible (RIN 1190-AA77). Last, CRT plans to publish an advance
notice of proposed rulemaking 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 (RIN 1190-AA76).
Drug Enforcement Administration (DEA)
DEA is the agency primarily responsible for coordinating the drug
law enforcement activities of the United
[[Page 11082]]
States and also assisting 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 controlled substances laws and
regulations of the United States 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 continue with
the following priority regulations that appeared on the Fall 2021
Unified Agenda:
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).
Additionally, DEA anticipates publishing a proposed rule that
promulgates changes which would enable data-waived registrants to
prescribe Buprenorphine under limited circumstances to patients with
substance use disorder by utilizing audio-only telecommunication
systems (RIN 1117-AB78).
DEA also proposes the following priority actions to the Fall 2022
Unified Agenda: DEA intends to publish a proposed regulation that will
authorize the issuance of registrations for telemedicine, and to
prescribe the limited circumstances in which they may be obtained and
used (RIN 1117-AB40).
DEA also intends to publish a proposed regulation to amend the
reporting requirements found at 21 CFR 1310.05(b)(2) mandating
notification to DEA of domestic transactions involving tableting and
encapsulating machines 15-days before the seller ships the machine. The
draft regulation also proposes to amend the definitions of a
``tableting machine'' and an ``encapsulating machine'' to include
``parts thereof.'' Finally, the draft regulation seeks to modernize
customer verification requirements for transactions and proposes
modifications to DEA Form 452 to improve tracking of transactions of
tableting and encapsulating machines (RIN 1117-AB80).
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 relating to immigration-related
employment practices. 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 specified by
regulation. 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 several
regulations related to the asylum system. Specifically, EOIR is working
with the Department of Homeland Security (DHS) to finalize an interim
final rule that amended 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 rules that would rescind bars to asylum implemented by three
prior rules: RIN 1125-AA87 related to certain kinds of an applicant's
criminal activity, RIN 1125-AA91 related to an applicant's transit
through third countries, and RIN 1125-AB08 related to certain kinds of
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).
Finally, EOIR is also working to revise and update the regulations
relating to immigration proceedings to increase efficiency, while also
safeguarding due process. EOIR is drafting a proposed rule that would
provide guidance on administrative closure and termination 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).
Federal Bureau of Investigation (FBI)
The FBI 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, local,
tribal territorial, and international agencies and partners. Only in
limited contexts does the FBI rely on rulemaking.
For example, the FBI drafted a proposed rule to establish 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, 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 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).
The FBI is also drafting rules to implement the Bipartisan Safer
Communities Act of 2022 (BSCA), 28 U.S.C. 534, 34 U.S.C. 40901, and 34
U.S.C., Subt. IV, ch. 411, Refs. & Annos., Public Law 117-159, div A,
title II, sections 12001(a) and 12004(h), June 25, 2022, 136 Stat. 1313
and the National Instant Criminal Background Check System (NICS) Denial
Notification Act (NDNA) of 2022, 18 U.S.C. 921, 18 U.S.C. 925B through
925D, Public Law
[[Page 11083]]
117-103, div. W, title XI, sections 1101 through 1103, March 15, 2022,
136 Stat. 919.
In accordance with the BSCA, the FBI will propose regulatory
amendments to include, but not be limited to: authorizing and
establishing the process for federal firearm licensees (FFLs) to
receive access to records of stolen firearms maintained in the FBI's
National Crime Information Center to verify if a firearm offered for
sale to the FFL has been reported stolen; authorizing, and establishing
the process for, FFLs to use NICS for the purpose of voluntary
background checks of current and/or prospective employees of the FFL;
and establishing the process when NICS has been contacted for the
prospective transfer of a firearm to a person under the age of 21. For
NICS transactions involving persons under the age of 21, proposed
regulation amendments will address, but may not be limited to the BSCA
provisions regarding: (A) the application of a delay, up to the tenth
business day, if cause exists to further investigate a possibly
disqualifying juvenile record; (B) the required collection (and any
purge/retention) of residential address information submitted by an FFL
so the FBI may comply with the expanded background checks of such
persons; and (C) the process for conducting the expanded background
checks to determine if certain entities where such persons reside (the
state criminal history repository or juvenile justice information
system, the state custodian of mental health adjudication records; and
local law enforcement) have records establishing ``cause'' that such
persons have possibly disqualifying juvenile records under 18 U.S.C.,
section 922(d).
The NDNA mandates that, when the FBI denies a firearm transfer
during a NICS transaction, the Attorney General is to report various
information about that denial to local law enforcement authorities in
the state or tribe where a firearm was sought for transfer and, if
different, the local law enforcement authorities of the state or tribe
where the person resides. ``Local law enforcement authority'' is
defined by the NDNA at 18 U.S.C., section 921(a). Regulatory amendments
will be drafted outlining the process for submitting, and the contents
of, such denial notifications, including language similar to the BSCA,
addressing the required collection (and purge/retention) of a
prospective transferee's residential address so the FBI may contact the
proper local law enforcement authorities should the transaction be
denied. Regulatory proposals based on the NDNA will also address denial
notifications being sent to prosecution authorities in the jurisdiction
where the firearm was sought and circumstances where authorities need
to be updated that a person who was the subject of a denial
notification has subsequently been determined to not be prohibited.
Regulation proposals from the NDNA will also address the Attorney
General's new, annual report to Congress concerning denial
notifications, and related statistics, from the previous year.
DOJ--BUREAU OF PRISONS (BOP)
Final Rule Stage
118. Home Confinement Under the Coronavirus Aid, Relief, and Economic
Security (CARES) Act [1120-AB79]
Priority: Other Significant.
Legal Authority: 5 U.S.C. 301; 5 U.S.C. 4001; 28 U.S.C. 509, 510
CFR Citation: 28 CFR 0.
Legal Deadline: None.
Abstract: The Coronavirus Aid, Relief, and Economic Security Act of
2020 (CARES Act) authorizes the Director of the Bureau of Prisons
(Director), during the covered emergency period and upon a finding by
the Attorney General that emergency conditions resulting from the
Coronavirus Disease 2019 (COVID-19) pandemic materially affect the
functioning of the Bureau of Prisons (Bureau or BOP), to lengthen the
maximum amount of time for which a prisoner may be placed in home
confinement. This proposed rule affirms that the Director has the
authority to allow prisoners placed in home confinement under the CARES
Act to remain in home confinement after the expiration of the covered
emergency period.
Statement of Need: While the home confinement program under the
CARES Act has been a measurable success, inmates and their families
have sought assurance that those already on home confinement will not
be abruptly returned to secure custody after the end of the covered
emergency period. The Department remains sensitive to these concerns
and agrees with Congress's clear indication of support for expanding
the use of home confinement based on the needs of individual offenders.
Affirming that the BOP has the authority to allow prisoners placed in
home confinement under the CARES Act to remain in home confinement
after the expiration of the covered emergency period will support the
Bureau's ability to efficiently manage its resources and nimbly address
changing circumstances in the community, in relation to the needs and
profiles of individual inmates.
Summary of Legal Basis: The Department concludes that the most
reasonable interpretation of the CARES Act permits the Bureau to
continue to make individualized determinations about the conditions of
confinement for inmates placed in home confinement under the CARES Act,
as it does with respect to all prisoners--(See 18 U.S.C. 3621(a) (``A
person who has been sentenced to a term of imprisonment . . . shall be
committed to the custody of the Bureau of Prisons until the expiration
of the term imposed . . . . . . .'')--following the end of the covered
emergency period. In a December 2021 opinion, the Office of Legal
Counsel (``OLC'') concluded that section 12003(b)(2) and BOP's
preexisting authorities does not require that prisoners in extended
home confinement be returned en masse to correctional facilities when
the emergency period ends. Even if the relevant provision of the CARES
Act were considered ambiguous, however, the Department's interpretation
represents a reasonable one that would warrant deference under Chevron,
U.S.A., Inc.
Alternatives: The alternative to this rule would be for the Bureau
to return inmates currently in home confinement to secure custody en
masse, at the end of the covered emergency period without making an
individualized assessment or identifying a penological, rehabilitative,
public health, or public safety basis for the action.
Anticipated Cost and Benefits: Although placements under the CARES
Act were not made for reentry purposes, the Department concludes that
the best use of Bureau resources and the best outcome for affected
inmates is to allow the agency to make individualized assessments of
CARES Act placements, with a focus on supporting inmates' eventual
reentry into the community. Allowing the Bureau discretion to determine
whether inmates who have been successfully serving their sentences in
the community should remain in home confinement will allow the Bureau
to ground those decisions upon case-by-case assessments consistent with
penological, rehabilitative, public health, and public safety goals,
rather than categorically requiring all inmates placed on CARES Act
home confinement to be treated the same.
Risks: An inmate placed in home confinement is not considered
released from Bureau custody. Rather, the inmate continues serving
their sentence at home in their community. These
[[Page 11084]]
individuals must follow a set of rules designed to aid in their
management, facilitate their reintegration into society, and support
their rehabilitative efforts. For example, they are required to remain
in the home during specified hours and are permitted to leave only for
work or other preapproved activities, such as occupational training or
therapy. Moreover, inmates in home confinement must submit to drug and
alcohol testing and counseling requirements. Supervision staff monitor
inmates' compliance with the conditions of home confinement by
electronic monitoring equipment or, in a few cases for medical or
religious accommodations, frequent telephone and in-person contact.
Data show that these procedures have been working to preserve public
safety where inmates were placed on extended home confinement under the
CARES Act, and the De
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Rule.......................... 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
Agency Contact: Daniel J. Crooks, III, Assistant General Counsel,
Department of Justice, Bureau of Prisons, HOLC Building, 320 First
Street NW, Washington, DC 20534, Phone: 202 451-7992, Fax: 202 235-
4577, Email: [email protected].
RIN: 1120-AB79
DOJ--CIVIL RIGHTS DIVISION (CRT)
Proposed Rule Stage
119. Implementation of the ADA Amendments Act of 2008: Federally
Conducted (Section 504 of the Rehabilitation Act of 1973) [1190-AA73]
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 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
limitations 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 limitations 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 is 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 limitations arising from the
statute and judicial decisions.
Anticipated Cost and Benefits: Because the NPRM would incorporate
existing legal requirements and limitations 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 limitations
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................................ 12/00/22
NPRM Comment Period End............. 02/00/23
------------------------------------------------------------------------
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: 202 307-0663.
RIN: 1190-AA73
DOJ--CRT
120. Nondiscrimination on the Basis of Disability by State and Local
Governments: Medical Diagnostic Equipment [1190-AA78]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 12101 et seq.
CFR Citation: 28 CFR 35.
Legal Deadline: None.
Abstract: The Americans with Disabilities Act (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. The Department will seek public comment on proposed
changes to its regulations to adopt the U.S. Architectural and
Transportation Barriers Compliance Board's (Access Board) Standards for
Medical Diagnostic Equipment (MDE) to ensure that MDE is accessible to
persons with disabilities in their participation in or benefit of
services, programs, and activities provided by public entities and
public accommodations. The Department previously announced that it
intends to issue an ANPRM, titled Nondiscrimination on the Basis of
Disability by State and Local Governments and Places of Public
Accommodation; Equipment and Furniture (RIN 1190-AA76) addressing
possible revisions to its ADA regulations to ensure the accessibility
of equipment and furniture generally. However, given the specialized
nature of this equipment, the Department has decided to publish a
separate NPRM that addresses the accessibility of MDE.
Statement of Need: MDE that is accessible to individuals with
disabilities is often critical to a public entity's or public
accommodation's ability to provide an individual with a disability with
equal access to its health care programs, services, and activities. The
Department's ADA regulations
[[Page 11085]]
contain the ADA Standards for Accessible Design (the ADA Standards),
which include 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 explicitly addressing the
accessibility of MDE. While manufacturers have begun to offer MDE that
is more accessible to and usable by people with disabilities and the
Department has sought to ensure people with disabilities have equal
access to medical care under the ADA's general regulatory provisions
through enforcement and the issuance of technical assistance, the
Department recognizes that more specific standards are necessary to
guarantee full and equal access to health care services, programs, and
activities. This rule is necessary to ensure that inaccessible MDE does
not prevent people with disabilities from accessing title II and title
III entities' programs, services, and activities.
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. The Access Board has issued standards on MDE, but these standards
only become legally enforceable under the ADA when the Department
adopts them through a rulemaking. Alternatively, the Department could
create its own technical standards and implement them through a
rulemaking.
Anticipated Cost and Benefits: The Department anticipates costs to
covered entities (i.e., State and local governments). Entities may need
to acquire new MDE to meet technical standards that the Department
includes in its regulations. The Department also anticipates
significant benefits to people with disabilities, who may obtain
greater access to public entities' services, and activities, which may
improve their health or potentially save their lives.
Risks: Failure to adopt technical standards to ensure that people
with disabilities have access to MDE in public entities' programs,
services, and activities will prevent people with disabilities from
having the full and equal access to which they are entitled. The health
of people with disabilities may suffer as a result of unequal access to
medical care.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23
NPRM Comment Period End............. 06/00/23
------------------------------------------------------------------------
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: 202 307-0663.
Related RIN: Split from 1190-AA76
RIN: 1190-AA78
DOJ--CRT
121. Nondiscrimination on the Basis of Disability: Accessibility of Web
Information and Services of State and Local Governments [1190-AA79]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 12101 et seq.
CFR Citation: 28 CFR 35.
Legal Deadline: None.
Abstract: The Americans with Disabilities Act (ADA) states that: no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity 42 U.S.C. 12132.
However, many websites from public entities (i.e., State and local
governments) fail to incorporate or activate features that enable users
with disabilities to access the public entity's services, programs, and
activities. The Department intends to publish a Notice of Proposed
Rulemaking (NPRM) to amend its Title II ADA regulation to provide
technical standards to assist public entities in complying with their
existing obligations to make their websites accessible to individuals
with disabilities.
Statement of Need: Just as steps exclude people who use wheelchairs
from a building, inaccessible websites can exclude people with a range
of disabilities from accessing critical State and local government
services. The Department is proposing technical requirements to provide
concrete standards to public entities on how to fulfill their
obligations under title II to provide access to all of their services,
programs, and activities that are provided via the web. The Department
believes the requirements described in this rule are necessary to
ensure the equality of opportunity, full participation, independent
living, and economic self-sufficiency for individuals with disabilities
as set forth in the ADA. 42 U.S.C. 12101(a)(7). This is particularly
necessary now that public entities increasingly rely on the web to
provide their services, programs, and activities.
Summary of Legal Basis: The summary of the legal basis for this
regulation is set forth in the above abstract.
Alternatives: The Department intends to consider various
alternatives for ensuring full access to websites of State and local
Governments and will solicit public comments addressing these
alternatives.
Anticipated Cost and Benefits: The Department anticipates that this
rule will be ``economically significant,'' that is, that the rule will
have an annual effect on the economy of $100 million or more, or
adversely affect in a material way the economy, a sector of the
economy, the environment, public health or safety, or State, local or
tribal governments or communities. However, the Department believes
that revising its title II rule to clarify the obligations of State and
local governments to provide accessible websites will significantly
increase equal access by providing citizens with disabilities the
opportunity to participate in, and benefit from, State and local
government services, programs, and activities. It will also ensure that
individuals with disabilities have access to important services and
information that are provided over the web, such as benefit
applications and emergency information. In drafting this NPRM, the
Department will attempt to minimize the compliance costs to State and
local governments while maximizing the benefits of compliance to
persons with disabilities.
Risks: If the Department does not revise its ADA title II
regulations to address website accessibility, persons with disabilities
in many communities will continue to be unable to access their State
and local governmental services in the same manner available to
citizens without disabilities, and in some cases will not be able to
access those services at all. And State and local governments will not
have specific information about how to meet their ADA obligations with
respect to website accessibility.
Timetable:
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Action Date FR Cite
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NPRM................................ 05/00/23
NPRM Comment Period End............. 07/00/23
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[[Page 11086]]
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Governmental Jurisdictions.
Government Levels Affected: Local, State.
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: 202 307-0663.
RIN: 1190-AA79
DOJ--CRT
Long-Term Actions
122. Nondiscrimination on the Basis of Disability by State and Local
Governments; Public Right-of-Way [1190-AA77]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
CFR Citation: 28 CFR 35.
Abstract: The Department of Justice anticipates issuing a Notice of
Proposed Rulemaking that would establish accessibility requirements to
help public entities meet their existing Americans with Disabilities
Act (ADA) obligations to ensure that sidewalks and other pedestrian
facilities in the public right-of-way are accessible to and usable by
individuals with disabilities. The Architectural and Transportation
Barriers Compliance Board (Access Board) intends to issue accessibility
guidelines for pedestrian facilities in the public right-of-way, and
the Department of Justice is required under the ADA to promulgate
regulations that include standards that are consistent with the Access
Board's minimum guidelines.
Statement of Need: This rule is necessary to help public entities
meet their existing ADA obligations 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 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 help 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
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 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
ensure that the standards in its regulations are consistent with the
minimum ADA guidelines issued by the Access Board.
Timetable:
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Action Date FR Cite
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NPRM................................ 12/00/23
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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: 202 307-0663.
RIN: 1190-AA77
DOJ--DRUG ENFORCEMENT ADMINISTRATION (DEA)
Proposed Rule Stage
123. Medications To Prevent Narcotic Opioid Withdrawal Symptoms [1117-
AB73]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 821, 827, 871(b)
CFR Citation: 21 CFR 1306.
Legal Deadline: Final, Statutory, June 9, 2021.
Abstract: DEA proposes to revise the existing regulations found in
21 CFR 1306.07(b), regarding the administration of narcotic drugs to
prevent or mitigate opioid withdrawal, as instructed by Congress in
Public Law 116-215 (effective December 11, 2020). The existing
regulation is inadequate for emergency treatment purposes, as
practitioners are prohibited from administering narcotic drugs, for the
purpose of relieving acute withdrawal symptoms, to a patient for not
more than one day at a time for not more than three consecutive days.
In accordance with the statute, DEA proposes to allow non-pharmacy
individual practitioners to dispense (including prescribe) up to a
three-day supply of opioid medications in schedules III, IV, or V at
one time to prevent or mitigate opioid withdrawal.
Statement of Need: The Drug Enforcement Administration (DEA) is
revising existing regulations to expand access to medications for the
treatment of opioid use disorder pursuant to the Easy Medication Access
and Treatment for Opioid Addiction Act (the Act). The Act directed DEA
to revise its regulation to allow practitioners to dispense not more
than a three-day supply of narcotic drugs to one person or for one
person's use at one time for the purpose of relieving acute withdrawal
symptoms associated with opioid use disorder. DEA is amending the
relevant regulation by allowing all DEA-registered non-pharmacy
individual practitioners, subject to certain conditions, to dispense up
to a three-day supply of narcotic medications in schedules III, IV, or
V approved by the Food and Drug Administration specifically for use in
maintenance or treatment of opioid use disorder, for the purpose of
relieving acute withdrawal symptoms while arrangements are being made
for referral for treatment, along with adding a new record keeping
requirement. Additionally, DEA is redesignating the relevant
subsections within the affected regulation in order to achieve greater
organization and clarity.
[[Page 11087]]
Summary of Legal Basis: DEA implements and enforces the
Comprehensive Drug Abuse Prevention and Control Act of 1970, often
referred to as the Controlled Substances Act (CSA), and the Controlled
Substances Import and Export Act (CSIEA), as amended.\1\
---------------------------------------------------------------------------
\1\ DEA publishes the implementing regulations for these
statutes in 21 CFR parts 1300 to end. These regulations are designed
to ensure a sufficient supply of controlled substances for medical,
scientific, and other legitimate purposes, and to deter the
diversion of controlled substances for illicit purposes.
---------------------------------------------------------------------------
As mandated by the CSA, DEA establishes and maintains a closed
system of control for the manufacturing, distribution, and dispensing
of controlled substances, and requires any person who manufactures,
distributes, dispenses, imports, exports, or conducts research or
chemical analysis with controlled substances to register with DEA,
unless they meet an exemption, pursuant to 21 U.S.C. 822. The CSA
authorizes the Administrator of DEA (by delegation of authority from
the Attorney General) to register an applicant to manufacture,
distribute or dispense controlled substances if the Administrator
determines such registration is consistent with the public interest.
The CSA further authorizes the Administrator to promulgate regulations
necessary and appropriate to execute the functions of subchapter I
(Control and Enforcement) and subchapter II (Import and Export) of the
CSA.
Alternatives: There are no feasible alternatives to this proposed
rule.
Anticipated Cost and Benefits: Under the IFR, the patient will be
able to receive three days of medication with just one visit to the
emergency department (ED). The increased medication may lead to an
improved patient outcome, resulting in benefits associated with lower
societal cost of opioid abuse, discussed below. Furthermore, additional
physician's time will not be needed to dispense medication, resulting
in time and cost savings to the ED. However, practitioners must check
the individual's PDMP, and maintain a record that the PDMP was
reviewed, which will increase costs to the ED.
Additionally, the expansion to include all DEA-registered non-
pharmacy individual practitioners allows an individual to be treated
not only by a physician, but also by other non-pharmacy practitioners.
This greatly expands access to treatment and helps alleviate the burden
on hospitals and urgent care centers that are short-staffed or that do
not always have a physician on duty. The intent of this regulation is
to provide non-DATA waived practitioners, and those not registered as
an NTP, with a means to treat individuals experiencing acute withdrawal
symptoms on an emergency basis while future, continued treatment is
coordinated.
Risks: DEA believes any risks associated with this IFR will be
minimal and will be greatly outweighed by the benefits this IFR will
provide.
Timetable:
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Action Date FR Cite
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NPRM................................ 12/00/22
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
URL For More Information: [email protected].
URL For Public Comments: www.regulations.gov.
Agency Contact: Scott A. Brinks, Section Chief, Regulatory Drafting
and Support Section, Diversion Control Division, Department of Justice,
Drug Enforcement Administration, 8701 Morrissette Drive, Springfield,
VA 22152, Phone: 571 362-8209, Email: [email protected].
RIN: 1117-AB73
DOJ--DEA
124. Expansion of Induction of Buprenorphine Via Telemedicine Encounter
[1117-AB78]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 802(54)(G)
CFR Citation: 21 CFR 1300; 21 CFR 1304; 21 CFR 1306.
Legal Deadline: None.
Abstract: DEA is promulgating regulatory changes which would
clarify the rights and obligations for DATA-waived registrants when
prescribing buprenorphine to patients with Opioid Use Disorder pursuant
to a telemedicine encounter which utilizes audio-only telecommunication
systems.
Statement of Need: During the current opioid epidemic, there is a
shortage of data-waived health care providers. This proposed rule will
allow for expanded access to opioid addiction treatment.
Summary of Legal Basis: The Ryan Haight Online Pharmacy Consumer
Protection Act of 2008 (Ryan Haight Act) was enacted to prevent the
illegal distribution and dispensing of controlled substances by means
of the internet. It did so by amending the Controlled Substances Act
(CSA) to require, among other things, that the dispensing of controlled
substances by means of the internet be predicated on a valid
prescription involving at least one in-person medical evaluation, with
limited exceptions. One of those exceptions is when the Drug
Enforcement Administration (DEA) and the Department of Health and Human
Services (HHS) have jointly, by regulation, determined a practice is
being conducted under circumstances consistent with effective controls
against diversion and otherwise consistent with the public health and
safety. DEA is amending its regulations, in concert with HHS, to expand
the circumstances under which individual practitioners are authorized
to prescribe schedule III-V controlled substances which are approved
for treating opioid use disorder, either as medication maintenance or
treatment for withdrawal management, referred to as maintenance or
detoxification treatment via a telemedicine encounter, including an
audio-only telemedicine encounter.
Alternatives: There are no feasible alternatives to this proposed
rule.
Anticipated Cost and Benefits: The estimated costs for opioid use
disorder and fatal opioid overdose in 2017 were estimated to be $1.02
trillion. With regards to the opioid epidemic, the majority of the
economic burden is due to reduced quality of life from opioid use
disorder and the value of life lost due to fatal opioid overdose. Non-
fatal costs include costs associated with health care, substance use
disorder treatment, criminal justice, lost productivity, and the value
of reduced quality of life. While DEA is unable to quantify how many of
the affected patients will be successfully treated for opioid use
disorder or how many fatal opioid overdoses will be avoided as a result
of this proposed rule, the potential economic benefit is
disproportionately large compared to any cost associated with this
rule.
Risks: The proposed rule will reduce the requirements imposed on
practitioners who wish to prescribe schedule III-V controlled
substances as part of medication treatment for opioid use disorders.
DEA understands that there is a risk of misuse and diversion of drugs
approved for the use in maintenance treatment or withdrawal management,
which could be increased by expanded prescribing.
While the proposed rule may increase the risk of diversion, with
the proposed safeguards, and given the safety profile of buprenorphine,
DEA estimates this increased risk will be minimal. Requirements to
check the PDMP prior to issuance of a prescription, 30-day limitations,
in-person requirements for follow-up appointments, and more
[[Page 11088]]
detailed requirements for record-keeping are expected to minimize the
diversion of buprenorphine via telemedicine, including audio-only
telemedicine.
Timetable:
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Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/23
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Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
URL For More Information: [email protected].
URL For Public Comments: www.regulations.gov.
Agency Contact: Scott A. Brinks, Section Chief, Regulatory Drafting
and Support Section, Diversion Control Division, Department of Justice,
Drug Enforcement Administration, 8701 Morrissette Drive, Springfield,
VA 22152, Phone: 571 362-8209, Email: [email protected].
RIN: 1117-AB78
DOJ--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR)
Proposed Rule Stage
125. Bars to Asylum Eligibility and Related Procedures [1125-AB12]
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 1208; 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 1615-AC41), 85 FR
67202 (Oct. 21, 2020), and Asylum Eligibility and Procedural
Modifications (RINs 1125-AA91 and 1615-AC44), 85 FR 82260 (Dec. 17,
2020), final rules. The Departments propose to modify or rescind the
regulatory changes promulgated in these two 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 feasible alternatives to revising those two rules. Relying on
litigation to address these rules could be extremely time-consuming and
may introduce confusion as to whether the regulations remain in effect.
Thus, the Departments consider this alternative to be a burdensome and
inadvisable course of action and, therefore, not feasible.
Anticipated Cost and Benefits: The Departments 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 conclude. Thus, the Department strongly
prefers proactively addressing the regulations through this proposed
rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
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
126. Particular Social Group and Related Definitions and
Interpretations for Asylum and Withholding of Removal [1125-AB13]
Priority: Other Significant.
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 208; 8 CFR 235; 8 CFR 244; 8 CFR 1208; 8 CFR
1244.
Legal Deadline: None.
Abstract: This rule proposes to amend Department of Homeland
Security (DHS) and Department of Justice (DOJ) (collectively, ``the
Departments'') regulations that govern eligibility for asylum and
withholding of removal. The amendments focus on portions of the
regulations that address the definitions of membership in a particular
social group and the interpretation of several other elements of
eligibility for asylum that are often determinative in particular
social group claims, including the requirements of a failure of State
protection, and determinations about whether persecution is on account
of a protected ground. The rule will also propose to modify or rescind
portions of the Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review final rule (RINs 1125-AA94 and
1615-AC42).
This rule is consistent with Executive Order 14010 of February 2,
2021, which directs the Departments 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.
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
[[Page 11089]]
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, DOJ Executive Office for Immigration Review (EOIR)
immigration judges, and members of the EOIR Board of Immigration
Appeals.
Furthermore, on February 2, 2021, President Biden issued Executive
Order 14010 that directs DOJ and DHS [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, 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................................ 03/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: 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 1125-AA94, Related to 1615-AC65, Related to
1615-AC42
RIN: 1125-AB13
DOJ--EOIR
127. Procedures for Asylum and Withholding of Removal [1125-AB15]
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; 8 CFR 1208; 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 asylum and for withholding of removal 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 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 feasible alternatives to revising the regulations. Relying
on litigation could be extremely time-consuming and may introduce
confusion as to whether the regulation is in effect. 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
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 the
proposed rule, although, as previously stated, the proposed rule
restores 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
[[Page 11090]]
regulation, and filing deadlines for both applications and supporting
documents are already well-established aspects of immigration court
proceedings guided by regulations and the Office of the Chief
Immigration Judge 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 is unpredictable and often takes a
long time to conclude. The Department strongly prefers proactively
addressing the regulations through this proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23
------------------------------------------------------------------------
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
128. Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure [1125-AB18]
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; 8 CFR 1239; 8 CFR 1240; . . .
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 finality of case
disposition 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 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 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 feasible alternatives to revising the regulations. Relying
on litigation could be extremely time-consuming and may introduce
confusion as to the regulations' efficacy. 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 conclude. The Department strongly prefers proactively addressing the
regulations through this proposed rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
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.
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
[[Page 11091]]
DOJ--EOIR
Final Rule Stage
129. Procedures for Credible Fear Screening and Consideration of
Asylum, Withholding of Removal and CAT Protection Claims by Asylum
Officers [1125-AB20]
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 212; 8 CFR 235; 8 CFR 1003; 8 CFR
1208; 8 CFR 1230; 8 CFR 1235; 8 CFR 1240.
Legal Deadline: None.
Abstract: On August 20, 2021, the Department of Homeland Security
(DHS) and the Department of Justice (DOJ) (collectively the
``Departments'') published a notice of proposed rulemaking (NPRM or
proposed rule) 86 FR 46906 that proposed amending regulations governing
the procedures for determining certain protection claims and available
parole procedures for certain individuals subject to expedited removal
and found to have a credible fear of persecution or torture. After a
careful review of the comments received, on March 29, 2022, the
Departments issued an interim final rule (rule or IFR) that responds to
comments received in response to the NPRM and adopts the proposed rule
with changes. Significantly, the IFR established timelines for the
consideration of applications for asylum and related protection by
DHS's U.S. Citizenship and Immigration Services (USCIS) and, as needed,
DOJ's Executive Office for Immigration Review (EOIR). The IFR also
provided that DHS will refer noncitizens whose applications are denied
by USCIS to EOIR for streamlined removal proceedings. The Departments
solicited further public comment on the IFR, which the Departments
intend to consider and address in a final rule.
Statement of Need: There is wide agreement that the system for
handling 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 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 more effective and 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.
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 lengthy
waits 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.
Risks: Without this rulemaking, the current system will remain
status quo. The backlogs and delays will continue to grow, and the
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
Correction.......................... 10/18/21 86 FR 57611
NPRM Comment Period End............. 10/19/21
Interim Final Rule.................. 03/29/22 87 FR 18078
Interim Final Rule Effective........ 05/31/22
Interim Final Rule Comment Period 05/31/22
End.
Final Action........................ 03/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
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].
Related RIN: Related to 1615-AC67
RIN: 1125-AB20
BILLING CODE 4410-BP-P
U.S. DEPARTMENT OF LABOR
Fall 2022 Statement of Regulatory Priorities
Introduction
The Department's Fall 2022 Regulatory Agenda represents Secretary
Walsh's commitment to serve American workers and empower workers
morning, noon, and night. These rules will 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. The Department's rulemaking is focused on building
opportunity and equity for all; ensuring safe jobs, essential
protections, and fair workplaces for workers; and improving the
administration of and strengthening the safety net for workers.
Since the start of the Biden Administration, the Department of
Labor has begun historic rulemaking 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:
[[Page 11092]]
We have expeditiously withdrawn or rescinded rules as
necessary to protect and strengthen workers' economic security,
including rescinding the Joint Employer Rule.
We issued a Final Rule implementing President Biden's
Executive Order 14026 that increased the minimum wage for workers on
federal contracts to $15 an hour as of January 30, 2022, and will phase
out the subminimum wage for tipped workers on federal contracts by
January 1, 2024. This will improve the economic security of workers on
federal contracts and their families, many of whom are women and people
of color.
We issued a proposal to update the regulations
implementing Davis-Bacon and Related Acts-- the most comprehensive
review of the regulation in 40 years--to ensure employers on federally
funded or assisted construction projects pay locally prevailing wages
to construction workers. The proposed rules would speed up prevailing
wage updates, creating efficiencies in the current system and ensuring
that prevailing wages keep up with actual wages. Over time, this would
mean higher wages for workers, which is especially important given the
administration's investments under the Bipartisan Infrastructure Law.
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 proposed a rule on determining employee or independent
contractor status under the Fair Labor Standards Act. Protecting
employees from being misclassified as independent contractors is
critically important to ensure those workers receive the wages,
benefits, and workplace protections they are entitled to under the law.
The 2022 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 vision to empower all workers morning, noon, and night.
In the morning, this means investing in and valuing the nation's care
economy so workers can thrive in their jobs, knowing their family's
care needs are met. At noon, we are building a safe, modern, and
inclusive workforce so workers have good jobs, opportunities for
advancement, and a seat at the table. At night, we are supporting a
lifetime of worker empowerment so workers have peace of mind and a
safety net to protect against setbacks.
Under Secretary Walsh's leadership, the Department's regulatory
efforts are informed by our commitments to advance equity for all
workers, create a strong culture of evidence-based decision making, and
engage and seek input from stakeholders. Our Regulatory Agenda
additionally reflects our ongoing commitment to the Biden
Administration's prioritization of economic security, raising wages,
supporting worker organizing and empowerment, 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. 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. It also means
supporting care economy workers to have safe and healthy jobs with fair
pay.
EBSA's joint rulemaking with the Departments of Health and
Human Services and Treasury, implementing the Mental Health Parity and
Addiction Equity Act (MHPAEA) will promote compliance and address
amendments to the Act from the Consolidated Appropriations Act of 2021
to ensure parity of mental health and substance abuse disorder benefits
so workers can access mental health care as easily as other types of
care.
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 issue a Final Rule later this year to protect
healthcare workers and healthcare support service workers from
occupational exposure to COVID-19 in the workplace.
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 Prevention of 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 building a safe, modern, inclusive workforce means people can
have a job that is safe and healthy, 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 launch small business consultations as its next
step in advancing rulemaking on heat illness prevention to protect
workers from heat hazards in the workplace. 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. Protecting workers will
help to save lives while we confront the growing threat of climate
change.
MSHA will propose a new silica standard to effectively
assess health concerns and prevent irreversible diseases with a goal of
ensuring that all miners are safe at their workplaces.
[[Page 11093]]
MSHA will promulgate a rule establishing that mine
operators must develop and implement a written safety program for
mobile and power haulage equipment used at surface mines and surface
areas of underground mines, in order to reduce accidents and provide
safer workplaces 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. OFCCP and WHD
will focus on regulatory changes that will have significant impact on
workers of color, immigrant workers, and workers with disabilities.
OFCCP will finalize the proposal to rescind certain
provisions related to the religious exemption for federal contractors
and subcontractors. The rescission will return OFCCP to its
longstanding approach of 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. The rescission will reaffirm nondiscrimination
protections for employees of federal contractors.
OFCCP will finalize the proposal to modify the agency's
procedures for using resources strategically to remove barriers to
equal employment opportunity. The rule will strengthen OFCCP's ability
to resolve potential employment discrimination at federal contractor
workplaces, which is creating hurdles to effective enforcement.
WHD will finalize the proposal 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 executive, administrative,
and professional exemption in the overtime regulations for the Fair
Labor Standards Act. Updating the salary threshold will ensure that
middle class jobs pay middle class wages, extending important overtime
pay protections to millions of workers and raising their pay.
WHD will finalize regulations that offer certain employees
employed under the federal service contracts a right of first refusal
of employment when contracts change over, thereby promoting the
retention of skilled workers in the federal services workforce.
ETA is proposing regulations that will ensure that H-2
visa programs promote worker voice and worker protections.
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 issuing final rules updating the Wagner-Peyser
Employment Service regulations.
ETA is focused on ensuring high-quality apprenticeship
programs, and as part of this, has finalized the proposed rescission of
the Industry Recognized Apprenticeship Programs (IRAP) rule in order to
renew focus on Registered Apprenticeship.
The Department is committed to ensuring workers have a voice on the
job 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.
OLMS will consider finalizing regulations that require
employers to check a box disclosing whether they are federal
contractors or subcontractors on their ``LM-10'' forms, which are filed
if they hire a consultant to persuade their workers about labor
relations activities or to ``surveil'' employees or unions involved in
a labor dispute.
Supporting a Lifetime of Worker Empowerment
The Department's regulatory priorities reflect the Secretary's
focus 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 protect
worker's pensions from the threats of climate-related financial risk by
implementing two executive orders that focus on the impacts of climate
change and climate-related financial risk. 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 finalized its proposal to
address 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 to help fiduciaries safeguard the interests
of participants and beneficiaries in the plan benefits.
EBSA is proposing to update the definition of the term for
a retirement plan ``fiduciary'' to ensure retirement savers get sound
investment advice free from conflicts of interest.
EBSA, along with the Departments of Health and Human
Services and Treasury, is proposing regulations to implement the
advanced explanation of benefits requirements of the No Surprises Act
to ensure patients have transparency in their health care treatment
options and expected costs before a scheduled service.
DOL--OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP)
Final Rule Stage
130. Final Action on Proposal To Rescind Implementing Legal
Requirements Regarding the Equal Opportunity Clause's Religious
Exemption [1250-AA09]
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
taking a final action on its proposal to rescind the December 8, 2020,
final rule, ``Implementing Legal Requirements Regarding the Equal
Opportunity Clause's Religious Exemption'' (85 FR 79324). 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 is issuing a final rule regarding its proposal to rescind the
regulations established in the final rule titled ``Implementing Legal
Requirements Regarding the Equal Opportunity Clause's Religious
Exemption''. The NPRM proposed to return to the agency's traditional
approach, which applies Title VII principles and applicable case law
and thus would promote clarity and consistency in the application of
the religious exemption.
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.
[[Page 11094]]
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.
Final Rule.......................... 12/00/22 .......................
------------------------------------------------------------------------
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
131. Pre-Enforcement Notice and Conciliation Procedures [1250-AA14]
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 final rule 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
final rule would promote effective enforcement through OFCCP's
regulatory procedures.
Statement of Need: The Office of Federal Contract Compliance
Programs intends to issue a final rule to modify regulations that
delineate procedures and standards the agency follows when issuing pre-
enforcement notices and securing compliance through conciliation. This
final rule 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: OFCCP considered the alternative of maintaining the
current regulations established in the 2020 rule.
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................................ 03/22/22 87 FR 16138
NPRM Comment Period End............. 04/21/22 .......................
Final Rule.......................... 03/00/23 .......................
------------------------------------------------------------------------
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--OFFICE OF LABOR-MANAGEMENT STANDARDS (OLMS)
Final Rule Stage
132. Form LM-10 Employer Report [1245-AA13]
Priority: Other Significant.
Legal Authority: 29 U.S.C. 433, 438
CFR Citation: 29 CFR 405.
Legal Deadline: None.
Abstract: The Department intends to review the layout of the Form
LM-10 and will consider proposing a requirement for employers to
disclose on the Form LM-10 whether the filer is a federal contractor
and other related information.
Statement of Need: The Department proposes this change in response
to the increased prevalence of, and public interest in, persuader
activities in recent years. Disclosing contractor status is consistent
with Congress's intent in enacting the LMRDA: [I]t continues to be the
responsibility of the Federal Government to protect employees' rights
to organize, choose their own representatives, bargain collectively,
and otherwise engage in concerted activities for their mutual aid or
protection. 29 U.S.C. 401(a). Further, such disclosure is also
consistent with the LMRDA's employer reporting requirements, which
require a full explanation of the circumstances of all such payments,
including the terms of any agreement or understanding pursuant to which
they were made. 29 U.S.C. 433(a). The revision here proposes that one
of the circumstances that must be explained is whether the payments
concerned employees of Federal contractors or subcontractors and, if
so, the filer would provide its Unique Entity Identity (UEI) and the
relevant Federal contracting agency(ies) if applicable.
Summary of Legal Basis: The legal authority for this notice of
proposed rulemaking is set forth in sections 203 and 208 of the Labor-
Management Reporting and Disclosure Act of 1959, as amended (LMRDA), 29
U.S.C. 433, 438.
Alternatives: There are three significant possible alternatives to
the one checkbox and two lines that the Department is considering in
drafting this proposed Form LM-10 modification: (1) no modification of
Item 12, (2) only utilizing the checkbox modification, and (3) only
requiring the employer to identify the UEI and contracting agencies.
See the proposed revision for complete explanations of why the
department chose not to pursue these alternatives.
Anticipated Cost and Benefits: This proposed amendment to the Form
LM-10 has an approximated 10-year cost of between $55,642.00 and
$166,926.00 spread across 647 separate yearly Form LM-10 filers. By
updating the form and instructions to propose this change and to
clearly and accurately describe the information employers must
disclose, the proposed revision will support harmonious labor relations
and will facilitate filers' understanding and compliance, thereby
reducing incidents of noncompliance and associated costs incurred when
noncompliant.
Risks: The Department of Labor has found no significant risk
associated with the addition to Form LM-10 codified in this proposed
revision.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 09/13/22 87 FR 55952
NPRM Comment Period End............. 10/13/22
Final Rule.......................... 02/00/23
------------------------------------------------------------------------
[[Page 11095]]
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Agency Contact: Andrew R. Davis, Director of the Office of Program
Operations, Department of Labor, Office of Labor-Management Standards,
200 Constitution Avenue NW, FP Building, Room N-5609, Washington, DC
20210, Phone: 202 693-0123, Fax: 202 693-1340, Email: [email protected].
RIN: 1245-AA13
DOL--WAGE AND HOUR DIVISION (WHD)
Proposed Rule Stage
133. Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees
[1235-AA39]
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 they pay for those services. 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................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
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-AA39
DOL--WHD
134. Nondisplacement of Qualified Workers Under Service Contracts
[1235-AA42]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: E.O. 14055
CFR Citation: 29 CFR 9.
Legal Deadline: None.
Abstract: On November 18, 2021, President Biden signed Executive
Order 14055 requiring the Secretary of Labor to issue final regulations
on the nondisplacement of qualified workers under service contracts.
This Executive Order will promote retention of experienced and skilled
employees working on federal service contracts. Service work supporting
federal government functions occurs all over the country, from federal
building maintenance to services provided on military bases to skilled
technicians operating and maintaining federal equipment. Under this
Executive Order, when a federal service contract transitions from one
contractor to another, the new contractor will be required to offer
jobs to qualified employees who worked for the previous contractor and
performed their jobs well. This prevents disruptions in federal
services, makes it easier for employers to find workers who are already
trained for the job, and saves taxpayer dollars.
Statement of Need: Executive Order 14055 requires the Secretary of
Labor to issue regulations on the nondisplacement of qualified workers
under service contracts.
Summary of Legal Basis: President Biden issued Executive Order
14055 pursuant to his authority under ``the Constitution and the laws
of the United States,'' expressly including the Procurement Act. 86 FR
66397. 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 14055 directs the Secretary to issue
regulations to ``implement the requirements of this order.'' 86 FR
66399.
Alternatives: The Department has discussed a few specific
provisions in which limited alternatives are possible.
First, in cases where a prime contract is above the simplified
acquisition threshold, but their subcontract falls below this
threshold, the Department could potentially have discretion to exclude
these subcontracts from the requirements of this proposed rule.
However, the Department believes that based on the way the Executive
Order is worded, the intent was not to exclude these subcontracts.
Second, the Department has some discretion in defining the specific
analysis that must be completed by contracting agencies regarding
location continuity. The Department is considering whether to require
contracting officers to analyze additional factors when determining
whether to decline to require location continuity. Any requirement of a
more in-depth analysis could potentially increase costs for contracting
agencies.
Anticipated Cost and Benefits: The proposed rule could result in
costs for small business firms in the form of rule
[[Page 11096]]
familiarization costs, implementation costs, and recordkeeping costs.
Using a carryover workforce reduces disruption in the delivery of
services during the period of transition between contractors, maintains
physical and information security, and provides the Federal Government
with the benefits of an experienced and well-trained workforce that is
familiar with the Federal Government's personnel, facilities, and
requirements.
Risks: This action does not affect the public health, safety, or
the environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/15/22 87 FR 42552
NPRM Comment Period End............. 08/15/22
NPRM Analyze Comments............... 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
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-AA42
DOL--WHD
Final Rule Stage
135. Updating the Davis-Bacon and Related Acts Regulations [1235-AA40]
Priority: Economically Significant. Major under 5 U.S.C. 801.
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 proposed 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 were developed in considering proposed
revisions to the current regulations. As part of the NPRM, one
alternative the Department considered was requiring all contracting
agencies--not just Federal agencies--that use wage determinations under
the DBRA to submit an annual report to the Department outlining
proposed construction programs for the coming year. But in the proposed
rule, the Department noted that this requirement would be unnecessarily
onerous for non-Federal contracting agencies, particularly as major
construction projects such as those related to road and water quality
infrastructure projects may be dependent upon approved funding or
financial assistance from a Federal partner. The Department's proposal
to require only Federal agencies to submit these annual reports would
be simpler and less burdensome for the regulated community as some
Federal agencies have already been submitting these reports pursuant to
AAM (Dec. 27, 1985) and AAM 224 (Jan. 17, 2017).
Another alternative that was considered was the use of a different
index instead on the Employment Cost index (ECI) for updating out-of-
date non-collectively bargained wage rates. The Department considered
proposing to use the Consumer Price Index (CPI) but considers the data
source to be a less appropriate index to use because the CPI measures
movement of consumer prices as experienced by day-to-day living
expenses, unlike the ECI, which measures changes in the costs of labor
in particular. The CPI does not track changes in wages or benefits, nor
does it reflect the costs of construction workers nationwide.
The Department welcomed comments on these and other alternatives to
the proposed rule.
Anticipated Cost and Benefits: The Department prepared estimates of
the anticipated costs and benefits associated with the proposed rule.
The Department considered employer costs associated with both (a) the
return to the ``three-step'' method for determining the prevailing wage
(i.e., the change from a 50 percent threshold to a 30 percent
threshold) and (b) the incorporation of a mechanism to periodically
update certain non-collectively bargained prevailing wage rates. Costs
presented are combined for both provisions. However, the Department
believes most of the costs will be associated with the second
provision. The Department estimated both regulatory familiarization
costs and implementation costs. Year 1 costs are estimated to total
$12.6 million. Average annualized costs across the first 10 years of
implementation are estimated to be $3.9 million (using a 7 percent
discount rate).
Risks: This action does not affect public health, safety, or the
environment.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/18/22 87 FR 15698
NPRM Comment Period End............. 05/17/22
Final Rule.......................... 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
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--EMPLOYMENT AND TRAINING ADMINISTRATION (ETA)
Final Rule Stage
136. Wagner-Peyser Act Staffing [1205-AC02]
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.
[[Page 11097]]
Abstract: The Department proposed 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.
Statement of Need: The Department identified areas of the
regulation that changed to create a uniform standard of ES services
provision for States.
Summary of Legal Basis: The Department is undertaking this
rulemaking pursuant to its authority under section 12 of the Wagner-
Peyser Act (29 U.S.C. 49k).
Alternatives: Two alternatives will be considered, and the public
had the opportunity to comment on these alternatives during the comment
period of the NPRM.
Anticipated Cost and Benefits: The proposed rule was estimated to
have one-time rule familiarization costs of $4,205 in 2020 dollars, as
well as unknown transition costs. The proposed rule also estimated the
rule 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; transfer payments are monetary payments from
one group to another, such as wages shifting from one employer to
another, that do not affect total resources available to society. The
transfer payments for this proposed rule were the estimated wage cost
increases to the States associated with employee wages and fringe
benefits. In the NPRM, the Department I solicited comments from
stakeholders and the public on the unknown transition costs, plus
transfer payments that would be incurred by any 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................................ 04/20/22 87 FR 23700
NPRM Comment Period End............. 06/21/22
Final Rule.......................... 06/00/23
------------------------------------------------------------------------
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--EMPLOYEE BENEFITS SECURITY ADMINISTRATION (EBSA)
Proposed Rule Stage
137. Definition of the Term ``Fiduciary'' [1210-AC02]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 29 U.S.C. 1002; 29 U.S.C. 1135; Reorganization
Plan No. 4 of 1978, 5 U.S.C. App. 252 (2020)
CFR Citation: 29 CFR 2510.3-21.
Legal Deadline: None.
Abstract: This rulemaking would amend the regulatory definition of
the term fiduciary set forth at 29 CFR 2510.3-21(c) to more
appropriately define when persons who render investment advice for a
fee to employee benefit plans and IRAs are fiduciaries within the
meaning of section 3(21) of ERISA and section 4975(e)(3) of the
Internal Revenue Code. The amendment would take into account practices
of investment advisers, and the expectations of plan officials and
participants, and IRA owners who receive investment advice, as well as
developments in the investment marketplace, including in the ways
advisers are compensated that can subject advisers to harmful conflicts
of interest. In conjunction with this rulemaking, EBSA also will
evaluate available prohibited transaction class exemptions and propose
amendments or new exemptions to ensure consistent protection of
employee benefit plan and IRA investors.
Statement of Need: Many protections, duties, and liabilities in
ERISA hinge on fiduciary status; therefore, the determination of who is
a fiduciary is of central importance. The Department's existing
regulatory definition of an investment advice fiduciary, adopted in
1975, established a five-part test for status as a fiduciary. The 1975
regulation's five-part test is not founded in the statutory text of
ERISA, does not take into account the current nature and structure of
many individual account retirement plans and IRAs, is inconsistent with
the reasonable expectations of plan officials and participants, and IRA
owners who receive investment advice, and allows many investment advice
providers to avoid status as a fiduciary under federal pension laws.
Under ERISA, fiduciaries must avoid conflicts of interest or comply
with a prohibited transaction exemption with conditions designed to
protect retirement investors. A wide and compelling body of evidence
shows that conflicts of interest and forms of compensation that can
subject advisers to harmful conflicts of interest, if left unchecked,
too often result in biased investment advice and resulting harm to
retirement investors. In conjunction with this rulemaking, EBSA also
will evaluate available prohibited transaction class exemptions and
consider proposing amendments or new exemptions to ensure consistent
protection of employee benefit plan and IRA investors.
Summary of Legal Basis: The Department is proposing the amendment
to its regulation defining a fiduciary pursuant to authority in ERISA
section 505 (29 U.S.C. 1135) and section 102 of Reorganization Plan No.
4 of 1978, 5 U.S.C. App. 252 (2020).
Alternatives: The Department considered as an alternative leaving
the 1975 regulation in place without change.
Anticipated Cost and Benefits: The proposed amendment to the 1975
regulation would extend the protections associated with fiduciary
status to more advice arrangements. The proposed regulation and
associated prohibited transaction exemptions are expected to require
providers of investment advice to adhere to a best interest standard,
charge no more than reasonable compensation, eliminate or mitigate
conflicts of interest, and make important disclosures to their
customers, among other things. These protections would deliver
substantial gains for retirement investors and economic benefits that
more than justify the costs. The costs of the regulation are largely
expected to stem from compliance with the associated prohibited
transaction exemptions. Estimates of the cost of compliance are still
under development and will be reflected in the notice of proposed
rulemaking.
Risks: The Department believes that the 1975 regulation must be
revised to align with retirement investors' reasonable expectations
regarding their relationships with investment advice providers and to
reflect developments in the investment advice marketplace since the
1975 regulation was adopted. Failure to appropriately define an
investment advice fiduciary under ERISA is likely to expose retirement
investors to conflicts of interest that will erode retirement savings.
The risks are especially great with respect to recommendations to roll
assets out of ERISA-covered plans to IRAs because of the central
importance of retirement plan savings to workers, the relative size
[[Page 11098]]
of rollover transactions, and the technical requirements of the current
fiduciary regulation, which have encouraged advisers to argue that
their advice falls outside the regulation's purview regardless of its
importance.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Karen E. Lloyd, 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: 202 693-8510.
RIN: 1210-AC02
DOL--EBSA
138. Mental Health Parity and Addiction Equity Act and the Consolidated
Appropriations Act, 2021 [1210-AC11]
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................................ 12/00/22
------------------------------------------------------------------------
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: 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--MINE SAFETY AND HEALTH ASMINISTRATION (MSHA)
Proposed Rule Stage
139. Respirable Crystalline Silica [1219-AB36]
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................................ 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: Local, State.
Agency Contact: S. Aromie Noe, 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, Fax: 202 693-9441.
RIN: 1219-AB36
DOL--MSHA
Final Rule Stage
140. Safety Program for Surface Mobile Equipment [1219-AB91]
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
[[Page 11099]]
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 would reduce fatal
and nonfatal injuries involving surface mobile equipment used at mines
and 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
NPRM Reopening of the Rulemaking 12/20/21 86 FR 71860
Record for Public Comments.
Virtual Public Hearing.............. 01/11/22
NPRM Comment Period Extension End... 02/11/22
Final Rule.......................... 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: S. Aromie Noe, 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, Fax: 202 693-9441.
RIN: 1219-AB91
DOL--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)
Prerule Stage
141. Prevention of Workplace Violence in Health Care and Social
Assistance [1218-AD08]
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 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
[[Page 11100]]
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..................... 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Local, State.
Agency Contact: Andrew Levinson, 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
142. Heat Illness Prevention in Outdoor and Indoor Work Settings [1218-
AD39]
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 U.S. 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 U.S., 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 many 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), OSHA published an ANPRM on Heat Injury and Illness
Prevention in Outdoor and Indoor Work Settings (October 27, 2021) 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 being the 6th hottest on record.
Although official figures for 2022 are not yet available, we already
know that in many states heat related deaths 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 an instead rely upon the General Duty Clause
(OSH Act Section 5(a)(1) for select enforcement activity). 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 Extended....... 12/02/21 86 FR 68594
ANPRM Comment Period Extended End... 01/26/22
Initiate SBREFA..................... 01/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
[[Page 11101]]
Agency Contact: Andrew Levinson, 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-AD39
DOL--OSHA
Proposed Rule Stage
143. Infectious Diseases [1218-AC46]
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................................ 09/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: Local, State.
Federalism: Undetermined.
Agency Contact: Andrew Levinson, 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
DOL--OSHA
Final Rule Stage
144. Occupational Exposure to COVID-19 in Healthcare Settings [1218-
AD36]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Occupational Safety and Health Act of 1970 (Public
Law 91-596)
CFR Citation: 29 CFR 1910.501; 29 CFR 1910.502; 29 CFR 1910.504; 29
CFR 1910.505; 29 CFR 1910.506.
Legal Deadline: None.
Abstract: In accordance with President Biden's Executive Order
13999 on Protecting Worker Health and Safety (January 21st, 2021), OSHA
issued an emergency temporary standard to address the grave danger of
COVID-19 in healthcare workplaces. This standard contains provisions
necessary to ensure the health and safety of workers. The agency
believes the danger faced by healthcare workers continues to be of the
highest concern and measures to prevent the spread of COVID-19 are
still needed to protect them. OSHA announced on December 27, 2021 that
it intended to continue to work expeditiously to issue a final standard
that will protect healthcare workers from COVID-19 hazards.
[[Page 11102]]
However, given that OSHA anticipated a final rule could not be
completed in a timeframe approaching the one contemplated by the OSH
Act, the agency has stopped enforcing the non-recordkeeping provisions.
OSHA has continued to work expeditiously to issue a final standard that
will protect workers from COVID-19.
Statement of Need: Since the ETS was first issued, there have been
successive waves of new COVID-19 variants, including the delta and
omicron variants, as well as numerous subvariants of omicron. New cases
of COVID-19 peaked at an average of over 800,000 cases a day in
January, 2022 and from mid-May 2022 to present there has been an
average of more than 100,000 new COVID-19 cases each day. As the public
seeks medical care for their infections, healthcare workers continue to
be exposed to COVID-19 in the course of their employment.
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 formally withdrawing the ETS and
not finalizing it to a permanent standard. If it does issue a permanent
standard, the agency could also consider expanding the scope so that
the rule would include many ambulatory care settings that are engaged
in direct COVID-19 care of patients or include not only maintenance
activities, but also construction activities at healthcare facilities.
The agency could also consider altering its regulatory approach by
allowing more employer flexibility through performance-oriented
provisions, rather than more prescriptive specifications. Lastly, the
agency could consider the addition of new provisions, such as new
requirements related to the control of outbreaks in healthcare
facilities, or the removal of provisions, such as medical removal
benefits.
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
------------------------------------------------------------------------
Interim Final Rule.................. 06/21/21 86 FR 32376
Interim Final Rule Effective........ 06/21/21 .......................
Interim Final Rule; Correction...... 07/14/21 86 FR 37038
Interim Final Rule Comment Period 06/21/21 86 FR 38232
Extended.
Interim Final Rule Comment Period 08/20/21 .......................
Extended End.
Final Rule.......................... 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Agency Contact: Andrew Levinson, 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-AD36
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 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 make our transportation the safest in the world for the
benefit of all who use it, grow an inclusive and sustainable economy,
reduce inequities across our transportation systems and the communities
they affect, help tackle the climate crisis, and spur research and
innovation.
Our focus on making ensuring the United States has the safest and
most efficient transportation system in the world is as urgent as ever.
For example, the Department recently finalized a rule to ensure that
flight attendants are well rested when they perform their safety-
critical duties. After decades of declines in the number of fatalities
on our roads, the United States has seen 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 is also working to rapidly address the other urgent
challenges facing our Nation. To help address climate change, in May
2022, the Department finalized a rulemaking setting more stringent
vehicle emission limits for vehicle model years 2024-2026 than those
set by the ``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).
In addition, the Department is working to greatly improve the
transportation system experience for both users and people whose
communities are served by or are near the transportation network. To
that end, The Department is considering the following rulemakings: (1)
Enhancing Transparency of Airline Ancillary Service Fees; (2) Airline
Ticket Refunds; and (3) fuel economy standards for passenger cars,
light-duty trucks, heavy-duty pickup trucks, and vans, as well as fuel
efficiency standards for medium- and heavy-duty engines and vehicles.
[[Page 11103]]
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 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.
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. For example, the Department is
engaged in rulemakings to measure and reduce emissions from
transportation projects and improve emissions related to movement of
natural gas.
Equity. Ensuring that the transportation system equitably benefits
underserved communities is a top priority. 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: (1) a rulemaking to ensure that people with
disabilities can access lavatories on single-aisle aircraft; (2) a
rulemaking to enhance the safety of air travel for individuals with
disabilities who use wheelchairs; and (3) a rulemaking to ensure that
disabled persons have equitable access to transit facilities. In the
rulemaking to enhance air travel safety for wheelchair users, the
Department is considering, among other things, options to ensure that
assistance provided to individuals with disabilities be provided in a
safe manner and that disabled individuals' assistive devices not be
mishandled.
The Department is prioritizing its regulatory actions to make sure
those regulations 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.
Executive Order 14036 directs the Department to take actions that
would promote competition and deliver benefits to America's consumers,
including initiating a rulemaking to ensure that air consumers have
ancillary fee information, including ``baggage fees,'' ``change fees,''
``cancellation fees,'' and fees for seating adjacent to young children
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.''
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. FAA also intends to propose
that rulemaking requiring a safety management system for certain
aircraft, engine, and propeller manufacturers; certificate holders
conducting common carriage operations; and persons conducting certain,
specific types of air tour operations. In addition, FAA will proceed
with a rulemaking to further advance the integration of unmanned
aircraft systems into the national airspace system.
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 finalize its
National Electric Vehicle Infrastructure (NEVI) Formula Program
regulation as required by the Bipartisan Infrastructure Law (BIL)
(enacted as the Infrastructure Investment and Jobs Act) (Pub. L. 117-
[[Page 11104]]
58) (Nov. 15, 2021). This regulation would enable States to implement
federally-funded charging station projects in a standardized fashion
across a national Electric Vehicle (EV) charging network that can be
utilized by all EVs regardless of vehicle brand. Such standards would
provide consumers with reliable expectations for travel in an EV across
and throughout the United States and support a national workforce
skilled and trained in EV supply equipment installation and
maintenance.
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
NHTSA pursues policies that enable safety; establish light-,
medium-, and heavy-duty vehicle fuel economy and fuel efficiency
standards in furtherance of climate and energy conservation; enhance
equity; and improve mobility in order to save lives, prevent injuries,
and reduce economic and social 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 fuel economy and fuel efficiency
standards requirements. NHTSA develops safety standards and other
regulations driven by data and research, including those mandated by
Congress under the Infrastructure Investment and Jobs Act, Moving Ahead
for Progress in the 21st Century Act, the Fixing America's Surface
Transportation Act, and the Energy Independence and Security Act, among
others. NHTSA's regulatory priorities for Fiscal Year 2023 focus on
issues related to safety, climate, equity, and vulnerable road users.
Relative to climate and equity, NHTSA plans to propose a rulemaking
to address the next phase of Fuel Efficiency and Greenhouse Gas
Standards for Medium- and Heavy-Duty Engines and Vehicles, pursuant to
Executive Order 14037. Also pursuant to Executive Order 14037, NHTSA
plans to propose the next phase of NHTSA's corporate average fuel
economy (CAFE) standards for passenger cars and light trucks. 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 plans to propose a rulemaking to require AEB.
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
Bipartisan Infrastructure Law (2021), Rail Safety Improvement Act of
2008 (RSIA08), and the FAST Act. These actions support a safe, high-
performing passenger rail network, protect worker safety, and encourage
innovation and the adoption of new technology to improve rail safety.
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.
Maritime Administration
MARAD administers Federal laws and programs to improve and
strengthen the 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 2023, 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 2023, 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 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
[[Page 11105]]
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
145. +Enhancing Transparency of Airline Ancillary Service Fees [2105-
AF10]
Priority: Other Significant.
Legal Authority: 49 U.S.C. 41712
CFR Citation: 14 CFR 399.
Legal Deadline: None.
Abstract: This rulemaking would amend DOT's aviation consumer
protection regulations to ensure that consumers have ancillary fee
information, including ``baggage fees,'' ``change fees,''
``cancellation fees,'' and seat fees that impact families traveling
with children 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: The rule would yield societal
benefits if it reduced deadweight loss from inaccurate price
calculations or reduced search costs. Inaccurate price calculations
lead to over consumption and can distort consumer perceptions in ways
that confer a competitive advantage to producers who produce a lower-
quality product. While we lack information to estimate benefits, we
calculated a hypothetical example range using methods from earlier
rulemakings. At the same time, the rule could lead to crowding out of
other relevant information for some consumers. The potential effect
represents an offset to benefits, and it is possible that it equals or
outweighs the benefits.
The primary costs of the proposed rule are the costs that carriers
and ticket agents would incur to share ancillary fee data, modify
websites, and allow transactability for assigned seats for children 13
or under. These costs include startup implementation costs as well as
ongoing costs. Third parties involved in data exchange, such as global
distribution systems (GDS) and direct-channel companies, would incur
costs as well despite not being directly regulated by the rule. Because
these entities are already starting to upgrade systems for market
reasons, the cost properly associated with the proposed rule is the
cost of requiring them to upgrade earlier than they would without the
rule.
Risks: n/a.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/20/22 87 FR 63718
NPRM Comment Period End............. 12/19/22
Final Rule.......................... 03/00/24
------------------------------------------------------------------------
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--OST
Final Rule Stage
146. +Accessible Lavatories on Single-Aisle Aircraft: Part II [2105-
AE89]
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 would require 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................................ 03/28/22 87 FR 17215
NPRM Comment Period End............. 05/27/22
Final Rule.......................... 04/00/23
------------------------------------------------------------------------
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].
Related RIN: Split from 2105-AE32, Related to 2105-AE88
RIN: 2105-AE89
DOT--FEDERAL AVIATION ADMINISTRATION (FAA)
Proposed Rule Stage
147. +Safety Management System for Parts 21, 91, 135 and 145 [2120-
AL60]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 49 U.S.C. 106(f); 49 U.S.C. 44701(a)(5)
CFR Citation: 14 CFR 135; 14 CFR 145; 14 CFR 21; 14 CFR 91.
Legal Deadline: None.
Abstract: This rulemaking would apply the requirements of 14 CFR
part 5, with appropriate modifications. As a result, this rulemaking
would require persons engaged in the design and production of aircraft,
engines, or propellers; certificate holders that conduct common
carriage operations under part 135; persons engaged in maintaining part
121 aircraft under part 145; and persons conducting certain, specific
types of air tour operations under part 91 to implement a Safety
Management System.
Statement of Need: Recent incidents and accidents have indicated
the need
[[Page 11106]]
for action to improve safety in the National Airspace System (NAS). In
addition, recommendations from the National Transportation Safety Board
(NTSB), mandates in the Aircraft Certification Safety and
Accountability (ACSA) Act (Pub. L. 116-260, December 27, 2020),
agreements in International Civil Aviation Organization (ICAO) Annexes
and Standards and Recommended Practices (SARPs), and recommendations
from previous Aviation Rulemaking Committees (ARCs) indicate that
expanded application of SMS is needed. Further, the successful
implementation of Safety Management Systems (SMS) in part 121 suggests
the potential benefit to expansion of SMS into other sectors of the
aviation system. Therefore, the Federal Aviation Administration has
determined that expanding the application of part 5 is necessary.
Summary of Legal Basis: The FAA's authority to issue rules on
aviation safety is found in title 49 of the United States Code
(U.S.C.). Subtitle I, section 106 describes the authority of the FAA
Administrator. 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. Subtitle VII,
Aviation Programs, describes in more detail the scope of the Agency's
authority. This rulemaking is also promulgated under 49 U.S.C.
44701(a)(5), 49 U.S.C. 44701(d)(1)(A), 49 U.S.C. 44701(a)(2), 49 U.S.C.
44707(2), 49 U.S.C. 44702 and 49 U.S.C. 44704. In addition, the Airport
Certification, Safety, and Accountability Act, (the Act), Public Law
116-260, division V, title I, sec. 102 (December 27, 2020) requires the
FAA to initiate a rulemaking to require that manufacturers that hold
both a type certificate and a production certificate issued pursuant to
49 U.S.C. 44704 have a safety management system consistent with
standards and recommended practices established by ICAO. This
rulemaking is within the scope of the aforementioned authorities
because it requires certain entities to develop and maintain an SMS to
improve the safety of their operations. The development and
implementation of SMS ensures safety in air transportation,
manufacturing, and maintenance by helping certain entities proactively
identify and mitigate safety hazards, thereby reducing the possibility
or recurrence of accidents in air transportation.
Alternatives: The proposed expansion of the applicability of part 5
furthers the Administrator's mission of promoting the safe flight of
civil aircraft in air commerce and reducing or eliminating the
possibility or recurrence of accidents in air transportation. The FAA
is currently exploring several alternatives to determine how the
revised applicability would extend SMS requirements to parts 21, 91,
135, and 145.
Anticipated Cost and Benefits: The FAA is in the process of
determining the costs and benefits associated with the proposed rule.
Risks: An SMS is a formalized approach to managing safety by
developing an organization-wide safety policy, developing formal
methods of identifying hazards, analyzing and mitigating risk,
developing methods for ensuring continuous safety improvement, and
creating organization-wide safety promotion strategies. An SMS provides
an organization's management with a set of decision-making tools that
can be used to plan, organize, direct, and control its business
activities in a manner that enhances safety and ensures compliance with
regulatory standards. Adherence to standard operating procedures,
proactive identification and mitigation of hazards and risks, and
effective communications are crucial to continued operational safety.
The FAA envisions an SMS would provide those covered by the proposed
rule with an added layer of safety to help reduce the number of
incidents, and accidents.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
------------------------------------------------------------------------
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: Scott VanBuren, Office of Accident Investigation
and Prevention, Department of Transportation, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591,
Phone: 202 494-8417, Email: [email protected].
RIN: 2120-AL60
DOT--FEDERAL HIGHWAY ADMINISTRATION (FHWA)
Final Rule Stage
148. +National Electric Vehicle Infrastructure Formula Program [2125-
AG10]
Priority: Other Significant.
Legal Authority: Infrastructure Investment and Jobs Act, Pub. L.
117-58 (Nov. 15, 2021), Pa
CFR Citation: Not Yet Determined.
Legal Deadline: NPRM, Statutory, May 13, 2022, The BIL requires
establishment of minimum standards and requirements of the NEVI Formula
Program within 180 days.
Abstract: This rulemaking would establish minimum standards and
requirements for the implementation of the NEVI Formula Program under
Title 23 of the United States Code, as required by the Infrastructure
Investment and Jobs Act, Public Law 117-58 (Nov. 15, 2021), Paragraph
(2) under the Highway Infrastructure Program heading in title VIII of
division J.
Statement of Need: The FHWA is directed by Paragraph (2) under the
Highway Infrastructure Program heading in title VIII of division J of
the Bipartisan Infrastructure Law (BIL) (enacted as the Infrastructure
Investment and Jobs Act) (Pub. L. 117-58) (Nov. 15, 2021) to create
minimum standards and requirements for NEVI-funded projects. As
outlined in statute, the purpose of the NEVI Formula Program is to
``provide funding to States to strategically deploy EV charging
infrastructure and to establish an interconnected network to facilitate
data collection, access, and reliability.'' This purpose would be
satisfied by creating a convenient, affordable, reliable, and equitable
network of chargers throughout the country. Currently, there are no
national standards for the installation, operation, or maintenance of
EV charging stations, and wide disparities exists among EV charging
stations in key components, such as operational practices, payment
methods, site organization, display of price to charge, speed and power
of chargers, cybersecurity and resilience of charger components and
software, and information communicated about the availability and
functioning of each charging station. The FHWA is directed by section
11129 of BIL, which amends 23 U.S.C. 109, by adding a requirement that
EV charging station standards apply to all projects that install EV
charging infrastructure using funds provided under title 23, United
States Code. This proposed rule does not conflict with or
[[Page 11107]]
supersede other title 23, United States Code statutory requirements or
their implementing regulations. This regulation would enable States to
implement federally-funded charging station projects in a standardized
fashion across a national EV charging network that can be utilized by
all EVs regardless of vehicle brand. Such standards would provide
consumers with reliable expectations for travel in an electric vehicle
across and throughout the United States and support a national
workforce skilled and trained in EVSE installation and maintenance.
Summary of Legal Basis: The FHWA is directed by Paragraph (2) under
the Highway Infrastructure Program heading in title VIII of division J
of the Bipartisan Infrastructure Law (BIL) (enacted as the
Infrastructure Investment and Jobs Act) (Pub. L. 117-58) (Nov. 15,
2021) to create minimum standards and requirements for NEVI-funded
projects. The FHWA is directed by Section 11129 of BIL, which amends 23
U.S.C. 109, by adding a requirement that EV charging station standards
apply to all projects that install EV charging infrastructure using
funds provided under title 23, United States Code.
Alternatives: In the development of its proposal, FHWA considered
alternatives to its published proposal including recommendations
received as part of its Request for Information published in the
Federal Register at 86 FR 67782 on November 29, 2021. Discussion is
included in the preamble of the NPRM and in the preliminary Regulatory
Impact Analysis document found at the docket for this rulemaking.
Anticipated Cost and Benefits: The preliminary Regulatory Impact
Analysis document provided in the docket for this rulemaking provides a
national estimate of the costs and benefits to implement this
rulemaking. All of these minimum requirements are required by BIL. Many
of the costs and benefits in the proposed rule are difficult to
quantify, although for some provisions break even analysis and other
illustrative calculations comparing the costs and benefits of
alternative requirements have been provided. These illustrative
calculations and qualitative analyses show that proposed requirements
have advantages over other possible alternatives when considering costs
and benefits.
Risks: None identified.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/22/22 87 FR 37262
Final Rule.......................... 12/00/22
Final Action Effective.............. 01/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Undetermined.
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-AG10
DOT--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA)
Proposed Rule Stage
149. +Heavy Vehicle Automatic Emergency Braking [2127-AM36]
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: Final, Statutory, November 15, 2023, Complete
rulemaking.
Abstract: Pursuant to a statutory mandate in the Bipartisan
Infrastructure Law, 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 final rule.
Risks: The agency believes there are no substantial risks to this
rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/23
------------------------------------------------------------------------
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: Lori Summers, Chief, Light Duty Vehicle Division,
Department of Transportation, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Phone:
202 366-1740, Email: [email protected].
Related RIN: Related to 2126-AC49
RIN: 2127-AM36
DOT--NHTSA
150. +Light Vehicle Automatic Emergency Braking (AEB) With Pedestrian
AEB [2127-AM37]
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: Final, Statutory, November 15, 2023, Complete
rulemaking.
Abstract: Pursuant to a statutory mandate in the Bipartisan
Infrastructure Law, this notice will seek comment on a proposal to
require and/or standardize performance for Light Vehicle Automatic
Emergency Braking (AEB),
[[Page 11108]]
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................................ 12/00/22
------------------------------------------------------------------------
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: Lori Summers, Chief, Light Duty Vehicle Division,
Department of Transportation, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Phone:
202 366-1740, Email: [email protected].
RIN: 2127-AM37
DOT--NHTSA
151. +Fuel Efficiency and Greenhouse Gas Standards for Medium- and
Heavy-Duty Engines and Vehicles [2127-AM39]
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 notice addresses coordination between NHTSA and the
Environmental Protection Agency related to fuel efficiency and
greenhouse gas standards for medium and heavy-duty engines and
vehicles.
Statement of Need: This action is directed under Executive Order
14037.
Summary of Legal Basis: This rulemaking would respond to
requirements of the Energy Independence and Security Act of 2007
(EISA).
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................................ 05/00/23
------------------------------------------------------------------------
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-AM39
DOT--NHTSA
152. +Light Vehicle Cafe Standards Beyond MY 2026 [2127-AM55]
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: In response to Executive Order 14037, this notice
proposes the next phase of NHTSA's corporate average fuel economy
(CAFE) standards for passenger cars and light trucks.
Statement of Need: This action is directed under Executive Order
14037.
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 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................................ 03/00/23
------------------------------------------------------------------------
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-AM55
DOT--FEDERAL RAILROAD ADMINISTRATION (FRA)
Proposed Rule Stage
153. +Train Crew Staffing (Section 610 Review) [2130-AC88]
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 train
crews, 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, as well as the patchwork of State laws
concerning minimum crew staffing requirements, FRA is considering a
final rule 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).
[[Page 11109]]
Alternatives: FRA will analyze regulatory alternatives in the NPRM.
Anticipated Cost and Benefits: FRA estimated the costs associated
with special approvals, risk assessments, annual railroad
responsibilities after receipt of special approval, and Government
administration. FRA estimated the 10-year costs of the proposed rule to
be $2.0 million, discounted at 7 percent. The estimated annualized
costs of the proposed rule are $0.3 million discounted at 7 percent.
The primary benefit of this rule is to ensure any railroad, seeking to
operate a train with fewer than two crewmembers identifies, evaluates,
and addresses, in a comprehensive and standardized manner, safety
concerns that may arise from such operation. A second crewmember
performs important safety functions that could be lost when reducing
crew size below two. The benefits are discussed qualitatively, but not
quantified for this rule.
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................................ 07/28/22 87 FR 45564
NPRM Comment Period End............. 12/21/22
Final Rule.......................... 02/00/24
------------------------------------------------------------------------
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)
Final Rule Stage
154. +Pipeline Safety: Class Location Requirements [2137-AF29]
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: Preliminary estimated annual cost
savings are $149 million.
Risks: The alternative conditions PHMSA is proposing to allow
operators to manage class location changes through integrity management
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.......................... 06/00/23
------------------------------------------------------------------------
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
[[Page 11110]]
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 2023, 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. These actions include rulemaking on streamlining
permit and qualification requirements for distilled spirits plants,
wineries, and breweries, and completing rulemaking to modernize the
regulations regarding wine labeling and to authorize additional wine
treating materials and processes. TTB will also prioritize rulemaking
to implement provisions of 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, and
transferred administration of tax benefits on imported alcohol from
U.S. Customs and Border Protection (CBP).
In addition, TTB will also prioritize publishing rulemaking to
implement recommendations of the Department of the Treasury's February
2022 report on Competition in the Markets for Beer, Wine, and Spirits,
which was issued in response to Executive Order 14036, ``Promoting
Competition in the American Economy.'' These actions focus on
soliciting public comment on trade practice regulations that prevent
anticompetitive practices and maintain a ``level playing field'' across
the alcohol industry, and labeling and advertising regulations that
would require alcohol beverage labels to include specific, content-
related information on alcohol content, allergens, and other
ingredients. They also include finalizing rulemaking on proposed new
approved container sizes (``standards of fill'') for wine and distilled
spirits.
The specific projects TTB plans to prioritize in FY23 are described
below:
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 2022, TTB proposed regulatory changes to eliminate or
streamline application and qualification requirements for distilled
spirits plants and breweries. In FY 2023, TTB intends to publish
similar proposals for wineries, and to publish final rules to implement
the changes for distilled spirits plants and breweries. These changes
are expected to 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, and overall reduce the
regulatory burden on both new and existing businesses.
Modernizing the Alcohol Beverage Labeling and Advertising
Requirements (RIN: 1513-AC67, Modernization of 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 published in the Federal Register (87 FR 7526) a final
rule that addressed remaining issues related to the labeling of
distilled spirits and malt beverages and reorganized those regulations
to make them easier to read and understand, for which industry members
expressed support. In FY 2023, TTB intends to complete this
modernization initiative by publishing a final rule to similarly
reorganize the wine labeling regulations, address the remaining
labeling issues related to wine, and finalize the regulations related
to the advertising of wine, distilled spirits, and malt beverages.
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 intends to propose to amend 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 provided reduced
excise taxes on certain quantities of beer, wine,
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and distilled spirits produced in or imported into the United States.
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. In FY 2022, TTB published a temporary rule (87 FR 58021)
establishing procedures for foreign producers to assign tax benefits to
importers, and for importers to receive and apply the tax benefits
applicable to specified limits of imported alcohol products entered for
consumption in the United States beginning on January 1, 2023. In a
concurrent notice of proposed rulemaking (87 FR 58043), TTB solicited
comments on these amendments. In FY 2023, TTB intends to propose
amendments to its regulations to address the application of the CBMA
tax benefits to domestic beer, wine, and distilled spirits that were
previously provided on a temporary basis, as well as 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.
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''
(1513-AC75).
TTB intends to propose 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 are in response to requests from wine industry members.
Although TTB may administratively approve such treatments without
amending the regulations, administrative approval does not guarantee
acceptance in foreign markets of any wine so treated. Under certain
international agreements, authorization of wine treatments through
public notice facilitates the acceptance of exported wine made using
those treatments in foreign markets. TTB also intends to propose for
public comment additional changes to the regulations in response to a
petition to allow more wine treating materials to be used within the
limitations of ``good manufacturing practice'' rather than within
specified numerical limits, thereby providing additional flexibility to
winemakers.
Consideration of Updates to Trade Practice Regulations
(RIN: 1513-AC92).
TTB is seeking public comment on TTB's trade practice regulations
related to the Federal Alcohol Administration Act's exclusive outlet,
tied house, commercial bribery, and consignment sales prohibitions.
Executive Order 14036 (``Promoting Competition in the American
Economy''), the Department of the Treasury's related February 2022
report (``Competition in the Markets for Beer, Wine, and Spirits''),
and public comments related to that report have raised questions about
whether these regulations could be improved. TTB is publishing in FY
2023 an advance notice of proposed rulemaking and then will be
considering the comments to assist the agency in formulating potential
proposals to amend the regulations.
Labeling and Advertising of Alcohol Beverages with Alcohol
and Nutritional Content, Allergens, and Ingredients (RIN: 1513-AC93,
Labeling and Advertising of Distilled Spirits, Wines, and Malt
Beverages With Statements of Alcohol and Nutritional Content; RIN:
1513-AC94, Major Food Allergen Labeling for Wines, Distilled Spirits,
and Malt Beverages; and 1513-AC95, Ingredient Labeling of Distilled
Spirits, Wines, and Malt Beverages).
TTB intends to request public comment on possible changes to its
labeling and advertising regulations governing alcohol beverage
products related to statements of alcohol and nutritional content,
allergen labeling, and ingredient labeling. The February 2022 report
issued by the Department of the Treasury (``Competition in the Markets
for Beer, Wine, and Spirits'') discussed past and potential future
proposals related to the labeling of alcohol beverage products with
``serving facts'' information. The report stated that TTB should revive
or initiate rulemaking proposing mandatory information on alcohol
content, nutritional content, and appropriate serving sizes for alcohol
beverage products, as well as ingredient labeling. TTB intends to
publish two notices of proposed rulemaking (one on alcohol-content and
nutrition facts, and another on allergens) and an advance notice of
proposed rulemaking on ingredient-labeling.
Standards of Fill for Wine and Distilled Spirits (RIN:
1513-AC86).
TTB plans to publish a final rule to address its proposal published
May 25, 2022 (87 FR 31787) to amend the regulations governing wine and
distilled spirits containers. TTB proposed to add 10 additional
authorized standards of fill for wine 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 also solicited comments on an alternative
proposal to eliminate all but a minimum standard of fill for wine
containers and all but a minimum and maximum for distilled spirits.
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 FY23.
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 2023 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 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
[[Page 11112]]
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 part 25).
Along with the Federal Deposit Insurance Agency and the Board of
Governors of the Federal Reserve, the OCC the OCC is considering
whether to issue a joint final rule to modernize the Community
Reinvestment Act regulations. A notice of proposed rulemaking was
published on June 3, 2022 (87 FR 63884).
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.
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.
Automated Commercial Environment (ACE) Required for
Electronic Entry/Entry Summary (Cargo Release and Related Entry)
Filings.
Treasury and CBP plan to finalize interim regulations (80 FR 61278)
which amended CBP regulations to name the Automated Commercial
Environment (ACE) as a CBP-authorized electronic data interchange (EDI)
system for the processing of electronic entry and entry summary
filings.
Elimination of Paper-Based Bond Applications and the
Automated Processing of Bond Applications.
Treasury and CBP plan to publish a proposed rule to replace the
paper-based bond application and approval process with a streamlined
electronic process. The proposed rule would implement the successful
National Customs Automation Program (NCAP) test of the electronic bond
process.
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
[[Page 11113]]
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 2023 include:
Beneficial Ownership Information Reporting Requirements.
On September 30 2022, FinCEN is issued a final rule entitled
``Beneficial Ownership Information Reporting Requirements'' (BOI
reporting rule), requiring certain entities to file with FinCEN reports
that identify two categories of individuals: the beneficial owners of
the entity, and individuals who have filed an application with
specified governmental authorities to create the entity or register it
to do business. These regulations implement Section 6403 of the
Corporate Transparency Act (CTA), enacted into law as part of the
National Defense Authorization Act for Fiscal Year 2021 (NDAA), and
describe who must file a report, what information must be provided, and
when a report is due. This final rule is the first of three rulemakings
FinCEN is required to issue pursuant to the CTA. The other two required
rulemakings which are discussed elsewhere in this regulatory plan are:
(i) a regulation focused on establishing protocols to protect the
security and confidentiality of beneficial ownership information (BOI)
that will be reported to FinCEN, establishing the terms of access by
authorized recipients to the BOI reported, and the use of FinCEN
identifiers in making BOI reports; and (ii) revisions to FinCEN's
customer due diligence (CDD) requirements for financial institutions.
The final BOI reporting rule is effective January 1, 2024.
Beneficial Ownership Information Access and Safeguards,
and Use of FinCEN Identifiers for Entities
FinCEN intends to issue a Notice of Proposed Rulemaking (NPRM)
entitled ``Beneficial Ownership Information Access and Safeguards, and
Use of FinCEN Identifiers for Entities.'' The proposed regulations will
establish protocols to protect the security and confidentiality of the
beneficial ownership information (BOI) that will be reported to FinCEN
pursuant to Section 6403 of the Corporate Transparency Act (CTA), and
will establish the framework for access by authorized recipients to the
BOI reported. The proposed regulations will also specify when and how
reporting companies can use FinCEN identifiers to report the BOI of
entities. The CTA was enacted into law as part of the National Defense
Authorization Act for Fiscal Year 2021 (NDAA). This proposed rule is
the second of three rulemakings FinCEN is required to issue under the
CTA. With regard to the first required rulemaking, FinCEN issued a
final rule entitled ``Beneficial Ownership Information Reporting
Requirements'' (BOI reporting rule). The third required rulemaking will
revise the customer due diligence (CDD) requirements for financial
institutions. FinCEN previously issued an Advance Notice of Proposed
Rulemaking (ANPRM) entitled ``Beneficial Ownership Information
Reporting Requirements'' on April 5, 2021, that solicited comments on a
wide range of questions that concerned all three rulemakings. FinCEN
also previously issued a Notice of Proposed Rulemaking with the same
title on December 8, 2021 (BOI Reporting NPRM) that addressed only the
first of the three rulemakings, but the comments FinCEN received
related to all three subjects. This proposed rule reflects FinCEN's
consideration of public comments that have been received in response to
the ANPRM and BOI Reporting NPRM. The proposed rule will also re-issue
certain provisions of the BOI Reporting NPRM related to the use of
FinCEN identifiers.
Section 6314. Updating Whistleblower Incentives and
Protection.
FinCEN intends to issue an 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 establishes a whistleblower program that
requires FinCEN to pay an award, under regulations prescribed by FinCEN
and subject to certain limitations that include availability of
funding, 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 repeals 31 U.S.C. 5328,
the previous whistleblower protection provision, and replaces 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 6101. Establishment of National Exam and
Supervision Priorities.
FinCEN intends to issue a Notice of Proposed Rulemaking (NPRM) as
part of the establishment of national exam and supervision priorities.
The proposed rule implements Section 6101(b) of the Anti-Money
Laundering Act of 2020 (AML Act), enacted into law as part of the
National Defense Authorization Act for Fiscal Year 2021 (NDAA), that
requires the Secretary of the Treasury (Secretary) to issue and
promulgate rules for financial institutions to carry out the
government-wide anti-money laundering and countering the financing of
terrorism priorities (AML/CFT Priorities). The proposed rule: (i)
incorporates a risk assessment requirement for financial institutions;
(ii) requires financial institutions to incorporate AML/CFT Priorities
into risk-based programs; and (iii) provides for certain technical
changes. Once finalized, this proposed rule will affect all financial
institutions subject to regulations under the Bank Secrecy Act and have
AML/CFT program obligations.
Section 6212. Pilot Program on Sharing Information Related
to Suspicious Activity Reports (SARs) Within a Financial Group.
FinCEN intends to issue a Final Rule in order to implement Section
6212 of the AML Act. This section amends the Bank Secrecy Act (31
U.S.C. 5318(g)) to establish a pilot program that permits financial
institutions to share suspicious activity report (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.
Real Estate Transaction Reports and Records.
FinCEN intends to issue an NPRM to address money laundering threats
in the U.S. real estate sector.
Clarification of the Requirement to Collect, Retain, and
Transmit Information on Transactions Involving Convertible Virtual
Currencies 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
[[Page 11114]]
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.
Voluntary Information Sharing Among Financial Institutions
Under Section 314(b) of the USA PATRIOT Act.
FinCEN is considering issuing this rulemaking 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.
Revisions to Customer Due Diligence Requirements for
Financial Institutions.
FinCEN intends to issue an NPRM entitled ``Revisions to Customer
Due Diligence Requirements for Financial Institutions,'' relating to
Section 6403(d) of the Corporate Transparency Act (CTA). The CTA was
enacted into law as part of the National Defense Authorization Act for
Fiscal Year 2021 (NDAA). Section 6403(d) of the CTA requires FinCEN to
revise its customer due diligence (CDD) requirements for financial
institutions to account for the changes created by the two other
rulemakings FinCEN is required to issue pursuant to the CTA. With
regard to the first required rulemaking, FinCEN issued a final rule
entitled ``Beneficial Ownership Information Reporting Requirements''
(BOI reporting rule). The second required rulemaking relates to access
by authorized recipients to beneficial ownership information (BOI) that
will be reported to FinCEN and the use of FinCEN identifiers. FinCEN
previously issued an ANPRM entitled ``Beneficial Ownership Information
Reporting Requirements'' on April 5, 2021, that solicited comments on a
wide range of questions that concerned all three rulemakings. FinCEN
also previously issued a Notice of Proposed Rulemaking with the same
title on December 8, 2021 (BOI Reporting NPRM) that addressed only the
first of the three rulemakings, but the comments FinCEN received
related to all three subjects. The proposed rule reflects FinCEN's
consideration of public comments that have been received in response to
the ANPRM and BOI Reporting NPRM. The CTA requires that the revisions
to the CDD requirements be finalized within one year after the
effective date of the BOI reporting rule.
Section 6110. BSA Application to Dealers in Antiquities
and Assessment of BSA Application to Dealers in Arts.
FinCEN intends to issue a Notice of Proposed Rulemaking (NPRM) to
implement Section 6110 of the Anti-Money Laundering Act of 2020 (the
AML Act). This section amends the Bank Secrecy Act (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.
Section 6305. No Action Letter Program.
FinCEN intends to issue an NPRM following the implementation of
Section 6305 of the AML Act. This section requires 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. FinCEN issued an
Advance Notice of Proposal Rulemaking (ANPRM) on June 6, 2022 with a 60
day comment period closing on August 5, 2022. The ANPRM solicited
public comment on questions pertinent to the implementation of a no-
action letter process at FinCEN. Given that the addition of a no-action
letter process at FinCEN may impact or overlap with other forms of
regulatory guidance and relief that FinCEN already offers, including
exceptive or exemptive relief and administrative rulings, the ANPRM
also sought public input on whether this process should be implemented
and, if so, how a no-action letter process should interact with these
other tools. FinCEN is reviewing the comments submitted in response to
the ANPRM and considering the structure and timing of the issuance of
the NPRM.
Requirements for Certain Transactions Involving
Convertible Virtual Currency or Digital Assets.
FinCEN is amending the regulations implementing the BSA to require
banks and money service businesses (MSBs) 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.
Amendment to the Bank Secrecy Act Regulations--Reports of
Foreign Bank and Financial Accounts.
FinCEN is amending the regulations implementing the BSA regarding
reports of foreign bank and 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.
Amendments to the Definitions of Broker or Dealer in
Securities (Crowdfunding).
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.
Withdraw Obsolete Civil Money Penalty Provisions for BSA
Violations. (Technical Change)
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
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and inconsistent provisions will be withdrawn.
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 2023, Fiscal Service will accord priority to the
following regulatory projects:
Revision of the Federal Claims Collection Standards
Fiscal Service is proposing to amend the Federal Claims Collections
Standards (FCCS), codified in 31 CFR parts 900-904, which is jointly
administered by Treasury and the Department of Justice. The FCCS set
standards for administrative collection, compromise, and suspension or
termination of collection activity for federal nontax debts. They also
set standards for referring federal nontax debts to DOJ for litigation.
The proposed amendments, which have been jointly prepared by Treasury
and DOJ, include revisions for equity and updates to conform to
developments since the last publication of the regulations in 2000.
Regulations Governing Securities Held in Treasury
Electronic Book-Entry Systems
Fiscal Service is amending its regulations to include the governing
of securities held in Treasury Electronic Book-Entry Systems, to be
found at 31 CFR part 364. These regulations will inform customers of
their rights with regard to marketable Treasury securities held in any
system developed by Treasury after the effective date of these
regulations. Fiscal Service intends to revise these regulations in the
future to include the governing of United States Savings Bonds within
these systems.
Internal Revenue Service
The Internal Revenue Service (IRS), working with Treasury's 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 2023, the priority of the IRS and the Office of
Tax Policy is to provide guidance regarding implementation of key
provisions of several public laws, including Public Law 117-169, known
as the Inflation Reduction Act, the Infrastructure Investment and Jobs
Act, Public Law 117-58, the American Rescue Plan Act of 2021, Public
Law 117-2, the Taxpayer First Act, Public Law 116-25, the Coronavirus
Aid, Relief, and Economic Security Act (CARES Act), Public Law 116-136,
and the Setting Every Community Up for Retirement Enhancement Act of
2019 (SECURE Act), enacted as Division O of the Further Consolidated
Appropriations Act, 2020, Public Law 116-94. Treasury and the IRS
intend to issue guidance, including NPRMs and TDs, with regard to the
following key provisions of the Code:
The energy efficient home improvement credit under Sec.
25C of the Code.
The residential clean energy credit under Sec. 25D of the
Code.
The credit for alternative fuel refueling property under
Sec. 30C of the Code.
The consumer vehicle credits under Sec. Sec. 25 and 30D
of the Code.
The credit for sustainable aviation fuel under Sec. 40B
of the Code.
The extension and modification of the production tax
credit (PTC) for producing electricity from certain renewable resources
under Sec. 45 of the Code.
The prevailing wage rate and apprenticeship requirements
in Sec. 45(b) as applicable for purposes of Sec. Sec. 30C, 45, 45L,
45Q, 45U, 45V, 45Y, 48, 48C, 48E, and 179D of the Code.
The domestic content enhancements for purposes of
Sec. Sec. 45, 45Y, 48, 48E.The energy community enhancements for
purposes of Sec. Sec. 45, 45Y, 48, 48E.
The new energy efficient home credit under Sec. 45L of
the Code.The extension and modification of the credit for carbon oxide
sequestration under Sec. 45Q of the Code.The zero-emission nuclear
power PTC under Sec. 45U of the Code.
The clean hydrogen PTC under Sec. 45V of the Code.
The credit for qualified commercial clean vehicles under
Sec. 45W of the Code.The advanced manufacturing PTC under Sec. 45X of
the Code.
The clean electricity PTC under Sec. 45Y of the Code.
The clean fuels production credit under Sec. 45Z of the
Code.
The extension and modification of the investment tax
credit (ITC) for energy property under Sec. 48 of the Code.
The allocation of amounts of environmental justice solar
and wind capacity limitation to qualified solar and wind facilities
under Sec. 48(e) of the Code.
The qualifying advanced energy project credit under Sec.
48C of the Code. The advanced manufacturing ITC under Sec. 48D of the
Code as enacted by the CHIPS Act of 2022.The clean electricity ITC
under Sec. 48E of the Code.The corporate alternative minimum tax under
Sec. Sec. 53, 55, 56, and 56A of the Code.
The energy efficient commercial buildings deduction under
Sec. 179D of the Code.
The excise tax on the repurchase of corporate stock under
Sec. 4501 of the Code.
The elective payment and transfer of credits for energy
property & electricity produced from certain renewable resources under
Sec. Sec. 6417 and 6418 of the Code.
Consistent with the Administration's goals of equity and fairness
in tax administration, using new funding provided by the Inflation
Reduction Act, the IRS will seek to reduce burdens for taxpayers.
Underpayments by tax evaders shift burdens onto honest, hard-
working Americans who follow the law as well as onto future
generations. The new funding will be used to help ensure that everyone
pays their fair share. Pursuant to the Inflation Reduction Act,
billions of dollars will go toward substantial service improvements for
taxpayers as they interact with the IRS. The IRS will improve customer
service, answer more
[[Page 11116]]
calls, process returns and refunds faster, update computer systems, and
simplify tax filing. The IRS will also expand the customer callback
capability, which gives taxpayers an alternative to waiting on hold.
This reduces burden and frustration for taxpayers.
The IRS will also transition to digital platforms, with better data
tools to make more filings and processes available electronically,
reduces audits and retires paper-based processes. IRS employees still
need to manually transcribe millions of paper returns. Taxpayers can
still choose to use paper, however, in this coming filing season, the
IRS will automate the scanning of millions of individual paper returns
into a digital copy. For taxpayers, this means faster processing and,
ultimately, faster refunds for paper filers.
The IRS will expand the use of issue resolution tools so that
taxpayers can access their own online account and get the information
they need without the need of an IRS assistor. The new IRS Online
Account features will make it easier to communicate with the IRS where
most issues can be resolved online. Currently, when taxpayers receive a
notice from the IRS, they generally need to respond via mail. The IRS
is improving this, and during the 2023 filing season, millions of
taxpayers will be able to receive and respond to notices online.
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 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 2022-21 (May 16,
2022). We also invite the public to provide us with their comments and
suggestions for guidance projects throughout the year.
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 serve to honor our sacred obligation to those who
served 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 honor the
legacy of eligible veterans, members of the Reserve components, and
their dependents through burial 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 twelve (12) high priority
regulations that serve to facilitate the President's and Secretary's
priorities for supporting veterans and improving VA programs and
policies. These priorities include addressing the harmful effects
associate with toxic exposure during military service, ending Veteran
homelessness, reducing Veteran suicide, addressing the safety and well-
being of veterans, caregivers, and VA clinical staff as the
circumstances regarding COVID-19 continue to evolve, and promoting
equity amongst underserved, vulnerable, and marginalized communities
and veteran populations. VA is prioritizing these key Administration
priorities by developing a structured plan as well as increasing
resources to implement the provisions of these regulations and publish
them as quickly as possible.
Additionally, the goal of VA's structured plan effectively
implements statutory responsibilities, including those authorized
through the [insert full name of PACT, and cite Pub. L.], by providing
a ``One-VA'' experience for all Veterans, family members, survivors,
and caregivers to proactively receive timely benefits, services, and
high-quality health care through an empowered and engaged workforce.
This process highlights VA priorities, promotes planning and
coordination, and encourages public participation in the regulatory
process.
These priority regulations are listed below in order of
chronological RIN assignment, not by priority.
RIN 2900-AQ30 Final Rule--Modifying Copayments for Veterans at
High Risk for Suicide
VA amends its medical regulations that govern copayments for
outpatient medical care and medications by effectively eliminating the
copayment for outpatient care and reducing the copayment for
medications dispensed to veterans identified as being at high risk for
suicide. These amendments are in accordance with the President's
priorities of reducing suicide.
RIN 2900-AQ96 Final Rule--Home Visits in Family Caregivers
During COVID-19 National Emergency
VA is revising its regulations that govern VA's Program of
Comprehensive Assistance for Family Caregivers (PCAFC) to relax the
requirement for in-person home visits during the National Emergency
related to Coronavirus Disease-2019 (COVID-19 and to ensure the safety
and well-being of veterans, caregivers, and VA clinical staff as the
circumstances regarding COVID-19 continue to evolve.
RIN 2900-AR10 Proposed Rule--Updating VA Adjudication
Regulations for Disability or Death Benefit Claims Related to Exposure
to Certain Herbicide Agents
The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations relating to exposure to herbicides, such as
Agent Orange, in order to incorporate the provisions of the Blue Water
Navy Vietnam Veterans Act of 2019 (the BWN Act). This proposed rule
would extend the presumed area of exposure to the offshore waters of
the Republic of Vietnam and expand the date ranges for presumption of
exposure in the Republic of Vietnam and Korea. This rule would also
clarify the definition of a Nehmer class member and establish
entitlement to spina bifida benefits for children of certain veterans
who served in Thailand. On the basis of VA's general rulemaking
authority, VA also proposes to establish a presumption of herbicide
exposure for certain veterans who served in Thailand and also proposes
to codify longstanding procedures for searching for payees entitled to
Nehmer class action
[[Page 11117]]
settlement payments. Lastly, this proposed rule incorporates the
provisions contained in VA's RIN 2900-AR45, titled, Diseases Associated
with Exposure to Certain Herbicide Agents (Bladder Cancer,
Parkinsonism, and Hypothyroidism)'' as a result of VA withdrawing RIN
2900-AR45 from the Fall 2022 Unified Agenda. The proposed amendments in
this regulation are in accordance with the President's priorities to
address military toxic exposures.
RIN 2900-AR16 Final Rule--Staff Sergeant Parker Gordon Fox
Suicide Prevention Grant Program
The Department of Veterans Affairs (VA) amends it's regulations to
reduce veteran suicide through 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. These amendments are in accordance
with the President's priorities of reducing suicide.
RIN 2900-AR48 Interim Final Rule--Copayment Exemption for
Indian Veterans
The Department of Veterans Affairs (VA) is amending its medical
regulations to implement a statute exempting Indian veterans from
copayment requirements for the receipt of hospital care or medical
services under laws administered by VA. These amendments are in
accordance with the President's priorities by advancing equity and
support to underserved, vulnerable and marginalized communities.
RIN 2900-AR60 Proposed Rule--Pilot Veterans Services
Organization Complementary and Integrative Health Self-Care Well-Being
Center Grant
The Department of Veterans Affairs is proposing regulations to
implement legislation authorizing VA to conduct a new, two-year grant
program to fund eligible veterans services organizations (VSOs) to
upgrade their community facilities, through construction or repair, to
serve as complementary and integrative health self-care well-being (CIH
W-B) centers to promote and expand CIH W-B programs. These regulations
would specify grant eligibility criteria, the number of grants
available, their maximum amount, constraints on the allocation and use
of the funds, and other requirements necessary to implement this pilot
grant program. These proposed amendments are in accordance with the
President's priorities by advancing equity and support to underserved,
vulnerable and marginalized communities.
RIN 2900-AR69 Proposed Rule--Expanded Burial Benefits Under
Public Law 116-315
The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations pertaining to burial benefits. Amendments
include expanding reimbursement of transportation expenses to include
covered Veterans' cemeteries, a single payment rate for non-service-
connected burial allowances regardless of the location of a qualifying
Veteran's death, and extending the VA Plot or Interment Allowance to a
tribal organization for interment of an eligible Veteran on trust land
owned by, or held in trust for, a tribal organization. As amended, the
regulations will conform to statutory changes enacted by sections 2201
and 2202 of the Johnny Isakson and David P. Roe, M.D. Veterans Health
Care and Benefits Improvement Act of 2020 and Division CC of the Burial
Equity for Guards and Reserves Act of the Consolidated Appropriations
Act, 2022. The changes expand reimbursement of transportation expenses
to include covered Veterans' cemeteries and provide a single payment
rate for non-service-connected burial allowances regardless of the
location of a qualifying Veteran's death and will coincide with the
effective date for the amendments to the United States Code (January 5,
2023), which is the date that is two years after the date of enactment
of the Public Law. Furthermore, the changes extending the VA Plot or
Interment Allowance to a tribal organization for interment of eligible
Veterans on trust land owned by, or held in trust for, a tribal
organization will coincide with the effective date for the amendments
to the United States Code (March 15, 2022), which is the date of the
enactment of the Public Law. These proposed amendments are in
accordance with the President's priorities by advancing equity and
support to underserved, vulnerable and marginalized communities.
RIN 2900-AR73 Final Rule--Technical Revisions To Expand Health
Care for Certain Toxic Exposure and Overseas Contingency Service
The Department of Veterans Affairs (VA) is issuing this rule to
amend its medical regulations governing eligibility for VA health care
and copayment requirements to conform to recent statutory changes made
by section 103 of the Sergeant First Class Heath Robinson Honoring our
Promise to Address Comprehensive Toxics Act of 2022, Public Law 117-168
(PACT Act). VA is changing its medical benefits enrollment criteria to
include toxic-exposed veterans and veterans who supported certain
overseas contingency operations, to exempt such veterans from
copayments for certain care, and to provide per diem for nursing home
care for such veterans. The amendments in this regulation are in
accordance with the President's priorities to address toxic exposure.
RIN 2900-AR74 Final Rule--Procedural Updates for the PACT Act
The Department of Veterans Affairs (VA) is issuing this final rule
to amend its adjudication regulations to add additional presumptive
exposure locations for radiation, as indicated in the Sergeant First
Class Heath Robinson Honoring our Promise to Address Comprehensive
Toxics Act of 2022. The intended effect of this amendment is to ease
the evidentiary burden of this population of Veterans who file claims
with VA based on radiation exposure in these locations. The amendments
in this regulation are in accordance with the President's priorities to
address toxic exposure.
RIN 2900-AR75 Proposed Rule--Updating VA Adjudication
Regulations for Disability or Death Benefits Based on Toxic Exposure
The Department of Veterans Affairs is proposing to amend its
adjudication regulations to implement provisions of the Sergeant First
Class Heath Robinson Honoring our Promise to Address Comprehensive
Toxics Act of 2022, Public Law 117-168 (PACT Act). The statute amended
procedures applicable to claims based on toxic exposure and modified or
established presumptions of service connection related to toxic
exposure. Pursuant to the Act, VA is proposing to remove the
manifestation period requirement and the minimum compensable evaluation
requirement from Gulf War claims based on undiagnosed illness and
medically unexplained chronic multisymptom illnesses. VA is also
proposing to expand the definition of a Persian Gulf Veteran and update
the list of locations eligible for a presumption of exposure to toxic
substances, chemicals, or hazards based on Gulf War service. To
implement additional provisions of the Act, VA is also proposing to
codify the procedure for determining when
[[Page 11118]]
examinations and medical nexus opinions are required for claims based
on toxic exposure. The proposed amendments in this regulation are in
accordance with the President's priorities to address toxic exposure.
RIN 2900-AR76 Proposed Rule--Reevaluation of Claims for
Dependency and Indemnity Compensation Based on Public Law 117-168
The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations concerning certain awards of Dependency and
Indemnity Compensation (DIC). Relevant claimants will be eligible to
elect a reevaluation of certain previously denied DIC determinations
pursuant to changes that establish or modify a presumption of service-
connection. Any award following reevaluation may be made retroactive to
the date of a previously denied claim as if the establishment or
modification of the presumption of service-connection had been in
effect on the date of the submission of the original claim. With
respect to new or initial awards of DIC pending before VA on or after
August 10, 2022, VA proposes to utilize the most advantageous effective
date amongst 38 CFR 3.114 and 3.400, to potentially grant an award
earlier than August 10, 2022, if applicable. Lastly, as the PACT Act is
silent with respect to changes in the accrued or substitution process
as it relates to the reevaluation of DIC claims, VA proposes utilizing
the regular processes regarding accrued and substitution benefits
contained in 38 U.S.C. 5121 and 5121A. The amendments within this
proposed rulemaking incorporate legislative updates enacted by the
Sergeant First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022, or the Honoring our PACT Act of 2022
(Pub. L. 117-168) (PACT Act) and will bring federal regulations into
conformance with the statutory changes. The proposed amendments in this
regulation are in accordance with the President's priorities to address
toxic exposure.
RIN 2900-AR77 Proposed Rule--Authorization of Electronic
Notice in Claims Under Laws Administered by the Secretary of Veterans
Affairs
The Department of Veterans Affairs is proposing to amend its
adjudication regulations to implement provisions of the Sergeant First
Class Heath Robinson Honoring our Promise to Address Comprehensive
Toxics Act of 2022, Public Law 117-168 (PACT Act). VA is proposing how
to obtain a claimant's election to opt-in to receive electronic
notifications, how to revoke this option, and how electronic
notification will be administered to eligible claimants. (Compensation,
Pension, Insurance, Fiduciary, Veteran Readiness & Employment, Loan
Guaranty, and Education). The proposed amendments in this regulation
are in accordance with the President's priorities to address toxic
exposure.
VA
Proposed Rule Stage
155. Updating VA Adjudication Regulations for Disability or Death
Benefit Claims Related to Herbicide Exposure [2900-AR10]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 38 U.S.C. 1116; 38 U.S.C. 1116A; 38 U.S.C. 1116B;
38 U.S.C. 1821; 38 U.S.C. 1822
CFR Citation: 38 CFR 3.30; 38 CFR 3.309; 38 CFR 3.105; 38 CFR
3.114; 38 CFR 3.313; 38 CFR 3.81.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) proposes to amend
its adjudication regulations relating to exposure to herbicides, such
as Agent Orange, in order to incorporate the provisions of the Blue
Water Navy Vietnam Veterans Act of 2019 (the BWN Act). This proposed
rule would extend the presumed area of exposure to the offshore waters
of the Republic of Vietnam and expand the date ranges for presumption
of exposure in the Republic of Vietnam and Korea. This rule would also
clarify the definition of a Nehmer class member and establish
entitlement to spina bifida benefits for children of certain veterans
who served in Thailand. On the basis of VA's general rulemaking
authority, VA also proposes to establish a presumption of herbicide
exposure for certain veterans who served in Thailand and also proposes
to codify longstanding procedures for searching for payees entitled to
Nehmer class action settlement payments. Lastly, this proposed rule
incorporates the provisions contained in VA's RIN 2900-AR45, titled,
``Diseases Associated with Exposure to Certain Herbicide Agents
(Bladder Cancer, Parkinsonism, and Hypothyroidism)'' as a result of VA
withdrawing RIN 2900-AR45 from the Fall 2022 Unified Agenda. The
proposed amendments in this regulation are in accordance with the
President's priorities to address military toxic exposures.
Statement of Need: The Department of Veterans Affairs (VA) is
proposing to amend its regulations for the following purposes: (1)
extend the presumption of herbicide exposure to the offshore waters of
the Republic of Vietnam and to define those boundaries; (2) expand the
dates for presumption of herbicide exposure for service in the Korean
Demilitarized Zone; (3) establish entitlement to spina bifida benefits
for children of certain Veterans who served in Thailand; (4) codify the
presumption of herbicide exposure for certain locations identified
where herbicide agents were used, tested, or stored outside of Vietnam;
(5) codify longstanding procedures for searching for payees entitled to
class-action settlements under Nehmer v. Department of Veterans
Affairs; (6) apply the definition of Republic of Vietnam offshore
waters to presumptive service connection claims for non-Hodgkin's
lymphoma; (7) add bladder cancer, hypothyroidism, and Parkinsonism as
presumptive herbicide diseases; and (8) recognize hypertension and
monoclonal gammopathy of undetermined significant as presumptive
herbicide diseases.
Summary of Legal Basis: Promulgation of these regulations is
necessitated by the Blue Water Navy Vietnam Veterans Act of 2019,
Public Law 116-123; Fiscal Year 2021 National Defense Authorization
Act; and the Sergeant First Class Heath Robinson Honoring our Promise
to Address Comprehensive Toxics Act of 2022 (PACT Act), Public Law 117-
168. VA's general rulemaking authority under 38 U.S.C. 501(a) is also
utilized in effectuating these regulations.
Alternatives: The comprehensive framework of the enacted laws
requires VA to issue regulations to ensure that claims processors
accurately and consistently adjudicate claims pursuant to the intent
and text of the legislation. The absence of regulations would cause
confusion amongst adjudicators leading to benefit decision errors, as
well as incurring significant litigation risk if the only instruction
concerning application of the aforementioned laws is sub-regulatory
guidance that did not go through notice-and-comment as required by the
Administrative Procedures Act.
Anticipated Cost and Benefits: VA has estimated that there are both
transfers and costs associated with the provisions of this rulemaking.
Risks: None.
Timetable:
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Action Date FR Cite
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NPRM................................ 10/00/23 .......................
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Regulatory Flexibility Analysis Required: No.
[[Page 11119]]
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Robert Parks, Department of Veterans Affairs, 1800
G Street NW, Washington, DC 20006, Phone: 202 461-9700, Email:
[email protected].
RIN: 2900-AR10
VA
156. Pilot Veterans Services Organization Complementary and
Integrative Health Self-Care Well-Being Center Grant Program [2900-
AR60]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 5902; 5 U.S.C. 601-612; 2 U.S.C. 1532
CFR Citation: 38 CFR 64.40; 38 CFR 64.90; 13 CFR 301.3.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs is proposing
regulations to implement legislation authorizing VA to conduct a new,
two-year grant program to fund eligible veterans services organizations
(VSOs) to upgrade their community facilities, through construction or
repair, to serve as complementary and integrative health self-care
well-being (CIH W-B) centers to promote and expand CIH W-B programs.
These regulations would specify grant eligibility criteria, the number
of grants available, their maximum amount, constraints on the
allocation and use of the funds, and other requirements necessary to
implement this pilot grant program. These amendments are in accordance
with the President's priorities by advancing equity and support to
underserved, vulnerable and marginalized communities.
Statement of Need: The Consolidated Appropriations Act, 2018 (the
Act). Public Law 115-141, 132 Stat. 825 (2018). Section 252 of the Act
authorized VA to carry out a two-year pilot program of grants to
nonprofit veterans services organizations (VSOs) recognized by the
Secretary in accordance with section 5902 of title 38, United States
Code (U.S.C.) in accordance with section 5902 of title 38, United
States Code (U.S.C.) to upgrade, through construction or repair, VSO
community facilities to serve as health and wellness centers to promote
and expand complementary and integrative wellness programs.
Summary of Legal Basis: On March 23, 2018, the President signed
into law the Consolidated Appropriations Act, 2018 (the Act), Public
Law (Pub. L.) 115-141, 132 Stat. 825 (2018). Section 252 of the Act
authorized VA to carry out a two-year pilot program of grants to
nonprofit veterans services organizations (VSOs) recognized by the
Secretary in accordance with section 5902 of title 38, United States
Code (U.S.C.) to upgrade, through construction or repair, VSO community
facilities to serve as health and wellness centers to promote and
expand complementary and integrative wellness programs. Section 252 of
the Act is codified at 38 U.S.C. 1701 note. The Act provided
limitations in administering this pilot grant program, including that
no single grant may exceed $500,000 total, no more than 20 grants may
be provided, the grant may not be used to purchase real estate or carry
out repairs of facilities leased by the VSO or to construct facilities
on property leased by the VSO, and that the grant funds must be used to
construct or repair facilities located in at least 10 different
geographic locations and are either in economically depressed areas or
areas designated as highly rural that are not in close proximity to a
VA medical center. 38 U.S.C. 1701 note. In this rulemaking, we propose
to establish and implement this two-year program in part 64 of title
38, Code of Federal Regulations (CFR).
Alternatives: The legislation defines that the Program shall be a
2-year pilot which will not exceed $5 million funding per fiscal year,
for a total of $10 million for the duration. While a number of parts of
the proposed rule are required by the statutory authority, we did have
discretion in how we defined the complementary and integrative wellness
programs that would be covered by this grant program. That term wasn't
defined in the law and we have decided to allow grants to upgrade
facilities to promote, expand, and provide complementary and
integrative health self-care well-being services which is consistent
with established VA policy and practice. We could have defined it
broader that that to include what we consider CIH treatment services,
however, that could lead to issues of the safety and well-being of the
veteran and would circumvent VHA's community care program if we were to
do so.
Anticipated Cost and Benefits: VA has determined that there are
transfers of $5 million in FY 2023 and $10 million over the 2-year
window ending in FY 2024 based off the limits set forth in the
legislation. Additionally, there are PRA costs, which are indicated
below. This pilot program will have no costs beyond FY 2024.
Risks: The risks would be non-compliance with statutory authority
and/or not being able to provide benefits pursuant to our statutory
authority.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL for More Information: www.regulations.gov.
Agency Contact: Thomas Klobucar, Executive Director, Office of
Rural Health, Veterans Health Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, Phone: 202 632-
8581, Email: [email protected].
RIN: 2900-AR60
VA
157. Expanded Burial Benefits [2900-AR69]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 2303(b)(1); 38 U.S.C. 501(a), 2303(b));
38 U.S.C. 2303
CFR Citation: 38 CFR 3.1700; 38 CFR 3.1703; 38 CFR 3.1704; 38 CFR
3.1705; 38 CFR 3.1707.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) proposes to amend
its adjudication regulations pertaining to burial benefits. Amendments
include expanding reimbursement of transportation expenses to include
covered Veterans' cemeteries, a single payment rate for non-service-
connected burial allowances regardless of the location of a qualifying
Veteran's death, and extending the VA Plot or Interment Allowance to a
tribal organization for interment of an eligible Veteran on trust land
owned by, or held in trust for, a tribal organization. As amended, the
regulations will conform to statutory changes enacted by sections 2201
and 2202 of the Johnny Isakson and David P. Roe, M.D. Veterans Health
Care and Benefits Improvement Act of 2020 and Division CC of the Burial
Equity for Guards and Reserves Act of the Consolidated Appropriations
Act, 2022. The changes expand reimbursement of transportation expenses
to include covered Veterans' cemeteries and provide a single payment
rate for non-service-connected burial allowances regardless of the
location of a qualifying Veteran's death and will coincide with the
effective date for the amendments to
[[Page 11120]]
the United States Code (January 5, 2023), which is the date that is two
years after the date of enactment of the Public Law. Furthermore, the
changes extending the VA Plot or Interment Allowance to a tribal
organization for interment of eligible Veterans on trust land owned by,
or held in trust for, a tribal organization will coincide with the
effective date for the amendments to the United States Code (March 15,
2022), which is the date of the enactment of the Public Law. These
amendments are in accordance with the President's priorities by
advancing equity and support to underserved, vulnerable and
marginalized communities.
Statement of Need: The Department of Veteran Affairs (VA) has
determined these amendments are needed to incorporate legislative
updates enacted by the Johnny Isakson and David P. Roe, M.D. Veterans
Health Care and Benefits Improvement Act of 2020 (Public Law (Pub. L.)
116-315) and Division CC, section 102(c) of the Burial Equity for
Guards and Reserves Act of the Consolidated Appropriations Act, 2022
(Public Law (Pub. L.) 117-103).
Summary of Legal Basis: The Department of Veterans Affairs (VA)
proposes to amend its adjudication regulations to incorporate
legislative updates enacted by the Johnny Isakson and David P. Roe,
M.D. Veterans Health Care and Benefits Improvement Act of 2020 (Public
Law (Pub. L.) 116-315) and Division CC, section 102(c) of the Burial
Equity for Guards and Reserves Act of the Consolidated Appropriations
Act, 2022 (Public Law (Pub. L.) 117-103). The updates include expanding
reimbursement of transportation expenses to include covered Veterans'
cemeteries, instituting a single payment rate for non-service-connected
burial allowances regardless of the location of a qualifying Veteran's
death, and extending the VA Plot or Interment Allowance to a tribal
organization for interment of an eligible Veteran on trust land owned
by, or held in trust for, a tribal organization.
Alternatives: VA considered an alternative policy to the proposed
rule. VA could choose not to act at this time, defer the amendment, and
revise the regulation at a later date. However, this would have a
negative effect on VA's effectiveness in processing benefits claims as
the current regulations are outdated and do not align with the updated
statutes. These amendments are needed to appropriately determine
eligibility to certain VA benefits based on these statutory changes.
Therefore, the proposed rule of amending adjudication regulations by
expanding reimbursement of transportation expenses to include covered
Veterans' cemeteries, providing a single payment rate for non-service-
connected burial allowances regardless of the location of a qualifying
Veteran's death, and extending the VA Plot or Interment Allowance to a
tribal organization for interment of an eligible Veteran on trust land
owned by, or held in trust for, a tribal organization to conform with
the statutory changes in Public Law 116-315 and Public Law 117-103 is
VA's preferred policy approach.
Anticipated Cost and Benefits: Under the new statutory changes,
transportation reimbursement will now be payable for a Veteran buried
in a covered Veterans' cemetery defined as a Veterans' cemetery in
which a deceased Veteran is eligible to be buried that is owned by a
State or is on trust land owned by, or held in trust for, a tribal
organization, and for which the Secretary has made a grant under 38
U.S.C. 2408. This allows for the reimbursement of transportation
expenses to State Veteran cemeteries and tribal cemeteries which both
have eligibility requirements for a Veteran's burial that are similar
to the requirements for burial in a national cemetery.
Additionally, there are currently two different non-service-
connected burial monetary allowances paid which are dependent on the
location of the Veteran's death: $300.00 for the basic non-service-
connected burial benefit and $828.00 if the Veteran meets the
eligibility requirements of a VA hospitalization death. The new changes
will provide a single payment rate for non-service-connected burial
benefits and pay the greater of the two monetary allowances currently
in effect for all non-service-connected burial benefits. Finally,
effective March 15, 2022, the amendments in Public Law 117-103 now
extend eligibility for the VA Plot or Interment Allowance to tribal
organizations for the burial of an eligible Veteran on trust land owned
by, or held in trust for, a tribal organization. This change aligns
with the `covered Veterans' cemetery' amendment in Public Law 116-315,
and ultimately provides tribal trust lands and tribal organizations the
same eligibility to burial benefits as State Veteran cemeteries and
organizations.
Risks: We do not anticipate any publication risks as this
rulemaking is conforming VA regulations to the statutory changes
enacted by Public Law 116-315 and Public Law 117-103.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Eric Baltimore, Program Analyst, Pension and
Fiduciary Service, Veterans Benefits Administration, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, Phone:
202 633-8863, Email: [email protected].
RIN: 2900-AR69
VA
158. Updating VA Adjudication Regulations for Disability or
Death Benefits Based on Toxic Exposure [2900-AR75]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1117; 38 U.S.C. 1119; 38 U.S.C. 1120; 38
U.S.C. 501
CFR Citation: 38 CFR 3.159; 38 CFR 3.317; 38 CFR 3.320; 38 U.S.C.
501.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs is proposing to amend
its adjudication regulations to implement provisions of the Sergeant
First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022, Public Law 117-168 (PACT Act). The
statute amended procedures applicable to claims based on toxic exposure
and modified or established presumptions of service connection related
to toxic exposure. Pursuant to the Act, VA is proposing to remove the
manifestation period requirement and the minimum compensable evaluation
requirement from Gulf War claims based on undiagnosed illness and
medically unexplained chronic multisymptom illnesses. VA is also
proposing to expand the definition of a Persian Gulf Veteran and update
the list of locations eligible for a presumption of exposure to toxic
substances, chemicals, or hazards based on Gulf War service. To
implement additional provisions of the Act, VA is also proposing to
codify the procedure for determining when examinations and medical
nexus opinions are required for claims based on toxic exposure. The
proposed amendments in this regulation are in accordance with the
President's priorities to address toxic exposure.
Statement of Need: The Department of Veterans Affairs is proposing
to amend
[[Page 11121]]
its adjudication regulations to implement provisions of the Sergeant
First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022, Public Law 117-168 (PACT Act). The
statute amended procedures applicable to claims based on toxic exposure
and modifies or establishes presumptions of service connection related
to toxic exposure.
Summary of Legal Basis: The new provisions of regulation are
authorized by sections 302, 303, 405 and 406 of Public Law 117-168. VA
must publish regulations to carry out the laws administered by the
Department as required by 38 U.S.C. 501(a).
Alternatives: The comprehensive framework of the enacted law
requires VA to issue regulations to ensure that claims processors
accurately and consistently adjudicate claims pursuant to the intent
and text of the legislation. The absence of regulations would cause
confusion amongst adjudicators leading to benefit decision errors, as
well as incurring significant litigation risk if the only instruction
concerning application of the aforementioned law is sub-regulatory
guidance that did not go through notice-and-comment as required by the
Administrative Procedures Act.
Anticipated Cost and Benefits: VA has estimated that there are both
transfers and costs associated with the provisions of this rulemaking.
Actual costs and transfers to be determined.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL for More Information: www.regulations.gov.
Agency Contact: Robert Parks, Department of Veterans Affairs, 1800
G Street NW, Washington, DC 20006, Phone: 202 461-9700, Email:
[email protected].
RIN: 2900-AR75
VA
159. Reevaluation of Claims for Dependency and Indemnity
Compensation Based on Public Law 117-168 [2900-AR76]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 501; 38 U.S.C. 1305
CFR Citation: 38 CFR 3.817.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) proposes to amend
its adjudication regulations concerning certain awards of Dependency
and Indemnity Compensation (DIC). Relevant claimants will be eligible
to elect a reevaluation of certain previously denied DIC determinations
pursuant to changes that establish or modify a presumption of service-
connection. Any award following reevaluation may be made retroactive to
the date of a previously denied claim as if the establishment or
modification of the presumption of service-connection had been in
effect on the date of the submission of the original claim. With
respect to new or initial awards of DIC pending before VA on or after
August 10, 2022, VA proposes to utilize the most advantageous effective
date amongst 38 CFR 3.114 and 3.400, to potentially grant an award
earlier than August 10, 2022, if applicable. Lastly, as the PACT Act is
silent with respect to changes in the accrued or substitution process
as it relates to the reevaluation of DIC claims, VA proposes utilizing
the regular processes regarding accrued and substitution benefits
contained in 38 U.S.C. 5121 and 5121A. The amendments within this
proposed rulemaking incorporate legislative updates enacted by the
Sergeant First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022, or the Honoring our PACT Act of 2022
(Pub. L. 117-168) (PACT Act) and will bring federal regulations into
conformance with the statutory changes. The proposed amendments in this
regulation are in accordance with the President's priorities to address
toxic exposure.
Statement of Need: The Department of Veteran Affairs has determined
the need to amend its regulations, in accordance with 38 U.S.C. 501, to
incorporate legislative updates enacted by Section 204 of the Sergeant
First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022 or the Honoring our PACT Act of 2022
(Pub. L. 117-168).
Summary of Legal Basis: This amendment to the Dependency and
Indemnity Compensation benefit program is authorized by section 204 of
Public Law 117-168. VA must publish regulations for matters related to
benefits as required by 38 U.S.C. 501(d).
Alternatives: VBA has considered an alternative policy to the
proposed rule. VBA could choose not to act at this time and codify a
new regulation at a later date. However, this would have a negative
effect on VA's effectiveness in processing benefits claims as the
current regulations do not align with the updated statutes. This new
adjudication regulation is needed to appropriately determine
eligibility to certain VA benefits based on these statutory changes.
Therefore, the proposed rule of adding a new adjudication regulation
which will provide relevant claimants the ability to elect a
reevaluation of certain previously denied DIC determinations pursuant
to changes that establish or modify a presumption of service connection
to conform with the statutory changes within the PACT Act is VA's
preferred policy approach.
Anticipated Cost and Benefits: To be determined.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Eric Baltimore, Program Analyst, Pension and
Fiduciary Service, Veterans Benefits Administration, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, Phone:
202 633-8863, Email: [email protected].
RIN: 2900-AR76
VA
160. Authorization of Electronic Notice in Claims Under Laws
Administered by the Secretary of Veterans Affairs [2900-AR77]
Priority: Other Significant.
Legal Authority: Pub. L. 117-168; 38 U.S.C. 501(a); 38 U.S.C. 5100
CFR Citation: 38 CFR 3; 38 CFR 8; 38 CFR 10; 38 CFR 13; 38 CFR 21;
38 CFR 36.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs is proposing to amend
its adjudication regulations to implement provisions of the Sergeant
First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022, Public Law 117-168 (PACT Act). VA is
proposing how to obtain a claimant's election to opt-in to receive
electronic notifications, how to revoke this option, and how electronic
notification will be administered to eligible claimants. (Compensation,
Pension, Insurance, Fiduciary, Veteran Readiness & Employment, Loan
Guaranty, and Education). The proposed
[[Page 11122]]
amendments in this regulation are in accordance with the President's
priorities to address toxic exposure.
Statement of Need: The Department of Veterans Affairs (VA) is
issuing regulations for the implementation of section 807 of Public Law
117-168, the Sergeant First Class Heath Robinson Honoring Our Promise
to Address Comprehensive Toxins (PACT Act). Title 38 of United States
Code (U.S.C.) section 501(d) requires VA to publish regulations for
matters related to benefits under a law administered by the Secretary,
notwithstanding section 553(a)(2) of the Administration Procedure Act.
Summary of Legal Basis: The regulation amendment is authorized by
section 807 of Public Law 117-168. VA must publish regulations for
matters related to benefits under a law administered by the Secretary
as required by 38 U.S.C. 501(d).
Alternatives: None as this amendment is required by statute.
Anticipated Cost and Benefits: The statute will enable VBA to
communicate with Veterans and claimants thru an omni-channel
communications framework (i.e., mail, text, and email). Anticipated
costs account for two primary costs: the development of a managed
service, or the amendment of an existing managed service, to ensure a
minimum of 30 million communications are delivered each year and the
actual market costs associated with the delivery of those
communications. These communications consist of approximately 12
million notifications acknowledging receipt of materials submitted to
VBA's central claims intake center, as well as 18 million required
notifications. VBA currently spends more than $10M per year sending
paper-based communications and anticipates long-term cost savings by
leveraging electronic communications for claimants who opt-in, but will
require up-front funding to acquire the service to maintain this
operational framework.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Korrie Shivers, Policy Analyst, Part 3 Regulations
and Forms Staff, Veterans Benefits Administration, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, Phone:
202 461-9720, Email: [email protected].
RIN: 2900-AR77
VA
Final Rule Stage
161. Modifying Copayments for Veterans at High Risk for Suicide [2900-
AQ30]
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) amends its
medical regulations that govern copayments for outpatient medical care
and medications for at-risk veterans. These amendments are in
accordance with the President's priorities of reducing suicide.
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 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 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 or 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................................ 01/05/22 87 FR 418
NPRM Comment Period End............. 03/07/22 .......................
Final Action........................ 07/00/23 .......................
------------------------------------------------------------------------
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
162. Home Visits in Program of Comprehensive Assistance for Family
Caregivers During Covid-19 National Emergency [2900-AQ96]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1720G(a)(3); 5 U.S.C. 553(d)
[[Page 11123]]
CFR Citation: 38 CFR 71.40; 38 CFR 71.25(e); 38 CFR 71.40(b)(2).
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) is revising its
regulations that govern VA's Program of Comprehensive Assistance for
Family Caregivers (PCAFC) to relax the requirement for in-person home
visits during the National Emergency related to Coronavirus Disease-
2019 (COVID-19). This change is required to address the safety and
well-being of veterans, caregivers, and VA clinical staff as the
circumstances regarding COVID-19 continue to evolve, which is in line
with the President's priorities.
Statement of Need: The Caregivers and Veterans Omnibus Health
Services Act of 2010 (Pub. L. 111-163) established 38 U.S.C. 1720G,
which directed VA to establish a Program of Comprehensive Assistance
for Family Caregivers (PCAFC) and a Program of General Caregiver
Support Services. Both programs are managed by the VA's Caregiver
Support Program Office. On March 13, 2020, a National Emergency was
declared by the President in response to COVID-19.
COVID-19 is a new disease that causes respiratory illness in people
and can spread from person to person. Many individuals and communities
across the country have taken steps to reduce the spread of COVID-19,
including isolating individuals diagnosed with the disease and
implementing physical distancing measures. The priority goal in the VA
response to COVID-19 is the protection of veterans, their caregivers,
and VA clinical staff. This rulemaking is intended to reduce the risk
of exposure to and transmission of COVID-19 to individuals involved in
PCAFC, as well as members of their households and others with whom they
come into contact who may be affected, by providing the facilities
flexibility in the modalities used to conduct home visits other than
in-person visits. The intent of this rulemaking is to protect veterans,
their families, and VA clinical staff by reducing the spread of COVID-
19 for the duration of the COVID-19 National Emergency.
Summary of Legal Basis: The legal basis for this rule is Title 1 of
Public law 111-163, Caregivers and Veterans Omnibus Health Services Act
of 2010 (the Caregivers Act) which established section 1720G(a) of
title 38 of the United States Code requiring VA, in part, to establish
the PCAFC program. As a result of the National Emergency related to
COVID-19 declared by the President on March 13, 2020, VA added a new
section 71.60 to title 38 of the Code of Federal Regulations to provide
flexibility in the mode by which VA conducts PCAFC home visits during
the duration of the National Emergency. These flexibilities include
videoconference or other available telehealth modalities.
Alternatives: Through the interim final rule, VA relaxed the
requirements of in-person home visits during the National Emergency
related to COVID-19. VA considered leaving the requirement as is,
however, it would have the potential to put veterans, their families,
and VA staff at greater risk of contracting COVID-19.
Anticipated Cost and Benefits: The final rulemaking adds
flexibility to the required in-home assessments and allows VA clinical
staff to conduct in-home assessments through other modalities while
remaining compliant with current regulations and policies. Through this
rulemaking, VA minimizes risk of exposure and spreading of COVID-19 to
VA clinical staff, veterans, their caregivers, their families, and
other household members during this National Emergency.
Risks: The addition of 71.60 was through an IFR. Finalizing the
rule will allow us to comply with APA; but the regulation was effective
upon publication on June 5, 2020.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 06/05/20 85 FR 34522
Interim Final Rule Effective........ 06/05/20 .......................
Interim Final Rule Comment Period 07/06/20 .......................
End.
Final Action........................ 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Elyse Kaplan, National Deputy Director, Caregiver
Support Program, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, Phone: 202 461-7337, Email: [email protected].
RIN: 2900-AQ96
VA
163. Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program
[2900-AR16]
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 Public Law 116-171. Required
consultation pursuant to section 201 of Public Law 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 a
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. These
amendments are in accordance with the President's priorities of
reducing suicide.
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
[[Page 11124]]
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.................. 03/10/22 87 FR 13806
Interim Final Rule; Correction...... 03/22/22 87 FR 16101
Interim Final Rule Effective........ 04/11/22 .......................
Interim Final Rule Comment Period 05/09/22 .......................
End.
Final Action........................ 08/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: https://www.federalregister.gov.
Agency Contact: Sandra Foley, Supervisory Grants Manager--Suicide
Prevention Program, Department of Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, Phone: 202 266-4653, Email:
[email protected].
RIN: 2900-AR16
VA
164. Copayment Exemption for Indian Veterans [2900-AR48]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1730A; 25 U.S.C. 1603; 25 U.S.C. 1612
CFR Citation: 42 CFR 438.14; 42 CFR 447.51; 38 CFR 17.30(a).
Legal Deadline: NPRM, Statutory, January 5, 2021, Johnny Isakson
and David P. Roe, M.D. Veterans Health Care and Benefits Improvement
Act of 2020 (the ``Act''). Public Law (Pub. L.) 116-315.
Pursuant to section 1730A of title 38, United States Code (U.S.C.),
catastrophically disabled veterans are exempt from copayment for the
receipt of hospital care or medical services under laws administered by
VA. On January 5, 2021, the President signed into law the Johnny
Isakson and David P. Roe, M.D. Veterans Health Care and Benefits
Improvement Act of 2020 (the ``Act''). Public Law (Pub. L.) 116-315.
Abstract: VA is amending its medical regulations to implement a
statute exempting Indian veterans from copayment requirements for the
receipt of hospital care or medical services under laws administered by
VA. These amendments are in accordance with the President's priorities
by advancing equity and support to underserved, vulnerable and
marginalized communities.
Statement of Need: This rulemaking is needed to amend the
Department of Veteran Affairs (VA)'s medical regulations, in accordance
with rulemaking authority established in 38 U.S.C. 501, to reflect
current changes in law as a result of the Veterans Health Care and
Benefits Improvement Act of 2020. In addition, this rulemaking is
essential to VA's attempt to validate veterans who are an Indian and
eligible for this new benefit.
Summary of Legal Basis: On January 5, 2021, the President signed
into law the Johnny Isakson and David P. Roe, M.D. Veterans Health Care
and Benefits Improvement Act of 2020 (the Act). Public Law (Pub. L.)
116-315. Section 3002 of the Act amended section 1730A to add a
copayment exemption for veterans who are either Indian or urban Indian,
as those terms are defined in section 4 of the Indian Health Care
Improvement Act. Thus, veterans who are Indians or urban Indians will
be exempt from copayments for the receipt of hospital care or medical
services under laws administered by VA. This amendment to section 1730A
takes effect one year after the date of enactment of the Act (that is,
the statutory amendment became effective on January 5, 2022). This
rulemaking revises several VA regulations concerning copayment
exemptions to be consistent with the amendment made to 38 U.S.C. 1730A
by section 3002 of the Act.
Alternatives: One alternative policy approach considered was the
possibility that VA could require veterans who identify as Indian and
applying for VA health care enrollment to provide documentation to
identify their tribal affiliation. VA could also implement this
rulemaking as a two-stage proposed rule instead of an interim final
rule which would notify the public of this regulatory action and
provide the opportunity for notice and comment from interested parties.
Veterans would be asked to indicate their tribal affiliation on VA Form
10-10EZ or VA Form 10-10EZR.
This would add a measure of assurance that the benefit will reach
the intended population and reduce the risk that a non-eligible veteran
receives the copayment exemption and retroactive reimbursements.
However, this places a reporting burden upon veterans who identify as
Indian and could delay their enrollment for VA health care. In
addition, VA would need additional changes to the enrollment system to
capture tribal information for potentially 574 possible responses,
including the necessary form changes. Lastly, VA would create a
reputational risk by requiring documentation for a specific group who
received unique benefits but not all groups that receive unique
benefits.
Anticipated Cost and Benefits: This rulemaking will be an essential
part to VA's attempt to validate veterans who identify as an Indian.
This rulemaking will assist Indian veterans by eliminating a cost
barrier, which will help increase utilization of VA health care among
this veteran population. Public Law (Pub. L.) 116-315, sec. 3002 of the
Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits
Improvement Act of 2020 (signed January 5, 2021) amended section 1730A
of title 38 of the United States Code (U.S.C.) eliminating the
copayment requirements for inpatient hospital care, outpatient medical
care, outpatient medications, noninstitutional extended care services
and the first three visits for urgent care in a calendar year provided
by VA for veterans who are either Indian or urban Indian, as those
terms are defined in section 4 of the Indian Health Care Improvement
Act.
This amendment to section 1730A takes effect one year after the
date of enactment of the Act (that is, the statutory amendment became
effective on January 5, 2022). This rulemaking revises several VA
regulations concerning copayment exemptions to be consistent with the
amendment made to section 1730A by section 3002 of the Act.
For the purposes of the copayment exemption, VA has adopted the
Centers for Medicare and Medicaid Services' (CMS) definition of the
term Indian found in 447.51 of title 42 of the Code of Federal
Regulations (CFR) for purposes of copayment exemption for Indian and
urban Indians under 38 U.S.C. 1730A. VA will amend 38 CFR 17.108,
17.110, 17.111 and 17.4600.
VA will update VA Form 10-10EZ, Enrollment Application for Health
Benefits, and VA Form 10-10EZR, Health Benefits Update Form to include
Veteran self-attestation to meet the requirements of section 3002 of
the Act as well as updates for ancillary systems needed to implement
this rulemaking. VA will reimburse Indian veterans for copayments paid
to VA for hospital care and medical services provided on or after
January 5, 2022. VA will implement an audit process to periodically
review its enrollment records.
[[Page 11125]]
Risks: The risks would be non-compliance with statutory authority
and/or not being able to provide benefits pursuant to our statutory
authority.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Joseph Duran, Director of Policy and Planning
(10D1A1), Department of Veterans Affairs, 3773 Cherry Creek North
Drive, Denver, CO 80209, Phone: 303 370-1637, Email:
[email protected].
RIN: 2900-AR48
VA
165. Technical Revisions To Expand Health Care for Certain
Toxic Exposure and Overseas Contingency Service [2900-AR73]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1710; Pub. L. 117-168 sec. 103(a)
CFR Citation: 38 CFR 17.36; 38 CFR 17.108; 38 CFR 17.110; 38 CFR
17.111; 38 CFR 51.50.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) is issuing this
rule to amend its medical regulations governing eligibility for VA
health care and copayment requirements to conform to recent statutory
changes made by section 103 of the Sergeant First Class Heath Robinson
Honoring our Promise to Address Comprehensive Toxics Act of 2022,
Public Law 117-168 (PACT Act). VA is changing its medical benefits
enrollment criteria to include toxic-exposed veterans and veterans who
supported certain overseas contingency operations, to exempt such
veterans from copayments for certain care, and to provide per diem for
nursing home care for such veterans. The amendments in this regulation
are in accordance with the President's priorities to address toxic
exposure.
Statement of Need: VA must amend its medical regulations governing
eligibility for VA health care and copayment requirements to conform to
recent statutory changes made by section 103 of the Honoring our PACT
Act of 2022. VA would change its medical benefits enrollment criteria
to include toxic-exposed veterans and veterans who supported certain
overseas contingency operations, to exempt such veterans from
copayments for certain care, and to provide per diem for nursing home
care for such veterans.
Summary of Legal Basis: These changes are authorized in accordance
with section 103(a) of Public Law 117-168 and the related amendments to
38 U.S.C. 1710.
Alternatives: None.
Anticipated Cost and Benefits: The initial estimate for the
additional medical enrollment (including the cost of care) pursuant to
section 103(a) is $966,347,000 from FY23 to FY32.
Risks: None anticipated, as the authority has been codified in
statute.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Action........................ 09/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Ryan Heiman, Acting Deputy Director, VHA Member
Services, Department of Veterans Affairs, 3401 SW 21st Street, Building
9, Topeka, KS 66604, Phone: 785 817-2719, Email: [email protected].
RIN: 2900-AR73
VA
166. Procedural Updates for the PACT Act [2900-AR74]
Priority: Other Significant.
Legal Authority: 38 U.S.C. 1112
CFR Citation: 38 CFR 3.309.
Legal Deadline: None.
Abstract: The Department of Veterans Affairs (VA) is issuing this
final rule to amend its adjudication regulations to add additional
presumptive exposure locations for radiation, as indicated in the
Sergeant First Class Heath Robinson Honoring our Promise to Address
Comprehensive Toxics Act of 2022. The intended effect of this amendment
is to ease the evidentiary burden of this population of Veterans who
file claims with VA based on radiation exposure in these locations. The
amendments in this regulation are in accordance with the President's
priorities to address toxic exposure.
Statement of Need: The Department of Veterans Affairs (VA) is
issuing this final rule to amend its adjudication regulations to add
additional presumptive exposure locations for radiation, as indicated
in the Sergeant First Class Heath Robinson Honoring our Promise to
Address Comprehensive Toxics Act of 2022 (Pub. L. 117-168). The
intended effect of this amendment is to ease the evidentiary burden of
Veterans exposed to radiation at Thule Air Force Base, Palomares and
Enewetak Atoll who file claims with VA based on radiation exposure in
these locations.
Summary of Legal Basis: The new provisions of regulation are
authorized by section 401 of Public Law 117-168. VA must publish
regulations to carry out the laws administered by the department as
required by 38 U.S.C. 501(a).
Alternatives: Section 401 of Public Law 117-168 added three new
locations during the specified times as presumptive for radiation risk
activity.The alternative to regulation is to allow Veterans and claims
processors to process claims under the statute without the benefit of
regulatory guidance, and to rely upon sub-regulatory clarification.
Anticipated Cost and Benefits: VA has estimated that there are both
transfers and costs associated with the provisions of this rulemaking.
Actual costs and transfers TBD.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Final Action........................ 04/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
URL For More Information: www.regulations.gov.
Agency Contact: Robert Parks, Department of Veterans Affairs, 1800
G Street NW, Washington, DC 20006, Phone: 202 461-9700, Email:
[email protected].
RIN: 2900-AR74
BILLING CODE 8320-01-P
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE (AMERICORPS)
Fall 2022 Statement of Regulatory Priorities
Overview
The Corporation for National and Community Service, operating as
AmeriCorps, is the Federal agency for national service and
volunteerism. AmeriCorps provides opportunities for individuals to
address some the nation's most pressing challenges, improve lives and
communities, and strengthen civic engagement. AmeriCorps offers
[[Page 11126]]
individuals and organizations flexible ways to make a local and lasting
impact through its programs, such as AmeriCorps State and National,
AmeriCorps VISTA, AmeriCorps NCCC, and the Volunteer Generation Fund,
and AmeriCorps Seniors RSVP, Foster Grandparents, and Senior Companions
programs. AmeriCorps also supports volunteerism through National Days
of Service, including 9/11 Day and Martin Luther King, Jr., Day.
AmeriCorps' authorizing statutes and regulations provide the necessary
legal framework for its programs. AmeriCorps' regulatory priorities are
guided by its Strategic Plan (available at americorps.gov/about/agency-overview/strategic-plan) and Administration priorities.
Highlights of AmeriCorps' Regulatory Plan
This Regulatory Plan provides highlights of AmeriCorps' upcoming
regulatory actions. Please refer to AmeriCorps' Semiannual Regulatory
Agenda for the full spectrum of AmeriCorps' upcoming regulatory
actions.
AmeriCorps' Strategic Plan establishes a goal of partnering with
communities to alleviate poverty and advance racial equity. Two
proposed regulatory actions relate to this goal:
AmeriCorps State and National Updates (3045-NEW) will consider
additional programmatic and grantmaking flexibilities, including
waivers and exceptions for individuals who may benefit from additional
education and training, such as those reentering society after
incarceration, to participate in national service while acquiring
skills and knowledge to ease their transition into the workplace.
AmeriCorps' VISTA New Project Regulations (3045-AA79) will also
consider additional programmatic and grantmaking flexibilities intended
to better reach underserved communities, reduce barriers to
participation in national service, and provide those communities with
access to the benefits of service to reduce poverty. VISTA's underlying
purpose also supports the Administration's goal to promote economic
resilience and address persistent poverty, by encouraging and enabling
persons from all walks of life to perform volunteer service to assist
in the solution of poverty and poverty-related problems and secure and
increase opportunities for self-advancement by persons affected by such
problems.
BILLING CODE 6050-28-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 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 Strategic Plan:
Tackle the Climate Crisis
Take Decisive Action to Advance Environmental Justice and
Civil Rights
Enforce Environmental Laws and Ensure Compliance
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 continue to 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.
[[Page 11127]]
Further, these regulatory priorities complement the commitment to
holistically and aggressively combat damaging climate pollution while
supporting the creation of good jobs and lowering energy costs for
families together with implementation of relevant climate provisions of
the Inflation Reduction Act.
Standards of Performance for New, Reconstructed, and
Modified Sources and Emission Guidelines for Oil and Natural Gas Sector
Climate Review. 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.
On November 15, 2021, EPA proposed new source performance standards and
emission guidelines for new and existing crude oil and natural gas
facilities. (86 FR 63110). This action responded to the January 20,
2021, Executive Order (E.O.) 13990 titled ``Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate
Crisis,'' which directed EPA to consider certain actions to reduce
methane and volatile organic compound (VOC) emissions in the oil and
natural gas sector. As a next step in the rulemaking process, EPA
intends to issue a supplemental proposed rule that strengthens, expands
and revises the November 2021 proposed rule in response to information
and feedback received during the public comment period. EPA expects to
issue a final rule in Spring 2023.
Emission Guidelines for Greenhouse Gas Emissions from
Fossil Fuel-Fired Existing Electric Generating Units. Fossil fuel-fired
power plants are the nation's second largest source of GHG pollution.
On June 30, 2022, the U.S. Supreme Court decision in West Virginia v.
EPA faulted the 2015 Clean Power Plan rule and remanded it back to the
D.C. Circuit. EPA is considering the implications of this Supreme Court
decision and is now undertaking a new rulemaking to establish emission
guidelines under CAA section 111(d) to limit GHG emissions from
existing fossil fuel-fired EGUs. EPA anticipates issuing a proposed
rule for this action in Spring 2023, and promulgating a final rule by
Summer 2024.
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 purpose of this action is to conduct a comprehensive
review of the NSPS and, if appropriate, amend the emission standards
for new fossil fuel fired EGUs. EPA anticipates issuing a proposed rule
in Spring 2023, and promulgating a final rule by Summer 2024.
Greenhouse Gas Emissions Standards for Heavy-Duty Engines
and Vehicles--Phase 3. Transportation is the largest source of GHG
emissions in the United States, making up 29 percent of all emissions.
Within the transportation sector, heavy-duty vehicles are the second-
largest contributor, at 23 percent. EPA previously took action to
reduce GHG emissions from heavy-duty trucks with its Phase 1 and Phase
2 GHG standards (76 FR 57106, 81 FR 73478). Many of these zero-emission
technologies are available today, and the number of products available,
as well as production volumes, are expected to accelerate in the next
few years. EPA will assess the impact that these zero-emission
technologies will have on the overall effectiveness of the Phase 2
program and whether targeted adjustments to GHG standards in 2027 may
be warranted. Beyond 2027, heavy-duty truck manufacturers are already
signaling a large-scale migration from gasoline and diesel engines to
zero-emission technologies in their products. With this action, EPA
would revise GHG standards for all heavy-duty vehicles and engines to
go beyond the existing standards and leverage zero-emission and other
advanced technologies. These new GHG standards would apply to Model
Years 2027-2030+.
Multi-Pollutant Emissions Standards for Model Years 2027
and Later Light-Duty and Medium-Duty Vehicles. Per EPA's authority
under the CAA section 202(a), EPA will propose a comprehensive set of
emissions standards for GHGs and criteria pollutants for the light-duty
vehicle sector as well as the medium-duty vehicle Class 2B and 3
sectors. The standards will begin with model year 2027, with stringency
levels set at least through model year 2030. This action is also
supported by E.O. 14037, titled ``Strengthening American Leadership in
Clean Cars and Trucks.'' EPA will coordinate with the Department of
Transportation in developing this proposal as appropriate.
Volume Requirements for 2023 and Beyond under the
Renewable Fuel Standard Program. CAA section 211 requires EPA to set
renewable fuel percentage standards every year. In this action EPA
would propose the standards for 2023-2025 for cellulosic biofuel,
biomass-based diesel, advanced biofuel, and total renewable fuel. This
action would also address a judicial remand of the 2016 standard-
setting rulemaking, as well as propose several regulatory changes and
additions to the RFS program, including regulations governing the
generation of Renewable Identification Numbers (RINs) representing
renewable electricity (eRINs).
Restrictions on Certain Uses of Hydrofluorocarbons under
Subsection (i) of the American Innovation and Manufacturing Act. EPA is
developing a proposed rule that will in part respond to eleven
petitions for rulemaking granted in October 2021 under AIM Act
subsection (i). Specifically, EPA is considering a rule restricting,
fully, partially, or on a graduated schedule, the use 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.
This proposal will facilitate and accelerate the phasedown of HFC
consumption and production required by the AIM Act by restricting the
use of HFCs where cost-effective substitutes are available.
Phasedown of Hydrofluorocarbons: Updates to the Allowance
Allocation and Trading Program under the American Innovation and
Manufacturing Act for 2024 and Later Years. This rule will continue to
implement the HFC phasedown under the AIM Act. In September 2021, EPA
finalized a rule that established a framework for the allowance
allocation and trading program to phase down HFC production and
consumption over time, specifically determining an approach to allocate
annual allowances 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 determine an approach to allocating
annual allowances in 2024 and later years and make adjustments based on
the lessons learned from implementation of the framework rule.
Management of Certain Hydrofluorocarbons and Substitutes
under Subsection (h) of the American Innovation and Manufacturing Act
of 2020. EPA is considering a rulemaking to establish requirements for
management of certain HFCs and their substitutes under AIM Act
subsection (h). Specifically, EPA is considering a rulemaking to
establish regulations to
[[Page 11128]]
control, where appropriate, practices, processes, or activities
regarding the servicing, repair, disposal, or installation of
equipment, for the purpose of maximizing the reclamation and minimizing
the release of certain HFCs from equipment and ensuring the safety of
technicians and consumers. Among these practices, processes, and
activities, EPA is considering applying leak repair requirements to
certain equipment using HFCs and their substitutes as refrigerants in
this rulemaking. EPA also intends to consider options to increase
opportunities for reclaiming regulated substances used as refrigerants
and potential approaches to coordinate regulations carrying out AIM Act
subsection (h) with similar EPA regulations, such as the refrigerant
management program established under CAA Title VI.
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.
Ambient Air Quality Standards for Particulate Matter
Reconsideration. Under the CAA, 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. In December 2020, EPA published its
final decision in the review of the PM NAAQS, retaining the existing
standard established in 2013. On June 10, 2021, EPA notified the public
that it will reconsider the 2020 decision to retain the PM NAAQS
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 CAA. As part of this
reconsideration, in May 2022 EPA released a Supplement to the 2019 p.m.
ISA and a Policy Assessment which consider the most up-to-date science
on the public health and welfare impacts of PM and were reviewed by the
chartered Clean Air Scientific Advisory Committee (CASAC) and a newly
constituted expert PM panel. EPA plans to issue a final decision on the
reconsideration in Summer 2023.
NESHAP: Coal- and Oil-Fired Electric Utility Steam
Generating Units--Revocation of the 2020 Reconsideration, and
Affirmation of the Appropriate and Necessary Supplemental Finding. In
2012, EPA issued the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Coal- and Oil-fired Electric Utility Generating
Units (EGUs) rule (40 CFR part 63, subpart UUUUU), commonly referred to
as the Mercury and Air Toxics Standards (MATS), which 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. As part of the 2012 rule, and as required by CAA section
112(n), EPA found that it was appropriate and necessary to regulate
coal- and oil-fired steam EGUs under CAA section 112. In a May 22,
2020, action, EPA found that it is not appropriate and necessary to
regulate coal- and oil-fired EGUs under CAA section 112. Consistent
with Executive Order 13990, EPA is reviewing the May 22, 2020, finding.
EPA issued a proposed revised reconsideration of the appropriate and
necessary finding on February 9, 2022 (87 FR 7624).
NESHAP: Coal- and Oil-Fired Electric Utility Steam
Generating Units--Review of the Residual Risk and Technology Review. On
February 16, 2012, EPA promulgated the MATS rule. On May 22, 2020, in
the Federal Register notice announcing the completion of a
reconsideration of the appropriate and necessary finding for MATS, EPA
also finalized the residual risk and technology review (RTR) conducted
for the Coal- and Oil-Fired EGU source category regulated under MATS
(85 FR 31286). Consistent with Executive Order 13990, EPA will review
the RTR portion of the May 22, 2020, final action and, under this
action, will take appropriate action resulting from that review.
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. On April 6,
2022, EPA issued a proposed ``Federal Implementation Plan Addressing
Regional Ozone Transport for the 2015 Ozone National Ambient Air
Quality Standard'' (87 FR 20036). EPA expects to issue the final rule
in March 2023.
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.
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. On March 28, 2022, EPA published a proposed rule that
would set new, more stringent standards to reduce pollution from heavy-
duty vehicles and engines starting in model year (MY) 2027 (87 FR
17414). This proposal is consistent with President
[[Page 11129]]
Biden's Executive Order 14037, ``Strengthening American Leadership in
Clean Cars and Trucks'' and would ensure the heavy-duty vehicles and
engines that drive American commerce are as clean as possible while
charting a path to advance zero-emission vehicles in the heavy-duty
fleet.
National Emission Standards for Hazardous Air Pollutants:
Ethylene Oxide Commerical Sterilization and Fumigation Operations. In
December 1994, pursuant to CAA section 112(d), EPA promulgated the
NESHAP for Ethylene Oxide Commercial Sterilization and Fumigation
Operations (59 FR 62585). The NESHAP established standards for both
major and area sources. 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 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, 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 and is conducting community outreach as part of the
development of this action.
Review of Final Rule Reclassification of Major Sources as
Area Sources Under Section 112 of 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). (85 FR 73854, November 19, 2020)
Consistent with Executive Order 13990, EPA has decided to review the
MM2A final rule as appropriate and consistent with the CAA section 112.
Revisions to the Air Emission Reporting Requirements
(AERR). This action proposes revisions to the existing AERR rule last
revised on February 19, 2015 (80 FR 8787), and may include major
revisions. EPA is considering how to improve the quality and
completeness of HAP emissions data from stationary sources and all
pollutant emissions from prescribed fires. Further, EPA is considering
how best to quantify emissions from intermittent sources such as backup
generators; how to obtain data from permitted facilities in Indian
Country when a Tribe is not required to report emissions data; and how
to address known data gaps, streamline processes, and improve data
quality, documentation, and transparency for nonpoint and mobile
sources.
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. 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, 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) Consistent with the directives
of Executive Order 13990, the agencies reviewed the NWPR, and, as a
result, the agencies initiated the development of regulations that are
founded on the familiar framework of the pre-2015 regulations, are
consistent with the statute and informed by relevant Supreme Court
decisions, and that reflect a reasonable interpretation based on the
record before the agencies, including the best available science. The
proposal was open for public comment between December 2021 and February
2022. It is planned that this rule will be finalized by the end of
2022.
Revised Definition of ``Waters of the United States''--
Rule 2: The agencies intend to pursue a second rule defining ''Waters
of the United States'' to consider further revisions to the agencies'
first rule. This second rule proposes to include revisions reflecting
on additional stakeholder engagement and implementation considerations,
scientific developments, litigation, 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 CWA section 401. Congress provided
authority to states and tribes under 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. A proposed
rule was released for public comment in June 2022. It is planned that
this rule will be finalized in the spring of 2023.
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. EPA intends to
develop a proposed national primary drinking water regulation (NPDWR)
for PFOA and PFOS, and, as appropriate, take final action.
Additionally, EPA will continue to consider other PFAS as part of this
action. EPA expects to issue the proposed PFAS NPDWR in Fall 2022. The
Agency anticipates issuing a final regulation in Fall 2023 after
considering public comments on the proposal.
[[Page 11130]]
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) and subsequently
reviewed those revisions to further evaluate if the LCRR protected
families and communities (86 FR 71574; December 17, 2021) particularly
those that have been disproportionately impacted by lead in drinking
water. Through this review, the Agency concluded that there are
significant opportunities to improve the LCRR. EPA is developing a new
proposed NPDWR, the Lead and Copper Rule Improvements (LCRI), to
strengthen the regulatory framework and address lead in drinking water.
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.
Fifty 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. Addressing this lack of CWA-effective
WQS for the waters of more than 250 Indian reservations is a priority
for EPA, given that WQS are central to implementing the water quality
framework of the CWA. Promulgating baseline WQS would 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.
Water Quality Standards Regulatory Revisions to Protect
Tribal Reserved Rights. Many tribes hold reserved rights to resources
on lands and waters where states establish WQS, through treaties,
statutes, or other sources of federal law. The U.S. Constitution
defines treaties as the supreme law of the land. EPA is pursuing a
change to its WQS regulations to ensure that WQS do not impair tribal
reserved rights by giving clear direction on how to develop WQS where
tribes hold reserved rights. This will help EPA ensure protection of
resources reserved to tribes in treaties, statutes, or other sources of
federal law when establishing, revising, and reviewing WQS. The
development of this rule will help advance President Biden's commitment
to strengthening the nation-to-nation relationships with tribes. EPA
has and will continue to consult with tribes.
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 acts
under several different statutory authorities, including the Resource
Conservation and Recovery Act (RCRA), and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). 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.
PFAS: RCRA Listing and CERCLA Designation. Based on public
health and environmental protection concerns and in response to
petitions from the Governor of New Mexico, Public Employees for
Environmental Responsibility, and Berkeley School of Law on behalf of
five other organizations, which request EPA to take regulatory action
on PFAS under RCRA, EPA is evaluating the existing toxicity and health
effects data on four PFAS constituents to determine if they should be
listed as RCRA Hazardous Constituents. If the existing data for the
four PFAS constituents support listing any or all of these constituents
as RCRA hazardous constituents, EPA will propose to list the
constituents in a Federal Register notice for public comment. The four
PFAS chemicals EPA will evaluate are: PFOA, PFOS, perfluorobutane
sulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-
DA, or and GenX).
On October 18, 2021, EPA released its PFAS Strategic Roadmap which
builds on and accelerates implementation of existing plans to address
PFAS and commits to bolder new policies to address PFAS in the
environment. EPA is developing an Advance Notice of Proposed Rulemaking
in which the Agency will seek public input on further PFAS-related
designations under CERCLA. As examples, the Agency may request input
regarding the potential hazardous substance designation of additional
PFAS; and designation, or designations of classes or sub-classes of
PFAS as hazardous substances.
Hazardous and Solid Waste Management System: Addressing
Coal Combustion Residues from Electric Utilities. On April 17, 2015,
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, which vacated and remanded certain provisions of the 2015
rule.
The D.C. Circuit vacated and remanded the provision that exempted
inactive impoundments at inactive facilities from the CCR rule. 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. 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. Finally, EPA is considering proposing corrective action
requirements for all CCR contamination (regardless of how or when that
CCR was placed) on site of a regulated facility.
The D.C. Circuit also vacated and remanded provisions related to
the closure of unlined impoundments and classifying ``clay-lined''
impoundments as lined. On March 3, 2020, EPA proposed a number of
revisions and flexibilities to the CCR regulations. In particular, 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. EPA has since taken final action on one of
[[Page 11131]]
the four proposed issues. Specifically, on November 12, 2020, EPA
issued a final rule that would allow a limited number of facilities to
demonstrate to 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
(85 FR 72506). EPA is developing a rulemaking that would consider
taking final action on the remaining proposed issues.
The Water Infrastructure Improvements for the Nation (WIIN) Act
established a new CCR regulatory structure under which states may seek
approval from 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 EPA has determined
are ``at least as protective as'' the federal regulations. Furthermore,
the WIIN Act established a requirement for 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.
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.
EPA is developing a regulatory action to revise the current RMP
regulations. EPA will consider the administration's priorities and
focus on regulatory revisions completed since 2017. EPA will also
consider stakeholder feedback received from RMP public listening
sessions held on June 16 and July 8, 2021.
Reporting Requirements for Emissions from Animal Waste
under the Emergency Planning and Community Right-to-Know Act. EPA is
considering rescinding the June 13, 2019, final rule, which exempted
reporting of air emissions from animal waste under the Emergency
Planning and Community Right-to-Know Act (EPCRA). On March 23, 2018,
the President signed into law the ``Fair Agricultural Reporting Method
Act'' or the ``FARM Act.'' The FARM Act expressly exempts reporting of
air emissions from animal waste (including decomposing animal waste) at
a farm from CERCLA section 103. In the June 13, 2019, final rule, the
Agency applied the CERCLA exemption to reporting under EPCRA. The
Agency is now reconsidering that action.
Revisions to Standards for the Open Burning/Open
Detonation of Waste Explosives. This rulemaking will consider revisions
to the regulations that allow for the open burning and detonation (OB/
OD) of waste explosives. The allowance or ``variance'' to the
prohibition on the open burning of hazardous waste was established at a
time when there were no alternatives to the safe disposal of waste
explosives. However, recent findings from the National Academies of
Sciences, Engineering, and Medicine and EPA have determined that safe
alternatives are now available for many energetic/explosive waste
streams. Because there are safe alternatives in use today that capture
and treat emissions prior to release, EPA is considering revising
regulations to promote the broader use of these alternatives, where
applicable.
Definition of Hazardous Waste Applicable to Corrective
Action for Solid Waste Management Units. EPA is considering a proposed
rule that would modify the regulations at 40 CFR part 264 to clarify
that the definition of hazardous waste found in RCRA section 1004(5) is
applicable to corrective action for releases from solid waste
management units. The proposed rule would more clearly implement EPA's
longstanding interpretation of its authority under RCRA section 3004(u)
and (v).
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 FY2023:
Collecting Data to Better Understand the Environmental and
Human Health Impacts of Perfluorooctanoic and Perfluorooctanesulfonic
Acids. As part of the actions identified in the PFAS Strategic Roadmap
that the EPA Administrator announced on October 18, 2021, the Agency is
considering whether to add certain PFAS chemicals to the list of
chemicals required to report to the Toxics Release Inventory (TRI)
Program under EPCRA section 313, and whether to remove TRI reporting
exemptions and exclusions for PFAS. TRI information may be helpful to
inform decision-making by communities, government agencies, companies
and others.
Also identified in the 2021 PFAS Strategic Roadmap, the Agency is
developing a proposal for a significant new use rule (SNUR) under TSCA
section 5(a) for PFAS that are designated as ``Inactive'' on the TSCA
Inventory. Such a rule would ensure that EPA is notified at least 90
days before the manufacture or processing of legacy PFAS designated as
``inactive'' on the TSCA Inventory for any use that EPA might determine
in the rulemaking is a significant new use. The required notification
initiates EPA's evaluation of the intended use within the applicable
review period. Manufacture and processing for the significant new use
would be unable to commence until EPA has conducted a review of the
submitted notice, made an appropriate determination on the notice, and
taken such actions as are required in association with that
determination. EPA intends to issue the proposal in the first quarter
of FY 2023.
Finally, the Agency is developing a final rule to establish
reporting and recordkeeping requirements for persons that manufacture
(including import) or have manufactured these chemical
[[Page 11132]]
substances in any year since January 1, 2011, in accordance with TSCA
section 8(a)(7) and the 2021 PFAS Roadmap. The information received by
EPA in response to the final rule is expected to support the Agency's
efforts to better characterize the sources and quantities of
manufactured PFAS in the United States. EPA expects to promulgate the
final rule in early 2023.
Addressing the Unreasonable Risk of Existing Chemical
Substances under TSCA. Upon determining that an existing chemical
presents an unreasonable risk of injury to health or the environment,
the Agency must immediately initiate an action to apply, by rule,
requirements under TSCA to eliminate the unreasonable risk. EPA may
consider a range of risk management options under TSCA in such a rule,
including labeling, recordkeeping or notice requirements, actions to
reduce human exposure or environmental release, or a ban of the
chemical or of certain uses. After determining that the chemical
substances present unreasonable risk under their conditions of use, the
Agency intends to promulgate a final rule addressing the unreasonable
risks of chrysotile asbestos (RIN 2070-AK86) in the coming year and
also expects to propose risk management regulations for Methylene
Chloride (RIN 2070-AK70), 1-Bromopropane (RIN 2070-AK73), Carbon
Tetrachloride (RIN 2070-AK82), Trichloroethylene (RIN 2070-AK83),
Perchloroethylene (RIN 2070-AK84), and N-Methylpyrrolidone (RIN 2070-
AK85) throughout 2023.
Improving Procedures for Assessing the Risks of New and
Existing Chemical Substances and Mixtures under TSCA. As amended in
2016, TSCA requires EPA to assess the risks of each new chemical
substance for which a notice was received under TSCA section 5(a)(1) of
the law make an affirmative determination on whether such a new
chemical substance presents an unreasonable risk to human health or the
environment under known, intended or reasonably foreseen conditions of
use before the submitter may commence manufacturing or processing of
the chemical substance that is the subject of the submitted notice, and
to take action as required in association with the determination. EPA
is developing a proposed rule to amend the new chemicals procedural
regulations in 40 CFR parts 720, 723, and 725 for the purpose of
aligning EPA's processes and procedures with the 2016 TSCA amendments
and to clarify and improve the efficiency of the Agency's review
process. The major objectives of the proposed rule are to increase the
quality of information initially submitted in new chemicals notices,
ensure that the Agency's processes result in the timely, effective
completion of new chemical risk assessments, and improve EPA's existing
practices related to the review of certain groups of chemical
substances under Pre-Manufacture Notification (PMN) exemptions.
The 2016 TSCA amendments require 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. Consistent with the
directives of Executive Order 13990, 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. EPA is in
the process of reissuing unreasonable risk determinations for several
of the first 10 chemicals that reflect, as appropriate, a determination
that a whole chemical substance presents an unreasonable risk of injury
to health when evaluated under its conditions of use rather than making
a risk determination for each of the specific conditions of use of a
chemical substance. In addition, the Agency's approach to the risk
determination will no longer involve an assumption that all workers
always appropriately wear personal protective equipment.
As EPA continues to implement the 2016 TSCA amendments and in
consideration of Executive Order 13990, the Agency also intends to
propose to amend a 2017 final rule that established a process for
conducting existing chemical risk evaluations under TSCA. The proposed
rule is expected to address requirements for manufacturer-requested
risk evaluations and related information-gathering provisions,
provisions addressing violations and penalties, and other rule changes
based on lessons learned in the process carrying out the first 10 TSCA
risk evaluations.
Updating Certain Pesticide Exemptions to Reflect Newer
Technologies. To fulfill the requirement in section 4(b) of Executive
Order 13874, entitled ``Modernizing the Regulatory Framework for
Agricultural Biotechnology Products'' (84 FR 27899, June 14, 2019), EPA
intends to finalize updates to the existing exemptions from regulation
under FIFRA and FFDCA for certain plant incorporated protectant (PIP)
products to reflect newer technologies, i.e., the exemptions are from
the requirements to obtain a pesticide registration under FIFRA and
establish a tolerance or tolerance exemption for residues in or on food
commodities under FFDCA. EPA regulations define a PIP as a pesticidal
substance that is intended to be produced and used in a living plant,
or in the produce thereof, and the genetic material necessary for
production of such a pesticidal substance. It also includes any inert
ingredient contained in the plant or produce thereof. EPA currently
regulates all PIPs except those exempted by regulation. In October
2020, EPA proposed to allow certain PIPs created through biotechnology
to also be exempt under existing regulations, in cases where those PIPs
(1) pose no greater risk than PIPs that meet EPA safety requirements,
and (2) could have otherwise been created through conventional
breeding. EPA also proposed a process through which developers of PIPs
based on sexually compatible plants created through biotechnology
submit either a self-determination letter or request for EPA
confirmation that their PIP meets the criteria for exemption. EPA
intends to promulgate a final rule in 2023.
Reevaluating Changes to the Dust-Lead Hazard Standards and
Dust-Lead Post-Abatement Clearance Levels under TSCA. The Agency's
dust-lead hazard standards (DLHS) provide the basis for risk assessors
to determine whether dust-lead hazards are present, and apply to target
housing (i.e., most pre-1978 housing) and child-occupied facilities
(pre-1978 non-residential properties where children 6 years of age or
under spend a significant amount of time such as daycare centers and
kindergartens). EPA's dust-lead clearance levels (DLCL) indicate the
amount of lead in dust on a surface following the completion of an
abatement activity. On July 9, 2019, EPA promulgated a final rule to
lower the DLHS, and on January 6, 2021, EPA promulgated a final rule to
lower the DLCL. The Agency is now considering further revisions of the
DLHS and DLCL to bolster the protection of children's health and to
further reduce lead exposures in overburdened communities in
consideration of the directives of Executive Order 13990. In addition,
on May 14, 2021, the United States Court of Appeals for the Ninth
Circuit issued an opinion to remand without vacatur the 2019 DLHS final
rule and directed EPA to reconsider the 2019 DLHS rule in conjunction
with a reconsideration of the DLCL. EPA expects to propose additional
revisions to the DLHS and DLCL in early 2023.
[[Page 11133]]
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)
Prerule Stage
167. Phasedown of Hydrofluorocarbons: Management of Certain
Hydrofluorocarbons and Substitutes Under Subsection (h) of the American
Innovation and Manufacturing Act of 2020 [2060-AV84]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7675
CFR Citation: 40 CFR 84.
Legal Deadline: None.
Abstract: EPA is considering a rulemaking to establish requirements
for management of certain hydrofluorocarbons (HFCs) and their
substitutes under the American Innovation and Manufacturing (AIM) Act
of 2020 (42 U.S.C. 7675). Specifically, EPA is considering a rulemaking
under subsection (h) of the AIM Act to establish regulations to
control, where appropriate, practices, processes, or activities
regarding the servicing, repair, disposal, or installation of
equipment, for the purpose of maximizing the reclamation and minimizing
the release of certain HFCs from equipment and ensuring the safety of
technicians and consumers. Among these practices, processes, and
activities, EPA is considering applying leak repair requirements to
certain equipment using HFCs and their substitutes as refrigerants in
this rulemaking. EPA also intends to consider options to increase
opportunities for reclaiming regulated substances used as refrigerants
and potential approaches to coordinate regulations carrying out
subsection (h) of the AIM Act with similar EPA regulations, such as the
refrigerant management program established under Title VI of the Clean
Air Act.
Statement of Need: This rule is required to meet the statutory
provisions of subsection (h) of the American Innovation and
Manufacturing (AIM) Act of 2020.
Summary of Legal Basis: The American Innovation and 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 (h) of the AIM
Act requires EPA to establish regulations to control, where
appropriate, practices, processes, or activities regarding the
servicing, repair, disposal, or installation of equipment, for the
purpose of maximizing the reclamation and minimizing the release of
certain HFCs from equipment and ensuring the safety of technicians and
consumers. Among these practices, processes, and activities, EPA is
considering applying leak repair requirements to certain equipment
using HFCs and their substitutes as refrigerants in this rulemaking.
Alternatives: Subsection (h) of the AIM Act requires EPA to
promulgate regulations to control, where appropriate, practices,
processes, or activities regarding the servicing, repair, disposal, or
installation of equipment. The AIM Act allows EPA to consider
coordinating any regulations promulgated under subsection (h) with any
regulations promulgated by EPA that involve a similar practice,
process, or activity regarding the servicing, repair, disposal, or
installation of equipment; or reclaiming.
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
------------------------------------------------------------------------
Notice.............................. 12/00/22
NPRM................................ 09/00/23
Final Rule.......................... 09/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Federalism: Undetermined.
Agency Contact: Annie Kee, Environmental Protection Agency, Office
of Air and Radiation, 1200 Pennsylvania Ave. NW, Washington, DC 20460,
Phone: 202 564-2056, Email: [email protected].
Christian Wisniewski, Environmental Protection Agency, Office of
Air and Radiation, 1200 Pennsylvania Ave. NW, Washington, DC 20460,
Phone: 202 564-0417, Email: [email protected].
RIN: 2060-AV84
EPA--OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)
Prerule Stage
168. PFAS-Related Designations as CERCLA Hazardous Substances [2050-
AH25]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 9602
CFR Citation: 40 CFR 302.
Legal Deadline: None.
Abstract: On October 18, 2021, EPA released its PFAS Strategic
Roadmap which builds on and accelerates implementation of existing
plans to address PFAS and commits to bolder new policies to address
PFAS in the environment. The EPA is developing an Advance Notice of
Proposed Rulemaking in which the Agency will seek public input on
further PFAS-related designations under CERCLA. As examples, the Agency
may request input regarding the potential hazardous substance
designation of additional PFAS; and designation, or designations of
classes or sub-classes of PFAS as hazardous substances.
Statement of Need: EPA plans to publish in the Federal Register an
advance notice of proposed rulemaking requesting public input on
whether the agency should consider designating as hazardous substances
precursors to PFOA and PFOS, whether the agency should consider
designating other PFAS as CERCLA hazardous substances and whether there
is information that would allow the agency to designate PFAS as a class
or subclass.
Summary of Legal Basis: Not evaluated.
Alternatives: Not evaluated.
Anticipated Cost and Benefits: Not evaluated.
Risks: Not evaluated.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 02/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
[[Page 11134]]
Small Entities Affected: Businesses, Governmental Jurisdictions,
Organizations.
Government Levels Affected: Tribal, State, Federal, Local.
Sectors Affected: 488119 Other Airport Operations; 811192 Car
Washes; 322121 Paper (except Newsprint) Mills; 332813 Electroplating,
Plating, Polishing, Anodizing, and Coloring; 325510 Paint and Coating
Manufacturing; 314110 Carpet and Rug Mills; 922160 Fire Protection;
322130 Paperboard Mills; 325998 All Other Miscellaneous Chemical
Product and Preparation Manufacturing; 562212 Solid Waste Landfill;
325992 Photographic Film, Paper, Plate, and Chemical Manufacturing;
324110 Petroleum Refineries; 424710 Petroleum Bulk Stations and
Terminals.
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-AH25
EPA--OFFICE OF AIR AND RADIATION (OAR)
Proposed Rule Stage
169. National Emission Standards for Hazardous Air Pollutants: Ethylene
Oxide Commercial Sterilization and Fumigation Operations [2060-AU37]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: secs. 112 and 307(d)(7)(B) of the CAA as amended
(42 U.S.C. 7412 and 7607(d)(7)(B)). This action is also subject to
section 307(d) of the CAA (42 U.S.C. 7607(d)); 42 U.S.C. 7414, 7601
CFR Citation: 40 CFR 63, subpart O.
Legal Deadline: None.
Abstract: In December 1994, pursuant to section 112(d) of the CAA,
EPA promulgated the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Ethylene Oxide Commercial Sterilization and
Fumigation Operations (59 FR 62585). The NESHAP established standards
for both major and area sources. 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 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, 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 and is conducting 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................................ 03/00/23
Final Rule.......................... 10/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Additional Information: EPA-HQ-OAR-2019-0178.
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: Jon 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
170. Amendments to the NSPS for GHG Emissions From New, Modified, &
Reconstructed Stationary Sources: EGUS [2060-AV09]
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; 42 U.S.C. 7414, 7601
CFR Citation: 40 CFR 60, subpart TTTT.
Legal Deadline: None.
Abstract: 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. That
rulemaking determined that the best system of emission reduction (BSER)
for greenhouse gases (GHGs) for newly constructed coal-fired steam
generating units (i.e., EGUs) is efficient generation in combination
with partial carbon capture and storage, the BSER for natural gas-fired
base load combustion turbine EGUs is efficient generation (i.e.,
[[Page 11135]]
the use of combined cycle technology), and the BSER for non-base load
and multi-fuel-fired combustion turbine EGUs is the use of clean fuels.
In 2018, EPA proposed to revise the BSER for coal fired EGUs to be
efficient generation. To date, that proposed action has not been
finalized. The purpose of this action is to conduct a comprehensive
review of the NSPS and, if appropriate, amend the emission standards
for new fossil fuel fired EGUs. EPA anticipates issuing a proposed rule
in spring 2023, and promulgating a final rule by Summer 2024.
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................................ 04/00/23
Final Rule.......................... 06/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Sectors Affected: 22111 Electric Power Generation; 221112 Fossil
Fuel Electric Power Generation.
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].
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
171. Emission Guidelines for Greenhouse Gas Emissions From Fossil Fuel-
Fired Existing Electric Generating Units [2060-AV10]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 42 U.S.C. 7411 Clean Air Act; 42 U.S.C. 7414, 7601
CFR Citation: 40 CFR 60, subpart UUUUa.
Legal Deadline: None.
Abstract: Fossil fuel-fired power plants are the nation's second
largest source of GHG pollution. On August 3, 2015, EPA promulgated its
first emission guideline regulating greenhouse gases (GHGs) from
existing fossil fuel-fired electric generating units (EGUs) in the
Clean Power Plan (40 CFR part 60 UUUU), which was subsequently stayed
by the U.S. Supreme Court. On June 19, 2019 EPA issued a new rule, the
Affordable Clean Energy Rule (40 CFR part 60, subpart UUUUa) and a
repeal of the Clean Power Plan. On January 19, 2021, the D.C. Circuit
Court vacated the Affordable Clean Energy Rule and remanded the rule to
EPA for further consideration consistent with its decision. On February
12, 2021, considering the D.C. Circuit's decision, the EPA published a
memorandum on the status of the Affordable Clean Energy 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. The U.S. Supreme Court then
overturned the D.C. Circuit's decision in the WV v. EPA opinion in June
2022. EPA is considering the implications of this U.S. Supreme Court
decision and is now undertaking a new rulemaking to establish emission
guidelines under CAA 111(d) to limit GHG emissions from existing fossil
fuel-fired EGUs. EPA anticipates issuing a proposed rule for this
action in Spring 2023, and promulgating a final rule by Summer 2024.
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................................ 04/00/23
Final Rule.......................... 06/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, State, Tribal.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
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
172. Volume Requirements for 2023 and Beyond Under the Renewable Fuel
Standard Program [2060-AV14]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7401 et seq., Clean Air Act
CFR Citation: 40 CFR 80.
Legal Deadline: Final, Statutory, October 31, 2021, By statute, the
Set Rule is required to establish applicable volumes 14 months ahead of
the first year (2023).
Abstract: The statutory provisions in the Clean Air Act 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, EPA must set those volumes based on an analysis of
factors specified
[[Page 11136]]
in the statute. This rulemaking will establish volume requirements
beginning in 2023.
Statement of Need: Under the statute, target volumes of renewable
fuel for the RFS program are provided only through 2022. For years 2023
and thereafter, EPA must set those volumes based on an analysis of
factors specified in the statute.
Summary of Legal Basis: CAA section 211(o).
Alternatives: EPA may request comment to address alternative
options in the proposed rule.
Anticipated Cost and Benefits: EPA will analyze costs and benefits
in the proposed rule.
Risks: EPA will evaluate the risks of this rulemaking.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
Final Rule.......................... 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Additional Information:
Sectors Affected: 32411 Petroleum Refineries; 324110 Petroleum
Refineries; 324 Petroleum and Coal Products Manufacturing; 3241
Petroleum and Coal Products Manufacturing.
Agency Contact: David Korotney, Environmental Protection Agency,
Office of Air and Radiation, N27, Ann Arbor, MI 48105, Phone: 734 214-
4507, Email: [email protected].
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].
RIN: 2060-AV14
EPA--OAR
173. New Source Performance Standards and Emission Guidelines for Crude
Oil and Natural Gas Facilities: Climate Review [2060-AV16]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7411
CFR Citation: 40 CFR 60; subpart OOOOa.
Legal Deadline: None.
Abstract: On November 15, 2021, the EPA proposed new source
performance standards and emission guidelines for crude oil and natural
gas facilities. (86 FR 63110). This action was in response to the
January 20, 2021, 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 that action. The Executive
Order further directs the EPA to consider proposing new regulations to
establish comprehensive emission guidelines for emissions from the
exploration and production, transmission, processing, and storage
segments.
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 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 Extended........ 12/17/21 86 FR 71603
Supplemental NPRM................... 12/06/22 87 FR 74702
SNPRM Comment Period End............ 02/13/23
Final Rule.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, State, Tribal.
Energy Effects: Statement of Energy Effects planned as required by
Executive Order 13211.
Additional Information: EPA-HQ-OAR-2021-0317. https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry.
Sectors Affected: 213111 Drilling Oil and Gas Wells; 2111 Oil and
Gas Extraction; 211 Oil and Gas Extraction; 237120 Oil and Gas Pipeline
and Related Structures Construction; 23712 Oil and Gas Pipeline and
Related Structures Construction; 213112 Support Activities for Oil and
Gas Operations.
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, NC 27711, Phone: 919 541-2837, Email:
[email protected].
RIN: 2060-AV16
EPA--OAR
174. Review of Final Rule Reclassification of Major Sources as Area
Sources Under Section 112 of the Clean Air Act [2060-AV20]
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7401 et seq., CAA; 42 U.S.C. 7414, 7601
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,
[[Page 11137]]
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
reconsidering 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: The 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................................ 04/00/23
Final Rule.......................... 02/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, Tribal.
Federalism: Undetermined.
Additional Information:
Agency Contact: Nathan Topham, Environmental Protection Agency,
Office of Air and Radiation, 109 T.W. Alexander Drive, Mail Code D243-
02, Research Triangle Park, NC 27711, Phone: 919 541-0483, Fax: 919
541-4991, Email: [email protected].
Brian Shrager, Environmental Protection Agency, Office of Air and
Radiation, E143-01, Research Triangle Park, NC 27711, Phone: 919 541-
7689, Fax: 919 541-5450, Email: [email protected].
Related RIN: Related to 2060-AM75
RIN: 2060-AV20
EPA--OAR
175. Revisions to the Air Emission Reporting Requirements (AERR) [2060-
AV41]
Priority: Other Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: Clean Air Act
CFR Citation: 40 CFR 51.
Legal Deadline: None.
Abstract: This action proposes revisions to the existing Air
Emissions Reporting Requirements (AERR) rule last revised on February
19, 2015 (80 FR 8787), and may include major revisions. The EPA is
considering how to improve the quality and completeness of hazardous
air pollutant (HAP) emissions from stationary sources and all pollutant
emissions from prescribed fires. Further, the EPA is considering how
best to quantify emissions from intermittent sources such as backup
generators; how to obtain data from permitted facilities in Indian
Country when a Tribe is not required to report emissions data; and how
to address known data gaps, streamline processes, and improve data
quality, documentation, and transparency for nonpoint and mobile
sources.
Statement of Need: Since 2015, many aspects of emissions data
collection and use have evolved. The EPA has continued to review
hazardous air pollutant (HAP) emissions levels and associated public
health risk through the Residual Risk and Technology (RTR) program,
which in many cases has required Information Collection Requests (ICRs)
under Section 114 of the Act. Such collection efforts have proven very
time consuming and limited EPA's ability to act quickly. Furthermore,
as the EPA gains insight into the risks posed by certain chemicals,
such as Ethylene Oxide, we have found ourselves limited by the data
available on emissions sources. New compounds continue to be identified
as public health threats, such as per- and polyfluoroalkyl substances
(PFAS), which may be listed as HAPs in the future. Currently, States
are required to report the emissions from sources in their state to
EPA. In practice, that has meant emissions are reported only for
facilities permitted at the state level. Facilities permitted at the
federal level technically do not fall under the reporting requirements,
and consequently, some never report emissions to the EPA, which does
not allow for proper EPA and state program implementation. Requiring
HAPs for point sources is essential to addressing continued public
health risks and environmental justice issues.
Summary of Legal Basis: Section 114(a)(1) of the CAA authorizes the
Administrator to, among other things, require certain persons
(explained below) on a one-time, periodic, or continuous basis to keep
records, make reports, undertake monitoring, sample emissions, or
provide such other information as the Administrator may reasonably
require. The EPA may require this information of any person who (i)
owns or operates an emission source, (ii) manufactures control or
process equipment, (iii) the Administrator believes may have
information necessary for the purposes set forth in CAA section 114, or
(iv) is subject to any requirement of the Act (except for manufacturers
subject to certain Title II requirements). The information may be
required for the purposes of developing an implementation plan, an
emission standard under sections 111, 112, or 129, determining if any
person is in violation of any standard or requirement of an
implementation plan or emissions standard, or ``carrying out any
provision'' of the Act (except for a provision of Title II with respect
to manufacturers of new motor vehicles or new motor vehicle engines).
Alternatives: These proposed reporting requirements also propose
options and alternatives that may allow the States to report for
owners/operators of regulated facilities.
Anticipated Cost and Benefits: To be determined.
Risks: No risks are associated with this action as these are
proposed reporting requirements.
Timetable:
[[Page 11138]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
Final Rule.......................... 10/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses, Governmental Jurisdictions.
Government Levels Affected: State, Local, Tribal.
Federalism: Undetermined.
Additional Information: EPA-HQ-OAR-2004-0489.
Agency Contact: Marc Houyoux, Environmental Protection Agency,
Office of Air and Radiation, C339-02, Research Triangle Park, NC 27711,
Phone: 919 541-3649, Fax: 919 541-0684, Email: [email protected].
RIN: 2060-AV41
EPA--OAR
176. Phasedown of Hydrofluorocarbons: Allowance Allocation Methodology
for 2024 and Later Years [2060-AV45]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7675
CFR Citation: 40 CFR 84.
Legal Deadline: Final, Statutory, October 1, 2021, Rule must be
signed and in part effective no later than September 2023 so EPA can
issue allowances for 2024 by October 1, 2023.
Abstract: This rule will continue to implement the
hydrofluorocarbon (HFC) phasedown under the American Innovation and
Manufacturing (AIM) Act. A prior rulemaking established a framework for
the allowance allocation and trading program to phase down HFC
production and consumption over time, and also established the
production and consumption baselines, codified the list of controlled
substances that will be covered by those baselines, determined an
approach to allocating annual allowances for 2022 and 2023 and allowing
for trading of those allowances, established recordkeeping and
reporting requirements, introduced a robust, agile, and innovative
compliance and enforcement system, and addressed other related
elements. To continue phasing down the production and consumption of
listed HFCs on the schedule listed in the AIM Act, this rulemaking will
determine an approach to allocating annual allowances in 2024 and later
years and make adjustments based on the lessons learned from
implementation of the framework rule.
Statement of Need: This rule is required to meet the statutory
provisions of subsection (e), among other provisions, of the AIM Act.
Summary of Legal Basis: The American Innovation and 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. This rule focuses on the
first of these areas.
Alternatives: The AIM Act provides discretion and flexibility for
how EPA may establish allowance and trading programs. However, the
Agency must adhere to the stepdown schedule prescribed in the AIM Act,
and must also issue allowances for each calendar year by October 1 of
the prior calendar year.
Anticipated Cost and Benefits: For this rulemaking, EPA will
prepare and update a Regulatory Impact Analysis (RIA) to provide the
public with estimates of the potential costs and benefits of our
proposed and final provisions.
Risks: EPA is still evaluating the scope and risks associated with
a prospective rule.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/03/22 87 FR 66372
NPRM Comment Period End............. 12/19/22
Final Rule.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
Additional Information:
Agency Contact: Wei-An Chang, Environmental Protection Agency,
Office of Air and Radiation, 1200 Pennsylvania Avenue NW, Washington,
DC 20460, Phone: 202 564-6658, Email: [email protected].
RIN: 2060-AV45
EPA--OAR
177. Restrictions on Certain Uses of Hydrofluorocarbons Under
Subsection (i) of the American Innovation and Manufacturing Act [2060-
AV46]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: American Innovation and Manufacturing (AIM) Act of
2020
CFR Citation: 40 CFR 84.
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 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:
[[Page 11139]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
Final Rule.......................... 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
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.
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
178. Implementing Regulations Under 40 CFR Part 60 Subpart Ba Adoption
and Submittal of State Plans for Designated Facilities [2060-AV48]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 7411 Clean Air Act; 42 U.S.C. 7414, 7601
CFR Citation: 40 CFR 60, subpart Ba.
Legal Deadline: None.
Abstract: The Clean Air Act (CAA) section 111(d) directs the EPA to
promulgate a procedure ``similar'' to that provided by CAA section 110,
under which states submit 111(d) plans for regulatory implementation to
the EPA. In 1975, EPA addressed this requirement by promulgating
``implementing regulations'' under 40 CFR part 60, subpart B. These
implementing regulations contain, among other things, deadlines for the
submission of, and for EPA's action on, ``state plans'', as well as
deadlines for the promulgation of related ``federal plans''. In 2019
the EPA finalized 40 CFR part 60, subpart Ba, a new subpart that
updated the implementing regulations for prospective emission
guidelines. However, the United States Court of Appeals for the
District of Columbia Circuit (in American Lung Ass'n v. EPA, No. 19-
1140) vacated the subpart Ba state and federal plan timelines due to a
finding of inadequate justification. This action will amend the
timelines in Subpart Ba consistent with the court vacatur, and will
propose additional updates and tools to aid in implementation of
emission guidelines.
Statement of Need: In January 2021, the D.C. Circuit Court vacated
the timelines in 40 CFR part 60, subpart Ba. The Supreme Court
subsequently reversed and remanded the D.C. Circuit Court's opinion
(West Virginia v. EPA, 142 S. Ct. 2587, June 30, 2022); however, no
Petitioner sought certiorari on, and the West Virginia decision did not
implicate, the D.C. Circuit's vacatur of portions of subpart Ba. This
action will replace the timelines vacated by the D.C. Circuit Court.
These amendments, when finalized, will apply to any emission guideline
promulgated after July 8, 2019, and will provide the complete framework
for state implementation of upcoming emission guidelines.
Summary of Legal Basis: Clean Air Act section 111(d) provides the
legal framework for the development and implementation of state plans
to implement emission guidelines.
Alternatives: There are no alternatives at this time.
Anticipated Cost and Benefits: There are no anticipated costs or
benefits because the implementing regulations do not impose any
pollution control requirements.
Risks: There are no anticipated risks because the implementing
regulations do not impose any pollution control requirements.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 12/00/22
Final Rule.......................... 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: State.
Additional Information:
Agency Contact: Michelle Bergin, Environmental Protection Agency,
Office of Air and Radiation, D205-02, Research Triangle Park, NC 27711,
Phone: 919 541-2726, Email: [email protected].
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].
RIN: 2060-AV48
EPA--OAR
179. Multi-Pollutant Emissions Standards for Model Years 2027 and Later
Light-Duty and Medium-Duty Vehicles [2060-AV49]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7401 to 7671q
CFR Citation: 40 CFR 86; 40 CFR 600.
Legal Deadline: None.
Abstract: Per EPA's authority under the Clean Air Act section
202(a), EPA will propose a comprehensive set of emissions standards for
greenhouse gases and criteria pollutants for the light-duty vehicle
sector as well as the heavy-duty vehicle Class 2B and 3 sectors. The
standards will begin with model year 2027 light-duty vehicles, with
stringency levels set at least through model year 2030. This action is
also supported by the President's Executive Order 14037, titled
``Strengthening American Leadership in Clean Cars and Trucks.'' EPA
will coordinate with the Department of Transportation in developing
this proposal as appropriate.
Statement of Need: On August 5, 2021, President Biden issued
Executive Order 14307 on Strengthening American Leadership in Clean
Cars and Trucks which ordered the Administrator of the Environmental
Protection Agency (EPA) to ``establish new multi-pollutant emissions
standards, including for greenhouse gas emissions, for light- and
medium-duty vehicles beginning with model year 2027 and extending
through and including at least model year 2030.'' This rulemaking will
establish standards beyond 2026.
Summary of Legal Basis: Clean Air Act (42 U.S.C. 7401).
Alternatives: EPA will asses alternative standards in the
development of the proposal.
Anticipated Cost and Benefits: EPA will assess costs and benefits
in the development of the proposal.
Risks: EPA will assess risks in the development of the proposal.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23
Final Rule.......................... 03/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal.
Additional Information:
Sectors Affected: 811198 All Other Automotive Repair and
Maintenance; 336111 Automobile Manufacturing; 423110 Automobile and
Other Motor Vehicle Merchant Wholesalers; 811112 Automotive Exhaust
System Repair; 81111 Automotive Mechanical and Electrical Repair and
Maintenance; 336112 Light Truck and Utility Vehicle Manufacturing;
335312 Motor and Generator Manufacturing.
Agency Contact: Jessica Mroz, Environmental Protection Agency,
Office of Air and Radiation, 1200 Pennsylvania Avenue NW, Washington,
DC 20460, Phone: 202 564-1094, Email: [email protected].
Christopher Lieske, Environmental Protection Agency, Office of Air
and
[[Page 11140]]
Radiation, 2565 Plymouth Road, Ann Arbor, MI 48105, Phone: 734 214-
4584, Email: [email protected].
RIN: 2060-AV49
EPA--OAR
180. Reconsideration of the National Ambient Air Quality Standards for
Particulate Matter [2060-AV52]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 7401 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
reconsideration of the December 2020 decision to retain the PM NAAQS
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 developed a Supplement to the 2019 PM
Integrated Science Assessment (ISA) and a Policy Assessment to take
into account the most up-to-date science on public health impacts of
PM, and engaged with the chartered Clean Air Scientific Advisory
Committee (CASAC) and a newly-constituted expert CASAC 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: 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. However, 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.
Risks: The reconsideration builds on the review completed in 2020,
which included the preparation by EPA of an Integrated Review Plan, an
Integrated Science Assessment, and 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 prepared a
Supplement to the 2019 PM Integrated Science Assessment and a Policy
Assessment, which was reviewed at a public meeting by the CASAC. These
documents informed the Administrator's proposed decisions on whether to
revise the PM NAAQS, and the Administrator's final decisions on whether
to revise the PM NAAQS will take into consideration these documents,
CASAC advice, and public comment on the proposed decision.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice.............................. 10/08/21 86 FR 56263
Notice.............................. 05/26/22 87 FR 31965
NPRM................................ 01/00/23
Final Rule.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: None.
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].
RIN: 2060-AV52
EPA--OAR
181. NESHAP: Coal- and Oil-Fired Electric Utility Steam Generating
Units--Review of the Residual Risk and Technology Review [2060-AV53]
Priority: Economically 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 part 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
[[Page 11141]]
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 RTR portion of the May
22, 2020 final action and, under this action, will take appropriate
action resulting from that review. EPA is reviewing the Reconsideration
of the Supplemental Finding in a separate action.
Statement of Need: Executive Order 13990, ``Protecting Public
Health and the Environment and Restoring Science To Tackle the Climate
Crisis,'' directs EPA to review the May 2020 RTR. EPA will issue the
results of the review in a notice of proposed rulemaking and will
solicit comment on the review.
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: EPA has evaluated several options for reviewing the
RTR and will take comment on the review.
Anticipated Cost and Benefits: EPA is still evaluating the scope
and risks of a prospective rule.
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................................ 03/00/23
Final Rule.......................... 03/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Additional Information:
Sectors Affected: 221112 Fossil Fuel Electric Power Generation;
221122 Electric Power Distribution.
Agency Contact: 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].
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-AV53
EPA--OAR
182. Methane Emissions and Waste Reduction Incentive Program
and Revisions to the Mandatory Greenhouse Gas Reporting Rule for
Petroleum and Natural Gas Systems [2060-AV83]
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. Clean Air Act
CFR Citation: 40 CFR 98.
Legal Deadline: None.
Abstract: The Inflation Reduction Act of 2022 adds section 136,
``Methane Emissions and Waste Reduction Incentive Program'' to title I
of the Clean Air Act. Section 136(c) directs the Administrator to
impose and collect a charge for excess methane emissions from
applicable facilities that report to the Greenhouse Gas Reporting
Program petroleum and natural gas systems source category (40 CFR part
98, subpart W) and that exceed statutorily specified waste emissions
thresholds. Section 136(h) requires revisions to the requirements of 40
CFR part 98, subpart W to ensure that reporting and calculation of
charges are based on empirical data and accurately reflect total
emissions from applicable facilities. The purpose of this action is to
amend 40 CFR part 98, subpart W and meet directives set forth in
section 136 with respect to the Methane Emissions and Waste Reduction
Incentive Program.
Statement of Need: This rule implements Clean Air Act section 136,
which was added by the Inflation Reduction Act of 2022.
Summary of Legal Basis: The Inflation Reduction Act of 2022 adds
section 136, ``Methane Emissions and Waste Reduction Incentive
Program'' to the Clean Air Act. Section 136(c) directs the
Administrator to impose and collect a charge for excess methane
emissions from applicable facilities that report to the Greenhouse Gas
Reporting Program petroleum and natural gas systems source category (40
CFR part 98, subpart W) and that exceed statutorily specified waste
emissions thresholds. Section 136(h) requires revisions to the
requirements of 40 CFR part 98, subpart W to ensure that reporting and
calculation of charges are based on empirical data and accurately
reflect total emissions from applicable facilities. The purpose of this
action is to amend 40 CFR part 98, subpart W and meet directives set
forth in section 136 with respect to the Methane Emissions and Waste
Reduction Incentive Program.
Alternatives: The EPA will evaluate several options related to
calculation of reported emissions and charges and will solicit comment
on those options.
Anticipated Cost and Benefits: The Agency will prepare an analysis
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................................ 03/00/23
Final Rule.......................... 10/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Federalism: Undetermined.
Agency Contact: Jennifer Bohman, Environmental Protection Agency,
Office of Air and Radiation, 1200 Pennsylvania Avenue NW, Washington,
DC 20460, Phone: 202 343-9548, Email: [email protected].
RIN: 2060-AV83
EPA--OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION (OCSPP)
Proposed Rule Stage
183. Fees for the Administration of the Toxic Substances Control Act
(TSCA) [2070-AK64]
Priority: Other Significant.
Legal Authority: 15 U.S.C. 2625 Toxic Substances Control Act
CFR Citation: 40 CFR 700.
Legal Deadline: Final, Statutory, October 1, 2021, TSCA section
26(b)(4)(F) requires EPA to review and adjust the fees established in
its 2018 rule every three years to reflect changes in program costs.
Abstract: In January 2021, EPA proposed updates and adjustments to
the 2018 fees rule established under the Toxic Substances Control Act
(TSCA). TSCA requires EPA to review and, if necessary, adjust the fees
every three years, after consultation with parties potentially subject
to fees. EPA proposed modifications to the TSCA fees and fee categories
for fiscal years 2022, 2023 and 2024, and explained the methodology by
which the proposed TSCA fees were determined. EPA proposed to add three
new fee categories: A Bona Fide Intent to Manufacture or Import Notice,
a Notice of Commencement of Manufacture or
[[Page 11142]]
Import, and an additional fee associated with test orders. In addition,
EPA proposed exemptions for entities subject to certain fee triggering
activities; including: An exemption for research and development
activities; an exemption for entities manufacturing less than 2,500
lbs. of a chemical subject to an EPA-initiated risk evaluation fee; an
exemption for manufacturers of chemical substances produced as a non-
isolated intermediate; and exemptions for manufacturers of a chemical
substance subject to an EPA-initiated risk evaluation if the chemical
substance is imported in an article, produced as a byproduct, or
produced or imported as an impurity. EPA updated its cost estimates for
administering TSCA, relevant information management activities and
individual fee calculation methodologies. EPA proposed a volume-based
fee allocation for EPA-initiated risk evaluation fees in any scenario
where a consortium is not formed and is proposing to require export-
only manufacturers to pay fees for EPA-initiated risk evaluations. EPA
also proposed various changes to the timing of certain activities
required throughout the fee payment process. However, in light of
public comments, EPA has decided to issue a supplemental proposal and
seek additional public comment on changes to the January 2021 proposal.
Statement of Need: The Toxic Substances Control Act (TSCA), 15
U.S.C. 2601 et seq., as amended by the Frank R. Lautenberg Chemical
Safety for the 21st Century Act of 2016 (Pub. L. 114-182) provides EPA
with authority to establish fees to defray approximately but not more
than 25 percent of the costs associated with administering TSCA
sections 4, 5, and 6, as amended, as well as the costs of collecting,
processing, reviewing, and providing access to and protecting
information about chemical substances from disclosure as appropriate
under TSCA section 14.
Summary of Legal Basis: This rule is being promulgated under TSCA
section 26(b), 15 U.S.C. 2625(b).
Alternatives: EPA is considering options for setting fees for each
of the fee-trigger activities as well as allocating the fees more
equitably among fee payers.
Anticipated Cost and Benefits: The proposed fee levels will be
determined by estimating the total annual costs of administering
relevant activities under TSCA sections 4, 5, 6 and 14; identifying the
full amount to be defrayed (i.e., 25% of those annual costs); and
allocating that amount across the fee-triggering activities. The
principal benefit of the rule is to provide EPA a sustainable source of
funding necessary to implement TSCA as mandated under the Frank R.
Lautenberg Chemical Safety for the 21st Century.
Risks: This action will not establish an environmental standard
intended to mitigate environmental health risks or safety risks.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/11/21 86 FR 1890
Supplemental NPRM................... 11/16/22 87 FR 68647
SNPRM Comment Period End............ 01/17/23
Final Rule.......................... 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Additional Information: EPA-HQ-OPPT-2020-0493.
Sectors Affected: 325 Chemical Manufacturing; 324 Petroleum and
Coal Products Manufacturing; 424 Merchant Wholesalers, Nondurable
Goods.
URL For More Information: https://www.epa.gov/tsca-fees.
URL For Public Comments: https://www.regulations.gov/document/EPA-HQ-OPPT-2020-0493-0001.
Agency Contact: Marc Edmonds, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7404T, Washington, DC 20460, Phone: 202 566-0758,
Email: [email protected].
Victoria Ellenbogen, Environmental Protection Agency, Office of
Chemical Safety and Pollution Prevention, Mail Code 7404T, 1200
Pennsylvania Avenue NW, Washington, DC 20460, Phone: 202 564-2053,
Email: [email protected].
RIN: 2070-AK64
EPA--OCSPP
184. Methylene Chloride; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK70]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Legal Authority: 15 U.S.C. 2605 Toxic Substances Control Act
CFR Citation: 40 CFR 751.
Legal Deadline: NPRM, Statutory, June 24, 2021, TSCA section 6(c).
Final, Statutory, June 24, 2022, TSCA section 6(c).
Abstract: This proposed rulemaking will address the unreasonable
risk of injury to health identified in the final risk evaluation for
methylene chloride (MC). Section 6(a) of the Toxic Substances Control
Act (TSCA) requires EPA to eliminate unreasonable risks of injury to
health or the environment that the Administrator has determined in a
TSCA section 6(b) risk evaluation are presented by a chemical substance
under the conditions of use. EPA's risk evaluation for methylene
chloride, describing the conditions of use and presenting EPA's
determinations of unreasonable risk, is in docket EPA-HQ-OPPT-2019-
0437, with additional information in docket EPA-HQ-OPPT-2016-0742.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of methylene chloride that were identified in a risk
evaluation completed under TSCA section 6(b). EPA reviewed the
exposures and hazards of methylene chloride, 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 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 of the substance, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce of the substance for a particular use or for a particular
use above a set concentration, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce for a
particular use or for a particular use above a set concentration; (3)
Require minimum warnings and instructions with respect to use,
distribution in commerce, or disposal; (4) Require recordkeeping or
testing by manufacturers or processors; (5) Prohibit or regulate any
manner or method of commercial use; (6) Prohibit
[[Page 11143]]
or regulate any manner or method of disposal for commercial purposes;
and/or (7) Direct manufacturers or processors to give notice of the
unreasonable risk to distributors, other persons and the public and
replace or repurchase the substance.
Alternatives: 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,
methylene chloride presents unreasonable risks to human health. EPA
must issue risk management requirements 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................................ 02/00/23
Final Rule.......................... 08/00/24
------------------------------------------------------------------------
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.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information: EPA-HQ-OPPT-2020-0465.
Sectors Affected: 325 Chemical Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-methylene-chloride.
Agency Contact: Ingrid Feustel, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, Mail Code 7405M,
1200 Pennsylvania Avenue NW, Washington, DC 20460, Phone: 202 564-3199,
Email: [email protected].
Joel Wolf, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7405M, Washington, DC 20460, Phone: 202 564-0432, Email:
[email protected].
RIN: 2070-AK70
EPA--OCSPP
185. 1-Bromopropane; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK73]
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, August 12, 2021, TSCA section
6(c).
Final, Statutory, August 12, 2022, TSCA section 6(c).
Abstract: The proposed rulemaking will address the unreasonable
risk of injury to health identified in the final risk evaluation for 1-
bromopropane (1-BP). Section 6(a) of the Toxic Substances Control Act
(TSCA) requires EPA to eliminate unreasonable risks of injury to health
or the environment that the Administrator has determined in a TSCA
section 6(b) risk evaluation are presented by a chemical substance
under the conditions of use. EPA's risk evaluation for 1-bromopropane,
describing the conditions of use and presenting EPA's determinations of
unreasonable risk, is in docket EPA-HQ-OPPT-2019-0235, with additional
information in docket EPA-HQ-OPPT-2016-0741.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of 1-bromopropane that were identified in a risk
evaluation completed under TSCA section 6(b). EPA reviewed the
exposures and hazards of 1-bromopropane, 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 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 of the substance, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce of the substance for a particular use or for a particular
use above a set concentration, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce for a
particular use or for a particular use above a set concentration; (3)
Require minimum warnings and instructions with respect to use,
distribution in commerce, or disposal; (4) Require recordkeeping or
testing by manufacturers or processors; (5) Prohibit or regulate any
manner or method of commercial use; (6) Prohibit or regulate any manner
or method of disposal for commercial purposes; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors, other persons, and the public and replace or repurchase
the substance.
Alternatives: 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,
1-bromopropane presents unreasonable risks to human health. EPA must
issue risk management requirements 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................................ 09/00/23
Final Rule.......................... 08/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, State.
[[Page 11144]]
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: EPA-HQ-OPPT-2020-0471.
Sectors Affected: 325 Chemical Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-evaluation-1-bromopropane-1-bp.
Agency Contact: Amy Shuman, Environmental Protection Agency, Office
of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue
NW, Washington, DC 20460, Phone: 202 564-2978, Email:
[email protected].
Joel Wolf, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7405M, Washington, DC 20460, Phone: 202 564-0432, Email:
[email protected].
RIN: 2070-AK73
EPA--OCSPP
186. Carbon Tetrachloride; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK82]
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, November 4, 2021, TSCA section
6(c). Final, Statutory, November 4, 2022, TSCA section 6(c).
Abstract: This proposed rulemaking will address the unreasonable
risks of injury to health identified in the final risk evaluation for
carbon tetrachloride (CTC). Section 6(a) of the Toxic Substances
Control Act (TSCA) requires EPA to eliminate unreasonable risks of
injury to health or the environment that the Administrator has
determined in a TSCA section 6(b) risk evaluation are presented by a
chemical substance under the conditions of use. EPA's risk evaluation
for carbon tetrachloride, describing the conditions of use and
presenting EPA's determinations of unreasonable risk, is in docket EPA-
HQ-OPPT-2019-0499, with additional information in docket EPA-HQ-OPPT-
2016-0733.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of Carbon Tetrachloride (CTC) that were identified
in a risk evaluation completed under TSCA section 6(b). EPA reviewed
the exposures and hazards of Carbon Tetrachloride uses, 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 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 of the substance, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce for a particular use or for a particular use above a set
concentration, or limit the amount of the substance which may be
manufactured, processed, or distributed in commerce for a particular
use or for a particular use above a set concentration; (3) Require
minimum warnings and instructions with respect to use, distribution in
commerce, or disposal; (4) Require recordkeeping or testing by
manufacturers or processors; (5) Prohibit or regulate any manner or
method of commercial use; (6) Prohibit or regulate any manner or method
of disposal for commercial purposes; and/or (7) Direct manufacturers or
processors to give notice of the unreasonable risk to distributors,
other persons, and the public and replace or repurchase the substance.
Alternatives: 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,
Carbon Tetrachloride presents unreasonable risks to human health. EPA
must issue risk management requirements 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................................ 05/00/23
Final Rule.......................... 08/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal.
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: EPA-HQ-OPPT-2020-0592.
Sectors Affected: 325 Chemical Manufacturing; 324 Petroleum and
Coal Products Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-carbon-tetrachloride.
Agency Contact: Claudia Menasche, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7405M, Washington, DC 20460, Phone: 202 564-3391,
Email: [email protected]
RIN: 2070-AK82
EPA--OCSPP
187. Trichloroethylene; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK83]
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, November 30, 2021, TSCA section
6(c). Final, Statutory, November 30, 2022, TSCA section 6(c). Abstract:
This proposed rulemaking will address the
[[Page 11145]]
unreasonable risk of injury to health identified in the final risk
evaluation for trichloroethylene (TCE). Section 6(a) of the Toxic
Substances Control Act (TSCA) requires EPA to eliminate unreasonable
risks of injury to health or the environment that the Administrator has
determined in a TSCA section 6(b) risk evaluation are presented by a
chemical substance under the conditions of use. EPA's risk evaluation
for TCE, describing the conditions of use and presenting EPA's
determination of unreasonable risk, is in docket EPA-HQ-OPPT-2019-0500,
with additional information in docket EPA-HQ-OPPT-2016-0737.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of TCE that were identified in a risk evaluation
completed under TSCA section 6(b). EPA reviewed the exposures and
hazards of TCE, 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 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 of the substance, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce of the substance for a particular use or for a particular
use above a set concentration, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce for a
particular use or for a particular use above a set concentration; (3)
Require minimum warnings and instructions with respect to use,
distribution in commerce, or disposal; (4) Require recordkeeping or
testing by manufacturers or processors; (5) Prohibit or regulate any
manner or method of commercial use; (6) Prohibit or regulate any manner
or method of disposal for commercial purposes; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors, other persons, and the public and replace or repurchase
the substance if required.
Alternatives: 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,
TCE presents unreasonable risks to human health. EPA must issue risk
management requirements 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................................ 06/00/23
Final Rule.......................... 09/00/24
------------------------------------------------------------------------
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.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information: EPA-HQ-OPPT-2020-0642.
Sectors Affected: 325 Chemical Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-trichloroethylene-tce.
Agency Contact: Katelan McNamara, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Washington, DC 20460, Phone: 202 564-4361, Email:
[email protected].
Joel Wolf, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7405M, Washington, DC 20460, Phone: 202 564-0432, Email:
[email protected].
RIN: 2070-AK83
EPA--OCSPP
188. Perchloroethylene; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK84]
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, 2021, TSCA sec. 6(c).
Abstract: This proposed rulemaking will address the unreasonable
risk of injury to health identified in the final risk evaluation for
perchloroethylene (PCE). Section 6(a) of the Toxic Substances Control
Act (TSCA) requires EPA to address eliminate unreasonable risks of
injury to health or the environment that the Administrator has
determined in a TSCA section 6(b) risk evaluation are presented by a
chemical substance under the conditions of use EPA's risk evaluation
for PCE, describing the conditions of use and presenting EPA's
determination of unreasonable risk, is in docket EPA-HQ-OPPT-2019-0502,
with additional information in docket EPA-HQ-OPPT-2016-0732.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of PCE that were identified in a risk evaluation
completed under TSCA section 6(b). EPA reviewed the exposures and
hazards of PCE, 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 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
[[Page 11146]]
in commerce of the substance, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce of the substance for a particular use or for a particular
use above a set concentration, or limit the amount of the substance
which may be manufactured, processed, or distributed in commerce for a
particular use or for a particular use above a set concentration; (3)
Require minimum warnings and instructions with respect to use,
distribution in commerce, or disposal; (4) Require recordkeeping or
testing by manufacturers or processors; (5) Prohibit or regulate any
manner or method of commercial use; (6) Prohibit or regulate any manner
or method of disposal for commercial purposes; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors, other persons, and the public and replace or repurchase
the substance.
Alternatives: 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,
PCE presents unreasonable risks to human health. EPA must issue risk
management requirements 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................................ 04/00/23
Final Rule.......................... 08/00/24
------------------------------------------------------------------------
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.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information: EPA-HQ-OPPT-2020-0720.
Sectors Affected: 325 Chemical Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-perchloroethylene.
Agency Contact: Kelly Summers, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7405M, Washington, DC 20460, Phone: 202 564-2201,
Email: [email protected].
Joel Wolf, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7405M, Washington, DC 20460, Phone: 202 564-0432, Email:
[email protected].
RIN: 2070-AK84
EPA--OCSPP
189. N-Methylpyrrolidone; Rulemaking Under Section 6(a) of the Toxic
Substances Control Act (TSCA) [2070-AK85]
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 23, 2021, TSCA sec. 6(c).
Final, Statutory, December 23, 2022, TSCA sec. 6(c).
Abstract: This proposed rulemaking will address the unreasonable
risk of injury to health identified in the final risk evaluation for n-
methylpyrrolidone (NMP). Section 6(a) of the Toxic Substances Control
Act (TSCA) requires EPA to eliminate unreasonable risks of injury to
health or the environment that the Administrator has determined in a
TSCA section(b) risk evaluation are presented by a chemical substance
under the conditions of use. EPA's risk evaluation for NMP, describing
the conditions of use and presenting EPA's determination of
unreasonable risk, is in docket EPA-HQ-OPPT-2019-0236, with additional
information in docket EPA-HQ-OPPT-2016-0743.
Statement of Need: This rulemaking is needed to address the
unreasonable risks of n-methylpyrrolidone (NMP) that were identified in
a risk evaluation completed under TSCA section 6(b). EPA reviewed the
exposures and hazards of NMP, 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 of the substance, or the limit the amount of the substance
which may be manufactured, processed, or distributed in commerce; (2)
Prohibit or otherwise restrict manufacture, processing, or distribution
in commerce of the substance for a particular use or a particular use
above a set concentration, or limit the amount of the substance which
may be manufactured, processed, or distributed in commerce for a
particular use for a particular use above a set concentration; (3)
Require minimum warnings and instructions with respect to use,
distribution in commerce, or disposal; (4) Require recordkeeping or
testing by manufacturers or processors; (5) Prohibit or regulate any
manner or method of commercial use; (6) Prohibit or regulate any manner
or method of disposal for commercial purposes; and/or (7) Direct
manufacturers or processors to give notice of the unreasonable risk to
distributors, other persons, and the public and replace or repurchase
the substance.
Alternatives: 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,
NMP presents unreasonable risks to human health. EPA must issue risk
management requirements so that this
[[Page 11147]]
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................................ 09/00/23
Final Rule.......................... 08/00/24
------------------------------------------------------------------------
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.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Additional Information: EPA-HQ-OPPT-2020-0744.
Sectors Affected: 325 Chemical Manufacturing.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-n-methylpyrrolidone-nmp.
Agency Contact: Joel Wolf, Environmental Protection Agency, Office
of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Avenue
NW, Mail Code 7405M, Washington, DC 20460, Phone: 202 564-0432, Email:
[email protected].
Clara Hull, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7405M, Washington, DC 20460, Phone: 202 564-3954, Email:
[email protected].
RIN: 2070-AK85
EPA--OCSPP
190. Procedures for Chemical Risk Evaluation Under the Toxic Substances
Control Act (TSCA) [2070-AK90]
Priority: Other Significant.
Legal Authority: 15 U.S.C. 2605 Toxic Substances Control Act
CFR Citation: 40 CFR 702.
Legal Deadline: None.
Abstract: As required under section 6(b)(4) of the Toxic Substances
Control Act (TSCA), EPA published a final rule on July 20, 2017, that
established a process for conducting risk evaluations to determine
whether a chemical substance presents an unreasonable risk of injury to
health or the environment, without consideration of costs or other non-
risk factors, including an unreasonable risk to a potentially exposed
or susceptible subpopulation, under the conditions of use. This process
incorporates the science requirements of the amended statute, including
best available science and weight of the scientific evidence. The final
rule established the steps of a risk evaluation process including:
scope, hazard assessment, exposure assessment, risk characterization,
and risk determination. The Agency is now considering revisions to that
final rule and will solicit public comment through a notice of proposed
rulemaking.
Statement of Need: EPA's 2017 final rule that established a process
for conducting risk evaluations under TSCA was challenged by a group of
environmental and public health organizations. In November 2019, the
court in Safer Chemicals, Healthy Families v. US EPA, 943 F.3d 397 (9th
Cir. 2019) remanded to EPA without vacatur certain provisions of the
rule. Additionally, the 2017 rule was identified for review in
accordance with Executive Order 13990, Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis (86 FR
7037, January 25, 2021). Consistent with direction by the 9th Circuit
and incorporating lessons learned in the process carrying out the first
ten TSCA risk evaluations, the Agency is now considering revisions to
the final rule and will solicit public comment through a notice of
proposed rulemaking.
Summary of Legal Basis: TSCA section 6(b)(4) directed EPA to
establish the process for conducting risk evaluations on chemical
substances under TSCA to identify any unreasonable risk of injury to
health or the environment. Agencies have inherent authority to
reconsider past decisions and to revise, replace, or repeal a decision
to the extent permitted by law and supported by a reasoned explanation.
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). EPA is
now exercising its inherent authority to reconsider past decisions and
as such is considering revisions to that final rule based on 9th
Circuit's opinion in Safer Chemicals, Healthy Families v. US EPA, 943
F.3d 397 (9th Cir. 2019) to ensure that TSCA risk evaluations are
supported by the best available science, aligned with the statutory
requirements, and consistent with Congress' intent in the 2016
amendments.
Alternatives: Alternatives will be developed as part of the
development of a proposed rule.
Anticipated Cost and Benefits: EPA will prepare a regulatory impact
analysis as part of the development of a proposed rule.
Risks: This is a procedural rule related to risk evaluations and is
not intended to directly address any particular risk. However, the rule
would establish procedures by which EPA will evaluate whether a
chemical substance presents an unreasonable risk of injury to health or
the environment, including unreasonable risk to a potentially exposed
or susceptible subpopulation. Rigorous procedures that support accurate
identification of unreasonable risk are necessary to inform subsequent
risk management action.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Additional Information:
Sectors Affected: 325 Chemical Manufacturing; 324110 Petroleum
Refineries.
URL For More Information: https://www.epa.gov/assessing-and-managing-chemicals-under-tsca.
Agency Contact: Susanna Blair, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania
Avenue NW, Mail Code 7401M, Washington, DC 20460, Phone: 202 564-4371,
Email: [email protected].
RIN: 2070-AK90
EPA--OCSPP
191. Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead
Post Abatement Clearance Levels [2070-AK91]
Priority: Economically Significant. Major status under 5 U.S.C. 801
is undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 15 U.S.C. 2681; 15 U.S.C. 2682; 15 U.S.C. 2683; 15
U.S.C. 2684
CFR Citation: 40 CFR 745.
Legal Deadline: None.
Abstract: EPA's dust-lead hazard standards (DLHS) support the lead-
based paint (LBP) activities and disclosure programs under Residential
Lead-Based Paint Hazard Reduction Act of 1992 by providing the basis
for risk assessors to determine whether dust-lead hazards are present,
and apply to target housing (i.e., most pre-1978 housing) and child-
occupied facilities
[[Page 11148]]
(pre-1978 non-residential properties where children 6 years of age or
under spend a significant amount of time such as daycare centers and
kindergartens). On July 9, 2019, EPA promulgated a final rule to lower
the DLHS from 40 micrograms of lead per square foot ([micro]g/ft2) to
10 [micro]g/ft2 for floors, and from 250 [micro]g/ft2 to 100 [micro]g/
ft2 for window sills. EPA's dust-lead clearance levels (DLCL) indicate
the amount of lead in dust on a surface following the completion of an
abatement activity. On January 6, 2021, EPA promulgated a final rule to
lower the DLCL from 40 [micro]g/ft2 to 10 [micro]g/ft2 for floors, and
from 250 [micro]g/ft2 to 100 [micro]g/ft2 for window sills. The Agency
is now in the process of reconsidering the July 2019 and January 2021
final rules in keeping with Executive Order 13990 (addressing the
protection of public health and the environment and restoring science
to tackle the climate crisis). In addition, on May 14, 2021, the United
States Court of Appeals for the Ninth Circuit issued an opinion to
remand without vacatur the 2019 DLHS final rule and directed EPA to
reconsider the 2019 DLHS rule in conjunction with a reconsideration of
the DLCL. Additionally, EPA is considering revising the regulatory
definition of target housing to implement a change to the statutory
definition to include zero-bedroom dwellings if a child is a resident.
This rulemaking will also propose several amendments to the lead-based
paint regulations. EPA intends to solicit public comment through a
notice of proposed rulemaking.
Statement of Need: On July 9, 2019, EPA promulgated a final rule to
lower the DLHS from 40 micrograms of lead per square foot ([micro]g/
ft2) to 10 [micro]g/ft2 for floors, and from 250 [micro]g/ft2 to 100
[micro]g/ft2 for window sills. EPA's dust-lead clearance levels (DLCL)
indicate the amount of lead in dust on a surface following the
completion of an abatement activity. On January 6, 2021, EPA
promulgated a final rule to lower the DLCL from 40 [micro]g/ft2 to 10
[micro]g/ft2 for floors, and from 250 [micro]g/ft2 to 100 [micro]g/ft2
for window sills. The Agency is now in the process of reconsidering the
July 2019 and January 2021 final rules in keeping with Executive Order
13990 (addressing the protection of public health and the environment
and restoring science to tackle the climate crisis). In addition, on
May 14, 2021, the United States Court of Appeals for the Ninth Circuit
issued an opinion to remand without vacatur the 2019 DLHS final rule
and directed EPA to reconsider the 2019 DLHS rule in conjunction with a
reconsideration of the DLCL.
Summary of Legal Basis: EPA is proposing this rule under the
authority of sections 401, 402, 403, 404, and 406 of the Toxic
Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as amended by
Title X of the Housing and Community Development Act of 1992 (also
known as the Residential Lead-Based Paint Hazard Reduction Act of 1992
or ``Title X'') (Pub. L. 102-550), and section 237(c) of Title II of
Division K of the Consolidated Appropriations Act, 2017 (Pub. L. 115-
31), as well as sections 1004 and 1018 of Title X (42 U.S.C. 4851b,
4852d), as amended by section 237(b) of Title II of Division K of the
Consolidated Appropriations Act, 2017.
Alternatives: To update the DLHS and DLCL, EPA must take a number
of steps including health, exposure, and economic analyses related to
various DLHS and DLCL. An analysis estimating the health implications
of possible revisions of applicable DLHS and DLCL will be conducted.
Anticipated Cost and Benefits: An economic analysis of candidate
DLHS and DLCL will be conducted for purposes of evaluating the
potential costs and benefits of possible revisions. EPA's economic
analysis will involve establishing a baseline lead hazard profile for
facilities affected by the rule based on knowledge of any applicable
existing rules and standards and levels of compliance with those rules
and standards. Candidate DLHS and DLCL will then need to be analyzed
with reference to this baseline. Economic modeling will be performed to
link each candidate DLHS and DLCL to the associated scenario of health
endpoints and their associated aggregated ``benefit'' valuations for
the whole affected population. Using assumptions about the scope of
interventions, scenarios will be developed to measure aggregate costs
of compliance for each candidate clearance level.
Risks: This rulemaking addresses the risk of adverse health effects
associated with dust-lead. exposures in children living in pre-1978
housing and child-occupied facilities, as well as associated potential
health effects in this subpopulation.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 05/00/23
Final Rule.......................... 07/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
Federalism: Undetermined.
Additional Information: Related to RIN 2070-AK66.
Sectors Affected: 92511 Administration of Housing Programs; 541350
Building Inspection Services; 624410 Child Day Care Services; 236
Construction of Buildings; 611110 Elementary and Secondary Schools;
541330 Engineering Services; 531110 Lessors of Residential Buildings
and Dwellings; 92811 National Security; 611519 Other Technical and
Trade Schools; 531 Real Estate; 562910 Remediation Services; 531311
Residential Property Managers; 238 Specialty Trade Contractors; 541380
Testing Laboratories.
URL For More Information: https://www.epa.gov/lead.
Agency Contact: Claire Brisse, Office of Chemical Safety and
Pollution Prevention, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Mail Code 7404T, Washington, DC 20460-0001,
Phone: 202 564-9004, Email: [email protected].
Michelle Price, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7404T, Washington, DC 20460, Phone: 202 566-0744, Email:
[email protected].
RIN: 2070-AK91
EPA--OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)
Proposed Rule Stage
192. Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Legacy Surface
Impoundments [2050-AH14]
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. EPA is developing
[[Page 11149]]
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. 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. Finally, EPA is considering proposing corrective action
requirements for all CCR contamination (regardless of how or when that
CCR was placed) on site of a regulated facility.
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.
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................................ 06/00/23
Final Rule.......................... 06/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State.
Additional Information: 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: 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].
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-AH14
EPA--OLEM
193. Revisions to Standards for the Open Burning/Open Detonation of
Waste Explosives [2050-AH24]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 40 CFR 131; 42 U.S.C. 6924
CFR Citation: 40 CFR 264 and 265.
Legal Deadline: None.
Abstract: This rulemaking will consider revisions to the
regulations that allow for the open burning and detonation (OB/OD) of
waste explosives. The allowance or ``variance'' to the prohibition on
the open burning of hazardous waste was established at a time when
there were no alternatives to the safe disposal of waste explosives.
However, recent findings from the National Academies of Sciences,
Engineering, and Medicine and the EPA have determined that safe
alternatives are now available for many energetic/explosive waste
streams. Because there are safe alternatives in use today that capture
and treat emissions prior to release, the EPA is considering revising
regulations to promote the broader use of these alternatives, where
applicable.
Statement of Need: Technological advances have been made since the
1980 Interim Status regulations were issued that banned the open
burning of hazardous wastes but created an exception to allow open
burning/open detonation (OB/OD) of waste explosives due to a lack of
other safe modes of treatment. In 2019, EPA and the National Academies
of Science, Engineering, and Medicine published reports documenting
safe and available alternative treatment technologies that could be
used in lieu of OB/OD. A rulemaking would clarify how a demonstration
of eligibility must be made before OB/OD can be used or continued, in
light of safe and available alternative treatment technologies.
Summary of Legal Basis: 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).
Alternatives: Based on recent information regarding availability of
safe alternatives, we are considering revising the existing regulation
to explicitly state how a demonstration of eligibility must be made. We
have not identified at this time any alternatives for analysis.
Anticipated Cost and Benefits: The Agency will evaluate anticipated
costs and benefits as part of the rule development process.
Risks: The Agency will evaluate risk reductions and impacts as part
of the rule development process. It is currently too early in the
process to make such determinations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 07/00/23
Final Rule.......................... 12/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Local, State, Federal.
Federalism: Undetermined.
Additional Information:
Sectors Affected: 56291 Remediation Services; 562910 Remediation
Services; 562211 Hazardous Waste Treatment and Disposal; 325920
Explosives Manufacturing; 56221 Waste Treatment and Disposal; 926150
Regulation, Licensing, and Inspection of Miscellaneous Commercial
Sectors.
Agency Contact: Paul Diss, Environmental Protection Agency, Office
of Land and Emergency Management, 1200 Pennsylvania Avenue NW, Mail
Code 5303T, Washington, DC 20460, Phone: 202 566-0321, Email:
[email protected].
[[Page 11150]]
Sasha Gerhard, Environmental Protection Agency, Office of Land and
Emergency Management, 1200 Pennsylvania Avenue NW, Mail Code 5304T,
Washington, DC 20460, Phone: 202 566-0346, Fax: 703 308-8686, Email:
[email protected].
RIN: 2050-AH24
EPA--OLEM
194. Listing of PFOA, PFOS, PFBS, and GENX as Resource Conservation and
Recovery Act (RCRA) Hazardous Constituents [2050-AH26]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 6912(a)(1); 42 U.S.C. 6912; 42 U.S.C.
6921; 42 U.S.C. 6905; 42 U.S.C. 6924; 42 U.S.C. 6938; 42 U.S.C. 6922
CFR Citation: 40 CFR 261.
Legal Deadline: None.
Abstract: Based on public health and environmental protection
concerns and in response to petitions from the Governor of New Mexico,
Public Employees for Environmental Responsibility, and Berkeley School
of Law on behalf of five other organizations, which request EPA to take
regulatory action on PFAS under RCRA, EPA is evaluating the existing
toxicity and health effects data on four PFAS constituents to determine
if they should be listed as RCRA Hazardous Constituents. If the
existing data for the four PFAS constituents support listing any or all
of these constituents as RCRA hazardous constituents, EPA will propose
to list the constituents in a Federal Register notice for public
comment. The four PFAS chemicals EPA will evaluate are:
perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS),
perfluorobutane sulfonic acid (PFBS), hexafluoropropylene oxide dimer
acid (HFPO-DA, and/or GenX).
Statement of Need: EPA has received three petitions recently
requesting regulatory action on PFAS under the Resource Conservation
and Recovery Act (RCRA), including a petition from the Governor of New
Mexico on June 23, 2021. The New Mexico petition incorporated by
reference the two other petitions received previously by EPA from
Public Employees for Environmental Responsibility (PEER) and the
Environmental Law Clinic at the University of California, Berkeley
School of Law (et al.). This proposed rulemaking is in response to the
three petitions and, if finalized, will list specific PFAS as RCRA
hazardous constituents subject to corrective action requirements at
hazardous waste treatment, storage, and disposal facilities (TSDFs).
Summary of Legal Basis: EPA has received three petitions recently
requesting regulatory action on PFAS under the Resource Conservation
and Recovery Act (RCRA), including a petition from the Governor of New
Mexico on June 23, 2021. The New Mexico petition incorporated by
reference the two other petitions received previously by EPA from
Public Employees for Environmental Responsibility (PEER) and the
Environmental Law Clinic at the University of California, Berkeley
School of Law (et al.). This proposed rulemaking is in response to the
three petitions and, if finalized, will list specific PFAS as RCRA
hazardous constituents subject to corrective action requirements at
hazardous waste treatment, storage, and disposal facilities (TSDFs).
Alternatives: We have reviewed and evaluated the toxicity and
health effects information for specific PFAS to determine if they
should be proposed to be listed as RCRA hazardous constituents on
Appendix VIII, and there are no other alternatives.
Anticipated Cost and Benefits: The Agency will evaluate anticipated
costs and benefits as part of the rule development process.
Risks: The Agency will evaluate risk reductions and impacts as part
of the rule development process. It is currently too early in the
process to make such determinations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Agency Contact: Narendra Chaudhari Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Mail Code 5304T, Washington, DC 20460, Phone: 202 566-0495, Email:
[email protected].
Daniel Lowrey, Environmental Protection Agency, Office of Land and
Emergency Management, 1200 Pennsylvania Avenue NW, Mail Code 5304T,
Washington, DC 20460, Phone: 202 566-1015, Email:
[email protected].
RIN: 2050-AH26
EPA--OLEM
195. Definition of Hazardous Waste Applicable to Corrective Action for
Solid Waste Management Units [2050-AH27]
Priority: Other Significant.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 6905; 42 U.S.C. 6921; 42 U.S.C. 6930; 42
U.S.C. 6912; 42 U.S.C. 6938; 42 U.S.C. 6934; 42, U.S.C. 6939g; 42
U.S.C. 6937; 42 U.S.C. 6939; 42 U.S.C. 6935; 42 U.S.C. 6974; 42 U.S.C.
6924; 42, U.S.C. 6925; 42 U.S.C. 6927
CFR Citation: 40 CFR 260; 40 CFR 261; 40 CFR 270.
Legal Deadline: None.
Abstract: EPA is considering a proposed rule that would modify the
regulations at 40 CFR part 264 to clarify that the definition of
hazardous waste found in RCRA section 1004(5) is applicable to
corrective action for releases from solid waste management units. The
proposed rule would more clearly implement EPA's longstanding
interpretation of its authority under RCRA section 3004(u) and (v).
Statement of Need: This regulatory modification is necessary so
that 40 CFR 264.101 appropriately reflects the scope of corrective
action cleanup requirements for hazardous waste treatment, storage, and
disposal facilities as required by RCRA section 3004(u) and (v). The
revision is expected to clarify that releases of hazardous wastes that
are not regulatory hazardous wastes but meet the definition of
hazardous waste in RCRA section 1004(5), must be addressed in the same
manner as regulatory hazardous wastes under the corrective action
program. This rulemaking is expected to impact the release of certain
PFAS substances and is included as part of EPA's broader PFAS Strategic
Roadmap.
Summary of Legal Basis: The proposed rule would be established
under the authority of sections 3004(u) and (v) of the Solid Waste
Disposal Act of 1965, as amended by subsequent enactments including the
Resource Conservation and Recovery Act of 1976 (RCRA), as amended by
the Hazardous and Solid Waste Amendments of 1984 (HWSA).
Alternatives: We have reviewed the applicable regulations and no
alternatives have been identified.
Anticipated Cost and Benefits: The Agency will evaluate anticipated
costs and benefits as part of the rule development process.
Risks: The Agency will evaluate risk reductions and impacts as part
of the rule development process. It is currently
[[Page 11151]]
too early in the process to make such determinations.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, State.
Federalism: Undetermined.
Agency Contact: Barbara Foster, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-0382, Email:
[email protected].
RIN: 2050-AH27
EPA--OLEM
196. Reporting Requirements for Emissions From Animal Waste Under the
Emergency Planning and Community Right-to-Know Act [2050-AH28]
Priority: Other Significant. Major status under 5 U.S.C. 801 is
undetermined.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 11048; 42 U.S.C. 11002; 42 U.S.C. 11004;
42 U.S.C. 11003; 42 U.S.C. 11049; 42 U.S.C. 11045; 42 U.S.C. 11047
CFR Citation: 40 CFR 355.31.
Legal Deadline: None.
Abstract: The Environmental Protection Agency (EPA) is considering
rescinding the June 13, 2019 final rule, which exempted reporting of
air emissions from animal waste under the Emergency Planning and
Community Right-to-Know Act (EPCRA). On March 23, 2018, the President
signed into law the ``Fair Agricultural Reporting Method Act'' or the
``FARM Act.'' The FARM Act expressly exempts reporting of air emissions
from animal waste (including decomposing animal waste) at a farm from
CERCLA section 103. In the June 13, 2019 final rule, the Agency applied
the CERCLA exemption to reporting under EPCRA. The Agency is now
reconsidering that action.
Statement of Need: EPA is considering reinstating the reporting
requirements for animal waste air emissions at farms under the
Emergency Planning and Community Right-to-Know Act (EPCRA). This action
would propose to rescind the June 13, 2019 final rule exempting EPCRA
reporting of animal waste air emissions at farms. Farms with air
emissions from animal waste exceeding the reportable quantity of
certain extremely hazardous substances defined under EPCRA, would be
required to report to state, tribal and local emergency planning and
response agencies. Any proposed rule would not impact the current
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) reporting exemption for animal waste air emissions at farms.
Summary of Legal Basis: No statutory or judicial deadlines apply to
this rule. The agency is taking this action in response to the U.S.
District Court for D.C. granting EPA a voluntary remand on February 14,
2022, to reconsider the June 2019 rule.
Alternatives: The Agency has not identified at this time any
significant alternatives for analysis.
Anticipated Cost and Benefits: The EPA is analyzing the potential
costs and benefits associated with this action with respect to the
reporting of animal waste air emissions at farms that exceed the
reportable quantity to the State, Tribal, and local authorities.
Risks: This is a reporting rule and would enable State, Tribal and
local authorities to collect information regarding the location and
extent of releases of animal waste air emissions at farms that exceed
the reportable quantity.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/00/23
Final Rule.......................... 01/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Local, State, Tribal.
Federalism: Undetermined.
Agency Contact: Mark Douglas, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 564-5572, Email: [email protected].
RIN: 2050-AH28
EPA--OFFICE OF WATER (OW)
Proposed Rule Stage
197. Federal Baseline Water Quality Standards for Indian Reservations
[2040-AF62]
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 water
quality standards (WQS) for waters on Indian reservations that do not
have WQS under the Clean Water Act. Fifty 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. Addressing this lack of CWA-effective WQS for the waters of
more than 250 Indian reservations is a priority for EPA, given that WQS
are central to implementing the water quality framework of the CWA.
Promulgating baseline WQS would provide more scientific rigor and
regulatory certainty to National Pollutant Discharge Elimination System
permits for discharges to these waters. The baseline WQS would fulfill
requirements for WQS under EPA's regulations, including establishing
designated uses, water quality criteria to protect those uses, and
antidegradation policies to protect high quality waters. EPA initiated
pre-proposal tribal consultation on June 15th, 2021 and engaged in
coordination and consultation with tribes throughout the consultation
period, which ended September 13th, 2021. EPA welcomes consultation
with tribes both during and after the consultation period.
Statement of Need: The federal government has recognized 574
tribes. More than 300 of these tribes have reservation lands and are
eligible to apply for ``treatment in a similar manner as a state''
(TAS) to administer a WQS program. Only 80 tribes, out of over 300
tribes with reservations, currently have such TAS authorization to
administer a WQS program. Of these 80 tribes, only 47 tribes to date
have adopted WQS and submitted them to EPA for review and approval
under the Clean Water Act (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. Addressing this lack of CWA-effective WQS for the waters
of more than 250 Indian reservations is a priority for EPA, 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
[[Page 11152]]
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.''
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.
Today's action is the first step toward fulfilling that outstanding
Determination.
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................................ 03/00/23
Final Rule.......................... 03/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal, State, Tribal.
Additional Information:
URL For More Information: https://www.epa.gov/wqs-tech/promulgation-tribal-baseline-water-quality-standards-under-clean-water-act.
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].
Danielle Anderson, Environmental Protection Agency, Office of
Water, Mail Code 4305T, 1200 Pennsylvania Avenue NW, Washington, DC
20460, Phone: 202 564-1631, Email: [email protected].
RIN: 2040-AF62
EPA--OW
198. Revised Definition of ``Waters of the United States'' [2040-AG13]
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 that
revised the previously-codified definition of ``waters of the United
States'' (WOTUS). The agencies are in the process of revising the
definition of WOTUS to include the waters defined by the familiar
regulations that were in place prior to the 2015 WOTUS rule, with
amendments to reflect the agencies' determination of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court precedent, the best available science, and the agencies'
experience and technical expertise. The agencies also intend to
consider further refinements in a second rule (Rule 2) in light of
additional stakeholder engagement and implementation considerations,
scientific developments, litigation and environmental justice values.
This effort will also be informed by the experience of implementing the
pre-2015 rule, the 2015 Clean Water Rule, the 2020 Navigable Waters
Protection Rule, and Rule 1.
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................................ 11/00/23
Final Rule.......................... 07/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Federal, Local, State, Tribal.
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
199. National Primary Drinking Water Regulations for Lead and Copper:
Improvements (LCRI) [2040-AG16]
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
reviewed the LCRR and decided to initiate a new rulemaking process to
improve the rule. This new National Primary Drinking Water Regulation
is called the Lead and Copper Rule Improvements (LCRI). EPA is
developing LCRI to strengthen the regulatory framework and address lead
in drinking water.
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
[[Page 11153]]
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:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/23
Final Rule.......................... 10/00/24
------------------------------------------------------------------------
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.
Additional Information:
Sectors Affected: 23711 Water and Sewer Line and Related Structures
Construction; 2213 Water, Sewage and Other Systems.
Agency Contact: Ethan Schwartz, Environmental Protection Agency,
Office of Water, 4601M, 1200 Pennsylvania Avenue NW, Washington, DC
20460, Phone: 202 564-2537, Email: [email protected].
Related RIN: Related to 2040-AF15, Related to 2040-AG15
RIN: 2040-AG16
EPA--OW
200. Water Quality Standards Regulatory Revisions to Protect Tribal
Reserved Rights [2040-AG17]
Priority: Other Significant
Legal Authority: 33 U.S.C. 1371
CFR Citation: 40 CFR 131.
Legal Deadline: None.
Abstract: Many tribes hold reserved rights to resources on lands
and waters where states establish water quality standards, through
treaties, statutes, or other sources of federal law. The U.S.
Constitution defines treaties as the supreme law of the land. EPA is
pursuing a change to its water quality standards regulations to ensure
that water quality standards do not impair tribal reserved rights by
giving clear direction on how to develop water quality standards where
tribes hold reserved rights. This will help EPA ensure protection of
resources reserved to tribes in treaties, statutes, or other sources of
federal law when establishing, revising, and reviewing water quality
standards.
Statement of Need: This proposed rule would establish a durable and
transparent national framework outlining how tribal reserved rights to
aquatic-dependent resources must be protected in water quality
standards for waters in which such rights apply. In 2016 EPA took
actions in Maine and Washington to protect tribal reserved rights,
requiring that human health criteria for waters in those states where
tribes reserved the rights to fish for subsistence be set at more
stringent levels to protect tribal fish consumers. In 2019 EPA
disavowed the approach it took to protecting tribal reserved rights in
the 2016 Maine and Washington actions and concluded that states and EPA
can always protect tribal reserved rights by simply applying EPA's
existing regulations and guidance, with no additional consideration of
such rights. EPA has now reconsidered the assertions it made under the
previous Administration that tribal reserved rights do not impose any
additional requirements in the WQS context. The changes in EPA's
position regarding consideration of reserved rights in the water
quality standards context over the years have resulted in confusion for
tribes, states, stakeholders and the public about how tribal reserved
rights must be considered in establishment of WQS. In addition, states
and industry groups criticized EPA for taking its actions in 2016
without first going through a national notice and comment rulemaking on
its approach.
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
------------------------------------------------------------------------
NPRM................................ 12/05/22 87 FR 74361
NPRM Comment Period End............. 03/06/23
Final Rule.......................... 09/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: State, Federal, Tribal.
Federalism: This action may have federalism implications as defined
in E.O. 13132.
Additional Information:
Agency Contact: Jennifer Brundage, Environmental Protection Agency,
Office of Water, 4305T, 1200 Pennsylvania Avenue NW, Washington, DC
20460, Phone: 202 566-1265, Email: [email protected].
Erica Fleisig, Environmental Protection Agency, Office of Water,
4305T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, Phone: 202
566-1057, Email: [email protected].
RIN: 2040-AG17
EPA--OW
201. Per- and Polyfluoroalkyl Substances (PFAS) National Primary
Drinking Water Regulation Rulemaking [2040-AG18]
Priority: Economically 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. This action
provides a key commitment in EPA's `PFAS Strategic Roadmap: EPA's
Commitments to Action 2021-2024.'
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
[[Page 11154]]
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 judgment 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
------------------------------------------------------------------------
Notice.............................. 02/09/22 87 FR 7412
NPRM................................ 12/00/22
Final Rule.......................... 01/00/24
------------------------------------------------------------------------
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: Ethan Schwartz, Environmental Protection Agency,
Office of Water, 4601M, 1200 Pennsylvania Avenue NW, Washington, DC
20460, Phone: 202 564-2537, Email: [email protected].
RIN: 2040-AG18
EPA--OW
202. Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category [2040-AG23]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 33 U.S.C. 1361 33 U.S.C. 1318 33 U.S.C. 1317 33
U.S.C. 1316 33 U.S.C. 1311 33 U.S.C. 1314
CFR Citation: 40 CFR 423.
Legal Deadline: None.
Abstract: 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 wastestreams addressed in the
2020 final rule as well as wastestreams 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.
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 2020 Steam
Electric Reconsideration Rule.
Summary of Legal Basis: Sections 101; 301; 304(b), (c), (e), and
(g); 306; 307; 308 and 501, Clean Water Act (Federal Water Pollution
Control Act Amendments of 1972, as amended; 33 U.S.C. 1251; 1311;
1314(b), (c), (e), and (g); 1316; 1317; 1318 and 1361).
Alternatives: To Be Determined.
Anticipated Cost and Benefits: To Be Determined.
Risks: To Be Determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Notice.............................. 08/03/21 86 FR 41801
NPRM................................ 01/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: State, Local, Federal.
Federalism: Undetermined.
Additional Information: EPA-HQ-OW-2009-0819.
Sectors Affected: 221112 Fossil Fuel Electric Power Generation.
Agency Contact: Jesse Pritts, Environmental Protection Agency,
Office of Water, Mail Code 4303T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460, Phone: 202 566-1038, Email: [email protected].
Related RIN: Related to 2040-AF77, Merged with 2040-AG11
RIN: 2040-AG23
EPA--OFFICE OF AIR AND RADIATION (OAR)
Final Rule Stage
203. Control of Air Pollution From New Motor Vehicles: Heavy-Duty
Engine and Vehicle Standards [2060-AU41]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Unfunded Mandates: Undetermined.
Legal Authority: 42 U.S.C. 7401 et seq., Clean Air Act
CFR Citation: 40 CFR 86.
Legal Deadline: None.
Abstract: The Environmental Protection Agency (EPA) is finalizing a
major program to further reduce air pollution, including ozone and
particulate matter (PM), from heavy-duty engines and vehicles across
the United States. The final program includes new emission standards
that are significantly more stringent and that cover a wider range of
heavy-duty engine operating conditions compared to today's standards;
further, the final program requires these more stringent emissions
standards to be met for a longer period of when these engines operate
on the road. Heavy-duty vehicles and engines are important contributors
to concentrations of ozone and particulate matter and their resulting
threat to public health, which includes premature death, respiratory
illness (including childhood asthma), cardiovascular problems, and
other adverse health impacts. The final rulemaking promulgates new
numeric standards and changes key provisions of the existing heavy-duty
emission control program, including the test procedures, regulatory
useful life, emission-related warranty, and other requirements.
Together, the provisions in the final rule will further reduce the air
quality impacts of heavy-duty engines across a range of operating
conditions and over a longer period of the operational life of heavy-
duty engines. The requirements in the final rule will lower emissions
of NOX and other air pollutants (PM, hydrocarbons (HC),
carbon monoxide (CO), and air toxics) beginning no later than model
year 2027. We are also finalizing limited amendments to the regulations
that
[[Page 11155]]
implement our air pollutant emission standards for other sectors (e.g.,
light-duty vehicles, marine diesel engines, locomotives, various other
types of nonroad engines, vehicles, and equipment).
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................................ 03/28/22 87 FR 17414
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: 811198 All Other Automotive Repair and
Maintenance; 336999 All Other Transportation Equipment Manufacturing;
336111 Automobile Manufacturing; 423110 Automobile and Other Motor
Vehicle Merchant Wholesalers; 811112 Automotive Exhaust System Repair;
811111 General Automotive Repair; 336120 Heavy Duty Truck
Manufacturing; 336112 Light Truck and Utility Vehicle Manufacturing;
336213 Motor Home Manufacturing; 336211 Motor Vehicle Body
Manufacturing; 335312 Motor and Generator Manufacturing; 333618 Other
Engine Equipment Manufacturing; 336611 Ship Building and Repairing;
336212 Truck Trailer Manufacturing.
Agency Contact: 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].
Tuana Phillips, Environmental Protection Agency, Office of Air and
Radiation, 1200 Pennsylvania NW, Washington, DC 20460, Phone: 202 565-
0074, Email: [email protected].
Related RIN: Split from 2060-AV85
RIN: 2060-AU41
EPA--OAR
204. Neshap: Coal- and Oil-Fired Electric Utility Steam Generating
Units--Revocation of the 2020 Reconsideration, and Affirmation of the
Appropriate and Necessary Supplemental Finding [2060-AV12]
Priority: Other Significant.
Legal Authority: secs. 112 and 307(d)(7)(B) of the CAA as amended
(42 U.S.C. 7412 and 7607(d)(7)(B)). This action is also subject to
section 307(d) of the CAA (42 U.S.C. 7607(d)); 42 U.S.C. 7414, 7601
CFR Citation: 40 CFR 63, subpart UUUUU.
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 (E.O.) 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). EPA
issued a proposed revised reconsideration of the appropriate and
necessary finding on February 9, 2022 (87 FR 7624). Results of EPA's
review of the May 2020 RTR will be presented in a separate action.
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 is issuing its final determination regarding the
review of the May 2020 finding, after considering public comment on the
proposed determination.
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: EPA has considered two bases for the appropriate and
necessary determination, one preferred and one alternative.
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................................ 02/09/22 87 FR 7624
Final Rule.......................... 03/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: None.
Additional Information: EPA-HQ-OAR-2018-0794.
Sectors Affected: 221122 Electric Power Distribution; 221112 Fossil
Fuel Electric Power Generation.
URL For More Information: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-air-toxics-standards-mats-power-plants.
[[Page 11156]]
Agency Contact: 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].
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-AT99
RIN: 2060-AV12
EPA--OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION (OCSPP)
Final Rule Stage
205. Pesticides; Exemptions of Certain Plant-Incorporated Protectants
(PIPS) Derived From Newer Technologies [2070-AK54]
Priority: Other Significant.
Legal Authority: 21 U.S.C. 346a, Federal Food, Drug, and Cosmetic
Act 7 U.S.C. 136 et seq. Federal Insecticide Fungicide and Rodenticide
Act; 7 U.S.C. 136(w) Federal Insecticide Fungicide and Rodenticide Act
CFR Citation: 40 CFR 174.
Legal Deadline: None.
Abstract: In 2020, EPA proposed regulations that would allow for an
exemption under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA) for
certain plant-incorporated protectant (PIP) products that are created
in plants using biotechnology, as long as their pesticidal substances
are found in plants that are sexually compatible with the recipient
plant and meet the proposed exemption criteria, ensuring their safety.
The current exemption for PIPs is limited to PIPs that are moved
through conventional breeding. EPA's proposed rule would allow certain
PIPs created through biotechnology to also be exempt under existing
regulations, in cases where those PIPs (1) pose no greater risk than
PIPs that meet EPA safety requirements, and (2) could have otherwise
been created through conventional breeding. The proposed rule also
includes a process through which developers of PIPs based on sexually
compatible plants created through biotechnology submit either a self-
determination letter or request for EPA confirmation that their PIP
meets the criteria for exemption. For increased flexibility in bringing
PIPs to market, a developer can also submit both. EPA is reviewing the
comments received and is planning to issue a final rule.
Statement of Need: This rule implements the policy goals
articulated by multiple administrations to improve, clarify, and
streamline regulations of biotechnology, beginning with the White House
Office of Science and Technology Policy in a policy statement in 1986
on the ``Coordinated Framework for the Regulation of Biotechnology''
(51 FR 23302; June 26, 1986), the update to the Coordinated Framework
in 2017, and, more recently, the June 11, 2019, Executive Order 13874
(84 FR 27899) on ``Modernizing the Regulatory Framework for
Agricultural Biotechnology Products.'' This rulemaking is intended to
further implement section 4(b) of Executive Order 13874.
Summary of Legal Basis: This action is being developed under the
authority of sections 3, 5, 10, 12 and 25 of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136 and 136y), and
section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) (21
U.S.C. 346a).
Alternatives: The main alternative is to continue to consider
individual requests for exempting these PIPs on a case-by-case basis.
Anticipated Cost and Benefits: An assessment of the incremental
impacts of this action is provided in greater detail in the economic
analysis that will accompany the final rule. As described for the
proposed rule, the primary benefits to society associated with the
exemptions of these PIPs from FIFRA and FFDCA requirements are the
reduction of overall registration costs (fees plus data requirement
costs) to developers of PIPs exempted in the rulemaking with a per-
product cost saving estimated to range from $472,000-$886,000 using a
3% discount rate on future maintenance fees. These exemptions may also
result in increased commercialization of new pest control options for
farmers, particularly in minor crops, and reduced use of conventional
pesticides, which could provide environmental benefits.
Risks: EPA did not identify any risks to humans or the environment
as a result of this action.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/09/20 85 FR 64308
Final Rule.......................... 04/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: 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.
Additional Information: EPA-HQ-OPP-2019-0508.
Sectors Affected: 111 Crop Production; 325320 Pesticide and Other
Agricultural Chemical Manufacturing.
URL For More Information: https://www.epa.gov/regulation-biotechnology-under-tsca-and-fifra/overview-plant-incorporated-protectants.
Agency Contact: Wiebke Striegel, Environmental Protection Agency,
Office of Chemical Safety and Pollution Prevention, Mail Code 7511P,
1200 Pennsylvania Avenue NW, Washington, DC 20460, Phone: 703 347-0556,
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-AK54
EPA--OCSPP
206. Asbestos Part 1: Chrysotile Asbestos; Regulation of Certain
Conditions of Use Under Section 6(a) of the Toxic Substances Control
Act (TSCA) [2070-AK86]
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: 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: On April 12, 2022, EPA proposed a rule under the Toxic
Substances Control Act (TSCA) to address the unreasonable risk of
injury to health that EPA identified for conditions of use of
chrysotile asbestos following completion of the TSCA Risk Evaluation
for Asbestos, part 1: Chrysotile Asbestos. TSCA requires that EPA
address the unreasonable risks of injury to health and environment by
rule and to apply requirements to the extent necessary so that
chrysotile asbestos no longer presents such risks. Therefore, to
address the unreasonable risk identified in the TSCA Risk Evaluation
for Asbestos, part 1 from
[[Page 11157]]
chrysotile asbestos, EPA proposed to prohibit manufacture (including
import), processing, distribution in commerce and commercial use of
chrysotile asbestos for chrysotile asbestos diaphragms for use in the
chlor-alkali industry, chrysotile asbestos-containing sheet gaskets
used in chemical production, chrysotile asbestos-containing brake
blocks used in the oil industry, aftermarket automotive chrysotile
asbestos-containing brakes/linings, other chrysotile asbestos-
containing vehicle friction products, and other chrysotile asbestos-
containing gaskets. EPA also proposed to prohibit manufacture
(including import), processing, and distribution in commerce of
aftermarket automotive chrysotile asbestos-containing brakes/linings
for consumer use, and other chrysotile asbestos-containing gaskets for
consumer use. Finally, EPA also proposed disposal and recordkeeping
requirements for these conditions of use. EPA is reviewing the comments
received and intends to develop a final rule.
Statement of Need: This rulemaking is needed to address the
unreasonable risk of chrysotile asbestos identified in the Risk
Evaluation for Asbestos Part I: Chrysotile Asbestos completed under
TSCA section 6(b). EPA reviewed the exposures and hazards of the
chrysotile asbestos uses evaluated in the risk evaluation, 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 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: 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 considered one or more primary alternative regulatory
actions as part of the development of the proposed rule. The primary
alternative regulatory action considered by EPA in the proposed rule is
to: prohibit manufacture (including import), processing, distribution
in commerce and commercial use of chrysotile asbestos in bulk form or
as part of: Chrysotile asbestos diaphragms in the chlor-alkali industry
and for chrysotile asbestos-containing sheet gaskets in chemical
production (with prohibitions taking effect five years after the
effective date of the final rule) and require, prior to the prohibition
taking effect, compliance with an existing chemicals exposure limit
(ECEL) for the processing and commercial use of chrysotile asbestos for
these uses; and to prohibit manufacture (including import), processing,
distribution in commerce, and commercial use of chrysotile asbestos-
containing brake blocks in the oil industry; aftermarket automotive
chrysotile asbestos-containing brakes/linings; and other vehicle
friction products (with prohibitions taking effect two years after the
effective date of the final rule and with additional requirements for
disposal). The primary alternative regulatory action considered in the
proposed rule also included prohibitions on manufacture (including
import), processing, and distribution in commerce of aftermarket
automotive chrysotile asbestos-containing brakes/linings for consumer
use and other chrysotile asbestos-containing gaskets for consumer use
(with prohibitions taking effect two years after the effective date of
the final rule). The primary alternative regulatory action also would
require disposal of chrysotile asbestos-containing materials in a
manner identical to the proposed option, with additional provisions for
downstream notification and signage and labeling. EPA did not consider
additional alternative regulatory actions in the proposed rule.
Anticipated Cost and Benefits: As estimated in the proposed rule,
converting the asbestos diaphragm cells to membrane cells in response
to the proposed rule is predicted to require an incremental investment
of approximately $1.8 billion across all nine plants predicted to be
using asbestos diaphragms when the rule goes into effect. Compared to
this baseline trend, the incremental net effect of the proposed rule on
the chlor-alkali industry over a 20-year period using a 3 percent
discount rate is estimated to range from an annualized cost of about
$49 million per year to annualized savings of approximately $35 million
per year, depending on whether the higher grade of caustic soda
produced by membrane cells continues to command a premium price. Using
a 7 percent discount rate, the incremental annualized net effect ranges
from a cost of $87 million per year to savings of approximately $40,000
per year, again depending on whether there are revenue gains from the
caustic soda production. EPA also estimates that approximately 1,800
sets of automotive brakes or brake linings containing asbestos may be
imported into the U.S. each year, representing 0.002% of the total U.S.
market for aftermarket brakes. The cost of a prohibition would be
minimal due to the ready availability of alternative products that are
only slightly more expensive (an average cost increase of $4 per
brake). The proposed rule is estimated to result in total annualized
costs for aftermarket automotive brakes of approximately $25,000 per
year using a 3% discount rate and $18,000 per year using a 7% discount
rate. EPA did not have information to estimate the costs of prohibiting
asbestos for the remaining uses subject to the proposed rule (sheet
gaskets used in chemical production, brake blocks in the oil industry,
other vehicle friction products, or other gaskets), so there are
additional unquantified costs. EPA believes that the use of these
asbestos-containing products has declined over time, and that they are
now used in at most small segments of the industries. EPA's Economic
Analysis for the proposed rule quantified the benefits from avoided
cases of lung cancer, mesothelioma, ovarian cancer, and laryngeal
cancer due to reduced asbestos exposures to workers, occupational non-
users (ONUs), and DIYers related to the rule's requirements for chlor-
alkali diaphragms, sheet gaskets for chemical production, and
aftermarket brakes. The combined national quantified benefits of
avoided cancer cases associated with these products are approximately
$3,100 per year using a 3% discount rate and $1,200 per year using a 7%
discount rate, based on the cancer risk estimates from the Part 1 risk
evaluation. EPA did not estimate the aggregate benefits of the
requirements for oilfield brake blocks,
[[Page 11158]]
other vehicle friction products or other gaskets because the Agency did
not have sufficient information on the number of individuals likely to
be affected by the proposed rule. Thus, as proposed, the rule may yield
additional unquantified benefits from reducing exposures associated
with these uses. There would also be unquantified benefits due to other
avoided adverse health effects associated with asbestos exposure
including respiratory effects (e.g., asbestosis, non-malignant
respiratory disease, deficits in pulmonary function, diffuse pleural
thickening and pleural plaques) and immunological and lymphoreticular
effects. In addition to the benefits of avoided adverse health effects
associated with chrysotile asbestos exposure, the proposed rule is
expected to generate significant benefits from reduced air pollution
associated with electricity generation. Based on a sensitivity
screening-level analysis that EPA conducted, converting asbestos
diaphragm cells to membrane cells could yield tens of millions of
dollars per year in environmental and health benefits from reduced
emissions of particulate matter, sulfur dioxide, nitrogen oxides, and
carbon dioxide.
Risks: In the TSCA Risk Evaluation for Asbestos, Part 1: Chrysotile
Asbestos, EPA determined there is unreasonable risk of injury to health
from conditions of use of chrysotile asbestos. The health endpoint
driving EPA's determination of unreasonable risk for chrysotile
asbestos under the conditions of use is cancer from inhalation
exposure. This unreasonable risk includes the risk of mesothelioma,
lung cancer, and other cancers from chronic inhalation.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 04/12/22 87 FR 21706
Final Rule.......................... 10/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal.
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: EPA-HQ-OPPT-2021-0057.
Sectors Affected: 8111 Automotive Repair and Maintenance; 325
Chemical Manufacturing; 332 Fabricated Metal Product Manufacturing;
339991 Gasket, Packing, and Sealing Device Manufacturing; 4231 Motor
Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers; 441
Motor Vehicle and Parts Dealers; 211 Oil and Gas Extraction; 336
Transportation Equipment Manufacturing.
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].
Peter Gimlin, Environmental Protection Agency, Office of Chemical
Safety and Pollution Prevention, 1200 Pennsylvania Avenue NW, Mail Code
7404T, Washington, DC 20460, Phone: 202 566-0515, Fax: 202 566-0473,
Email: [email protected].
RIN: 2070-AK86
EPA--OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)
Final Rule Stage
207. Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Federal CCR Permit
Program [2050-AH07]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 6945
CFR Citation: 40 CFR 124; 40 CFR 257; 40 CFR 22.
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.
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
[[Page 11159]]
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.......................... 07/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Federal, Local, Tribal.
Additional Information: 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
208. Hazardous and Solid Waste Management System: Disposal of CCR; a
Holistic Approach to Closure Part B: Implementation of Closure [2050-
AH18]
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.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: Tribal, State, Local, Federal.
Additional Information: EPA-HQ-OLEM-2019-0173. The action is
related to 2050-AH11: Hazardous and Solid Waste Management System:
Disposal of CCR; A Holistic Approach to Closure Part B: Alternate
Demonstration 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: Mary Jackson, Environmental Protection Agency,
Office of Land and Emergency Management, 1200 Pennsylvania Avenue NW,
Mail Code 5304P, Washington, DC 20460, Phone: 703 308-8453, 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
[[Page 11160]]
EPA--OLEM
209. Accidental Release Prevention Requirements: Risk Management
Program Under the Clean Air Act; Safer Communities by Chemical Accident
Prevention [2050-AH22]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 42 U.S.C. 7412
CFR Citation: 40 CFR 68.
Legal Deadline: None.
Abstract: The Environmental Protection Agency (EPA) is proposing to
amend its Risk Management Program (RMP) regulations as a result of
Agency review. The proposed revisions include several changes and
amplifications to the accident prevention program requirements,
enhancements to the emergency preparedness requirements, increased
public availability of chemical hazard information, and several other
changes to certain regulatory definitions or points of clarification.
These proposed amendments seek to improve chemical process safety;
assist in planning, preparedness, and responding to RMP-reportable
accidents; and improve public awareness of chemical hazards at
regulated sources.
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 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................................ 08/31/22 87 FR 53556
Final Rule.......................... 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Undetermined.
Government Levels Affected: Undetermined.
Additional Information:
Sectors Affected: 311411 Frozen Fruit, Juice, and Vegetable
Manufacturing; 325 Chemical Manufacturing; 221112 Fossil Fuel Electric
Power Generation; 211112 Natural Gas Liquid Extraction; 322 Paper
Manufacturing; 42469 Other Chemical and Allied Products Merchant
Wholesalers; 22131 Water Supply and Irrigation Systems; 22132 Sewage
Treatment Facilities; 311615 Poultry Processing; 49312 Refrigerated
Warehousing and Storage; 311612 Meat Processed from Carcasses; 311 Food
Manufacturing; 49313 Farm Product Warehousing and Storage; 32411
Petroleum Refineries; 42491 Farm Supplies Merchant Wholesalers; 31152
Ice Cream and Frozen Dessert Manufacturing; 49319 Other Warehousing and
Storage; 42471 Petroleum Bulk Stations and Terminals; 49311 General
Warehousing and Storage; 311511 Fluid Milk Manufacturing; 32519 Other
Basic Organic Chemical Manufacturing; 11511 Support Activities for Crop
Production
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
[[Page 11161]]
EPA--OFFICE OF WATER (OW)
Final Rule Stage
210. Clean Water Act Section 401: Water Quality Certification [2040-
AG12]
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 2022, consistent with Executive
Order 13990, EPA proposed ``Clean Water Act Section 401 Water Quality
Certification Improvement Rule'' to revise the 2020 Rule. The proposed
rule would update the existing regulations to be more consistent with
the statutory text of the 1972 CWA; to clarify, reinforce, and provide
a measure of consistency with respect to elements of section 401
certification practice that have evolved over the 50 years since the
1971 Rule was promulgated; and to support an efficient and predictable
certification process that is consistent with the water quality
protection and cooperative federalism principles central to CWA section
401. EPA plans to finalize a revised rule after reviewing public
comments on the proposed rule (published on June 9, 2022).
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................................ 06/09/22 87 FR 35318
Final Rule.......................... 06/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Tribal, Federal, State.
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
211. Revised Definition of ``Waters of the United States'' [2040-AG19]
Priority: Other Significant.
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 that
revised the previously-codified definition of ``waters of the United
States'' (WOTUS). The agencies initiated this rulemaking to exercise
their authority to interpret ``waters of the United States'' to mean
the waters defined by the familiar regulations in place prior to the
2015 WOTUS rule, with amendments to reflect the agencies' determination
of the statutory limits on the scope of the WOTUS informed by Supreme
Court precedent, the best available science, and the agencies'
experience and technical expertise. The proposal was open for public
comment between December 2021 and February 2022. It is planned that
this rule will be finalized by the end of 2022.
Statement of Need: The agencies intend to pursue a second rule
defining waters of the United States to consider 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, litigation, 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
------------------------------------------------------------------------
Notice.............................. 08/04/21 86 FR 41911
Notice.............................. 10/25/21 86 FR 58829
Notice.............................. 11/08/21 86 FR 61730
NPRM................................ 12/07/21 86 FR 69372
Final Rule.......................... 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Government Levels Affected: Federal, Local, State, Tribal.
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
BILLING CODE 6560-50-P
GENERAL SERVICES ADMINISTRATION (GSA)
Regulatory Plan--October 2022
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
by 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
[[Page 11162]]
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.
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.
In FY23, GSA expects to update the existing internal guidance and
issue a new PBS Order following the release of Implementing
Instructions on Executive Order (E.O.) 14057 on Federal Sustainability
that was issued on December 8, 2021.
Office of Government-Wide Policy
OGP sets Government-wide policy in the areas of personal and real
property, mail, travel, motor vehicles, 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 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 14008 were provided in GSA's Executive Order 13990 90-day
response, the GSA Climate Change Risk Management Plan, and the GSA 2021
Sustainability Plan. More specifics will be known on the Sustainability
Plan when feedback is obtained from CEQ and OMB.
Office of Asset and Transportation Management
The Office of Asset and Transportation Management, and Office of
Acquisition Policy are prioritizing rulemaking focused on initiatives
that:
Promote the country's economic resilience and improve the
buying power of U.S. citizens;
Support underserved communities, promoting equity in the
Federal Government; and
Support national security efforts, especially safeguarding
Federal Government information and information technology systems.
The Fall 2022 Unified Agenda consists of fourteen (14) active
Office of Asset and Transportation Management (MA) agenda items, of
which six (6) active actions are included in the Federal Travel
Regulation (FTR) and eight (8) 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/. The FTR is 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 Federal
Management Regulation (FMR) is contained in title 41 of the CFR,
Chapter 102, and establishes policy for Federal aircraft management,
mail management, transportation, personal property, real property,
motor vehicles, and committee management.
Rulemaking That Tackles Climate Change
FMR Case 2020-102-2, Location of Space, promotes economy and
efficiency in the planning, acquisition, utilization, and management of
Federal facilities. The rule will implement Executive Order 13946
(Targeting Opportunity Zones and Other Distressed Communities for
Federal Site Locations) and Executive Order 14057 (Catalyzing Clean
Energy Industry and Jobs Through Federal Sustainability). This rule
will help reduce emissions across Federal workplaces by ensuring that
all new construction, modernization projects, and leases implement a
number of energy efficient, sustainable, and climate-resilient building
practices for Federal facilities.
FTR Case 2022-03, Alternative Fuel Vehicle During Relocations,
allows greater agency flexibility for authorizing shipment of a
relocating employee's alternative fuel-based privately owned vehicle
(POV), as some POVs, primarily electric vehicles, cannot be driven more
than a short distance without being recharged.
Rulemaking That Supports Equity and Underserved Communities
Federal Travel Regulation (FTR): FTR Case 2022-05, Updating the FTR
With Diversity, Equity, Inclusion, and Accessibility Language, updating
the entirety of the FTR to ensure that its language reflects
inclusivity in terms of primarily gender, as well as any other language
that reflects inclusivity and equity.
Other minor technical adjustments unrelated to inclusivity, such as
updated website and physical addresses, will be included as well.
Federal Management Regulation (FMR); FMR Case 2022-01, Federal
Advisory Committee Management, FACA is a transparency statute designed
to provide Congress, interested stakeholders, and the public with
information on, and access to the activities, membership, meetings,
costs, etc. of federal advisory committees established by the Executive
Branch. Under Section 7 of the Act, GSA is responsible for preparing
regulations for implementing FACA. The proposed rule revisions will
provide updates and clarification to policies and processes, and
further incorporate diversity, equity, inclusion, and accessibility
policies into the federal advisory committee program governmentwide,
which is an Administration priority.
FMR Case 2021-01, Use of Federal Real Property to Assist the
Homeless'' will streamline the process by which excess Federal real
property is screened for potential conveyance to homeless interests.
FMR Case 2022-02, Union Organizer Access to Private Sector Contractors'
Employees on Federal Property will implement Executive Order 14025 of
April 26, 2021, titled ``Worker Organizing and Empowerment,'' to make
clear that worker organizing and collective bargaining among employees
of contractors working in Federal Government facilities are not covered
or restricted by the general prohibition on soliciting, posting and
distributing materials in property under the jurisdiction, custody, or
control of GSA.
[[Page 11163]]
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 2022 Unified Agenda consists of seventeen (17) 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
GSA's rules and practices on how it buys goods and services from
its business partners are covered by the General Services
Administration Acquisition Regulation (GSAR), which implements and
supplements the Federal 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.
Rulemaking That Tackles Climate Change
GSAR Case 2022-G517, Single-use Plastic Packaging Reduction,
explores regulation that will reduce single-use plastic consumption by
the agency. Single-use plastic poses an environmental risk that is
documented as having the potential to impact biodiversity. The case
focuses on packaging materials with the overall intent of addressing
not only the items that the Government intentionally consumes, but
those products that the Government unintentionally consumes (such as
packaging) that then has to be disposed of once the item is delivered.
Rulemaking That Promotes Economic Resilience
GSAR Case 2020-G510, Federal Supply Schedule Economic Price
Adjustment (EPA), will clarify, update, and incorporate Federal Supply
Schedule (FSS) program policies and procedures regarding economic price
adjustment, including updating related prescriptions and clauses.
Ultimately, the case aims to streamline the EPA process for FSS
business partners and our acquisition workforce.
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, 2021, and Department of Labor regulations
at 29 CFR part 23.
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.
Rulemaking That Supports National Security
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 23, 2022.
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 2022
Strategic Plan. The Agency's mission is to ``explore the unknown in air
and space, innovate for the benefit of humanity, and inspire the world
through discovery.'' The 2022 Strategic Plan (available at 2022 NASA
Strategic Plan) 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: Catalyze economic growth and drive
innovations to address national challenges.
Strategic Goal 4: Enhance capabilities and operations to
catalyze current and future mission success.
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
[[Page 11164]]
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 several of their statutory
authorities.
NASA is also mindful of the importance of international regulatory
cooperation, consistent with domestic law and United States (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 also has 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 the priorities summarized below in this
agenda.
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 and the Council on
Environmental Quality (CEQ) regulations. These proposed amendments
would update procedures contained in the Agency's current regulation at
14 CFR subpart 1216.3, Procedures for Implementing the NEPA, 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.
Social Security Number Fraud Prevention
NASA is revising its regulations at 14 CFR part 1212.6 under the
Privacy Act. The revisions would clarify and update the language of
procedural requirements pertaining to the inclusion of Social Security
Numbers (SSN) on documents that the Agency sends by mail. These
revisions are necessary to implement the Social Security Number Fraud
Prevention Act of 2017, (Pub. L. 115-59; 42 U.S.C. 405 note), signed on
September 15, 2017, which restricts Federal agencies from including
individuals' SSNs on documents sent by mail, unless the head of the
agency determines that the inclusion of the SSN on the document is
necessary (section 2(a) of the Act).
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 the 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.
In 2014, the Federal Records Act required the Archivist of the
United States to issue regulations with standards for the reproduction
of records by photographic, microphotographic, or digital processes
with a view to the disposal of the original records. In 2019, NARA
issued 36 CFR 1236, Subchapter D, Digitizing Temporary Records. In
2020, NARA drafted a new Subchapter E, Digitizing Permanent Records.
These regulations contain digitization standards for permanent paper
records. In Fall 2022, these standards will be issued as a final rule.
In Spring 2023, NARA will issue a draft rule with digitization
standards for permanent film records. Furthermore, in Fall 2022, NARA
will issue a new final rule for Subchapter F, Metadata Requirements for
Permanent Records that will be required when agencies transfer
permanent electronic records to NARA.
In Fall 2022, NARA will issue a draft rule with changes to 1225.22
regarding when agencies are required to reschedule their records. When
agencies have digitized records in the past that do not meet the
requirements established in Sec. 1236, the rescheduling process will
help NARA and the public determine if the digitized versions are
acceptable as permanent records. NARA will remove 1225.24 to eliminate
the media neutral notification requirement, which is no longer
relevant.
In January 2021, the Federal Records Act (44 U.S.C. 3302) required
the Archivist of the United States to promulgate regulations governing
Federal agency preservation of electronic messages that are records.
The law states that the regulations must require agencies to
electronically capture, manage, and preserve electronic message
records, and must require that they can readily access such records
through electronic searches. Additionally, the regulations should
include timelines for Federal agencies to implement the resulting
regulatory requirements as expeditiously as practicable. Therefore, we
are amending 36 CFR 1220, Federal Records; General, and 36 CFR 1222,
Creation and Maintenance of Federal Records, to define electronic
messages and to expressly clarify records management requirements for
electronic records. We are adding new requirements to 36 CFR 1222,
Creation and Maintenance of Federal Records because the capture,
management, and preservation of electronic messages is an essential
part of a federal records management program.
These records management regulatory priorities align with the goals
and initiatives of our Strategic Plan 2022-2026.
BILLING CODE 7515-01-P
NATIONAL SCIENCE FOUNDATION
Overview
The National Science Foundation (NSF) is an independent federal
agency created by Congress in 1950 ``to promote the progress of
science; to advance the national health, prosperity, and welfare; to
secure the national defense . . .'' NSF is vital because we support
basic
[[Page 11165]]
research and people to create knowledge that transforms the future.
This type of support:
Is a primary driver of the U.S. economy
Enhances the nation's security
Advances knowledge to sustain global leadership
With an annual budget of $8.8 billion (FY 2022), we are the funding
source for approximately 27% of the total federal budget for basic
research conducted at U.S. colleges and universities. In many fields
such as mathematics, computer science and the social sciences, NSF is
the major source of federal backing.
We fulfill our mission chiefly by issuing limited-term grants--
currently about 12,000 new awards per year, with an average duration of
three years--to fund specific research proposals that have been judged
the most promising by a rigorous and objective merit-review system.
Most of these awards go to individuals or small groups of
investigators. Others provide funding for research centers, instruments
and facilities that allow scientists, engineers, and students to work
at the outermost frontiers of knowledge.
NSF's goals--discovery, learning, research infrastructure and
stewardship--provide an integrated strategy to advance the frontiers of
knowledge, cultivate a world-class, broadly inclusive science and
engineering workforce and expand the scientific literacy of all
citizens, build the nation's research capability through investments in
advanced instrumentation and facilities, and support excellence in
science and engineering research and education through a capable and
responsive organization. We like to say that NSF is ``where discoveries
begin.''
NSF is committed to expanding the opportunities in STEM to people
of all racial, ethnic, geographic and socioeconomic backgrounds, sexual
orientations, gender identities and to persons with disabilities.
We value diversity and inclusion, demonstrate integrity and
excellence in our devotion to public service and prioritize innovation
and collaboration in our support of the work of the scientific
community and of each other.
While broadening participation in STEM is included in NSF's merit
review criteria, some programs go beyond the standard review criteria.
These investments--which make up NSF's Broadening Participation in STEM
Portfolio--use different approaches to build STEM education and
research capacity, catalyze new areas of STEM research, and develop
strategic partnerships and alliances.
Many of the discoveries and technological advances have been truly
revolutionary. In the past few decades, NSF-funded researchers have won
some 236 Nobel Prizes as well as other honors too numerous to list.
These pioneers have included the scientists or teams that discovered
many of the fundamental particles of matter, analyzed the cosmic
microwaves left over from the earliest epoch of the universe, developed
carbon-14 dating of ancient artifacts, decoded the genetics of viruses,
and created an entirely new state of matter called a Bose-Einstein
condensate.
NSF also funds equipment that is needed by scientists and engineers
but is often too expensive for any one group or researcher to afford.
Examples of such major research equipment include giant optical and
radio telescopes, Antarctic research sites, high-end computer
facilities and ultra-high-speed connections, ships for ocean research,
sensitive detectors of very subtle physical phenomena and gravitational
wave observatories.
Another essential element in NSF's mission is support for science
and engineering education, from pre-K through graduate school and
beyond. The research we fund is thoroughly integrated with education to
help ensure that there will always be plenty of skilled people
available to work in new and emerging scientific, engineering, and
technological fields, and plenty of capable teachers to educate the
next generation.
No single factor is more important to the intellectual and economic
progress of society, and to the enhanced well-being of its citizens,
than the continuous acquisition of new knowledge. NSF is proud to be a
major part of that process.
Specifically, the Foundation's organic legislation authorizes us to
engage in the following activities:
A. Initiate and support, through grants and contracts, scientific
and engineering research, and programs to strengthen scientific and
engineering research potential, and education programs at all levels,
and appraise the impact of research upon industrial development and the
general welfare.
B. Award graduate fellowships in the sciences and in engineering.
C. Foster the interchange of scientific information among
scientists and engineers in the United States and foreign countries.
D. Foster and support the development and use of computers and
other scientific methods and technologies, primarily for research and
education in the sciences.
E. Evaluate the status and needs of the various sciences and
engineering and take into consideration the results of this evaluation
in correlating our research and educational programs with other federal
and non-federal programs.
F. Provide a central clearinghouse for the collection,
interpretation, and analysis of data on scientific and technical
resources in the United States, and provide a source of information for
policy formulation by other federal agencies.
G. Determine the total amount of federal money received by
universities and appropriate organizations for the conduct of
scientific and engineering research, including both basic and applied,
and construction of facilities where such research is conducted, but
excluding development, and report annually thereon to the President and
the Congress.
H. Initiate and support specific scientific and engineering
activities in connection with matters relating to international
cooperation, national security, and the effects of scientific and
technological applications upon society.
I. Initiate and support scientific and engineering research,
including applied research, at academic and other nonprofit
institutions and, at the direction of the President, support applied
research at other organizations.
J. Recommend and encourage the pursuit of national policies for the
promotion of basic research and education in the sciences and
engineering. Strengthen research and education innovation in the
sciences and engineering, including independent research by
individuals, throughout the United States.
K. Support activities designed to increase the participation of
women and minorities and others underrepresented in science and
technology. The Louis Stokes Alliances for Minority Participation
(LSAMP) program is an alliance-based program. The program's theory is
based on the Tinto model for student retention referenced in the 2005
LSAMP program evaluation (cleared under 3145-0190 and now covered by
3145-0226). The overall goal of the program is to assist universities
and colleges in diversifying the nation's science, technology,
engineering and mathematics (STEM) workforce by increasing the number
of STEM baccalaureate and graduate degrees awarded to populations
historically underrepresented in these disciplines: African Americans,
Hispanic Americans, American Indians, Alaska Natives, Native Hawaiians,
and Native Pacific Islanders. LSAMP's efforts to increase diversity in
STEM are aligned
[[Page 11166]]
with the goals of the Federal Government's five-year strategic plan for
STEM education, Charting a Course for Success: America's Strategy for
STEM Education.
With This Fall Regulation Agenda, NSF Highlights Two Rules
CyberCorps Scholarship for Service Program (RIN 3145-AA64)
NSF, in consultation with the Secretary of Education, will be
finalizing regulations on the process of converting scholarships to
student loans when the scholarship recipients fail to meet their
required service obligations of the CyberCorps Scholarship for Service
(SFS) Program. This program provides scholarships for cybersecurity
undergraduate, and graduate (MS or Ph.D.) education. In return for the
financial support, recipients must agree to work for the U.S.
Government or a State, local, or Tribal government after graduation in
a cybersecurity-related position, for a period equal to the length of
the scholarship. Under the statute, NSF, must issue.
Robert Noyce Teacher Scholarship (Noyce) Program (RIN 3145-AA65)
NSF, in consultation with the Secretary of Education, will propose
regulations on the process of converting scholarships to student loans
when the scholarship recipients fail to meet their required service
obligations under the Robert Noyce teacher Scholarship (Noyce) Program.
This program provides funding to institutions of higher education to
provide scholarships to STEM major undergraduates and professionals to
become effective certified K-12 STEM teachers and experienced,
exemplary K-12 teachers to become master teacher leaders in high-need
school districts. Undergraduate and post-baccalaureate STEM
professionals receiving funding through the Scholarships and Stipends
Track must teach two years in a high-need school district for each year
in which they have received financial support. Post-baccalaureate STEM
professionals receiving funding through the NSF Teaching Fellowship
Track are supported for one year in obtaining a master's degree with
certification and then must teach for four years in a high-need school
district during which time they receive annual salary supplements from
the grant funds. Experienced, exemplary K-12 teachers of mathematics or
science in high-need school districts receiving financial support
through the Master Teaching Fellowship Track may be supported for one
year in obtaining a master's degree and then receive a salary
supplement from grant funds for four years as they continue to teach in
a high-need school district. Individuals who already possess a master's
degree can be supported for five years with salary supplements from
grant funds as they continue to teach in a high-need school district.
BILLING CODE 7555-01-P
U.S. OFFICE OF PERSONNEL MANAGEMENT
Statement of Regulatory and Deregulatory Priorities
Fall 2022 Unified Agenda
The Office of Personnel Management (OPM) serves as the chief human
resources agency and personnel policy manager for the federal
government. We are champions of talent for the federal government,
leading federal agencies in workforce policies, programs, and benefits
in service to the American people. We seek to position the federal
government as a model employer through innovation, inclusivity, and
leadership, as we build a rewarding culture that empowers the federal
workforce to tackle some of our nation's toughest challenges.
OPM's regulatory agenda is aligned with this core mission and
advances multiple Biden-Harris Administration priorities. Indeed, each
of OPM's regulations are focused on improving the efficiency and
effectiveness of government--a key Administration priority. In
addition, several of OPM's regulations are:
Actions that create and sustain good jobs with a free and
fair choice to join a union and promote economic resilience in general;
Actions that advance equity and support underserved,
vulnerable, and marginalized communities; and
Actions that advance the country's economic recovery and
continue to address any necessary COVID-19 related issues.
I. Actions That Create and Sustain Good Jobs With a Free and Fair
Choice To Join a Union and Promote Economic Resilience in General
OPM is committed to recruiting, retaining, and supporting a world-
class federal workforce. This means providing pathways to federal
service, working to make every federal job a good job, and
strengthening federal labor unions. OPM's regulatory agenda advances
each of these goals.
Providing Pathways to Federal Service
Pathways Programs (3206-AO25)
OPM is proposing modifications to the Pathways Programs to better
meet the Federal government's needs for recruiting and hiring interns,
recent graduates, and Presidential Management Fellows. OPM is proposing
these changes to allow agencies greater flexibility when making
appointments. The rule will update reporting requirements, training
requirements for Internship positions, and rotational assignments for
Presidential Management Fellows. The rule will also make changes to the
public notification requirement for appointing Interns and Recent
Graduates.
The intended effect is to facilitate a better applicant experience,
to improve developmental opportunities for Pathways Program
participants, and to streamline agency ability to hire Pathways Program
participants, especially those that have successfully completed their
Pathways requirements and are eligible for conversion to a permanent
position in the competitive service.
Hiring Authority for Post-Secondary Students (3206-AN86)
OPM is finalizing revisions to implement section 1108 of Public Law
115-232, John S. McCain National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2019. The statute requires OPM to issue regulations
establishing hiring authorities for post-secondary students to
positions in the competitive service to provide additional flexibility
in hiring eligible and qualified individuals.
Hiring Authority for College Graduates (3206-AN79)
OPM is finalizing regulations 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. This rule will provide additional
flexibility in hiring eligible and qualified individuals.
Rule of Many (3206-AN80)
OPM is proposing regulations to implement changes--known as the
``rule of many''--authorized by the National Defense Authorization Act
(NDAA) for Fiscal Year 2019 governing the selection of candidates from
competitive lists of eligibles. The statute eliminates the requirement
that an agency select only from the top three
[[Page 11167]]
candidates at any given juncture (the rule of three) in numerical
rating and ranking and instead authorizes agencies to certify and
consider a sufficient number of candidates, no fewer than three, to be
considered, using a cut-off score or other mechanism established by the
Office of Personnel Management by regulation. This change also affects
how agencies may make selections under 5 Code of Federal Regulations
(CFR) part 302 Employment in the Excepted Service. These changes will
provide expanded flexibility to agencies in the selection of
candidates.
Strengthening Federal Labor Unions
Probation on Initial Appointment to a Competitive Position,
Performance-Based Reduction in Grade and Removal Actions and Adverse
Actions (3206-AO23)
Per Executive Order 14003, Protecting the Federal Workforce, the
Office of Personnel Management (OPM) is finalizing regulations
governing probation on initial appointment to a competitive position,
performance-based reduction in grade and removal actions, and adverse
actions. The rule strengthens the federal workforce and rescinds
certain regulatory changes made in an OPM final rule published at 85 FR
65940 on November 16, 2020. This rule also identifies 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.
Making Every Federal Job a Good Job
Postal Service Health Benefits Program (3206-AO43)
The U.S. Office of Personnel Management (OPM) will issue an interim
final rule to administer the Postal Service Health Benefits (PSHB)
Program within the Federal Employees Health Benefits Program pursuant
to the Postal Service Reform Act of 2022. This regulation will ensure
continuity of health insurance coverage for Postal Service employees,
annuitants, and their family members who will no longer be eligible for
FEHB in January 2025; enable enrollees access to more prescription drug
coverage options and potential reduction in prescription drug costs for
Medicare Part D eligible enrollees; reduce the Postal Service's
premiums by approximately $5.7 billion over 10 years (CBO Analysis) and
reduce its future liability for retiree health benefits; enable use of
a central enrollment portal that will reduce administrative burden for
enrollment, ensure more accurate payment of plans, allow more frequent
sharing of enrollment data with plans, and limit human error.
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 finalizing a rule
to expand eligibility for enrollment in the Federal Employees Dental
and Vision Insurance Program (FEDVIP) to additional categories of
Federal employees. The 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. It 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. Finally, this rule adds 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.
II. Actions That Advance Equity and Support Underserved, Vulnerable,
and Marginalized
In fact, many of the regulations noted above--in particular, those
focused on providing pathways into the federal government--emphasize
equity.
Advancing Pay Equity in Governmentwide Pay Systems (3206-AO39)
In response to the two Executive orders concerning the advancement
of pay equity. OPM is issuing a proposed rule to advance pay equity in
the General Schedule (GS) pay system, Prevailing Rate Systems,
Administrative Appeals Judge (AAJ) pay system, and Administrative Law
Judge (ALJ) pay system by revising the criteria for making salary
determinations based on salary history. The Fair Chance to Compete for
Jobs (3206-AO00).
The Office of Personnel Management (OPM) is finalizing regulations
governing implementation of the Fair Chance to Compete for Jobs Act of
2019 (Act). These regulations are a core part of OPM's work to reduce
barriers to federal employment for individuals with a criminal record.
The regulations seek to accomplish this goal by expanding the positions
covered by the federal government's ``ban the box'' policy, which
delays inquiries into an applicant's criminal history until a
conditional offer has been made. The regulations also create new
procedures that outline due process and accountability steps for hiring
officials who are alleged to have violated the ``ban the box''
procedures.
Elijah E. Cummings Federal Employee Anti-Discrimination Act of
2020 (3206-AO26)
The Office of Personnel Management (OPM) is finalizing regulations
governing implementation of the Elijah E. Cummings Federal Employee
Discrimination Act of 2020, which became law on January 1, 2021. This
rule amends existing or adds new requirements to the Notification and
Federal Employee Anti-Discrimination and Retaliation Act of 2002. Among
other things, this rule establishes a new requirement to post findings
of discrimination that have been made, establishes new electronic
format reporting requirements for Agencies, and establishes a new
disciplinary action reporting requirements for Agencies.
III. Actions That Advance the Country's Economic Recovery and Continue
To Address Any Necessary COVID-19 Related Issues
OPM has helped to lead the federal government throughout the COVID-
19 pandemic--serving as a co-chair of the Safer Federal Workforce Task
Force, supporting agencies with implementation of a maximum telework
posture, and providing meaningful benefits to federal employees. OPM
will continue this important work through its regulatory agenda.
Scheduling of Annual Leave for Employees Responding to COVID-
19 (3206-AO04)
OPM is finalizing regulations to assist agencies and employees
responding to the National Emergency Concerning the Novel Coronavirus
Disease (COVID-19) Outbreak and for future national emergencies. The
regulations provide
[[Page 11168]]
that employees who would forfeit annual leave in excess of the maximum
annual leave allowable carryover because of their work to support the
nation during a national emergency will have their excess annual leave
deemed to have been scheduled in advance and subject to leave
restoration.
Evacuation During a Public Health Emergency (3206-AO34)
OPM is proposing a new subpart Q within part 550 of title 5, Code
of Federal Regulations, which would amend, expand, and reorganize
regulations that currently provide agencies with the authority to
evacuate employees during a pandemic health crisis. The revised
regulations will provide agencies with the authority to evacuate an
employee or groups of employees during either a public health emergency
declaration or a pandemic health crisis. The current authority to
evacuate employees during a pandemic health crisis is found at 5 CFR
550.409. This revision and reorganization of the regulations will
enable OPM to capitalize on lessons learned from the COVID-19 pandemic.
OPM
Final Rule Stage
212. Postal Service Health Benefits Program [3206-AO43]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: Pub. L. 117-108; 5 U.S.C. 89
CFR Citation: 5 CFR 890; 48 CFR Ch. 16.
Legal Deadline: Final, Statutory, April 6, 2023, Section 101 of the
Postal Service Reform Act of 2022 requires rulemaking no later than 1
year after enactment.
Abstract: The U.S. Office of Personnel Management (OPM) is issuing
an interim final rule to administer the Postal Service Health Benefits
(PSHB) Program within the Federal Employees Health Benefits Program
pursuant to the Postal Service Reform Act of 2022. Under 5 U.S.C.
Section 8903c, OPM must establish a PSHB Program for Postal Service
employees, Postal Service annuitants, and their eligible family
members, and not later than one year after the date of enactment, the
OPM Director must issue regulations to carry out section 8903c.
Statement of Need: OPM is issuing this rule to administer the PSHB
Program. The Postal Service Reform Act of 2022, Public Law 117-108
establishes the PSHB Program for Postal Service employees, Postal
Service annuitants, and their eligible family members, which will be
administered by OPM and the first contract year will begin January
2025.
Summary of Legal Basis: Sections 101 and 102 of the Postal Service
Reform Act of 2022, Public Law 117-108, amended chapter 89 of title 5
and added section 8903c to establish the Postal Service Health Benefits
Program.
Alternatives: N/A.
Anticipated Cost and Benefits: This regulation affects OPM as the
administrator of the PSHBP and other agencies that it may consult with
during rulemaking and implementation of the PSHBP such as USPS, HHS,
VA, DOL, and SSA. It is estimated that the rule would require
individuals employed by these agencies to spend time providing
information to OPM regarding eligibility, enrollment, and other
necessary information. For the purpose of this cost analysis, OPM is
focusing on OPM's costs of administering the PSHBP. The Act allocates
$70.5 million to OPM for start-up costs to carry out the PSHBP. This
encompasses three program offices within OPM: Healthcare and Insurance
(HI), which will have the largest impact as a result of this Act;
Retirement Services (RS); and the Chief Financial Officer (CFO). OPM
will incur additional costs (apart from the $70.5 million start-up
costs) for ongoing administration of the PSHBP, including operations
and maintenance of information systems (such as the central enrolment
portal) and continuous data exchanges with partnering agencies,
staffing for oversight and engagement with health plans, and
maintaining separate systems for PSHBP financial transactions.
With respect to benefits, this regulation will ensure continuity of
health insurance coverage for Postal Service employees, annuitants, and
their family members who will no longer be eligible for FEHB in January
2025; enable enrollees access to more prescription drug coverage
options and potential reduction in prescription drug costs for Medicare
Part D eligible enrollees; reduce the Postal Service's premiums by
approximately $5.7 billion over 10 years (CBO Analysis) and reduce its
future liability for retiree health benefits; enable use of a central
enrollment portal that will reduce administrative burden for
enrollment, ensure more accurate payment of plans, allow more frequent
sharing of enrollment data with plans, and limit human error.
Risks: N/A.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Interim Final Rule.................. 04/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: Federal.
Agency Contact: Rina Shah, Senior Policy Analyst, Office of
Personnel Management, 1900 E Street NW, Washington, DC 20415, Phone:
202 606-2128, Email: [email protected].
Louise Yinug, Planning and Policy Analysis, Office of Personnel
Management, 1900 E Street NW, Washington, DC 20415-8200, Phone: 202
606-0036, Fax: 202 606-4640, Email: [email protected].
RIN: 3206-AO43
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 protect the retirement security
of over 33 million American workers, retirees, and beneficiaries in
both single-employer and multiemployer private-sector pension 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 employers. In fiscal year (FY) 2022, PBGC paid over
$7.0 billion in benefits to more than 960,000 participants. 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
[[Page 11169]]
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
FY2022, PBGC provided $217 million in traditional financial assistance
to 115 multiemployer plans covering 93,525 participants, as well as a
final payment of $9 million in financial assistance to facilitate the
merger of two 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.
For the second year in a row, both PBGC's Multiemployer Program and
Single-Employer Program have a positive net position at fiscal year-
end. The financial status of the single-employer program improved from
a positive net financial position of $30.9 billion at the end of FY
2021 to $36.6 billion at the end of FY 2022. The net financial position
of the multiemployer program improved from a positive net position of
$481 million at the end of FY 2021 to $1.1 billion at the end of FY
2022.
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 provide funding to severely underfunded
multiemployer pension plans to ensure that millions of America's
workers, retirees, and their families receive the pension benefits they
earned through many years of hard work.
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 (RIN 1212-AB53) 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 received over 100 public
comments on many provisions of the interim rule including the
methodology plans must use to calculate the amount of SFA, permissible
investments of SFA funds, and the conditions imposed on plans that
receive SFA. PBGC published a final rule on July 8, 2022, that makes
various changes to part 4262 in response to public comments. The
provisions of the final rule became effective on August 8. PBGC
included a 30-day public comment period solely on the change to the
conditions to require a phased recognition of SFA assets for purposes
of computing employer withdrawal liability. PBGC received seven
comments, six of which related to the withdrawal liability condition.
Multiemployer Plans
PBGC plans to publish a final 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.
Benefit levels in a multiemployer plan are typically set by
trustees representing contributing employers and unions. Withdrawal
liability generally represents an employer's share of the plan's
unfunded vested benefits (UVBs) that the plan may have at the end of
the plan year immediately preceding the plan year in which the employer
withdraws. Withdrawal liability is the portion of the UVBs allocable to
the withdrawing employer and represents a plan's only opportunity to
require a withdrawing employer to pay its allocated share of the
unfunded liabilities. When a plan does not collect an adequate amount
of withdrawal liability from a withdrawing employer or collects an
amount that is less than a withdrawing employer's allocated share of
the plan's UVBs, that burden is shifted to the remaining contributing
employers in the plan. There is a higher likelihood that the plan will
not be able to pay full accrued benefits, and ultimately, there is an
increased likelihood that it would not have resources to pay basic
(PBGC-guaranteed) benefits. In that case, a plan may have to cut
benefits to the PBGC guarantee level and apply to PBGC for financial
assistance, which shifts costs to plan participants and to others in
the multiemployer insurance system who fund PBGC via annual premiums.
The rulemaking is needed to clarify that a plan actuary's use of
4044 rates represents a valid approach to selecting an interest rate
assumption to determine withdrawal liability in all circumstances. The
rulemaking would thereby reduce or eliminate the cost-shifting effects
of impediments to actuaries' use of 4044 rates.
PBGC also plans to propose a rulemaking that would add a new part
4022A to PBGC's regulations to provide
[[Page 11170]]
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 ``Benefit Payments''
rulemaking (RIN 1212-AB27) would make clarifications and codify
policies in PBGC's benefit payments and valuation regulations involving
payment of lump sums, changes to benefit form, partial benefit
distributions, and valuation of plan assets. PBGC's regulatory review
also identified a need to improve PBGC's recoupment of benefit
overpayment rules (``Improvements to Rules on Recoupment of Benefit
Overpayments,'' RIN 1212-AB47). 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) among other purposes.
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
Proposed Rule Stage
213. Actuarial Assumptions for Determining an Employer's Withdrawal
Liability [1212-AB54]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 29 U.S.C. 1393; 29 U.S.C. 1302(b)(3)
CFR Citation: 29 CFR 4213.
Legal Deadline: None.
Abstract: This final rule would prescribe actuarial assumptions
which may be used by a multiemployer plan actuary in determining an
employer's withdrawal liability.
Statement of Need: Benefit levels in a multiemployer plan are
typically set by trustees representing contributing employers and
unions. Withdrawal liability generally represents an employer's share
of the plan's unfunded vested benefits (UVBs) that the plan may have at
the end of the plan year immediately preceding the plan year in which
the employer withdraws. Withdrawal liability is the portion of the UVBs
allocable to the withdrawing employer and represents a plan's only
opportunity to require a withdrawing employer to pay its allocated
share of the unfunded liabilities. When a plan does not collect an
adequate amount of withdrawal liability from a withdrawing employer or
collects an amount that is less than a withdrawing employer's allocated
share of the plan's UVBs, that burden is shifted to the remaining
contributing employers in the plan. There is a higher likelihood that
the plan will not be able to pay full accrued benefits, and ultimately,
there is an increased likelihood that it would not have resources to
pay basic (PBGC-guaranteed) benefits. In that case, a plan may have to
cut benefits to the PBGC guarantee level and apply to PBGC for
financial assistance, which shifts costs to plan participants and to
others in the multiemployer insurance system who fund PBGC via annual
premiums.
This rulemaking is needed to clarify that a plan actuary's use of
4044 rates represents a valid approach to selecting an interest rate
assumption to determine withdrawal liability in all circumstances. The
rulemaking would thereby reduce or eliminate the cost-shifting effects
of impediments to actuaries' use of 4044 rates.
Anticipated Cost and Benefits: PBGC estimates that, in the 20 years
following the final rule's effective date, there will be a nominal
increase in cumulative withdrawal liability payments ranging between
$804 million and $2.98 billion. While PBGC expects that the rulemaking
will deter employer withdrawals, it will do so only at the margin, and
this impact is difficult to estimate. Accordingly, this analysis does
not model any change to the rate of employer withdrawals or decrease in
contributions due to improved plan funding attributable to these
changes because doing so would be too speculative.
The major expenses associated with a withdrawal liability dispute
are attorney fees, arbitration fees (including fees to initiate
arbitration and fees charged by an arbitrator), and fees charged by
expert witnesses. Though costs will vary greatly from plan to plan
based on the plan's benefit formula, size of the plan, attorney and
expert witness rates, and other factors, PBGC estimates that a
withdrawal liability arbitration, measuring from a request for plan
sponsor review of a withdrawal liability determination through the end
of arbitration would range from $82,500 to $222,000. For lengthy
litigation, costs can be over $1 million. Assuming some arbitrations
and litigation would be avoided entirely, and others would be less
complex because they would not include disputes over interest
assumptions, PBGC estimates that this rulemaking would result in an
annual savings of $500,000 to $1 million, split evenly between plans
and employers.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 10/14/22 87 FR 62316
NPRM Comment Period End............. 11/14/22
NPRM Comment Period Extended........ 11/10/22 87 FR 67853
NPRM Comment Period End............. 12/13/22
Final Rule.......................... 06/00/23
------------------------------------------------------------------------
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
[[Page 11171]]
NW, Washington, DC 20005, Phone: 202 229-3839, Email:
[email protected].
RIN: 1212-AB54
PBGC
Final Rule Stage
214. Special Financial Assistance by PBGC [1212-AB53]
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) 2021
Projections Report, published in September 2022, PBGC estimated a range
of possible outcomes for the total amount of SFA payments under the
provisions of the final rule. The program is likely to provide an
estimated $74 billion to $91 billion in assistance. The estimated
impact of the final rule is an increase of $5.6 billion in the mean
total amount of SFA. The overall transfer under the SFA Program is
uncertain because the amount of SFA each plan will receive is
calculated at the time the plan applies to PBGC, and that SFA
calculation is based on plan projections and economic conditions at the
time of application. PBGC 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 severely
underfunded multiemployer pension plans covering millions of
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 Rule with Request for Comment 07/08/22 87 FR 40968
on 29 CFR 4262.16(g)(2).
Final Rule with Request for Comment 08/08/22
Period End.
Final Rule Effective................ 08/08/22
Analyzing Comments.................. 12/00/22
------------------------------------------------------------------------
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 or
Agency) is to maintain and strengthen the nation's economy by helping
Americans start, grow and build resilient businesses, and by helping
communities and small businesses recover after disasters. In
accomplishing this mission, SBA strives to improve the economic
environment for small businesses including those in underserved
communities.
SBA has several capital, market access, 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
capital 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 helps small businesses access federal
government contracting opportunities and funds various certification,
training and mentoring programs to help small businesses, particularly
businesses owned by women, service-disabled veterans, minorities, and
other historically underrepresented groups. SBA also helps promote
export trade opportunities for small businesses looking to expand
through global trade. The Agency also provides management and technical
assistance to existing or potential small business owners through
various grants, cooperative agreements, or contracts with resource
partners. Finally, as a vital part of its purpose, SBA also provides
direct disaster assistance to businesses for economic and physical
damages, to homeowners and renters to repair or replace their property
in the aftermath of a disaster, and to both residents and businesses to
mitigate for future disasters.
Reducing Burden on Small Businesses
SBA's regulatory policy reflects a commitment to developing
regulations that simplify the experience in navigating its programs, in
particular for the Agency's core customers--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 reduce the burden imposed by the Agency's
core activities in its loan, investment, 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 FY22-24 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
[[Page 11172]]
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 with business revenue and job growth. The plan sets out three
strategic goals: (1) Ensure equitable and customer-centric design and
delivery of programs to support small businesses and innovative
startups; (2) Build resilient businesses and a sustainable economy; (3)
Implement strong stewardship of resources for greater impact. The
regulations reported in SBA's semi-annual Regulatory Agenda and Plan
are intended to facilitate achievement of these goals and objectives.
Since March 2020, SBA's regulatory activities have placed
significant focus on rulemakings that are necessary to further advance
the country's economic recovery from the Coronavirus (COVID-19)
pandemic. These rulemakings have included those implementing the
Paycheck Protection Program and the Economic Injury Disaster Loan
program, making 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 continue to advance the country's economic
recovery. Many of these regulatory activities, in particular, will
focus on enhancing SBA's programs and increasing access to those
offerings in underserved and underrepresented communities across the
country.
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 2022 Data Call for the Unified Agenda of
Federal Regulatory and Deregulatory Action (09/02/2022), 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; (4)
Actions that create and sustain good jobs with a free and fair choice
to join a union and promote economic resilience in general; and (5)
Actions that improve service delivery, customer experience, and reduce
administrative burdens.
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 rule, Disaster Loan
Program Changes (RIN: 3245-AH80) proposes to expand 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 proposes
to expand the eligible uses of loan proceeds. These and other proposed
amendments to the program will help 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. The Agency also remains committed to ensuring
that COVID financial assistance programs 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 Action Plan,\1\ 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 of our programs
including addressing language and cultural differences and socio-
economic factors; expanding the lending network including to 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. SBA continues to explore
additional regulatory actions that can supplement its Equity Action
Plan objectives and further support underserved, vulnerable, and
marginalized communities.
---------------------------------------------------------------------------
\1\ SBA, Equity Action Plan, available at https://assets.performance.gov/cx/equity-action-plans/2022/E.O.%2013985_SBA_Equity%20Action%20Plan_2022.pdf (Jan. 2022).
---------------------------------------------------------------------------
Title: Ownership and Control and Contractual Assistance Requirements
for the 8(a) Business Development Program
Pursuant to Sections 7(j)(10) and 8(a) of the small Business Act
(15 U.S.C. 636(j)(10) and 637(a)), SBA operates the 8(a) Business
Development Program. The program helps firms owned and controlled by
socially and economically disadvantaged individuals strengthen their
ability to compete effectively in the American economy by providing
training and various forms of technical, financial, and procurement
assistance. Through this proposed rulemaking, SBA proposes several
changes to the ownership and control requirements for the 8(a) Business
Development (BD) program, including recognizing a process for allowing
a change of ownership for a former Participant that is still performing
one or more 8(a) contracts and permitting an individual to own an
applicant or Participant where the individual can demonstrate that
financial obligations have been settled and discharged by the Federal
Government. The rule also proposes to make several changes relating to
8(a) contracts, including clarifying that a contracting officer cannot
limit an 8(a) competition to Participants having more than one
certification and clarifying the rules pertaining to issuing sole
source 8(a) orders under an 8(a) multiple award contract. The proposed
rule would also make several other revisions to incorporate changes to
SBA's other government contracting programs, including changes to
implement a statutory amendment from the National Defense Authorization
Act for Fiscal Year 2022, include blanket purchase agreements in the
list of contracting vehicles that are covered by the definitions of
consolidation and bundling, and more clearly specify the requirements
relating to waivers of the nonmanufacturer rule.
Actions That Tackle the Climate Change Emergency and Promote Economic
Resilience
To help combat the climate change crisis, SBA is implementing a
multi-year
[[Page 11173]]
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.
Even so, SBA's continued regulatory activities to enhance and
modernize its procurement and capital assistance programs will further
these efforts to combat the climate crisis. For example, SBA's proposed
rule, Disaster Loan Program Changes to Maximum Loan Amounts and
Miscellaneous Updates (RIN 3245-AH91), intends to amend various
regulations governing SBA's Disaster Loan Program in order to expand
options for disaster loan recipients as well as reflect inflation.
These changes, including the increase to the home loan lending limits,
the extension of the deferment period, and the expansion of mitigation
options, are intended to increase disaster survivors' access to needed
disaster loan funds for the repair or replacement of a damaged
property. The changes are necessary due to increased costs related to
construction and labor, as well as increases in property values over
time.
Other Priorities
SBA plans to prioritizes: (1) 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; (2) regulations for
SBA's Small Business Investment Company program that will enhance
investment in underserved communities and geographies, capital
intensive investments, and technologies critical to national security
and economic development access to SBA's capital and other financing
programs; and (3) regulations that reduce barriers for small businesses
seeking capital, lending, and other financial assistance from the
Agency.
Title: Veteran-Owned Small Business and 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.
Section 862 of the NDAA FY 2021 requires transfer of the program to SBA
on January 1, 2023.
This statutorily mandated program is consistent with SBA's ongoing
efforts to support businesses in underserved markets, including
veteran-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. 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. On July 6, 2022, SBA published a
Notice of Proposed Rulemaking (NPRM) 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 sought 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. SBA reviewed
public comments received before the comment period closed on August 8,
2022, and issued a final rule on November 29, 2022 (87 FR 734000).
Title: Small Business Investment Company Investment Diversification and
Growth (RIN 3245-AH90)
The U.S. Small Business Administration (``SBA'' or ``Agency'') is
proposing to revise the regulations for the Small Business Investment
Company (``SBIC'') program to significantly reduce barriers to program
participation in order to stimulate participation of new SBIC fund
managers and funds investing in underserved communities and
geographies, capital intensive investments, and technologies critical
to national security and economic development. This rulemaking will
enhance SBIC programmatic participation and further the
Administration's ongoing objectives of Advancing the Country's Economic
Recovery, Advancing Equity and Supporting Underserved, Vulnerable, and
Marginalized Communities, and Tackling the Climate Change Emergency and
Promoting Economic Resilience.
Through this rulemaking, SBA intends to reduce the regulatory
burden on new SBIC fund managers who are oftentimes small businesses
themselves. This proposed rule introduces an additional type of SBIC
(``Accrual SBICs'') to increase program investment diversification and
patient capital financing for small businesses and modernize rules to
lower financial barriers to program participation. SBA intends to
implement a regulatory framework in support for Administration
priorities by reducing financial and administrative barriers to
participate in the SBIC program and modernizing the program's license
and capital commitment offerings to align with a more diversified set
of private funds investing in underserved small businesses, capital-
intensive small businesses and technologies and industries critical to
our national security and global competitiveness. In addition, the
proposed rule also incorporates the statutory requirements of the
Spurring Business in Communities Act of 2017, which was enacted on
December 19, 2018.
Title: Affiliation and Lending Criteria for the SBA Business Loan
Programs (RIN 3245-AH87)
In response to continuing requests by SBA's participating lenders
and the public, SBA intends to revise its affiliation standards and
certain other lending criteria restricting access to
[[Page 11174]]
SBA's capital programs. SBA believes that revising its affiliation
regulations would result in expansion of credit to those who cannot
obtain credit elsewhere and would increase understanding of and
compliance with program rules while decreasing time spent reviewing an
applicant for eligibility. SBA also intends to address these challenges
in financing changes of ownership, such as partial ownership purchases.
Orderly transitions of business ownership are beneficial both to the
small business and its employees. The ability for employees to acquire
partial ownership interest in small businesses can assist with business
succession and ownership transitions, especially when there is more
than one current owner and one of the current owners intends to sell
their equity stake in the small business to one or more employees who
may not then have an equity ownership interest. Through that
acquisition, the small business concern would likely benefit from
remaining in operation when it would otherwise be forced to close, and
the employees would likely benefit by having a path to ownership of an
operational small business.
Partial changes of ownership among existing owners of a small
business may permit such businesses to attract new employees as partial
owners (e.g., allowing a dental group to attract a new dentist to the
practice and providing the new dentist with partial ownership in the
small business). Financing for these changes of ownership also permit
family members to purchase partial ownership in a family-run small
business and ensure continuation of the small business after the
retirement or death of an owner. The costs associated with the creation
of an ESOP and ongoing compliance with associated regulations may be
cost-prohibitive for small businesses. Additionally, the organizational
costs for unleveraged ESOPs start at $80,000 with additional annual
compliance reporting obligations. In a leveraged ESOP transaction, the
initial costs increase by 25 percent or more. SBA believes these costs
to be prohibitive for many small businesses that qualify for SBA
assistance.
Presently, SBA does not fully meet the financing needs of small
businesses regarding partial changes of ownership due to current
restrictions, necessitating this proposed rule. Historically, SBA has
permitted loan proceeds for use only in three situations involving a
change of ownership: (1) A complete change of ownership; (2) a Partner
Buyout; and (3) where an ESOP purchases a controlling interest (51% or
more) in the employer small business from the current owner(s). Outside
of loans to ESOPs, SBA's current regulations do not permit 7(a) loan
proceeds to be used for partial changes of ownership. Through this
proposed rulemaking, SBA intends to address these challenges to
financing ownership changes. SBA intends for the proposed rule change
to allow for partial changes of ownership for employee ownership
without the additional upfront and ongoing costs incurred by the small
business in the formation and operation of an ESOP trust.
In addition, the proposed changes will reduce regulatory burdens,
modernize program delivery through the use of data analytics tools and
machine learning modelling, reduce the number of hours spent processing
an application to deliver a loan for both SBA and lenders and increase
access to capital.
Title: Small Business Lending Company (SBLC) Moratorium Rescission and
Removal of the Requirement for a Loan Authorization (RIN 3245-AH92)
SBA has determined that certain markets, where there are capital
market gaps, continue to struggle to obtain financing on non-predatory
terms. Therefore, SBA is proposing to lift the moratorium on licensing
new Small Business Lending Companies (SBLC) and create a new type of
mission-based SBLC to help bridge this financing gap.
SBA is proposing to add a new definition for ``Mission-Based SBLC''
within its regulations, defining a Mission-Based SBLC as a specific
type of SBLC that is a nonprofit organization with the purpose of
filling an identified capital market gap, such as financing in
underserved geographic areas or for socioeconomic groups, veterans, and
certain types of business like startups and home-based ventures.
Similar to regular SBLCs, SBA would license these Mission-Based SBLCs
for the sole purpose of making 7(a) loans.
Mission-Based SBLCs as proposed would allow SBA to better meet the
needs of underserved communities. Mission-Based SBLCs will increase
opportunities for access to capital in precisely targeted capital
market gaps as described more fully below in proposed revisions to
section 120.470. SBA is proposing for Mission-Based SBLCs to be
nonprofit entities because nonprofit lending organizations often
specifically target the capital market gaps SBA intends to fill, yet
nonprofits may be unable to meet SBA's current requirements for SBLCs,
which are typically for-profit. Adding Mission-Based SBLCs to the
possible types of 7(a) Lenders will also allow CA Lenders an
opportunity to apply to permanently participate in the 7(a) Loan
Program as a Mission-Based SBLC while continuing to meet the needs of
underserved communities. When SBA authorizes an additional Mission-
Based SBLC License to a CA Lender, the CA Lender will no longer be able
to make CA loans, because SBLCs, including Mission-Based SBLCs, may
only make regular (non-CA) 7(a) loans.
In addition, SBA intends to modify its documentation requirements
for lending activities on 7(a) loans to enhance borrower experience and
customer service as well as improve Agency operations. These
modifications may include removal of duplicative forms and other
information collections on applicants for the business loan programs,
thereby lowering costs and reducing paperwork burdens on borrowers,
lenders, and SBA.
Actions That Improve Service Delivery, Customer Experience, and Reduce
Administrative Burdens
For example, SBA's proposed rule, Affiliation and Lending Criteria
for the SBA Business Loan Programs (RIN 3245-AH87), discussed supra,
intends to reduce regulatory burdens, modernize program delivery
through the use of data analytics tools and machine learning modelling,
reduce the number of hours spent processing an application to deliver a
loan for both SBA and lenders and increase access to capital. For
another example, SBA's proposed rule, Small Business Lending Company
(SBLC) Moratorium Rescission and Removal of the Requirement for a Loan
Authorization (RIN 3245-AH92), discussed supra, intends to modify its
documentation requirements for lending activities on 7(a) loans to
enhance borrower experience and customer service as well as improve
Agency operations. These modifications may include removal of
duplicative forms and other information collections on applicants for
the business loan programs, thereby lowering costs and reducing
paperwork burdens on borrowers, lenders, and SBA. For another example,
SBA's final rule, Veteran-Owned Small Business and Service-Disabled,
Veteran-Owned Small Business--Certification (RIN 3245-AH69), intends to
improve the certification process for veteran-owned and service-
disabled veteran-owned small businesses by reducing administrative
burdens on these business concerns seeking certifications to ensure
greater participation in federal procurement.
BILLING CODE 8026-03-P
[[Page 11175]]
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 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. 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. Modify the medical criteria we use when evaluating digestive
disorders and skin disorders for adults under titles II and XVI, and
children under title XVI of the Act (RIN 0960-AG65);
B. Implement access to and use of information held by payroll data
providers to help administer the title II disability insurance and
title XVI supplemental security income programs, reduce reporting
burdens on beneficiaries, and prevent improper payments (RIN 0960-
AH88);
C. Simplify a specific policy within the SSI program by no longer
considering food expenses as a source of In-Kind Support and
Maintenance (ISM) (RIN 0960-AI60); and
D. Clarify the circumstances under which SSA may disclose social
security numbers (SSN) to other Federal agencies (RIN 0960-AI80).
II. Regulations in the Proposed Rule Stage
Our proposed regulations would implement the Commissioner's access
to and use of the information held by payroll data providers. We are
required to publish regulations implementing our access and use of this
data, which is to include: guidelines for the information exchanges,
authorizations, reduced wage reporting responsibilities, and procedures
for notifying individuals of reduced reporting (RIN 0960-AH88).
Also, our proposed regulations would clarify the circumstances
under which SSA may disclose SSN information to other Federal agencies.
We disclose to other Federal agencies certain SSN information as
authorized pursuant to a framework of Federal statues, including the
Act, the Privacy Act, and related regulations (RIN 0960-AI80).
Lastly, our proposed regulations would target changes to the ISM
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).
III. Regulations in the Final Rule Stage
Our regulation would modify the medical criteria we use when
evaluating digestive disorders and skin disorders for adults under
titles II and XVI, and children under title XVI of the Act. We are
revising the criteria in these sections to ensure that the medical
evaluation criteria are up-to-date and consistent with the latest
advances in medical knowledge and treatment (RIN 0960-AG65).
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
215. Use of Electronic Payroll Data To Improve Program Administration
[0960-AH88]
Priority: Other Significant.
Legal Authority: Bipartisan Budget Act of 2015, sec. 824
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: We propose to implement the Commissioner's access to and
use of the information held by payroll data providers. We will use this
data to help administer the title II disability insurance (DI) and
title XVI supplemental security income (SSI) programs and prevent
improper payments. Under section 824 of the Bipartisan Budget Act of
2015, we are required to publish regulations implementing our access
and use of this data, which is to include: guidelines for the
information exchanges, authorizations, reduced wage reporting
responsibilities, and procedures for notifying individuals of reduced
reporting.
Statement of Need: In accordance with the Bipartisan Budget Act of
2015, section 824, the Commissioner of Social Security has the
authority to enter into an information exchange with a payroll data
provider, allowing us to efficiently administer monthly disability
insurance and supplemental security income benefits, while preventing
improper payments. Section 824(d) of the Bipartisan Budget Act of 2015
requires the agency to implement its access to and use of information
held by payroll data providers.
Summary of Legal Basis: Bipartisan Budget Act of 2015, section 824.
Alternatives: To be determined.
Anticipated Cost and Benefits: To be provided with publication of
the proposed rule.
Risks: To be determined.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/23 .......................
------------------------------------------------------------------------
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-AH88
SSA
216. Omitting Food From In-Kind Support and Maintenance Calculations
[0960-AI60]
Priority: Other Significant. Major under 5 U.S.C. 801.
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; 20
CFR 416.1103; 20 CFR 416.1104; 20 CFR 416.1121; 20 CFR 416.1124; 20 CFR
[[Page 11176]]
416.1132; 20 CFR 416.1133; 20 CFR 416.1140; 20 CFR 416.1147; 20 CFR
416.1148; 20 CFR 416.1149; 20 CFR 416.1157; . . .
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
Supplemental Security Income (SSI) program complexity.
Summary of Legal Basis: We are proposing a regulatory change to
revise our definition of ISM by removing food from 20 CFR 416.1130.
This will streamline the policy and reduce the program complexity of
ISM.
Alternatives: In the absence of legislative changes, the current
proposal streamlines the SSI process.
Anticipated Cost and Benefits: We estimate that implementation of
these proposed rules for all eligibility and payment determinations
effective April 1, 2023 and later will result in an increase in Federal
SSI payments of a total of about $1.5 billion over the period of fiscal
years 2023 through 2032.
Risks: We do not anticipate risk to the integrity of our program.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23 .......................
------------------------------------------------------------------------
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
217. Social Security Number Use in Government Records [0960-
AI80]
Priority: Other Significant.
Legal Authority: 5 U.S.C. 552a
CFR Citation: 20 CFR 401; 20 CFR 422.
Legal Deadline: None.
Abstract: The Social Security Administration (SSA) collects and
maintains information regarding Social Security Number (SSN) applicants
to administer the Social Security, Supplemental Security Income, and
Special Veterans Benefits programs. SSA discloses to other Federal
agencies certain SSN information as authorized pursuant to a framework
of Federal statues, including the Privacy Act and the Social Security
Act, and related regulations. This regulation clarifies the
circumstances under which SSA may disclose SSN information to other
Federal agencies.
Statement of Need: The public increasingly seeks to apply for and
manage government services and benefits online. This regulation helps
increase access to services while preserving privacy protections.
Summary of Legal Basis: TBD.
Alternatives: TBD.
Anticipated Cost and Benefits: This regulation may result in
increased access to, and more efficient and effective administration
of, Federal government services and benefits. Pursuant to Federal law,
Federal agencies seeking data, including Social Security Number
verifications, from the Social Security Administration (SSA) must
reimburse SSA for its cost to provide the service.
Risks: TBD.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 11/00/23 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Elizabeth Tino, Senior Advisor, Social Security
Administration, Office of the General Counsel, 6401 Security Boulevard,
Woodlawn, MD 21235-6401, Phone: 443 519-8278.
RIN: 0960-AI80
SSA
Final Rule Stage
218. Revised Medical Criteria for Evaluating Digestive Disorders and
Skin Disorders [0960-AG65]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 402; 42 U.S.C. 405(a); 42 U.S.C. 405(b);
42 U.S.C. 405(d) to 405(h); 42 U.S.C. 416(i); 42 U.S.C. 421(a); 42
U.S.C. 421(i); 42 U.S.C. 423; 42 U.S.C. 902(a)(5); 42 U.S.C. 1381a; 42
U.S.C. 1382c; 42 U.S.C. 1383; 42 U.S.C. 1383b
CFR Citation: 20 CFR 404, subpart P, app. 1.
Legal Deadline: None.
Abstract: Sections 5.00 and 105.00, Digestive System and sections
8.00 and 108.00, Skin Disorders, of appendix 1 to subpart P of part 404
of our regulations describe those disorders that we consider severe
enough to prevent a person from engaging in any gainful activity, or
that cause marked and severe functional limitations for a child
claiming Supplemental Security Income payments under title XVI. We are
revising the criteria in these sections to ensure that the medical
evaluation criteria are up-to-date and consistent with the latest
advances in medical knowledge and treatment.
Statement of Need: These changes would modernize our criteria for
evaluating digestive and skin disorders, consistent with current
medical and scientific evidence and standards of care.
Summary of Legal Basis: Sections 4.00 and 104.00, Cardiovascular
System, of appendix 1 to subpart P of part 404 of our regulations.
Sections 8.00 and 108.00, Skin Disorders, of appendix 1 to subpart
P of part 404 of our regulations.
This proposed rule is not required by statute or court order.
Alternatives: We considered continuing to use our current criteria.
However, we believe these proposed revisions are necessary because of
medical advances, technology, and treatment since we last revised these
rules.
Anticipated Cost and Benefits: The results of the actuarial
analysis indicate a small net increase in scheduled OASDI benefit
payments for digestive disorders updates ($93 million), a small net
decrease in Federal SSI payments ($4 million), and small net decreases
in scheduled OASDI benefit payments for skin disorders updates ($83
million) and in Federal SSI payments ($40 million) over a ten year
period.
Risks: None.
Timetable:
[[Page 11177]]
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
ANPRM............................... 12/12/07 72 FR 70527
ANPRM Comment Period End............ 02/11/08 .......................
NPRM................................ 07/25/19 84 FR 35936
NPRM Comment Period End............. 09/23/19 .......................
Final Action........................ 12/00/22 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: Includes Retrospective Review under E.O.
13563.
URL For Public Comments: www.regulations.gov.
Agency Contact: Michael J. Goldstein Director, Social Security
Administration, Office of Medical Policy, 6401 Security Boulevard,
Woodlawn, MD 21235-6401, Phone: 410 966-2733, Email:
[email protected].
Related RIN: Related to 0960-AG74, Related to 0960-AG91
RIN: 0960-AG65
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 2022 Unified Agenda consists of 52 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,
Tackle the climate change emergency,
Advance equity and support underserved, vulnerable and
marginalized communities,
Improve service delivery and customer experience,
including reducing administrative burdens, enhancing transparency, and
improving efficiency and effectiveness of government, and
Support national security efforts, especially safeguarding
Federal Government information and information technology systems.
Rulemaking That Promotes Economic Resilience
FAR Case 2022-004, ``Enhanced Price Preference for Critical
Components and Critical Items,'' will add a list of critical components
and critical items, along with their associated enhanced price
preference, that will apply to acquisitions subject to the Buy American
statute. This rule completes the framework added to the FAR as part of
implementation of section 8 of Executive Order 14005, Ensuring the
Future Is Made in All of America by All of America's Workers.
FAR Case 2022-011, ``Nondisplacement of Qualified Workers Under
Service Contracts,'' will require contractors and subcontractors to
offer qualified employees employed under predecessor contracts a right
of first refusal of employment under successor contracts in accordance
with Executive Order 14055, Nondisplacement of Qualified Workers Under
Service Contracts and the associated Department of Labor regulations at
29 CFR part 9.
FAR Case 2022-003, ``Use of Project Labor Agreement for Federal
Construction Projects,'' will require the use of project labor
agreements for large-scale construction projects with a total estimated
value of $35 million or more in accordance with Executive Order 14063,
Use of Project Labor Agreements for Federal Construction Projects.
Rulemaking That Tackles Climate Change
FAR Case 2022-006, ``Sustainable Procurement,'' will implement
requirements for the procurement of sustainable products and services
per Executive Order 14057, Catalyzing Clean Energy Industries and Jobs
Through Federal Sustainability, and Office of Management and Budget
Memorandum M-22-06. The rule will also reorganize FAR part 23 for
consistency and clarity.
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 Advances Equity and Supports Underserved Communities
FAR Case 2022-009, ``Certification of Service-Disabled Veteran-
Owned Small Businesses,'' will clarify the certification requirements
for service-disabled veteran-owned small businesses (SDVOSB) following
the transfer of the responsibility for SDVOSB certification from the
Veterans Affairs to the Small Business Administration.
FAR Case 2021-011, ``Past Performance Ratings for Small Business
Joint Venture Members and Small Business First-Tier Subcontractors,''
will implement statute which requires contracting officers to consider
the capabilities and past performance of first-tier subcontractors for
bundled or consolidated contracts, and to consider the capabilities and
past performance of first-tier subcontractors for multiple award
contracts valued above the substantial bundling threshold. The rule
will implement statute which provides two methods for small businesses
to obtain past performance: (1) a small business may use the past
performance of a joint venture of which it is a member, provided the
small business worked on the joint venture's contract(s), or (2) a
small business may use past performance it obtained as a first-tier
subcontractor from a prime contractor when specifically identified
under a subcontracting plan for the contract.
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,
[[Page 11178]]
certificate of competency and follow-on requirements.
Rulemakings That Improve Service Delivery and Customer Experience
FAR Case 2019-015, ``Improving Consistency Between Procurement &
Non-Procurement Procedures on Suspension and Debarment,'' will bring
the procedures on suspension and debarment in the FAR into closer
alignment with the Non-procurement Common Rule (NCR) procedures,
creating a more consistent experience for industry.
FAR Case 2021-001, ``Increased Efficiencies with Regard to
Certified Mail, In-person Business, Mail, Notarization, Original
Documents, Seals, and Signatures,'' will increase flexibilities and
efficiencies regarding certified mail, in-person business, mail,
notarization, original documents, seals, and signatures using digital
and virtual technology.
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.
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 to
address safety hazards, including 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 other 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 acting in the next 12
months on three rules, Regulatory Options for Table Saws (RIN 3041-
AC31); Petition for Rulemaking to Eliminate Accessible Cords on Window
Covering Products (RIN 3041-AD31); and Furniture Tip Overs: Clothing
Storage Units (RIN 3041-AD65), which would constitute ``significant
regulatory actions'' under the definition of that term in Executive
Order 12866.
CPSC
Final Rule Stage
219. Regulatory Options for Table Saws [3041-AC31]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 5 U.S.C. 553(e); 15 U.S.C. 2051
CFR Citation: 16 CFR 1245.
Legal Deadline: None.
Abstract: In 2006, the Commission granted a petition asking that
the Commission issue a rule to prescribe performance standards for an
active injury mitigation (AIM) system to reduce or prevent injuries
from contacting the blade of a table saw. The Commission subsequently
issued a notice of proposed rulemaking (NPRM) that would establish a
performance standard requiring table saws to limit the depth of cut to
3.5 millimeters when a test probe, acting as a surrogate for a human
body/finger, contacts the table saw's spinning blade. Staff has
conducted several studies to provide information for the rulemaking.
Staff intends to submit a final rule briefing package to the Commission
in fiscal year 2023.
Statement of Need: In the NPRM, the Commission preliminarily
determined that there is an unreasonable risk associated with blade-
contact injuries on table saws. Based on injury data reviewed in 2015,
there were an estimated 33,400 table saw, emergency department treated
injuries. Of these, staff estimated that 30,800 (92 percent) are likely
related to the victim making contact with the saw blade. Of the 30,800
ED treated blade-contact injuries, an estimated 28,900 injuries (93.8
percent) involved the finger, with 4,700 amputations (15.2 percent).
Alternatives: The Commission could (1) pursue table saw voluntary
standard activities; (2) extend the effective dates of a possible rule;
(3) exempt certain categories of table saws from the draft proposed
rule; (4) limit the applicability of the performance requirements to
some, but not all, tables saws; or (5) pursue an information and
education campaign to inform the public of the hazards of blade contact
and the benefits of the AIM technology.
Anticipated Cost and Benefits: The expected gross benefits range
from about $970 million to $2.45 billion over the product life of 1
year of sales. The expected costs of the draft proposed rule will range
from about $168 million to about $345 million annually. Based on
staff's benefit and cost estimates, net benefits (i.e., benefits minus
costs) for the market were estimated to amount to
[[Page 11179]]
about $625 million to $2.3 billion over the product life of 1 year of
table saw sales.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Commission Decision to Grant 07/11/06
Petition.
ANPRM............................... 10/11/11 76 FR 62678
Notice of Extension of Time for 12/02/11 76 FR 75504
Comments.
Comment Period End.................. 02/10/12
Notice to Reopen Comment Period..... 02/15/12 77 FR 8751
Reopened Comment Period End......... 03/16/12
Staff Sent NPRM Briefing Package to 01/17/17
Commission.
Commission Decision................. 04/27/17
NPRM................................ 05/12/17 82 FR 22190
NPRM Comment Period End............. 07/26/17
Public Hearing...................... 08/09/17 82 FR 31035
Staff Sent 2016 NEISS Table Saw Type 08/15/17
Study Status Report to Commission.
Staff Sent 2017 NEISS Table Saw 11/13/18
Special Study to Commission.
Notice of Availability of 2017 NEISS 12/04/18 83 FR 62561
Table Saw Special Study.
Staff Sends a Status Briefing 08/28/19
Package on Table Saws to Commission.
Commission Decision................. 09/10/19
Staff Sends Final Rule Briefing 09/00/23
Package to Commission.
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
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: Caroleene Paul, Project Manager, Directorate for
Engineering Sciences, Consumer Product Safety Commission, National
Product Testing and Evaluation Center, 5 Research Place, Rockville, MD
20850, Phone: 301 987-2225, Email: [email protected].
RIN: 3041-AC31
CPSC
220. Petition for Rulemaking To Eliminate Accessible Cords on Window
Covering Products [3041-AD31]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 5 U.S.C. 553(e); 15 U.S.C 2056; 15 U.S.C. 2058; 15
U.S.C. 2064(j)
CFR Citation: 16 CFR 1260; 16 CFR 1120.
Legal Deadline: None.
Abstract: The Commission received a petition from a group of nine
organizations representing consumer groups, safety consultants, and
legal counsel. The petition requested that the Commission initiate
proceedings to promulgate a mandatory standard to eliminate accessible
cords on window covering products. The petition asserts that a
mandatory rule is necessary because attempts to develop a voluntary
standard that adequately mitigates the risk of injury associated with
window covering cords have been unsuccessful. The Commission voted to
accept CPSC staff's recommendation to approve the petition and
subsequently issued an advance notice of proposed rulemaking (ANPRM)
for corded window coverings. The ANPRM begins a rulemaking proceeding
under the Consumer Product Safety Act (CPSA) to address the risk of
strangulation to young children that is associated with corded window
covering products. Staff sent two notices of proposed rulemaking
(NPRMs) to the Commission for consideration in October 2021. The first
NPRM, under section 15(j) of the CPSA, would amend 16 CFR part 1120 to
add hazardous operating and inner cords on stock window coverings, and
hazardous inner cords on custom window coverings, to the list of
substantial product hazards. The listed cords would be required to
comply with the 2018 voluntary standard for window covering cords or
else be subject to denial of admission and/or corrective action. The
second NPRM, under sections 7 and 9 of the CPSA, proposes that
operating cords on custom window coverings meet the same requirements
as operating cords on stock window coverings under the 2018 voluntary
standard. The Commission voted in January 2022 to issue both proposed
rules. The comment period ends on March 23, 2022. On March 16, 2022,
the Commission held a hearing for the presentation of oral comments on
the rule for operating cords on custom window coverings. On September
28, 2022, staff submitted a final rule briefing package to the
Commission.
Statement of Need: This rule is necessary to address the
unreasonable risk of strangulation to children 8 years old and younger
on custom window coverings with accessible operating cords longer than
8 inches.
Anticipated Cost and Benefits: For the final rule under sections 7
and 9 of the CPSA, using a value of statistical life (VSL) of 1, the
aggregate benefits of the rule are estimated to be about $23 million
annually; and the lowest cost of the rule is estimated to be about
$54.4 million annually. However, increasing the VSL by a factor of 3,
to estimate the loss of a child's life versus an adult's life, yields
an estimated aggregate benefit of $68.7 million.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Petition Docketed................... 06/26/13
Notice for Comment Published in 07/15/13 78 FR 42026
Federal Register.
Comment Period End.................. 09/13/13
Staff Sends ANPR Briefing Package to 09/30/14
Commission.
Commission Decision................. 10/08/14
ANPRM Published in the Federal 01/16/15 80 FR 2327
Register.
Draft FR Notice to Commission to 03/10/15
Extend ANPR Comment Period.
FR Notice Announcing Extension of 03/23/15 80 FR 15173
Comment Period.
Comment Period Closed............... 06/01/15
NPRM Briefing Package to Commission. 10/06/21
Commission Decision................. 12/14/21
NPRM for Stock Window Coverings..... 01/07/22 87 FR 891
NPRM for Custom Window Coverings.... 01/07/22 87 FR 1014
[[Page 11180]]
Draft FR Notice to Commission to 02/23/22
Extend NPRM Comment Period.
Commission Decision Not To Extend 03/01/22
Comment Period.
Hearing to Present Oral Comments on 03/16/22
NPRM re Custom Window Coverings.
Staff Sends Final Rule Briefing 09/28/22
Package to Commission.
Commission Decision................. 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: Undetermined.
International Impacts: This regulatory action will be likely to
have international trade and investment effects, or otherwise be of
international interest.
Agency Contact: Rana Balci-Sinha, Project Manager, Directorate for
Engineering Sciences, Consumer Product Safety Commission, National
Product Testing and Evaluation Center, 5 Research Place, Rockville, MD
20850, Phone: 301 987-2584, Email: [email protected].
RIN: 3041-AD31
CPSC
221. Furniture Tip Overs: Clothing Storage Units [3041-AD65]
Priority: Economically Significant. Major under 5 U.S.C. 801.
Legal Authority: 15 U.S.C. 2056; 15 U.S.C. 2058; 15 U.S.C. 2076(e)
CFR Citation: Not Yet Determined.
Legal Deadline: None.
Abstract: Based on direction in the Fiscal Year 2016 Operating
Plan, staff submitted a briefing package to the Commission in September
2016, addressing furniture tip overs and focused, specifically, on
clothing storage unit (CSU) tip overs. CPSC is aware of fatal and
nonfatal incidents involving CSUs tipping over. The majority of
incidents involve children. In November 2017, the Commission issued an
advance notice of proposed rulemaking (ANPRM), seeking comments and
initiating rulemaking under the Consumer Product Safety Act (15 U.S.C.
2051-2089). In July 2021, staff submitted a notice of proposed
rulemaking (NPRM) briefing package to the Commission. On January 19,
2022, the Commission approved publication of an NPRM addressing CSU tip
overs. The NPRM was published in the Federal Register on February 3,
2022. The written comment period closes on April 19, 2022. On February
9, 2022, the Commission received a request to extend the written
comment period on the NPRM. On February 23, 2022, staff forwarded to
the Commission a draft notice to extend the written comment period. On
March 1, 2022, the Commission voted not to extend the written comment
period. On February 16, 2022, staff submitted to the Commission a draft
notice announcing the opportunity for interested parties to make oral
comments on the NPRM. On February 23, 2022, the Commission voted to
approve publication of the oral comment notice. The oral comment notice
was published in the Federal Register on March 1, 2022, and the
Commission held the hearing on April 6, 2022. After reviewing comments
on the NPRM, staff submitted a final rule briefing package to the
Commission on September 28, 2022.
Statement of Need: This rule is necessary to address an
unreasonable risk of injury and death, particularly to children, posed
by clothing storage units tipping over.
Anticipated Cost and Benefits: In the final rule regulatory
evaluation, CPSC assessed expected benefits to be about $307.17 million
annually and the expected costs to be about $250.90 million.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Staff Sent Briefing Package to 09/30/16
Commission.
Staff Sent ANPRM Briefing Package to 11/15/17
Commission.
Commission Decision on ANPRM........ 11/21/17
ANPRM............................... 11/30/17 82 FR 56752
Comment Period Extended............. 01/17/18 83 FR 2382
Comment Period End.................. 04/14/18
Staff Sent NPRM Briefing Package to 07/14/21
Commission.
Commission Decision on NPRM......... 01/19/22
NPRM................................ 02/03/22 87 FR 6246
Draft Notice of Oral Comment Hearing 02/16/22
to Commission.
Commission Decision on Notice of 02/23/22
Oral Comment Hearing.
Draft FR Notice to Commission to 02/23/22
Extend NPRM Comment Period.
Commission Decision Not To Extend 03/01/22
Comment Period.
Notice of Oral Comment Hearing...... 03/01/22 87 FR 11366
Oral Comment Hearing................ 04/06/22
End of NPRM Comment Period.......... 04/19/22
Staff Sends Final Rule Briefing 09/28/22
Package to Commission.
Commission Decision................. 12/00/22
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: Yes.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Kristen Talcott, Project Manager, Directorate for
Engineering Sciences, Consumer Product Safety Commission, National
Product Testing and Evaluation Center, 5 Research Place, Rockville, MD
20850, Phone: 301 987-2311, Email: [email protected].
RIN: 3041-AD65
BILLING CODE 6355-01-P
FEDERAL TRADE COMMISSION (FTC)
Statement of Regulatory Priorities (2022)
The Federal Trade Commission is an independent agency charged with
rooting out unfair methods of competition and unfair or deceptive acts
or practices. Its mission is vital to the national interest because,
when markets are fair and competitive, honest businesses and the public
all benefit. The Commission is committed to deploying all its tools,
including issuing new rules and updating old ones, to achieve its
mission.
I. The Commission Is Using All Available Tools To Advance Its Missions
In its 2021 Statement of Regulatory Priorities, the Commission
explained
[[Page 11181]]
that it was considering initiating new rulemakings to advance its
missions and respond to several changed circumstances and new
developments.\1\ First, the Supreme Court's April 2021 AMG decision
held that the Commission cannot use section 13(b) of the FTC Act to
seek consumer redress in federal court.\2\ As the Supreme Court noted
in AMG, however, consumer redress remains available for cases that
involve a consumer-protection rule violation.\3\ Second, the
Commission, after careful study, had streamlined its own Rules of
Practice, conforming its processes to the requirements set out by
Congress in section 18 of the FTC Act, which governs the promulgation,
amendment, and repeal of consumer-protection rules.\4\ Third, the
Commission, noting the limitations of case-by-case competition
enforcement, committed to exploring the possibility of promulgating
competition rules. These circumstances are all present in equal or
greater force in 2022. Accordingly, the Commission and its staff have
been hard at work studying the problems that rules can address,
formulating rulemaking documents, reviewing public comments, and
engaging with stakeholders.
---------------------------------------------------------------------------
\1\ See Fed. Trade Comm'n, Statement of Regulatory Priorities
(2021), https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/202110/Statement_3084_FTC.pdf.
\2\ See AMG Cap. 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.
\3\ See AMG Capital, 141 S. Ct. at 1352.
\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.
---------------------------------------------------------------------------
As to consumer-protection rules, the Commission in the last year
published three advance notices of proposed rulemaking (``ANPRs'')
under its section 18 authority. First, in December 2021, the Commission
published an ANPR focused on the impersonation of government and
businesses, which could result in a rule that codifies the well-
established principle that impersonation scams are unlawful.\5\ This
ANPR noted that the Commission expends significant resources combating
impersonation fraud, with impersonation of government and businesses as
two of the largest causes of consumer losses. Although some existing
rules \6\ outlaw impersonation of government and businesses in specific
contexts, many impersonation cases are brought only under the
Commission's Section 5 authority, so a potential rule would make
redress far more readily obtainable for consumers harmed by
impersonation scams. Public comments in response to the ANPR were
enthusiastic, including support from companies that scammers frequently
impersonate, such as Apple and Microsoft, as well as a bipartisan
coalition of 49 state attorneys general. Notably, no public comment
opposed proceeding with the rulemaking. Based on this record, the
Commission concluded that these forms of impersonation are prevalent
and proposed a rule to prohibit the impersonation of government and
businesses and the providing of means and instrumentalities for such
impersonation.\7\
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\5\ See Fed. Trade Comm'n, ANPR--Impersonation of Government and
Businesses, 87 FR 72901 (Dec. 23, 2021), https://www.federalregister.gov/documents/2021/12/23/2021-27731/trade-regulation-rule-on-impersonation-of-government-and-businesses.
\6\ See, e.g., Telemarketing Sales Rule, 16 CFR 310.3(a)(2)(vii)
(prohibiting misrepresentations with respect to a ``seller's or
telemarketer's affiliation with, or endorsement or sponsorship by,
any person or government entity'').
\7\ See Press Release, Fed. Trade Comm'n, FTC Proposes New Rule
to Combat Government and Business Impersonation Scams (Sept. 15,
2022), https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-proposes-new-rule-combat-government-business-impersonation-scams.
---------------------------------------------------------------------------
The second new consumer-protection rulemaking focused on unfair or
deceptive earnings claims.\8\ As with impersonation scams, the
Commission expends significant enforcement resources addressing
misleading earnings claims, which are a persistent scourge to consumers
and tend to flourish in times of economic distress in diverse forms.
Enforcement cases have alleged ``misleading earnings claims were used
to tout offers as diverse as coaching or mentoring, education, work-
from-home, ``gig'' work, and other job opportunities, multi-level
marketing opportunities, franchise, e-commerce or other business
opportunities, chain referral schemes, and other investment
opportunities, as well as other types of business or money-making
opportunities.'' \9\ The Commission noted that a potential rule could
deter wrongdoing, aid consumers, and provide useful guidance to honest
businesses.
---------------------------------------------------------------------------
\8\ See Fed. Trade Comm'n, ANPR--Deceptive or Unfair Earnings
Claims, 87 FR 13951 (Mar. 11, 2022), https://www.federalregister.gov/documents/2022/03/11/2022-04679/deceptive-or-unfair-earnings-claims.
\9\ Id., 87 FR at 13953.
---------------------------------------------------------------------------
The Commission's 2021 Statement of Regulatory Priorities
specifically previewed the third new consumer-protection rulemaking
proceeding:
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.\10\
---------------------------------------------------------------------------
\10\ 2021 Statement of Regulatory Priorities at 2.
---------------------------------------------------------------------------
After careful consideration, the Commission published an ANPR
focused on these issues, describing how Americans must routinely
surrender their personal information to participate in basic aspects of
modern life.\11\ The ANPR canvassed the Commission's decades-long
effort to protect Americans' privacy through case-by-case enforcement,
policy work, and implementation of sectoral privacy laws, concluding
that rulemaking could be a useful addition to the effort. The
Commission asked 95 questions to ascertain whether unfair or deceptive
practices relating to commercial surveillance and data security are
prevalent and whether proceeding with one or more proposed rules is
worthwhile.
---------------------------------------------------------------------------
\11\ See Fed. Trade Comm'n, ANPR--Commercial Surveillance and
Data Security, 87 FR 51273 (Aug. 22, 2022), https://www.federalregister.gov/documents/2022/08/22/2022-17752/trade-regulation-rule-on-commercial-surveillance-and-data-security.
---------------------------------------------------------------------------
A final new rulemaking initiated by the Commission concerns unfair
and deceptive practices at auto dealerships.\12\ This notice of
proposed rulemaking (NPRM) describes how acquiring an automobile is
among the most expensive and important transactions for consumers and
how a variety of unfair or deceptive practices can harm those
consumers. After cataloguing the Commission's extensive law-enforcement
experience with respect to auto dealerships, the NPRM notes that ``many
of the problems observed in the motor vehicle marketplace persist in
the face of repeated federal and state enforcement actions, suggesting
the need for additional measures to deter deceptive and unfair
practices.'' \13\ The NPRM
[[Page 11182]]
contains proposed rule text and a preliminary regulatory analysis of
the anticipated costs and benefits of the proposed rule. The Commission
sought comment on these general subjects as well as on 49 specific
questions to inform the Commission's determination as to whether, and
if so how, to finalize a rule.
---------------------------------------------------------------------------
\12\ See Fed. Trade Comm'n, NPRM--Motor Vehicle Dealers, 87 FR
42012 (July 13, 2022), https://www.federalregister.gov/documents/2022/07/13/2022-14214/motor-vehicle-dealers-trade-regulation-rule.
Unlike the three other new rulemakings, which each began with an
ANPR under section 18, the Commission wass authorized by a specific
enactment of Congress to begin this rulemaking with an NPRM. See 12
U.S.C. 5519(d).
\13\ NPRM--Motor Vehicle Dealers, 87 FR at 42013.
---------------------------------------------------------------------------
Updating existing rules to meet new challenges is another important
part of the Commission's rulemaking work. A particularly noteworthy
effort is potentially updating the Telemarketing Sales Rule (``TSR'').
The Commission took two important actions on the TSR in 2022. First,
the Commission published an NPRM that would, among other things, expand
the TSR to cover misrepresentations made in business-to-business
contexts and bolster recordkeeping requirements.\14\ Second, the
Commission published a corollary ANPR that seeks ``comment on whether
to repeal all exemptions regarding telemarketing calls to businesses
and inbound telemarketing of computer technical support services, and
whether the TSR should provide consumers additional protections for
negative option products or services.'' \15\ These potential updates to
the TSR, and proposed updates to other rules such as the Amplifier Rule
\16\ and the Energy Labeling Rule,\17\ demonstrate that the Commission
is committed to ensuring that its rules keep pace with changing
technological and economic circumstances.
---------------------------------------------------------------------------
\14\ See Fed. Trade Comm'n, NPRM--Telemarketing Sales Rule, 87
FR 33677 (June 3, 2022), https://www.federalregister.gov/documents/2022/06/03/2022-09914/telemarketing-sales-rule.
\15\ Fed. Trade Comm'n, ANPR--Telemarketing Sales Rule, 87 FR
33662, 33662 (June 3, 2022).
\16\ See Fed. Trade Comm'n, NPRM--Power Output Claims for
Amplifiers Utilized in Home Entertainment Products, 87 FR 45047
(July 27, 2022), https://www.federalregister.gov/documents/2022/07/27/2022-16071/trade-regulation-rule-relating-to-power-output-claims-for-amplifiers-utilized-in-home-entertainment.
\17\ See Fed. Trade Comm'n, NPRM--Energy Labeling Rule, 87 FR
31754 (May 25, 2022), https://www.federalregister.gov/documents/2022/05/25/2022-11126/energy-labeling-rule.
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The Commission's renewed use of its rulemaking authorities comes
with a commitment to increase robust public participation at each step
of the agency's rulemaking process. For example, the ANPR on commercial
surveillance announced a well-attended virtual public forum, which
began with a staff explanation of the ways in which the public can
participate and concluded with hours of testimony from members of the
public who signed up to speak.\18\ In a similar vein, the Commission
published, in English and in Spanish, new plain-language guides to
facilitate public participation in rulemakings, especially from
communities and perspectives that have not always been able to
participate.\19\ The Commission also accepted several petitions under
its new process for public rulemaking petitions; \20\ each received a
notice in the Federal Register \21\ and was posted for comment for 30
days on https://www.regulations.gov.
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\18\ See Fed. Trade Comm'n, Commercial Surveillance and Data
Security Public Forum (Sept. 8, 2022), https://www.ftc.gov/news-events/events/2022/09/commercial-surveillance-data-security-anpr-public-forum.
\19\ See Fed. Trade Comm'n, Public Participation in the
Rulemaking Process, https://www.ftc.gov/enforcement/rulemaking/public-participation-rulemaking-process; Participaci[oacute]n
P[uacute]blica en el Proceso de Reglamentaci[oacute]n de la FTC
Conforme a la Secci[oacute]n 18, https://www.ftc.gov/es/participacion-publica-en-el-proceso-de-reglamentacion-de-la-ftc-conforme-la-seccion-18 (printable versions available in both
languages).
\20\ See 16 CFR 1.31.
\21\ See Fed. Trade Comm'n, Notices of Petitions for Rulemaking
from Randall David Marks, 86 FR 70062 (Dec. 9, 2021); Inst. for
Pol'y Integrity, 86 FR 73207 (Dec. 27, 2021); Accountable Tech, 86
FR 73206 (Dec. 27, 2021); NetChoice et al., 87 FR 12003 (Mar. 3,
2022).
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In the coming year, the Commission's consumer-protection rulemaking
work will have much in common with the past year's: a continued focus
on harmful and intractable practices that are prevalent, a continued
commitment to furthering the Commission's ability to provide redress to
harmed consumers and deter bad actors, and continued efforts to enable
robust public participation and thoroughly and carefully consider the
record evidence. New consumer-protection rulemakings the Commission
recently initiated include one to address unfair or deceptive fees,
such as mandatory fees added to the advertised price of a good or
service during the course of a transaction, and another to address
unfair or deceptive reviews and endorsements, such as fake reviews and
seemingly independent endorsements that involve undisclosed
relationships.
As for its competition mission, the Commission in the past year has
been actively exploring whether new rules that specify ``unfair methods
of competition'' prohibited by Section 5 of the FTC Act would help
achieve the agency's mission. In its most recent strategic plan, the
Commission observed that ``[r]ules . . . inform businesses and their
legal advisers about antitrust risks and can deter anticompetitive
mergers and business practices'' and that promoting competition can
benefit all market participants, including workers.\22\ Accordingly,
the Commission is considering proposing a rule addressing non-compete
clauses in the labor market.
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\22\ Fed. Trade Comm'n, FTC Strategic Plan for Fiscal Years 2022
to 2026, at 16 (Aug. 26, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/fy-2022-2026-ftc-strategic-plan.pdf. Other competition
problems could also be addressed by new rules. Cf. Office of the
President of the United States, Executive Order or Promoting
Competition in the American Economy, section 5(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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In sum, the Commission has undertaken important rulemaking
initiatives in the last year. In the next year, the Commission will
focus on continuing to work on those initiatives. It will also continue
seeking public input and learning from its law-enforcement, consumer-
education, market-monitoring, and other work to identify additional
opportunities for new or improved rules to complement its other tools
and the vital work of partner agencies and the states. Rulemakings can
deliver important benefits to the public and honest businesses--and
they are especially likely to do so with a robust rulemaking record and
meaningful public engagement, so the Commission will continue to seek
the views of all affected communities.
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 of their
significant regulations.\23\ Under the Commission's program, rules and
guides are typically 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.
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\23\ 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
[[Page 11183]]
``significant economic impact upon a substantial number of small
entities.'' \24\
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\24\ 5 U.S.C. 610.
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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.
(1) Newly Initiated and Upcoming Periodic Reviews of Rules and Guides
On August 5, 2022, the Commission issued an updated ten-year review
schedule.\25\ Since the publication of the 2021 Regulatory Plan, the
Commission has initiated or announced plans to initiate periodic
reviews of the following rules and guides:
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\25\ Fed. Trade Comm'n, Regulatory Review Schedule, 87 FR 47947
(Aug. 5, 2022), https://www.federalregister.gov/documents/2022/08/05/2022-16863/regulatory-review-schedule.
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Business Opportunity Rule, 16 CFR part 437. On November 25, 2022,
the Commission initiated periodic review of the Business Opportunity
Rule as part of the Commission's systematic review of all current
Commission rules and guides.\26\ The Commission is seeking 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. The comment period will close on
January 24, 2023. 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 purchaser. The seller must also preserve information that
forms a reasonable basis for such claims.
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\26\ 87 FR 72428 (Nov. 25, 2022).
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Alternative Fuels Rule, 16 CFR part 309. During 2023, as part of
the systematic review of all Commission rules, the Commission plans to
initiate a periodic review of the Alternative Fuels Rule (formally
``Labeling Requirements for Alternative Fuels and Alternative-Fueled
Vehicles'') by publishing a notice seeking public comments on the
effectiveness and impact of the Rule.
Cooling-Off Rule, 16 CFR part 429. During 2023, as part of the
systematic review of all Commission rules, the Commission plans to
initiate a periodic review of the Cooling-Off Rule (formally ``Trade
Regulation Rule Concerning Cooling-Off Period for Sales Made at Homes
or at Certain Other Locations'') by publishing a notice seeking public
comments on the effectiveness and impact of the Rule. Most recently, on
January 9, 2015, the Commission amended the Cooling-Off Rule by
increasing the exclusionary limit for all door-to-door sales at
locations other than a buyer's residence from $25 up to $130.\27\ Under
that final rule, the revised definition of door-to-door sale now
distinguishes between sales at a buyer's residence and those at other
locations. The revised definition retained coverage for sales made at a
buyer's residence that have a purchase price of $25 or more. The final
rule amendment was effective on March 13, 2015.
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\27\ 80 FR 1329 (Jan. 9, 2015).
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Guides. During the calendar year of 2022, the Commission plans to
initiate periodic review of the Guides for the Use of Environmental
Marketing Claims, 16 CFR part 260. During 2023, the Commission plans to
initiate periodic review of the Guides for Private Vocational and
Distance Education Schools, 16 CFR part 254.
(2) Ongoing Periodic Reviews of Rules and Guides
The following proceedings for the retrospective review of
Commission rules and guides described in the 2021 Regulatory Plan are
ongoing:
Hart-Scott-Rodino Antitrust Improvements Act Coverage, Exemption,
and Transmittal Rules, 16 CFR parts 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.\28\ The comment period closed on
February 1, 2021, and staff has been 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
of time before consummating the transaction. By December 2022, staff
anticipates sending the Commission a recommendation for a proposed rule
on substantive HSR Form changes. By June 2023, staff anticipates that
the Commission will issue a final rule to update the HSR Form and
Instructions to the new cloud-based, e-filing system, which will
eliminate paper filings.
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\28\ 85 FR 77042 (Dec. 1, 2020).
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Children's Online Privacy Protection Rule, 16 CFR part 312. On July
25, 2019, the Commission issued a request for public comment on its
Children's Online Privacy Protection Rule (``COPPA Rule'').\29\
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.\30\ 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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\29\ 84 FR 35842 (July 25, 2019).
\30\ 84 FR 56391 (Oct. 22, 2019).
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Endorsement Guides, 16 CFR part 255. On February 21, 2020, the
Commission initiated a periodic review of the Endorsement Guides.\31\
The comment period, as extended, closed on June 22, 2020.\32\ On July
26, 2022, the Commission sough public comments on proposed changes to
the Guides.\33\ The comment period closed on September 26, 2022. 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
[[Page 11184]]
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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\31\ 85 FR 10104 (Feb. 21, 2020).
\32\ 85 FR 19709 (Apr. 8, 2020).
\33\ 87 FR 44288 (July 26, 2022).
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Franchise Rule, 16 CFR part 436. On March 15, 2019, the Commission
initiated periodic review of the Franchise Rule (officially
``Disclosure Requirements and Prohibitions Concerning
Franchising'').\34\ 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.\35\ Staff continues to evaluate the
record and anticipates sending a recommendation to the Commission by
June 2023. 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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\34\ 84 FR 9051 (Mar. 13, 2019).
\35\ 85 FR 55850 (Sept. 10, 2020).
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Health Breach Notification Rule, 16 CFR part 318. On May 22, 2020,
the Commission initiated a periodic review of the Health Breach
Notification Rule.\36\ The comment period closed on August 20, 2020.
Commission staff has reviewed the comments and intends to submit a
recommendation to the Commission by December 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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\36\ 85 FR 31085 (May 22, 2020).
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Identity Theft Rules, 16 CFR part 681. In December 2018, the
Commission initiated a periodic review of the Identity Theft Rules,
which include the Red Flags Rule and the Card Issuer Rule.\37\ FTC
staff is reviewing the comments received and anticipates sending a
recommendation to the Commission by December 2023. 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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\37\ 83 FR 63604 (Dec. 11, 2018).
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Leather Guides, 16 CFR part 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.\38\ The
comment period closed on April 22, 2019, and staff anticipates
submitting a recommendation for further action to the Commission during
2023. 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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\38\ 84 FR 8045 (Mar. 6, 2019).
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Negative Option Rule, 16 CFR part 425. On October 2, 2019, the
Commission issued an Advance Notice of Proposed Rulemaking seeking
public comment on the effectiveness and impact of the Trade Regulation
Rule on Use of Prenotification Negative Option Plans (Negative Option
Rule).\39\ 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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\39\ 84 FR 52393 (Oct. 2, 2019).
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Eyeglass Rule, 16 CFR part 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.\40\ 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 late 2022. 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.
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\40\ 80 FR 53274 (Sept. 3, 2015).
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b. Proposed Rules
Since the publication of the 2021 Regulatory Plan, the Commission
has initiated or plans to take further steps as described below in the
following rulemaking proceedings:
Energy Labeling Rule, 16 CFR part 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. On October 25, 2022, the Commission issued an Advance
Notice of Proposed Rulemaking that seeks public comment on potential
amendments to the Rule, including energy labels for several new
consumer product categories, other possible amendments to improve the
Rule's effectiveness, and reducing unnecessary burdens.\41\
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\41\ 87 FR 64399 (Oct. 25, 2022). See also II(c), Final Actions,
below for information about two separate completed rulemaking
proceedings for the Energy Labeling Rule.
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Power Output Claims for Amplifiers Utilized in Home Entertainment
Products, 16 CFR part 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'').\42\ 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. The Amplifier Rule establishes uniform test standards
and disclosures so that consumers can make
[[Page 11185]]
more meaningful comparisons of amplifier-equipment performance
attributes. On July 27, 2022, the Commission sought public comment on a
proposal to amend the Rule to require sellers making power-related
claims to calculate power output using uniform testing methods to allow
consumers to easily compare amplifier sound quality.\43\ Additionally,
for multichannel home theater amplifiers the Commission sought comment
about how to set test conditions to reflect typical consumer use. The
comment period closed on September 26, 2022, and staff is reviewing the
comments.
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\42\ 85 FR 82391 (Dec. 18, 2020).
\43\ 87 FR 45047 (July 27, 2022).
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Safeguards Rule (Standards for Safeguarding Customer Information),
16 CFR part 314. On December 9, 2021, the Commission amended the
Safeguards Rule issued a final rule that provides additional
requirements for financial institutions' information security
programs.\44\ 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. This rule
was effective January 10, 2022, except that the provisions set forth in
section 314.5 are applicable beginning June 9, 2023.\45\
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\44\ 86 FR 70272 (Dec. 9, 2021).
\45\ See II(b), Proposed Rules, above for information about a
separate and ongoing rulemaking under the Safeguards Rule.
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Telemarketing Sales Rule, 16 CFR part 310. On August 11, 2014, the
Commission initiated a periodic review of the Telemarketing Sales Rule
(``TSR'').\44\ The comment period as extended closed on November 13,
2014.\45\ On June 3, 2022, the Commission issued a Notice of Proposed
Rulemaking seeking public comment on proposed amendments to the
TSR.\46\ The proposed amendments would require telemarketers and
sellers to maintain additional records of their telemarketing
transactions, prohibit material misrepresentations and false or
misleading statements in business-to-business telemarketing
transactions, and add a new definition for the term ``previous donor.''
The comment period closed on August 2, 2022, and the Commission has
received 25 comments to date. Also on June 3, 2022, the Commission
issued an Advance Notice of Proposed Rulemaking seeking public comment
on whether the TSR should continue to exempt telemarketing calls to
businesses, whether the TSR should require a notice and cancellation
mechanism with negative option sales, and whether to extend the TSR to
apply to telemarketing calls that consumers initiate to a telemarketer
(i.e., inbound telemarketing calls) regarding computer technical
support services.\47\ The comment period closed on August 2, 2022, and
the Commission has received 22 comments to date. Staff is reviewing the
comments and will provide a recommendation to the Commission regarding
both rulemakings by spring 2023.
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\44\ 79 FR 46732 (Aug. 11, 2014).
\45\ 79 FR 61267 (Oct. 10, 2014).
\46\ 87 FR 33677 (June 3, 2022).
\47\ 87 FR 33662 (June 3, 2022).
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Motor Vehicle Dealers Trade Regulation Rule, 16 CFR part 463. On
July 13, 2022, the Commission issued a Notice of Proposed Rulemaking
soliciting public comment on a proposed Rule regarding unfair or
deceptive acts or practices under its authority with respect to motor
vehicle dealers described in section 1029(d) of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, Public Law 111-203.\48\ The
proposed rule would prohibit motor vehicle dealers from making certain
misrepresentations in the course of selling, leasing, or arranging
financing for motor vehicles, require accurate pricing disclosures in
dealers' advertising and sales discussions, require dealers to obtain
consumers' express, informed consent for charges, prohibit the sale of
any add-on product or service that confers no benefit to the consumer,
and require dealers to keep records of advertisements and customer
transactions. The public comment period closed on September 12, 2022.
The staff is reviewing the public comments.
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\48\ 87 FR 42012 (July 13, 2022).
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Trade Regulation Rule on Impersonation of Government and
Businesses, 16 CFR part 461. On October 17, 2022, the Commission issued
a Notice of Proposed Rulemaking to address certain deceptive or unfair
acts or practices of impersonation of government and business
officials.\49\ The public comment period will close on December 16,
2022, and staff will review the comments before making a recommendation
as to next steps.
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\49\ 87 FR 62741 (Oct. 17, 2022).
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Earnings Claims Trade Regulation Rule, 16 CFR part 462. On March
11, 2022, the Federal Trade Commission (FTC or Commission) issued an
Advance Notice of Proposed Rulemaking seeking public comment about a
proposed rule to address deceptive or unfair marketing using earnings
claims.\50\ The comment period closed on May 10, 2022, and staff is
reviewing the comments.
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\50\ 87 FR 13951 (Mar. 11, 2022).
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Trade Regulation Rule on Commercial Surveillance, 16 CFR part
undetermined. On August 22, 2022, the Commission initiated an Advance
Notice of Proposed Rulemaking (ANPR) under section 18 of the FTC Act to
limit privacy abuses, curb lax security practices, and ensure that
algorithmic decision-making does not result in unlawful
discrimination.\51\ The Commission sought public comment on whether new
rules are needed to protect people's privacy and information in the
commercial surveillance economy. On September 8, 2022, the Commission
hosted a public forum regarding its ANPR on commercial surveillance and
data security practices that harm consumers and competition. The public
forum included panel discussions and members of the public provided
remarks. The ANPR's extended public comment period closed on November
21, 2022.\52\ Staff is reviewing the public comments.
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\51\ 87 FR 51273 (Aug. 22, 2022).
\52\ 87 FR 63738 (Oct. 20, 2022).
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Funeral Rule, 16 CFR part 453. On February 14, 2020, the Commission
initiated a periodic review of the Funeral Industry Practices Rule
(Funeral Rule).\53\ The comment period as extended closed on June 15,
2020.\54\ Commission staff is reviewing the comments received and
anticipates submitting a recommendation for further action to the
Commission in fall 2022. The Funeral Rule, which became effective in
1984, requires sellers of funeral goods and services to give price
lists to consumers who visit or call a funeral home. On November 2,
2022, the Commission issued an Advance Notice of Proposed Rulemaking
seeking comment on potential updates to modernize the Funeral Rule,
including improvements to the public accessibility of funeral home
price information.\55\ The comment period will close on January 3,
2023. The Commission also issued a staff report that summarizes the
results of their review of almost 200 funeral provider websites.\56\
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\53\ 85 FR 8490 (Feb. 14, 2020).
\54\ 85 FR 20453 (Apr. 13, 2020).
\55\ 87 FR 66096 (Nov. 2, 2022).
\56\ See Fed. Trade Comm'n, FTC Seeks to Improve the American
Public's Access to Funeral Service Prices Online (Oct. 20, 2022),
https://www.ftc.gov/news-events/news/press-releases/2022/10/ftc-seeks-improve-american-publics-access-funeral-service-prices-online.
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Unfair or Deceptive Fees Trade Regulation Rule, 16 CFR part 464. On
November 8, 2022, the Commission
[[Page 11186]]
issued an Advance Notice of Proposed Rulemaking to address certain
deceptive or unfair acts or practices related to fees.\57\ The public
comment period will close on January 9, 2023, and staff will review the
comments before making a recommendation as to next steps.
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\57\ 87 FR 67413 (Nov. 8, 2022); see also Fed. Trade Comm'n,
Federal Trade Commission Explores Rule Cracking Down on Junk Fees
(Oct. 20, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/10/federal-trade-commission-explores-rule-cracking-down-junk-fees.
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Trade Regulation Rule on the Use of Reviews and Endorsements, 16
CFR part 465. On November 8, 2022, the Commission issued an Advance
Notice of Proposed Rulemaking to address certain deceptive or unfair
acts or practices concerning reviews and endorsements.\58\ The public
comment period will close January 9, 2023, and staff will review the
comments before making a recommendation as to next steps.
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\58\ 87 FR 67424 (Nov. 8, 2022); see also Fed. Trade Comm'n,
Federal Trade Commission to Explore Rulemaking to Combat Fake
Reviews and Other Deceptive Endorsements (Oct. 20, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/10/ftc-explore-rulemaking-combat-fake-reviews-other-deceptive-endorsements.
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c. Final Actions
Since the publication of the 2021 Regulatory Plan, the Commission
has issued the following final agency actions in rulemaking
proceedings:
Privacy of Consumer Financial Information Rule, 16 CFR part 313.
The Privacy of Consumer Financial Information Rule (Privacy 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. Congress enacted
the Fixing America's Surface Transportation Act (FAST Act) which
included a provision amending the Gramm-Leach-Bliley Act to create a
new exception to the annual notice requirement. On April 4, 2019, the
Commission issued a Notice of Proposed Rulemaking to revise the Rule's
scope, to modify the Rule's definitions of ``financial institution''
and ``federal functional regulator,'' and to update the Rule's annual
customer privacy notice requirement.\59\ The proposed update would
remove certain examples in the Rule that apply to financial
institutions that now fall outside the scope of the Commission's Rule.
These changes were intended to conform the Rule to the current
requirements of the Gramm-Leach-Bliley Act, as amended by the Dodd-
Frank Act and the FAST Act. The public comment period closed on June 3,
2019. On December 9, 2021, the Commission issued a final rule to, among
other changes, revise the Rule's scope, modify the Rule's definitions
of ``financial institution'' and ``federal financial regulator,'' and
update the Rule's annual customer privacy notice requirement.\60\ This
action was necessary to conform the Rule to the current requirements of
the Gramm-Leach-Bliley Act. The amendments were effective on January
10, 2022.
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\59\ 84 FR 13150 (Apr. 4, 2019).
\60\ 86 FR 70020 (Dec. 9, 2021).
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Safeguards Rule (Standards for Safeguarding Customer Information),
16 CFR part 314. On December 9, 2021, the Commission issued a final
rule amending the Safeguards Rule by providing additional requirements
for financial institutions' information security programs.\61\ 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. This rule was effective
January 10, 2022, except that the provisions set forth in section 314.5
are applicable beginning June 9, 2022.\62\
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\61\ 86 FR 70272 (Dec. 9, 2021).
\62\ 87 FR 71509 (Nov. 23, 2022); also see II(b), Proposed
Rules, above for information about a separate and ongoing rulemaking
under the Safeguards Rule.
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Energy Labeling Rule, 16 CFR part 305. On June 2, 2021, the
Commission proposed updates to comparability ranges and sample labels
for central air conditioners.\63\ The comment period closed on August
2, 2021. On October 20, 2021, the Commission issued a final rule
updating the comparability ranges and sample labels for central air
conditioners.\64\ The amendments are effective on January 1, 2023. On
May 25, 2022, the Commission sought public comments on proposed updates
to the Rule which would allow consumers to compare the estimated annual
energy consumption more accurately for appliances before they buy
them.\65\ The Rule requires the Commission to revise the comparability
ranges and associated energy costs every five years for certain
EnergyGuide labels. The Commission's Notice of Proposed Rulemaking
sought comments on scheduled updates to the comparability ranges that
were last revised in 2017. The public comment period closed on July 11,
2022. On October 12, 2022, the Commission issued a final rule updating
the comparability ranges.\66\ The amendments are effective on January
10, 2023, with the exception of amendatory instructions 9 (appendix E1)
and 15 (appendix L), which are effective on October 1, 2023.\67\
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\63\ 86 FR 29533 (June 2, 2021).
\64\ 86 FR 57985 (Oct. 20, 2021).
\65\ 87 FR 31754 (May 25, 2022).
\66\ 87 FR 61465 (Oct. 12, 2022).
\67\ See II(b), Proposed Rules, above for information about a
separate and pending rulemaking proceeding under the Energy Labeling
Rule.
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d. Significant Regulatory Actions
The Commission has one proposed rule that would be a ``significant
regulatory action'' under the definition in section 3(f) of Executive
Order 12866, which is the Motor Vehicle Dealers Trade Regulation Rule
discussed above. In the Notice of Proposed Rulemaking that contains the
rule's proposed text, the Commission explored at length its regulatory
objectives in initiating the rulemaking, the reasonable alternatives
also under consideration, and the anticipated costs and benefits of the
proposed rule and its alternatives.\68\ The preliminary regulatory
analysis concluded that the proposed rule would likely deliver
significantly more benefits than it would impose costs, namely that it
would produce net economic benefit of more than $29 billion over ten
years. The Commission also requested comments on these issues and will
carefully evaluate all evidence in the rulemaking record before
determining whether to issue a final rule and if so in what form.
---------------------------------------------------------------------------
\68\ See 87 FR 42031-44 (July 13, 2022).
---------------------------------------------------------------------------
The Commission 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
[[Page 11187]]
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.
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-AA58................ Management Contracts.
3141-AA68................ Audit Regulations.
3141-AA69................ Class II Minimum Technical Standards.
3141-AA70................ Class II Minimum Internal Control Standards.
3141-AA71................ Background and Licensing.
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-AA78................ Annual Adjustment of Civil Monetary Penalties
for Inflation 2022.
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) updates or revisions to its
management contract regulations to address the current state of the
industry; (ii) updates or revisions to the existing audit regulations
to reduce cost burdens for small or charitable gaming operations; (iii)
the review and revision of the minimum technical standards for Class II
gaming; (iv) the review and revision of the minimum internal control
standards (MICS) for Class II gaming; (v) background and licensing;
(vi) self-regulation of Class II gaming activities; (vii) gaming
ordinance submission requirements; (viii) substantial violations; (ix)
appeals to the Commission; (x) fees; (xi) updating its regulations
concerning suspension of licenses issued to Key Employees and Primary
Management Officials who the NIGC determines are not eligible for
employment; (xii) 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; (xiii) 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 2023
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 the adequate protection of
public health and safety and promote the common defense and security.
As part of our mission, we
[[Page 11188]]
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) 2023 reflect our
safety and security mission and will enable us to achieve our three
strategic goals described in NUREG-1614, Volume 8, ``Strategic Plan:
Fiscal Years 2022-2026,'' issued April 2022 (https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1614/v8/index.html): (1)
ensure the safe and secure use of radioactive materials, (2) continue
to foster a healthy organization, and (3) inspire stakeholder
confidence in the NRC.
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 2023. This report does not include the
NRC's high-priority rulemaking titled ``Regulatory Improvements for
Production and Utilization Facilities Transitioning to
Decommissioning'' (RIN 3150-AJ59; NRC-2015-0070) due to the timeframe
for reporting; the agency expects to publish the final rule during FY
2024. The agency's portion of the Unified Agenda of Regulatory and
Deregulatory Actions contains additional information on NRC rulemaking
activities and on a broader spectrum of our upcoming regulatory
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 Priority Rulemakings
Proposed Rules
American Society of Mechanical Engineers Code Cases and Update
Frequency
(RIN 3150-AK23; NRC-2018-0291): This rulemaking would incorporate
by reference into the NRC's regulations the latest revision to
regulatory guides that list the American Society of Mechanical
Engineers Code Cases that the NRC finds to be acceptable (or
conditionally acceptable). This rulemaking also would amend the NRC's
regulation to revise the frequency of the in-service testing and in-
service inspection program updates.
Enhanced Weapons for Spent Fuel Storage Installations and
Transportation--Section 161A Authority (RIN 3150-AJ55; NRC-2015-0018):
This rulemaking would amend the NRC's regulations to implement the
authority in Section 161A of the Atomic Energy Act of 1954, as amended,
related to access to enhanced weapons and associated firearms
background checks for the protection of spent nuclear fuel.
Renewing Nuclear Power Plant Operating Licenses--Environmental
Review (RIN 3150-AK32; NRC-2018-0296): This rulemaking would amend the
NRC's environmental protection regulations by updating the
environmental effect findings of renewing the operating license of a
nuclear power plant. These findings would be based on a programmatic
analysis under the National Environmental Policy Act. The rule will
affect operating power reactor licensees that seek an initial or
subsequent renewed operating license.
Risk-Informed, Technology-Inclusive Regulatory Framework for
Advanced Reactors (RIN 3150-AK31; NRC-2019-0062): This rulemaking would
establish an optional technology-inclusive regulatory framework for use
by applicants for new commercial advanced nuclear reactors.
Final Rules
Fitness-for-Duty Drug Testing Program Requirements (RIN 3150-AI67;
NRC-2009-0225): This rulemaking amends the NRC's regulations to revise
the drug testing requirements for fitness-for-duty programs to align
more closely with changes in the 2008 and 2017 U.S. Department of
Health and Human Services' ``Mandatory Guidelines for Federal Workplace
Drug Testing Programs.''
B. Significant Final Rules
The rulemaking activity below meets the requirements of a
significant regulatory action in Executive Order 12866, ``Regulatory
Planning and Review,'' signed September 30, 1993, 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 2023 (RIN 3150-AK58;
NRC-2021-0024): This rule amends the NRC's fee schedules for licensing,
inspection, and annual fees charged to agency applicants and licensees.
NRC
Prerule Stage
222. Enhanced Weapons for Spent Fuel Storage Installations and
Transportation--Section 161A Authority [NRC-2015-0018] [3150-AJ55]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 2201a; 42 U.S.C. 5841
CFR Citation: 10 CFR 73.
Legal Deadline: None.
Abstract: This rulemaking would amend the NRC's regulations to
implement the authority in section 161A of the Atomic Energy Act of
1954, as amended, related to access to enhanced weapons and associated
firearms background checks for the protection of spent nuclear fuel
(SNF). The rule would designate additional classes of facilities and
activities appropriate for section 161A authority. This rulemaking
would support a potential national strategy for the secure
transportation and storage of SNF. The scope of this rulemaking would
affect access to enhanced weapons during transportation and storage of
SNF, high-level radioactive waste, and special nuclear material (from
aged SNF).
Statement of Need: This rulemaking would amend the NRC's
regulations to implement the new authority in Section 161A of the
Atomic Energy Act of 1954, as amended, related to access of enhanced
weapons for the protection of spent nuclear fuel (SNF). These
adjustments would support a potential national strategy for the secure
transportation and storage of SNF. The scope of this rulemaking would
affect access to enhanced weapons during transportation and storage of
SNF, high-level radioactive waste, and special nuclear material (from
aged SNF). This rulemaking is a follow-on to the initial enhanced
weapons rulemaking (RIN 3150-AI49).
Summary of Legal Basis: On August 8, 2005, President Bush signed
into law the Energy Policy Act of 2005 (EPAct), Public Law 10958, 119
Stat. 594 (2005).
[[Page 11189]]
Section 653 of the EPAct amended the AEA by adding section 161A, ``Use
of Firearms by Security Personnel'' (42 U.S.C. 2201a). Section 161A of
the AEA provides the NRC with new authority that would enhance security
at designated facilities of NRC licensees or designated activities.
Alternatives: None.
Anticipated Cost and Benefits: The NRC has not developed a
regulatory analysis for this rulemaking. However, based upon the
regulatory analysis conducted for rulemaking RIN 3150-AI49 (see ADAMS
Accession No. ML19045A003), the NRC anticipates that 3 to 5 additional
licensees could apply for newly designated activities (e.g., escorting
shipments of category 1 quantities of strategic special nuclear
material) with costs ranging from $250,000 to $750,000 per licensee.
Benefits include facilitating the interstate shipment of high security-
risk material to ensure adequate protection of the common defense and
security.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
Regulatory Basis.................... 01/00/23 .......................
NPRM................................ 09/00/24 .......................
Final Rule.......................... 06/00/26 .......................
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: This rulemaking is a follow-on to
``Enhanced Weapons, Firearms Background Checks, and Security Event
Notification [NRC-2011-0018] (RIN 3150-AI49).''
Agency Contact: George M. Tartal, Nuclear Regulatory Commission,
Office of Nuclear Material Safety and Safeguards, Washington, DC 20555-
0001, Phone: 301 415-0016, Email: [email protected].
Related RIN: Related to 3150-AI49
RIN: 3150-AJ55
NRC
Proposed Rule Stage
223. American Society of Mechanical Engineers Code Cases and Update
Frequency [NRC-2018-0291] [3150-AK23]
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 incorporate by reference into the
NRC's regulations the latest revision to regulatory guides that list
the American Society of Mechanical Engineers (ASME) Code Cases that the
NRC finds to be acceptable (or conditionally acceptable). This
rulemaking would affect nuclear power reactor licensees. This
rulemaking would also amend the NRC's regulation to revise the
frequency of the inservice testing and inservice inspection program
updates required in 10 CFR 50.55a. The rulemaking would involve
developing a requirement for an acceptable interval for program updates
that changes from the current 120-month interval to a 240-month
interval.
Statement of Need: The NRC has set the precedent to review new code
cases associated with the ASME Boiler and Pressure Vessel Code and the
ASME Operations and Maintenance Code and to consider approving them for
use by nuclear power plant licensees. 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.
Summary of Legal Basis: 10 CFR 50.55a falls under the NRC's
statute-provided authority and any such changes are within the legal
authority of the NRC.
Alternatives: The NRC did not consider alternatives. This rule is a
voluntary alternative to the existing required ASME codes and is not
required. In addition, the existing required ASME Codes are required by
regulation under 10 CFR 50.55a; therefore, in order to provide
alternative requirements without the submission of exemption requests,
the alternatives must be included in the NRC's regulations.
Anticipated Cost and Benefits: The NRC anticipates the use of the
approved code cases in lieu of their respective existing ASME code
requirements would result in similar costs to the licensee. However, as
a benefit to the licensee and the NRC, the change in the interval for
program code of record updates to reduce, by half, the number of times
a licensee would need to review and update their inservice testing and
inservice inspection programs, would then reduce those costs by half.
The rule would result in net savings to the industry and the NRC of
approximately $34.3 million (7-percent net present value) to $40.5
million (3-percent net present value).
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 03/00/23
Final Rule.......................... 10/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
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-AK23
NRC
224. Risk-Informed, Technology Inclusive Regulatory Framework [NRC-
2019-0062] [3150-AK31]
Priority: Other Significant.
Legal Authority: 42 U.S.C. 2201; 42 U.S.C. 5841
CFR Citation: 10 CFR 53.
Legal Deadline: None.
Abstract: This rulemaking would establish an optional technology-
inclusive regulatory framework for use by applicants for new commercial
advanced nuclear reactors. The regulatory requirements developed in
this rulemaking would use methods of evaluation, including risk-
informed and performance-based methods, that are flexible and
practicable for application to a variety of advanced reactor
technologies. This rule is being developed in accordance with the
Nuclear Energy Innovation and Modernization Act (NEIMA).
Statement of Need: The current application and licensing
requirements in 10 CFR part 50 and 10 CFR part 52 were developed to
support large light-water and non-power reactors. These regulations do
not fully reflect the range of licensing and regulatory challenges
associated with other nuclear reactor technologies. This rulemaking
will amend 10 CFR by creating an alternative regulatory framework for
licensing future commercial nuclear plants.
Summary of Legal Basis: On January 14, 2019, the President signed
the Nuclear Energy Innovation and Modernization Act (NEIMA) into law
(Pub. L. 115 439). NEIMA Section 103(a)(4) directs the NRC to complete
a rulemaking to establish a technology-inclusive, regulatory framework
for optional use by commercial advanced nuclear reactor applicants for
new reactor license applications.
Alternatives: None.
Anticipated Cost and Benefits: This rulemaking establishes two new
[[Page 11190]]
frameworks for licensing advanced reactors. The Part 53 approach to
staffing allows the potential for facility license applicants to
justify smaller operator staffing complements than what has
historically been prescribed under Part 55. Additionally, the Part 53
approach to operator licensing provides for tailored operator licensing
programs that may potentially result in shortened training timelines,
reduced billable staff hours, and, in the case of generally licensed
reactor operators, a near elimination of non-inspection related
billable staff hours after initial programmatic approval. Licensees
will experience significantly reduced costs for all types of
applications, due to the simplifying changes made to the technical
information required in the contents of applications provisions. The
staff has eliminated multiple requirements from each type of
application in the Part 53 rule language, for both Framework A and
Framework B. Applicants who qualify to use the Alternative Evaluation
for Risk Insights approach in Framework B will also avert a
considerable amount of the costs of conducting a probability risk
assessment, which will be required under both Parts 50 and 52 after the
lessons learned rule for those parts is finalized and issued. The
Integrity Assessment Program will potentially result in increased costs
to licensees due to the fact that it is a new program in Part 53 that
requires earlier addressal of issues, such as aging, that operating
experience has shown create issues for plants earlier than considered
under Part 50. Finally, the Facility Safety Program, another new
program in Part 53, will result in increased costs to licensees due to
its requirements for managing risks and maintaining aspects of the
plant's safety features as understood at the time of licensing.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 08/00/23
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Agency Contact: Robert Beall, Nuclear Regulatory Commission, Office
of Nuclear Material Safety and Safeguards, Washington, DC 20555-0001,
Phone: 301 415-3874, Email: [email protected].
RIN: 3150-AK31
NRC
225. Renewing Nuclear Power Plant Operating Licenses--Environmental
Review [NRC-2018-0296] [3150-AK32]
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 environmental
protection regulations by updating the environmental effect findings of
renewing the operating license of a nuclear power plant. These findings
would be based on a programmatic analysis under the National
Environmental Policy Act. The rule will affect operating power reactor
licensees that seek an initial or subsequent renewed operating license.
Statement of Need: This rule would amend the NRC's environmental
protection regulations by updating the Commission's 2013 findings on
the environmental effect of renewing the operating license of a nuclear
power plant. The rule redefines the number and scope of the
environmental issues that must be addressed by the Commission in
conjunction with the review of each application for license renewal. As
part of this update, the NRC has prepared Revision 2 to NUREG-1437,
Generic Environmental Impact Statement for License Renewal of Nuclear
Plants (LR GEIS), to account for new information and to address the
impacts of initial license renewals, which the previous versions
considered, as well as subsequent license renewals.
Summary of Legal Basis: Under the NRC's environmental protection
regulations in 10 CFR part 51, which implement the National
Environmental Policy Act (NEPA--42 U.S.C. 4332, 4334, 4335), renewal of
a nuclear power plant operating license requires the preparation of an
environmental impact statement (EIS). To support the preparation of
these EISs, the NRC defined which impacts would essentially be the same
at all nuclear power plants or a subset of plants and which ones would
be different at different plants and would require plant-specific
analyses; these determinations were codified in Table B-1 of Appendix B
to Subpart A of 10 CFR part 51. As stated in preamble to Table B-1, the
Commission intends to review the material in Appendix B and update it
as necessary on a 10-year cycle.
Alternatives: The no-action alternative maintains the status quo.
Under the no-action alternative, the NRC would not amend certain
provisions of 10 CFR part 51 relating to the renewal of nuclear power
plant licenses, including Table B-1 in Appendix B to Subpart A to 10
CFR part 51. Under the no-action alternative, the NRC would continue to
rely upon the findings set forth in the current Table B-1 when
determining the scope and magnitude of environmental impacts of an
initial operating license renewal for a nuclear power plant. Licensees
seeking an initial operating license renewal would continue to comply
with the existing provisions of 10 CFR part 51. This alternative would
result in no new direct costs to the NRC or licensees seeking an
initial license renewal. This alternative would not address the
environmental impacts of renewing the operating license of a nuclear
power plant for subsequent license renewal. This alternative would
result in additional costs to the NRC and licensees seeking a future
subsequent license renewal for evaluating all environmental impacts as
plant-specific issues. For licensees seeking a near-term subsequent
license renewal or licensees that have submitted or received a
subsequent license renewal, the no-action alternative would require the
evaluation of all environmental issues as plant-specific. This
alternative would result in additional costs to the NRC and licensees.
Anticipated Cost and Benefits: The rule and associated guidance
would result in undiscounted total net savings of $91.4 million to the
industry and $31.7 million to the NRC. The rule would reduce the cost
to the industry of preparing environmental reports for license renewal
applications by focusing resources on plant-specific analyses. The NRC
also would recognize similar reductions in costs and be able to better
focus its resources on important plant-specific issues during reviews
of reactor license renewal applications.
Risks: There are no risk-informed actions related to the rule
within the NRC's jurisdiction.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 02/00/23
Final Action........................ 04/00/24
------------------------------------------------------------------------
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: No.
Government Levels Affected: None.
Additional Information: A rulemaking plan was provided to the
Commission for review and approval on July 22, 2021 (SECY 21-0066). On
February 24, 2022, the Commission disapproved the plan, and directed
staff to resubmit a revised plan within 30 days. A revised
[[Page 11191]]
rulemaking plan was provided to the Commission for review and approval
on March 25, 2022 (SECY 22-0024).
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-AK32
NRC
226. Revision of Fee Schedules: Fee Recovery for FY 2023 [NRC-2021-
0024] [3150-AK58]
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: Final, Statutory, September 30, 2023.
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 2023 be
collected by September 30, 2023.
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 annual 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 statute, 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.
Summary of Legal Basis: Effective October 1, 2020, NEIMA put 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 2023 budget authority less the
amounts appropriated for excluded activities.
Risks: None.
Timetable:
------------------------------------------------------------------------
Action Date FR Cite
------------------------------------------------------------------------
NPRM................................ 01/00/23
Final Rule.......................... 05/00/23
------------------------------------------------------------------------
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-AK58
[FR Doc. 2023-02113 Filed 2-21-23; 8:45 am]
BILLING CODE 6820-27-P
