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Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2017

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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 Unified Agenda of Regulatory and Deregulatory Actions and the Regulatory Plan represent key components of the regulatory planning mechanism prescribed in Executive Order 12866, “Regulatory Planning and Review,” Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017, and Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” February 24, 2017. The fall editions of the Unified Agenda include the agency regulatory plans required by E.O. 12866, which identify regulatory priorities and provide additional detail about the most important significant regulatory actions that agencies expect to take in the coming year.

In addition, the Regulatory Flexibility Act requires that agencies publish semiannual “regulatory flexibility agendas” describing regulatory actions they are developing that will have significant effects on small businesses and other 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 http://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 2017 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 2017 Unified Agenda contains the Regulatory Plans of 30 Federal agencies and 60 Federal agency regulatory agendas.

ADDRESSES:

Regulatory Information Service Center (MVE), General Services Administration, 1800 F Street NW, 2219F, Washington, DC 20405.

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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: John C. Thomas, Executive Director, Regulatory Information Service Center (MVE), U.S. General Services Administration, 1800 F Street NW, 2219F, Washington, DC 20405, (202) 482-7340. You may also send comments to us by email at: risc@gsa.gov.

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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 2017 Regulatory Plan

AGENCY REGULATORY PLANS

Cabinet Departments

Department of Agriculture

Department of Commerce

Department of Defense

Department of Education

Department of Energy

Department of Health and Human Services

Department of Homeland Security

Department of Housing and Urban Development

Department of the Interior

Department of Justice

Department of Labor

Department of Transportation

Department of the Treasury

Department of Veterans Affairs

Other Executive Agencies

Architectural and Transportation Barriers Compliance Board

Environmental Protection Agency

Equal Employment Opportunity Commission

General Services Administration

National Aeronautics and Space Administration

National Archives and Records Administration

Office of Personnel Management

Pension Benefit Guaranty Corporation

Small Business Administration

Social Security Administration

Independent Regulatory Agencies

Consumer Financial Protection Bureau

Consumer Product Safety Commission

Federal Trade Commission

National Indian Gaming Commission

Nuclear Regulatory Commission

AGENCY REGULATORY FLEXIBILITY AGENDAS

Cabinet Departments

Department of Agriculture

Department of Commerce

Department of Defense

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

Other Executive Agencies

Architectural and Transportation Barriers Compliance Board

Environmental Protection Agency

General Services Administration

Small Business Administration

Joint Authority

Department of Defense/General Services Administration/National Aeronautics and Space Administration (Federal Acquisition Regulation)

Independent Regulatory Agencies

Commodity Futures Trading Commission

Consumer Financial Protection Bureau

Consumer Product Safety Commission

Federal Communications Commission

Federal Reserve System

Nuclear Regulatory Commission

Securities and Exchange Commission

Surface Transportation Board

INTRODUCTION TO THE REGULATORY PLAN AND THE UNIFIED AGENDA OF FEDERAL REGULATORY AND DEREGULATORY ACTIONS

I. What are the Regulatory Plan and the Unified Agenda?

The Regulatory Plan serves as a defining statement of the Administration's regulatory and deregulatory policies and priorities. The Plan is part of the fall edition of the Unified Agenda. Each participating agency's regulatory plan contains: (1) A narrative statement of the agency's regulatory and deregulatory priorities, and, for the most part, (2) a description of the most important significant regulatory and deregulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year. This edition includes the regulatory plans of 30 agencies.Start Printed Page 1665

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 http://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 67 Federal agencies. Agencies of the United States Congress are not included.

The fall 2017 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://www.reginfo.gov.

The following agencies have no entries for inclusion in the printed regulatory flexibility agenda. An asterisk (*) indicates agencies that appear in The Regulatory Plan. The regulatory agendas of these agencies are available to the public at http://reginfo.gov.

Cabinet Departments

Department of State

Department of Veterans Affairs *

Other Executive Agencies

Agency for International Development

American Battle Monuments Commission

Commission on Civil Rights

Committee for Purchase From People Who Are Blind or Severely Disabled

Corporation for National and Community Service

Court Services and Offender Supervision Agency for the District of Columbia

Equal Employment Opportunity Commission *

Institute of Museum and Library Services

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 Management and Budget

Office of Personnel Management *

Office of the United States Trade Representative

Peace Corps

Pension Benefit Guaranty Corporation

Presidio Trust

Privacy and Civil Liberties Oversight Board

Railroad Retirement Board

Social Security Administration *

Tennessee Valley Authority

Independent Agencies

Council of the Inspectors General on Integrity and Efficiency

Defense Nuclear Facilities Safety Board

Farm Credit Administration

Federal Deposit Insurance Corporation

Federal Energy Regulatory Commission

Federal Housing Finance Agency

Federal Maritime Commission

Federal Trade Commission *

National Credit Union Administration

National Indian Gaming Commission *

National Labor Relations Board

National Transportation Safety Board

Postal Regulatory Commission

Special Inspector General for Afghanistan Reconstruction

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 13771

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017 (82 FR 9339) requires each agency to identify for elimination two prior regulations for every one new regulation issued, and the cost of planned regulations be Start Printed Page 1666prudently managed and controlled through a budgeting process.

Executive Order 13777

Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” February 24, 2017 (82 FR 12285) requires each agency to designate an agency official as its Regulatory Reform Officer (RRO). Each RRO shall oversee the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. The Executive Order also directs that each agency designate a regulatory Reform Task Force.

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 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 Start Printed Page 1667Rulemaking (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 agenda. This section also includes items the agency began and completed between issues of the Agenda.

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 http://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 Start Printed Page 1668whether 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 12/00/14 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.

Regulatory Flexibility Analysis Required—Whether an analysis is required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the rulemaking action is likely to have a significant economic impact on a substantial number of small entities as defined by the Act.

Small Entities Affected—The types of small entities (businesses, governmental jurisdictions, or organizations) on which the rulemaking action is likely to have an impact as defined by the Regulatory Flexibility Act. Some agencies have chosen to indicate likely effects on small entities even though they believe that a Regulatory Flexibility Analysis will not be required.

Government Levels Affected—Whether the action is expected to affect levels of government and, if so, whether the governments are State, local, tribal, or Federal.

International Impacts—Whether the regulation is expected to have international trade and investment effects, or otherwise may be of interest to the Nation's international trading partners.

Federalism—Whether the action has “federalism implications” as defined in Executive Order 13132. This term refers to actions “that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Independent regulatory agencies are not required to supply this information.

Included in the Regulatory Plan—Whether the rulemaking was included in the agency's current regulatory plan published in fall 2015.

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, http://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;

□ 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.

PL (or 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. Start Printed Page 1669Public 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 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 Printing 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 http://reginfo.gov, along with flexible search tools.

The Government Printing Office's GPO FDsys website contains copies of the Agendas and Regulatory Plans that have been printed in the Federal Register. These documents are available at http://www.fdsys.gov.

Start Signature

Dated: November 29, 2017.

John C. Thomas,

Executive Director.

End Signature

Introduction to the Fall 2017 Regulatory Plan

Following statutory directions, the Executive Branch implements many federal policies through regulatory action in areas as diverse as homeland security, environmental protection, energy policy, transportation, federal land management, education, and commerce. Over many decades, federal agencies have imposed countless regulatory requirements on individuals, businesses, landowners, and state and local governments. Some of these regulations serve important public purposes. Other regulations, however, are outdated, duplicative, or unnecessary, yet they continue to impose costly burdens. President Trump has committed to reducing the regulatory burden on the American public in order to promote economic growth, job creation, and innovation.

This Fall 2017 Regulatory Plan reflects a fundamental shift. The Trump Administration recognizes that excessive and unnecessary federal regulations limit individual freedom and suppress the innovation and entrepreneurship that make America great. Starting with confidence in private markets and individual choices, this Administration is reassessing existing regulatory burdens. In the 2017 Plan, Agencies have identified regulatory actions ripe for reform and are working to eliminate or modify them. This Administration also approaches the imposition of new regulatory requirements with caution to ensure that regulations are consistent with law, necessary to correct a substantial market failure, and net beneficial to the public. Furthermore, the Plan, along with the Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”), identifies the Administration's priorities in manner that is transparent and accessible to the public.

Our regulatory philosophy and approach emphasize the connection between limited government intervention and individual liberty. Regulatory policy should serve the American people by staying within legal limits and administering the law with respect for due process and fair notice. The 2017 Plan sets forth the Administration's roadmap for a more limited, effective, and accountable regulatory policy.

Federal Regulatory Policy

The 2017 Plan both sets a new direction in regulatory policy and preserves many longstanding regulatory best practices. Stressing that “it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations,” President Trump directed all federal agencies to eliminate two regulations for each new one implemented and to reduce new regulatory costs to zero in Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017). He also created regulatory reform officers and regulatory reform taskforces in each agency in Executive Order 13777 (“Enforcing the Regulatory Reform Agenda,” February 24, 2017). Within the Office of Management and Budget, the Office of Information and Regulatory Affairs (“OIRA”) implements federal regulatory policy and has led efforts to implement these presidential directives, working with agencies to identify deregulatory actions and eliminate regulatory burdens.

OIRA also continues to respect and pursue longstanding principles and practices of centralized regulatory review. These principles, set out in President Clinton's Executive Order 12866, emphasize that agencies should regulate only when necessary, when consistent with law, and in a manner that produces real net benefits for the American people. The Administration also takes seriously retrospective review and the imperative to evaluate the actual costs and benefits of existing regulations. The President's two-for-one directive and the creation of a regulatory cap requires that agencies eliminate unnecessary or excessively burdensome rules as part of their regulatory planning.

OIRA works with agencies to promote sound science and economic analysis. Agencies should develop improved regulatory impact analyses of the costs and benefits of their actions, relying on reasonable assumptions and public input. In some instances, analysis will require revisiting previous regulatory impact assessments to ensure that they Start Printed Page 1670reflect the best possible estimate of costs and benefits. Moving forward, it requires rigor and fairness in assessing the actual impacts of new regulatory and deregulatory policies.

This Administration's regulatory philosophy also emphasizes the rule of law, including constitutional, statutory, and procedural limits on administrative action. For instance, OIRA requires agencies to indicate the legal authority for regulatory actions, whether from a statute or judicial order. We look closely at planned regulatory and deregulatory actions to ensure that they follow the law and the correct administrative procedures.

Moreover, the Administration has reinforced the importance of fair notice and due process. In particular, this means agencies should closely examine their use of sub-regulatory actions, such as guidance documents, enforcement manuals, interpretive rules, “FAQs,” and the like. Such documents can serve an important role in explaining existing statutory or regulatory requirements; however, they should not be used to impose new or additional legal obligations or requirements. Accordingly, this Administration has encouraged agencies to take a close look at existing guidance documents to assess whether some of them should be withdrawn or modified, or whether their requirements should go through a process of notice and comment rulemaking. Limiting guidance to its intended purpose of clarifying existing law rather than making new law will provide greater transparency about the regulatory process and ensure that regulated entities and the public have notice and an opportunity to comment on significant changes in regulatory requirements.

These specific policies rest on foundational principles of the proper role of the Executive Branch in our constitutional system of separation of powers. Agencies should administer the law found in statutes, not make new law, and they should respect the judicial role in enforcing limits on administrative power. Moreover, faithful execution of the laws requires the Administration be directly accountable for its regulatory policies and ensure that regulations and their enforcement benefit the American people.

2018 Regulatory Priorities

Reducing regulatory burdens. One of the primary priorities reflected in the 2017 Regulatory Plan is the reduction of regulatory burdens. Accordingly, in 2018, across the Administration agencies anticipate eliminating and streamlining approximately three regulations for each new one imposed. Moreover, agencies are set to substantially reduce overall regulatory costs. This Regulatory Plan reflects a new direction that recognizes the costs of accumulated regulatory burdens and looks for ways to reduce those burdens by modifying or eliminating regulations; revising or eliminating guidance documents; and streamlining information collections.

Agencies have taken several approaches to identifying burdens that can be minimized or eliminated. Regulatory reform task forces have brought together political leadership and career staff to review and revise existing regulations. Agencies have sought extensive public comments, both through written submissions and public listening sessions. Other agencies have studied specific problems of overregulation and drafted comprehensive reports evaluating existing regulations. Based on extensive experience across administrations, OIRA has also worked with the agencies to identify potential areas for reform. These efforts by the agencies, in consultation with the public and OIRA, have yielded notable progress, as reflected in the agency Regulatory Plans that follow.

Efficacious new regulations. Agencies have also planned new regulatory initiatives required by law or by a compelling public need. These actions should be guided by good regulatory practices, which include regulating only when necessary, carefully studying lawful alternatives, and engaging with the public and affected parties. Moreover, when proceeding with regulations, agencies should rely on sound science and thorough cost-benefit analysis. Unless specifically required by law, agencies should regulate only when the benefits substantially outweigh the costs, and OIRA will carefully examine each proposed regulation to ensure that it is the least burdensome regulatory approach that meets the relevant statutory standards.

Transparency and public access. This Administration remains committed to transparency in the regulatory process, public access to information about regulatory policy, and public participation in proposed rules. OIRA is working with agencies to ensure that items listed on the Plan and Agenda reflect carefully considered and current policy priorities. In addition, with this Regulatory Plan and Fall Agenda, OIRA has taken a number of steps to improve transparency. For instance, we have published the “Inactive List,” a list of regulations agencies might pursue in the future. Although maintained for many years, the Inactive list was not previously available to the public. Publishing the Inactive List online allows the public a more complete picture of anticipated agency actions.

OIRA has also implemented enhanced categorization and online search capabilities for the Agenda, so the public can identify actions anticipated to be regulatory or deregulatory and other detailed information. We hope these enhancements will further public understanding of proposed regulatory actions and encourage participation in the regulatory process.

Conclusion

The agency plans that follow push against the inertia of steadily expanding regulatory burdens and represent this Administration's commitment to reducing regulations that no longer benefit our society. The plans also send a clear message that the public can invest and plan for the future without the looming threat of burdensome and unnecessary new regulations. OIRA looks forward to working with the agencies and all interested stakeholders to deliver meaningful regulatory reform to the American people.

Neomi Rao,

Administrator, Office of Information and Regulatory Affairs.

Department of Agriculture

Sequence No.TitleRegulation Identifier No.Rulemaking stage
1National Bioengineered Food Disclosure Standard0581-AD54Proposed Rule Stage.
2NOP: Organic Livestock and Poultry Practices0581-AD75Proposed Rule Stage.
3Lacey Act Implementation Plan: De Minimis Exception and Composite Articles0579-AD44Proposed Rule Stage.
4National Environmental Policy Act Implementing Procedures0579-AC60Final Rule Stage.
5Animal Welfare; Establishing De Minimis Exemptions From Licensing0579-AD99Final Rule Stage.
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6Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements0584-AE53Final Rule Stage.
7Modernization of Swine Slaughter Inspection0583-AD62Proposed Rule Stage.
8Administrative Issuances; Involving the Public in the Formulation of Forest Service Directives (Rule)0596-AC65Final Rule Stage.

Department of Commerce

Sequence No.TitleRegulation Identifier No.Rulemaking stage
9Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico0648-BB38Proposed Rule Stage.
10Illegal, Unregulated, and Unreported Fishing; Fisheries Enforcement; High Seas Driftnet Fishing Moratorium Protection Act0648-BG11Proposed Rule Stage.
11Endangered and Threatened Species; Designation of Critical Habitat for Threatened Caribbean and Indo-Pacific Reef-Building Corals0648-BG26Proposed Rule Stage.
12Commerce Trusted Trader Program0648-BG51Proposed Rule Stage.

Department of Defense

Sequence No.TitleRegulation Identifier No.Rulemaking stage
13Earned Value Management Applicability (DFARS Case 2015-D038)0750-AJ10Proposed Rule Stage.
14Contractor Purchasing System Review Threshold (DFARS Case 2017-D038)0750-AJ48Proposed Rule Stage.
15Brand Name or Equal (DFARS Case 2017-D040)0750-AJ50Proposed Rule Stage.
16Amendment to Mentor-Protégé Program (DFARS Case 2016-D011)0750-AJ05Final Rule Stage.
17Use of the Government Property Clause (DFARS Case 2015-D035)0750-AJ11Final Rule Stage.
18Repeal of Independent Research and Development Technical Interchange (DFARS Case 2017-D041)0750-AJ51Final Rule Stage.
19Establishment of TRICARE Select and Other TRICARE Reforms0720-AB70Final Rule Stage.

Department of Education

Sequence No.TitleRegulation Identifier No.Rulemaking stage
20Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance1870-AA14Proposed Rule Stage.
21Borrower Defense and Related Issues1840-AD26Proposed Rule Stage.
22Program Integrity; Gainful Employment1840-AD31Proposed Rule Stage.

Department of Energy

Sequence No.TitleRegulation Identifier No.Rulemaking stage
23Energy Conservation Standards and Definition for General Service Lamps1904-AD09Proposed Rule Stage.
24Energy Conservation Standards for Residential Conventional Cooking Products1904-AD15Proposed Rule Stage.

Department of Health and Human Services

Sequence No.TitleRegulation Identifier No.Rulemaking stage .
25HIPAA Privacy Rule: Presumption of Good Faith of HealthCare Providers0945-AA09Proposed Rule Stage.
26Health Information Technology: Interoperability and Certification Enhancements0955-AA01Proposed Rule Stage.
27Certification of Opioid Treatment Programs0930-AA27Proposed Rule Stage.
28Confidentiality of Substance Use Disorder Patient Records0930-AA26Final Rule Stage.
29Mammography Quality Standards Act; Regulatory Amendments0910-AH04Proposed Rule Stage.
30Medical Device De Novo Classification Process0910-AH53Proposed Rule Stage.
31Requirement for Access or Safe Use of Certain Nonprescription Drug Products0910-AH62Proposed Rule Stage.
32Medication Guides; Patient Medication Information0910-AH68Proposed Rule Stage.
33Format and Content of Reports Intended to Demonstrate Substantial Equivalence0910-AH89Proposed Rule Stage.
34340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation0906-AB12Proposed Rule Stage.
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35National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table0906-AB14Proposed Rule Stage.
36Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2019 (CMS-4182-P)0938-AT08Proposed Rule Stage.
37Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction (CMS-3346-P)0938-AT23Proposed Rule Stage.
38Hospital Inpatient Prospective Payment System for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and FY 2019 Rates (CMS-1694-P)0938-AT27Proposed Rule Stage.
39Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction (CMS-3347-P)0938-AT36Proposed Rule Stage.
40Medicaid and CHIP Managed Care (CMS-2408-P)0938-AT40Proposed Rule Stage.
41Adoption and Foster Care Analysis and Reporting System0970-AC72Prerule Stage.
42Head Start Service Duration Requirements0970-AC73Proposed Rule Stage.

Department of Homeland Security

Sequence No.TitleRegulation Identifier No.Rulemaking stage
43Inadmissibility and Deportability on Public Charge Grounds1615-AA22Proposed Rule Stage.
44Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations1615-AB71Proposed Rule Stage.
45Rescission of International Entrepreneur Rule1615-AC04Proposed Rule Stage.
46EB-5 Immigrant Investor Regional Center Program1615-AC11Proposed Rule Stage.
47Strengthening the H-1B Nonimmigrant Visa Classification Program1615-AC13Proposed Rule Stage.
48Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization1615-AC15Proposed Rule Stage.
49EB-5 Immigrant Investor Program Modernization1615-AC07Final Rule Stage.
50Air Cargo Advance Screening (ACAS)1651-AB04Final Rule Stage.
51Collection of Biometric Data Upon Entry to and Exit From the United States1651-AB12Final Rule Stage.
52Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders—Automation of CBP Form I-94W1651-AB14Final Rule Stage.
53Vetting of Certain Surface Transportation Employees1652-AA69Proposed Rule Stage.
54Amending Vetting Requirements for Employees With Access to a Security Identification Display Area (SIDA)1652-AA70Proposed Rule Stage.
55Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees1652-AA35Final Rule Stage.
56Ronald Reagan Washington National Airport: Enhanced Security Procedures for Certain Operations1652-AA49Final Rule Stage.
57Security Training for Surface Transportation Employees1652-AA55Final Rule Stage.
58Adjusting Program Fees for the Student and Exchange Visitor Program1653-AA74Proposed Rule Stage.
59Apprehension, Processing, Care and Custody of Alien Minors1653-AA75Proposed Rule Stage.
60Practical Training Reform1653-AA76Proposed Rule Stage.
61Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster1660-AA83Final Rule Stage.

Department of Housing and Urban Development

Sequence No.TitleRegulation Identifier No.Rulemaking stage
62Project Approval for Single Family Condominium (FR-5715)2502-AJ30Final Rule Stage.
63Housing Opportunity Through Modernization Act of 2016 (FR-6057)2577-AD03Proposed Rule Stage.

Department of the Interior

Sequence No.TitleRegulation Identifier No.Rulemaking stage
64Rescission of the 2015 BLM Hydraulic Fracturing Rule1004-AE52Final Rule Stage.
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Department of Justice

Sequence No.TitleRegulation Identifier No.Rulemaking stage
65Public Safety Officers' Benefits Program Regulations1121-AA85Final Rule Stage.

Department of Labor

Sequence No.TitleRegulation Identifier No.Rulemaking stage
66Request for Information Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees1235-AA20Proposed Rule Stage.
67Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations1205-AB85Proposed Rule Stage.
68Tracking of Workplace Injuries and Illnesses1218-AD17Proposed Rule Stage.
69Occupational Exposure to Beryllium1218-AB76Final Rule Stage.
70Standards Improvement Project IV1218-AC67Final Rule Stage.

Department of Transportation

Sequence No.TitleRegulation Identifier No.Rulemaking stage
71Pilot Records Database (HR 5900)2120-AK31Proposed Rule Stage.
72Orbital Debris Mitigation Methods for Launch Vehicle Upper Stages (Orbital Debris)2120-AK81Proposed Rule Stage.
73Operations of Small Unmanned Aircraft Over People2120-AK85Proposed Rule Stage.
74Pilot Professional Development2120-AJ87Final Rule Stage.
75Transport Airplane Fuel Tank and System Lightning Protection2120-AK24Final Rule Stage.
76Registration and Marking Requirements for Small Unmanned Aircraft2120-AK82Final Rule Stage.
77Rear Seat Belt Reminder System2127-AL37Proposed Rule Stage.
78Passenger Car and Light Truck Corporate Average Fuel Economy Standards MYs 2022-20252127-AL76Proposed Rule Stage.
79Passenger Equipment Safety Standards Amendments2130-AC46Final Rule Stage.
80Private Investment Project Procedures2132-AB27Proposed Rule Stage.
81Public Transportation Agency Safety Plans2132-AB23Final Rule Stage.
82Pipeline Safety: Class Location Requirements2137-AF29Prerule Stage.
83Pipeline Safety: Safety of Hazardous Liquid Pipelines2137-AE66Final Rule Stage.
84Pipeline Safety: Gas Transmission2137-AE72Final Rule Stage.
85Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains2137-AF08Final Rule Stage.
86Hazardous Materials: Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft2137-AF20Final Rule Stage.

Department of Veterans Affairs

Sequence No.TitleRegulation Identifier No.Rulemaking stage
87Prosthetic and Rehabilitative Items and Services2900-AP46Proposed Rule Stage.
88Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V005, Parts 812 and 813)2900-AP58Proposed Rule Stage.
89Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V004, Parts 811 and 832)2900-AP81Proposed Rule Stage.
90Beneficiary Travel2900-AP89Proposed Rule Stage.
91Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2015-V010)2900-AQ02Proposed Rule Stage.
92Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principle (VAAR Case 2016-V002, Parts 829, 846 and 847)2900-AQ04Proposed Rule Stage.
93Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principle (VAAR Case 2016-V003, Parts 844 and 845)2900-AQ05Proposed Rule Stage.
94Authority of Health Care Providers to Practice Telehealth2900-AQ06Proposed Rule Stage.
95Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V008)2900-AQ18Proposed Rule Stage.
96Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V006)2900-AQ19Proposed Rule Stage.
97Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2015-V011)2900-AQ20Proposed Rule Stage.
98Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2015-V012)2900-AQ21Proposed Rule Stage.
99Per Diem Paid to States for Care of Eligible Veterans in State Homes2900-AO88Final Rule Stage.
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100Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001, Parts 803, 814 and 822)2900-AP50Final Rule Stage.
101Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V002, Parts 816 and 828)2900-AP82Final Rule Stage.
102Reimbursement for Emergency Treatment2900-AQ08Final Rule Stage.

Environmental Protection Agency

Sequence No.TitleRegulation Identifier No.Rulemaking stage
103State Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units2060-AT67Prerule Stage.
104Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration2060-AT54Proposed Rule Stage.
105Pesticides; Certification of Pesticide Applicators Rule; Reconsideration of the Minimum Age Requirements2070-AK37Proposed Rule Stage.
106Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several Requirements2070-AK43Proposed Rule Stage.
107Clean Water Act Hazardous Substances Spill Prevention2050-AG87Proposed Rule Stage.
108Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residues From Electric Utilities: Remand Rule2050-AG88Proposed Rule Stage.
109Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Reconsideration of Amendments2050-AG95Proposed Rule Stage.
110National Primary Drinking Water Regulations for Lead and Copper: Regulatory Revisions2040-AF15Proposed Rule Stage.
111Second Action: Definition of 'Waters of the United States'2040-AF75Proposed Rule Stage.
112Renewable Fuel Volume Standards for 2018 and Biomass Based Diesel Volume (BBD) for 20192060-AT04Final Rule Stage.
113Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units2060-AT55Final Rule Stage.
114Financial Responsibility Requirements Under CERCLA Section 108(b) for Classes of Facilities in the Hardrock Mining Industry2050-AG61Final Rule Stage.
115Definition of “Waters of the United States”—Recodification of Pre-existing Rule2040-AF74Final Rule Stage.

Equal Employment Opportunity Commission

Sequence No.TitleRegulation Identifier No.Rulemaking stage
116Federal Sector Equal Employment Opportunity Process3046-AB00Proposed Rule Stage.
117Amendments to Regulations Under the Americans With Disabilities Act3046-AB10Proposed Rule Stage.
118Amendments to Regulations Under the Genetic Information Nondiscrimination Act of 20083046-AB11Proposed Rule Stage.

Small Business Administration

Sequence No.TitleRegulation Identifier No.Rulemaking stage
119SBA Express Loan Program; Export Express Program3245-AG74Proposed Rule Stage.
120Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business—Certification3245-AG75Proposed Rule Stage.
121Office of Women's Business Ownership: Women's Business Center Program3245-AG02Final Rule Stage.

Social Security Administration

Sequence No.TitleRegulation Identifier No.Rulemaking stage
122Investigative Policies for Organizational Representative Payees0960-AH79Prerule Stage.
123Revised Medical Criteria for Evaluating Musculoskeletal Disorders (3318P)0960-AG38Proposed Rule Stage.
124Update to the Comprehensive Medical Listings—Revised Medical Criteria for Evaluating Digestive Disorders, Cardiovascular Disorders, and Skin Disorders0960-AG65Proposed Rule Stage.
125Minimum Monthly Withholding Amount for Recovery of Title II Benefit Overpayments (3752P)0960-AH42Proposed Rule Stage.
126Removing Ability to Communicate in English as a Vocational Factor0960-AH86Proposed Rule Stage.
127Use of Electronic Payroll Data To Improve Program Administration0960-AH88Proposed Rule Stage.
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128Newer and Stronger Penalties (Conforming Changes)0960-AH91Proposed Rule Stage.
129Privacy Act Exemption: Personnel Security and Suitability Program Files0960-AH97Proposed Rule Stage.
130References to Social Security and Medicare in Electronic Communications0960-AI04Proposed Rule Stage.
131Availability of Information and Records to the Public0960-AI07Proposed Rule Stage.
132Privacy Act Exemption: Social Security Administration Violence and Reporting System (SSAvers)0960-AI08Proposed Rule Stage.
133Redeterminations When There is a Reason To Believe Fraud or Similar Fault Was Involved in an Individual's Application for Benefits0960-AI10Proposed Rule Stage.
134Changes to the Requirements for Claimant Representation0960-AI22Proposed Rule Stage.
135Making Permanent the Attorney Advisor Program0960-AI23Final Rule Stage.

DOD/GSA/NASA (FAR)

Sequence No.TitleRegulation Identifier No.Rulemaking stage
136Federal Acquisition Regulation (FAR); FAR Case 2018-002, Protecting Life in Global Health Assistance9000-AN62Proposed Rule Stage.

National Indian Gaming Commission

Sequence no.TitleRegulation identifier no.Rulemaking stage
137Class II Minimum Internal Control Standards3141-AA60Proposed Rule Stage.
138Minimum Internal Control Standards3141-AA55Final Rule Stage.

DEPARTMENT OF AGRICULTURE

Fall 2017 Statement of Regulatory Priorities

Regulatory reform is one of the cornerstones of the Department of Agriculture's (USDA) strategy for creating a culture of consistent, efficient service to our customers, while reducing burdens and improving efficiency. USDA's regulatory reform efforts, combined with other reform efforts, will make it easier to invest, produce, and build in rural America, which will lead to the creation of jobs and enhanced economic prosperity. To achieve results, USDA is guided by the following comprehensive set of priorities through which the Department, its employees, and external partners will work to identify and eliminate regulatory and administrative barriers and improve business processes to enhance program delivery and reduce burdens on program participants. These priorities include:

Agricultural and Rural Prosperity Task Force: Executive Order 13790—Promoting Agriculture and Rural Prosperity in America established the inter-Departmental Task Force chaired by Secretary Perdue to identify opportunities for the Federal government to work more effectively together for the benefit of rural Americans. The Task Force is examining barriers to economic prosperity in rural America and how innovation, infrastructure, and technology can assist agriculture and help rural communities thrive. The Task Force is examining regulations across the Federal government to identify obsolete, inefficient, or unnecessary regulations that impede economic growth.

Regulatory Reform Task Force (RRTF): In response to Executive Order 13777—Enforcing the Regulatory Reform Agenda and Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs, which set forth expectations for reducing the regulatory burden on the public, the Department has established an internal RRTF to identify outdated regulations for elimination and administrative processes for streamlining. The USDA RRTF is comprised of senior agency managers representing all the major missions of the Department. USDA is also soliciting public comments on recommended reforms through July 2018.

Farm Bill Reform: As the 2014 Farm Bill will soon expire, the Department is evaluating past practices to identify opportunities for policy and technical improvements, and to make research available so Congress can make facts-based, data-driven decisions to ensure a robust agricultural economy and increased opportunities in rural areas. Reauthorization of the Farm Bill provides an opportunity to introduce program reforms to eliminate obsolete and underperforming programs, simplify the administration of programs, and improve program outcomes.

Organizational Reform: To ensure that USDA's programs, agencies, and offices best serve the Department's customers, USDA is implementing organizational changes that are targeted at improving customer service. Through these reforms, USDA is breaking down organizational barriers that have impeded the Department's ability to most effectively and efficiently support its customers across the Nation and around the world. Examples of the organizational reforms include the establishment of an Under Secretary for Trade and Foreign Agricultural Affairs to ensure that American agriculture benefits from new and expanded trade opportunities and the consolidation of administrative functions at the mission area level to eliminate inefficiencies.

These reforms and strategies allow the Department to best support the needs of its customers. Through the implementation of these improvements, USDA will be better positioned to remove obstacles, and give agricultural Start Printed Page 1676producers every opportunity to prosper and feed a growing world population. These improvements support the accomplishment of USDA's mission to provide leadership on agriculture, food, natural resources, rural prosperity, nutrition, and related issues through fact-based, data-driven, and customer-focused decisions.

The Department's fall 2017 Statement of Regulatory Priorities reflects the Administration's commitment to regulatory reform and USDA's rigorous implementation of Executive Orders 13777 and 13771.

Executive Order 13777

Executive Order 13777 establishes a Federal policy to lower regulatory burdens on the American people by implementing and enforcing regulatory reform. The RRTF reviewed proposed, pending and existing regulations to determine the deregulatory and regulatory actions to include in the 2017 fall Regulatory Agenda. The RRTF identified over 270 reform initiatives, including 101 deregulatory actions that will save the public from unnecessary regulatory burdens. These actions were further evaluated to determine which ones should be made a priority based on the impact of the proposals and the ability to complete the action in FY 2018.

Executive Order 13777 also directed the Department to seek input from entities significantly affected by Federal regulations. To satisfy this requirement, the Department published a Request for Information (RFI) in the Federal Register on July 17, 2017, seeking public input on identifying regulatory reform initiatives (82 FR 32649). The RFI asked the public to identify regulations, guidance documents, or any other policy documents or administrative processes that need reform, as well as ideas on how to modify, streamline, expand, or repeal such items. While comments to the notice do not bind USDA to any further actions, all submissions will be reviewed and will significantly inform actions to repeal, replace, or modify existing regulations.

Executive Order 13771

Executive Order 13771 directs agencies to eliminate two existing regulations for every new regulation while limiting the total costs associated with an agency's regulations. Specifically, it requires a regulatory two-for-one wherein an agency must propose the elimination of two existing regulations for every new regulation it publishes. Moreover, the costs associated with the new regulation must be completely offset by cost savings brought about by deregulation.

The Department's 2017 fall Regulatory Agenda reflects the Department's commitment to regulatory reform and continues USDA's rigorous implementation of Executive Order 13771. The regulatory agenda identifies 76 rules, of which 44 rules are deregulatory. The remaining 32 rules are not subject to the offsetting or deregulatory requirements of Executive Order 13771. Of the total number of deregulatory actions, USDA has identified 29 final rules that will be completed in FY 2018 and will result in a cost savings. Although we have not estimated the savings for 26 of these actions, they are considered deregulatory actions that USDA will implement to meet the direction that an agency issues twice as many Executive Order 13771 deregulatory actions as new Executive Order 13771 regulatory actions.

USDA's 2017 fall Statement of Regulatory Priorities was developed to lower regulatory burdens on the American people by implementing and enforcing regulatory reform. These regulatory priorities will contribute to the mission of the Department, the achievement of the long-term goals the Department aims to accomplish. Highlights of how the Department's regulatory reform efforts contribute to the accomplishment of the Department's strategic goals include the following:

A primary goal of the Department is to ensure that programs are delivered efficiently, effectively, with integrity, and a focus on customer service: To achieve this, USDA is working to leverage the strength and talent of USDA employees with continued dedication to data-driven enterprise solutions through collaborative governance and human capital management strategies centered on accountability and professional development. USDA will reduce regulatory and administrative burdens hindering agencies from reaching the greatest number of stakeholders. Improved customer service and employee engagement within USDA will create a more effective and accessible organization for all stakeholders.

Streamline and expand public engagement in the development and modification of national forest management policies: This final rule will provide greater opportunity for public participation in the formulation of standards, criteria and guidelines applicable to Forest Service programs by: (1) Expanding the scope of documents subject to such review; (2) utilizing technologies that were not available when these regulations were last amended in 1984 to ensure a broader swath of the interested public is notified of opportunities to review and comment on policy changes; and (3) increasing the efficiency of the directive revision process to reduce administrative costs and permit more frequent and timely updates. For more information about this rule, see RIN 0596-AC65.

Streamline National Environmental Policy Act (NEPA) implementing procedures: The Animal and Plant Health Inspection Service (APHIS) and the Forest Service are adjusting procedures that set out the NEPA implementing procedures for each agency based on accumulated experience of the agencies. APHIS will issue a proposed rule to incorporate scientific data accumulated since 1995 on the environmental impact of covered actions, clarify categories of action for which APHIS would normally complete an environmental impact statement or an environmental assessment for an action, expand the list of actions subject to categorical exclusion from further environmental documentation, and set out an environmental documentation process for use in emergencies. For more information about this rule, see RIN 0579-AC60. The Forest Service will publish a proposed rule to eliminate outdated requirements and revise aspects of the analysis framework, scoping and public engagement, and determining significance. For more information about this rule, see RIN 0596-AD31.

Establish de minimis exemptions for applying for animal licenses and renewals under the Animal Welfare Act (AWA): The Animal and Plant Health Inspection Service will issue a final rule to exempt entities with a small number of animals from the requirement to obtain an AWA license. This action will reduce regulatory burden on small entities while also allowing APHIS to target enforcement efforts where they are most needed. For more information about this rule, see RIN 0579-AD99. Coupled with this de minimis rule, APHIS is considering a proposed rule that would promote compliance with the AWA by (1) reducing licensing fees and (2) strengthening existing safeguards that prevent an individual whose license has been suspended or revoked, or who has a history of noncompliance, from obtaining a license or working with regulated animals. For more information about this rule, see RIN 0579-AE35

Establish de minimis levels for enforcing Lacey Act requirements: The Start Printed Page 1677Food, Conservation, and Energy Act of 2008 amended the Lacey Act to provide, among other things, that importers submit a declaration at the time of importation for certain plants and plant products. The declaration requirements of the Lacey Act became effective on December 15, 2008, and enforcement of those requirements is being phased in. APHIS will propose an exception to the declaration requirements for products containing composite plant materials, and establish an exception to the declaration requirement for products containing a minimal amount of plant materials. Both actions would relieve the burden on importers, while continuing to ensure that the declaration requirement fulfills the purposes of the Lacey Act. For more information about this rule, see RIN 0579-AD44.

Reduce the time it takes to issue housing loans. The Housing Opportunity through Modernization Act of 2016 permits the Secretary to delegate authority to approve and execute single family housing loan guarantees directly to preferred lenders, those lenders whose loans have performed well and who have demonstrated strong underwriting capability. To take advantage of this authority, the Rural Housing Service (RHS) will propose to delegate loan approval authority to preferred lenders participating in the Single Family Housing Guaranteed Loan Program. Preferred lenders would be responsible for certifying that both the applicant and property meet all program requirements and eligible for the guarantee. The revisions are expected to shorten the loan approval and processing time by up to 12 days. For more information about this rule, see RIN 0575-AD08

The Department is making it a priority to maximize the ability of American agricultural producers to prosper by feeding and clothing the world: A strong and prosperous agricultural sector is essential to the well-being of the overall U.S. economy. America's farmers and ranchers ensure a safe and reliable food and fuel supply and support job growth and economic development. To maintain a strong agricultural economy, USDA will support farmers in starting and maintaining profitable farm and ranch businesses, as well as offer support to producers affected by natural disasters. The Department will continue to work to create new markets and support a competitive agricultural system by reducing barriers that inhibit agricultural opportunities and economic growth.

Withdrawal of Proposed Rule Regarding the Introduction of Certain Genetically Engineered Organisms: APHIS withdrew its proposed rule to revise the Department's biotechnology regulations and will re-engage with stakeholders to determine the most effective, science-based approach for regulating the products of modern biotechnology while protecting plant health. APHIS issued the proposed rule on January 19, 2017, and received 208 public comments. APHIS will maintain and follow current biotechnology regulations for safely handling the importation, interstate movement, and environmental release of genetically engineered organisms as we re-engage with stakeholders to determine the most effective approach for regulating these products. For more information about this rule, see RIN 0579-AE15.

Implement the National Bioengineered Food Disclosure Standard: This action is mandated by the National Bioengineered Food Disclosure Standard (Law), which requires USDA to develop a national standard and the procedures for its implementation within two years of the Law's enactment. Pursuant to the law, AMS will propose requirements that, if finalized, will serve as a national mandatory bioengineered food disclosure standard for bioengineered food and food that may be bioengineered. For more information about this rule, see RIN 0581-AD54.

Withdrawal of the Scope of Sections 202(a) and (b) of the Packers and Stockyards Act (Act) interim final rule: On December 20, 2016, the Grain Inspection, Packers and Stockyards Administration (GIPSA) published an interim rule addressing the scope of sections 202(a) and (b) of the Act, which enumerate unlawful practices under the Act. The interim final rule was originally scheduled to become effective on February 21, 2017. The effective date of the final rule was delayed twice until October 19, 2017. On April 12, 2017, GIPSA published a proposed rule requesting comments whether the final rule should be allowed to go into effect. On October 18, 2017, GIPSA published a final rule withdrawing the December 20, 2016, interim final rule, ending the regulatory action. The interim final rule was found to conflict with case law in several U.S. Court of Appeals Circuits, which Congress has declined to overturn through legislation. Additionally, the interim final rule was improperly issued without adequate notice and opportunity for comment. For more information about this rule, see RIN 0580-AB28.

Re-evaluate the Organic Livestock and Poultry Program final rule: Because of significant policy and legal issues within the final rule (0581-AD44), the public was asked to comment on which of the following four actions they believed would be best for USDA to take with regard to the disposition of the final rule (0581-AD44). The options were: Let the rule become effective on November 14, 2017; Suspend the rule indefinitely; Delay the effective date of the rule further, beyond the effective date of November 14, 2017; Withdraw the rule so that USDA would not pursue implementation of the rule. Comments were received on all four options. Based on the content of the comments received and the evaluation those comments generated, the option to delay the effective date further was chosen. For more information about this rule, see RIN 0581-AD74. USDA plans to propose the final disposition of 0581-AD44 in December 2017. For more information about this rule, see RIN 0581-AD75.

Updating plant pest regulations: APHIS is planning to update regulations regarding the movement of plant pests to establish criteria governing the movement and environmental release of biological control organisms, and to establish regulations allowing the importation and movement in interstate commerce of certain types of plant pests without restriction by granting exceptions from permitting requirements for those pests. These updates would include the movement of soil. This action would clarify the factors that would be considered when assessing the risks associated with the movement of certain organisms and facilitates the movement of regulated organisms and articles in a manner that also protects U.S. agriculture. For more information about this rule, see RIN 0579-AC98.

Establishing a performance standard for authorizing the importation and interstate movement of fruits and vegetables: APHIS would broaden the existing performance standard to provide for consideration of all new fruits and vegetables for importation into the United States using a notice-based process rather than through proposed and final rules. Likewise, APHIS would propose an equivalent revision of the performance standard governing the interstate movements of fruits and vegetables from Hawaii and the U.S. territories (Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands) and the removal of commodity-specific phytosanitary requirements from those regulations. This action will allow for the consideration of requests to authorize the importation or interstate movement of new fruits and vegetables Start Printed Page 1678in a manner that enables a more flexible and responsive regulatory approach to evolving pest situations in both the United States and exporting countries. It will not, however, alter the science-based process in which the risk associated with importation or interstate movement of a given fruit or vegetable is evaluated or the manner in which risks associated with the importation or interstate movement of a fruit or vegetable are mitigated. For more information about this rule, see RIN 0579-AD71.

Providing all Americans access to a safe, nutritious, and secure food supply is USDA's most important responsibility, and it is one undertaken with great seriousness. USDA has critical roles in preventing foodborne illness and protecting public health, while ensuring Americans have access to food and healthful diet. The Department will continue to prevent contamination and limit foodborne illness by expanding its modernization of food inspection systems, and USDA's research, education, and extension programs will continue to provide information, tools, and technologies about the causes of foodborne illness and its prevention. USDA will continue to develop partnerships that support best practices in implementing effective nutrition assistance programs that ensure eligible populations have access to programs that support their food needs.

Increase flexibilities provided to school lunch program operators in meeting nutrition requirements: The Food and Nutrition Service (FNS) plans to issue an interim final rule that provides flexibilities consistent with those currently available to Program operators participating in the Child Nutrition Programs beginning in School Year 2018-2019. These flexibilities include: (1) Providing operators the option to offer flavored, low-fat (1 percent fat) milk in the Child Nutrition Programs; (2) extending the State agencies' option to allow individual school food authorities to include grains that are not whole grain-rich in the weekly menu offered under the National School Lunch Program (NSLP) and School Breakfast Program (SBP); and (3) revising the sodium reduction timeline for the NSLP and SBP. For more information about this rule, see RIN 0584-AE53.

Improve effectiveness and efficiency of moving individuals into work: The Food and Nutrition Act of 2008 (FNA) establishes a time limit for participation in SNAP of three months in three years for able-bodied adults without children who are not working. FNA allows states to waive the time limit under certain circumstances. FNS would request public input on a proposed framework for modifying ABAWD time-limit waivers with the goal of moving individuals to work as the best solution for poverty, and to advance this goal consistent with the structure and the intent of the act. For more information about this rule, see RIN 0584-AE57.

Provide regulatory flexibility for retailers in the Supplemental Nutrition Assistance Program (SNAP): FNS will issue a proposed rule to modify the definition of the term “variety” as it pertains to the stocking requirements for certain SNAP authorized retail food stores to increase the number of items that qualify as acceptable varieties in the four staple food categories, meat, poultry, fish, and dairy products. This proposed change will provide retailers with more flexibility in meeting the enhanced SNAP eligibility requirements of the 2016 final rule and meet the requirements expressed in the Consolidated Appropriation Act of 2017. For more information about this rule, see RIN 0584-AE61.

Reduce the reporting burden for nutrition program operators: FNS will withdraw the interim final rule provisions of the SNAP: Certification, Eligibility, and Employment and Training Provisions of the Food, Energy and Conservation Act of 2008 rule published on January 6, 2017. The interim final rule portion increased requirements for Group Living Arrangements and Drug and Alcohol Treatment Centers. Comments received on these changes indicated that the regulatory change presented significant technical and administrative challenges. For more information about this rule, see RIN 0584-AE54.

Modernize swine slaughter inspection: The Food Safety and Inspection Service (FSIS) is proposing to establish a voluntary New Swine Inspection System (NSIS) for market-hog slaughter establishments, and mandatory provisions for all swine slaughtering establishments (i.e., including those that also slaughter roaster swine, sows, and boars). NSIS will provide for increased offline inspection activities that are more directly related to food safety resulting in greater compliance with sanitation and Hazard Analysis and Critical Control Point (HACCP) regulations and reduce the risk of foodborne illness. NSIS would also provide incentives to establishments to improve their processing methods and to develop more efficient slaughter and dressing technologies. Additionally, FSIS is considering requiring establishments to implement written sanitary dressing plans to prevent contamination of carcasses throughout the slaughter and dressing operation; modernizing process control sampling programs; and sampling the slaughter environment for microbiological contamination. For more information about this rule, see RIN 0583-AD62.

Modernize egg products inspection: FSIS is proposing to replace current regulations with HACCP Systems and Sanitation Standard Operating Procedures (SOPs), consistent with HACCP and Sanitation SOP requirements in the meat and poultry products inspection regulations. In addition, FSIS is proposing to remove the current requirements for prior approval by FSIS of egg products plant drawings, specifications, and equipment prior to their use in official plants, provide for the generic labeling of egg products, and require safe handling labels on shell eggs and egg products. The agency is also proposing to move from continuous inspection to daily inspection of establishments. For more information about this rule, see RIN 0583-AC58.

USDA—AGRICULTURAL MARKETING SERVICE (AMS)

Proposed Rule Stage

1. National Bioengineered Food Disclosure Standard

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: Pub. L. 114-216; 7 U.S.C. 1621 to 1627

CFR Citation: 7 CFR 1285.

Legal Deadline: None.

Abstract: On July 29, 2016, the Agricultural Marketing Act of 1946 was amended to establish a National Bioengineered Food Disclosure Standard (Law) (Pub. L. 114-216). Pursuant to the law, this NPRM will propose requirements that, if finalized, will serve as a national mandatory bioengineered food disclosure standard for bioengineered food and food that may be bioengineered.

Statement of Need: This action is mandated by Public Law 114-216.

Summary of Legal Basis: The authority for this action is provided by the Agricultural Marketing Act of 1946 as amended by Public Law 114-216.

Alternatives: The alternatives will be identified during the drafting stage and the public will be given the opportunity to comment on alternatives.

Anticipated Cost and Benefits: This rule will fulfill the mandate of Public Start Printed Page 1679Law 114-216. The specific costs and benefits will be determined during the drafting of the proposed rule. AMS is striving to fulfill the mandate while minimizing the burden on the regulated community.

Risks:

Timetable:

ActionDateFR Cite
NPRM12/00/17
Final Action07/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Federal.

Federalism: This action may have federalism implications as defined in E.O. 13132.

Agency Contact: Arthur Neal, Deputy Administrator, Transportation and Marketing, Department of Agriculture, Agricultural Marketing Service, Phone: 202 692-1300.

RIN: 0581-AD54

USDA—AMS

2. • NOP: Organic Livestock and Poultry Practices

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Other.

Legal Authority: 7 U.S.C. 6501 to 6522

CFR Citation: 7 CFR 205.

Legal Deadline: None.

Abstract: The Organic Livestock and Poultry Practices final rule, published on January 19, 2017, adds provisions to the USDA organic regulations to address livestock and poultry living conditions, health care practices, and animal handling and transport, and during slaughter. The final rule was originally scheduled to become effective on March 20, 2017; the effective date was subsequently delayed to May 19, 2017. AMS published a notice further delaying the effective date to November 14, 2017. Per a document published on November 14, 2017, the January 2017 rule was further delayed to May 14, 2018. As stated within the November 2017 publication, this proposed rule requests public comments on: (1) The scope of the Secretary's authority under of the Organic Foods Production Act including 7 U.S.C. 6509; (2) whether the requirements in the final rule are the most innovative and least burdensome tool for meeting regulatory objectives; and, (3) whether the revised benefits calculations, which corrected a mathematical error in the final rule, justify the estimated costs.

Statement of Need: This action is needed to ensure only regulations that are properly supported by legislative authority and requirements of executive orders are met.

Summary of Legal Basis: AMS National Organic Program is authorized by the Organic Foods Production Act of 1990 (OFPA) to establish national standards governing the marketing of organically produced agricultural products (7 U.S.C. 6501-6522). The USDA organic regulations set the requirements for the organic certification of agricultural products (7 CFR part 205).

Alternatives: As AMS evaluates the concerns outlined in the abstract, the possible outcomes of the evaluation range from allowing the January 2017 final rule to become effective to withdrawing the January 2017 final rule.

Anticipated Cost and Benefits: AMS estimated that the discounted costs, transfers, and benefits of the January 2017 final rule, for three different producer response scenarios, would range from $8.2 to $31 million annually due to increased compliance and regulatory burdens. In addition, there is also an estimated $3.9 million undiscounted annual paperwork burden. AMS also estimated transfers ranging from $80 to $86 million annually caused by producers exiting the organic market. AMS estimates the benefits would range from $3.3 to $31.6 million for all producer response scenarios when the mathematical error is corrected.

Risks: This action is likely to be contentious.

Timetable:

ActionDateFR Cite
NPRM12/00/17

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: Jennifer Tucker, Associate Deputy Administrator, USDA National Organic Program, Department of Agriculture, Agricultural Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250, Phone: 202 720-3252.

Related RIN: Related to 0581-AD44, Related to 0581-AD74

RIN: 0581-AD75

USDA—ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS)

Proposed Rule Stage

3. Lacey Act Implementation Plan: De Minimis Exception and Composite Articles

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 16 U.S.C. 3371 et seq.

CFR Citation: 7 CFR 357.

Legal Deadline: None.

Abstract: The Food, Conservation, and Energy Act of 2008 amended the Lacey Act to provide, among other things, that importers submit a declaration at the time of importation for certain plants and plant products. The declaration requirements of the Lacey Act became effective on December 15, 2008, and enforcement of those requirements is being phased in. We are proposing an exception to the declaration requirements for products containing composite plant materials. We are also proposing to establish an exception to the declaration requirement for products containing a minimal amount of plant materials. Both of these actions would relieve the burden on importers while continuing to ensure that the declaration requirement fulfills the purposes of the Lacey Act.

Statement of Need: Will update.

Summary of Legal Basis: Will update.

Alternatives: Will update.

Anticipated Cost and Benefits: Will update.

Risks: Will update.

Timetable:

ActionDateFR Cite
ANPRM06/30/1176 FR 38330
ANPRM Comment Period End08/29/11
NPRM12/00/17

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.

Additional Information: Additional information about APHIS and its programs is available on the internet at http://www.aphis.usda.gov.

Agency Contact: Parul Patel, Senior Agriculturalist, Permitting and Compliance Coordination, PPQ, Department of Agriculture, Animal and Plant Health Inspection Service, 4700 River Road, Unit 60, Riverdale, MD 20737-1231, Phone: 301 851-2351.

RIN: 0579-AD44

Start Printed Page 1680

USDA—APHIS

Final Rule Stage

4. National Environmental Policy Act Implementing Procedures

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 42 U.S.C. 4321 et seq.

CFR Citation: 7 CFR 372.

Legal Deadline: None.

Abstract: We are amending the regulations that set out our National Environmental Policy Act (NEPA) implementing procedures. The amendments will clarify when we will complete an environmental impact statement or an environmental analysis for an action, provide additional categories of actions for which we will prepare such documents, expand the list of actions subject to categorical exclusion from further environmental documentation, and set out an environmental documentation process that could be used in emergencies. The changes are intended to update the regulations and improve their clarity and effectiveness.

Statement of Need: APHIS' NEPA regulations were last amended in 1995. The Council on Environmental Quality's regulations for implementing NEPA at 40 CFR 1507.3(a) indicate that agencies “shall continue to review their policies and procedures and in consultation with the Council to revise them as necessary to ensure full compliance with the purposes and provisions of the Act.” Accordingly, we have evaluated our regulations and identified changes that would clarify the regulations, make them more consistent with NEPA, and allow us greater flexibility in fulfilling the requirements of NEPA and CEQ's NEPA implementing regulations while responding to immediate disease and pest threats or damage to the environment.

Summary of Legal Basis: The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), is the United States' basic charter for protection of the environment. Consistent with NEPA and with the requirements of CEQ's NEPA implementing regulations, APHIS' NEPA regulations provide guidance, sources of information and assistance, definitions, classifications of action, identification of major planning and decision points, opportunities for public involvement, and methods of processing different types of environmental documents.

Alternatives: Leaving the regulations unchanged would be unsatisfactory because it would perpetuate the current situation; i.e., one in which the current regulations, last amended in 1995, are outdated and in need of clarification. Another alternative would be to establish criteria for categorical exclusion that are less (or more) restrictive, thus increasing (or decreasing) the number of actions eligible for categorical exclusion.

Anticipated Cost and Benefits: APHIS has determined that the proposed rule would not have a significant economic impact on a substantial number of small entities. Some entities will experience time and money savings, but the savings should benefit only a few entities each year. The proposal would also serve to clarify the regulations and make the NEPA process more transparent, which, although beneficial, should not have a significant economic impact on affected entities.

Risks: Not Applicable.

Timetable:

ActionDateFR Cite
NPRM07/20/1681 FR 47051
NPRM Comment Period End09/19/16
Final Rule03/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Additional Information: Additional information about APHIS and its programs is available on the internet at http://www.aphis.usda.gov.

Agency Contact: Eileen Sutker, APHIS Federal NEPA Contact, Environmental and Risk Analysis Services, PPD, Department of Agriculture, Animal and Plant Health Inspection Service, 4700 River Road, Unit 149, Riverdale, MD 20737-1238, Phone: 301 851-3043.

RIN: 0579-AC60

USDA—APHIS

5. Animal Welfare; Establishing De Minimis Exemptions From Licensing

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 7 U.S.C. 2131 to 2159

CFR Citation: 9 CFR 1 to 3.

Legal Deadline: None.

Abstract: In the 2014 Farm Bill, Congress amended the Animal Welfare Act (AWA) to provide the Secretary of Agriculture with the authority to determine what facilities and activities involving AWA regulated animals are de minimis and therefore exempt from licensure and oversight. We are amending the AWA regulations to enact this new provision. This change provides APHIS with the flexibility to exempt from licensing those dealers and exhibitors who provide adequate levels of humane care to their animals, allowing us to target our enforcement resources where they are most needed. Dealers and exhibitors operating at or below the threshold will be exempted from APHIS licensing and oversight under the AWA.

Statement of Need: A 2014 Farm Bill amendment to the Animal Welfare Act provides the Secretary of Agriculture with the authority to determine when animal dealers and exhibitors are not required to obtain a license under the Act, if the size of the business conducting AWA-related activities is determined by the Secretary to be de minimis. This rule is necessary to establish the thresholds for what constitutes a de minimis level of activity.

Summary of Legal Basis: The Agricultural Act of 2014 Farm Bill (Pub. L. 113-79), section 12308, which amended section 3 of the Animal Welfare Act (7 U.S.C. 2133).

Alternatives:

Anticipated Cost and Benefits: By the very nature of this proposal, all entities that would be affected are considered small. The entities most likely to be affected by this proposal are businesses engaged in AWA-related exhibition activities that have small numbers of regulated animals. This proposed rule would relieve regulatory responsibilities for some currently licensed entities and reduce the cost of business for those entities. Those currently licensed exhibitors, breeders, and dealers who are under the proposed de minimis thresholds would no longer be subject to licensing, animal identification and recordkeeping requirements.

Risks: Establishing de minimis thresholds in this proposal would allow APHIS to direct inspection and enforcement efforts on higher risk entities.

Timetable:

ActionDateFR Cite
NPRM08/04/1681 FR 51386
NPRM Comment Period End11/02/16
Final Rule02/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Federal.

Additional Information: Additional information about APHIS and its programs is available on the internet at http://www.aphis.usda.gov.

Agency Contact: Kay Carter-Corker, Director, National Policy Staff, Animal Start Printed Page 1681Care, Department of Agriculture, Animal and Plant Health Inspection Service, 4700 River Road, Unit 84, Riverdale, MD 20737, Phone: 301 851-3748.

RIN: 0579-AD99

USDA—FOOD AND NUTRITION SERVICE (FNS)

Final Rule Stage

6. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 42 U.S.C. 1758; 42 U.S.C. 1766; 42 U.S.C. 1772; 42 U.S.C. 1773; 42 U.S.C. 1779

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 interim final rule provides flexibilities consistent with those currently available by Congressional directive to program operators participating in the Child Nutrition Programs for School Year 2018-2019. These flexibilities include: (1) Providing operators the option to offer flavored, low-fat (one percent fat) milk in the Child Nutrition Programs; (2) extending the State agencies' option to allow individual school food authorities to include grains that are not whole grain-rich in the weekly menu offered under the National School Lunch Program (NSLP) and School Breakfast Program (SBP); and (3) revising the sodium reduction timeline for the NSLP and SBP.

Statement of Need: Will update.

Summary of Legal Basis: Will update.

Alternatives: Will update.

Anticipated Cost and Benefits: Will update.

Risks: Will update.

Timetable:

ActionDateFR Cite
Interim Final Rule11/30/1782 FR 56703
Interim Final Rule Comment Period End01/29/18
Interim Final Rule Effective07/01/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Additional Information: School Lunch—NSLA Section 9(a)(1)—42 U.S.C. 1758(a)(1). Child and Adult Care Food Program—NSLA Section 17(g)—42 U.S.C. 1766(g) Special Milk Program—Child Nutrition Act Section 3(a)(1)—42 U.S.C. 1772(a)(1). School Breakfast Program—Child Nutrition Act Section 4(e)(1)(A)—42 U.S.C. 1773(e)(1)(A). Smart Snacks in Schools—Child Nutrition Act Section 10(b)—42 U.S.C. 1779(b).

Agency Contact: Charles H. Watford, Regulatory Review Specialist, Department of Agriculture, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, VA 22302, Phone: 703 605-0800, Email: charles.watford@fns.usda.gov.

RIN: 0584-AE53

USDA—FOOD SAFETY AND INSPECTION SERVICE (FSIS)

Proposed Rule Stage

7. Modernization of Swine Slaughter Inspection

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 21 U.S.C. 601 et seq.

CFR Citation: 9 CFR 301, 309, 310, and 314.

Legal Deadline: None.

Abstract: The Food Safety and Inspection Service (FSIS) is proposing to amend the Federal meat inspection regulations to establish a new inspection system for swine slaughter establishments demonstrated to provide greater public health protection than the existing inspection system. The Agency is also proposing several changes to the regulations that would affect all establishments that slaughter swine, regardless of the inspection system under which they operate.

Statement of Need: The proposed action is necessary to improve food safety, improve compliance with the Humane Methods of Slaughter Act, improve the effectiveness of market hog slaughter inspection, make better use of the Agency's resources, and remove unnecessary regulatory obstacles to innovation.

Summary of Legal Basis:

Alternatives: The Agency is considering alternatives such as: (1) A mandatory New Swine Slaughter Inspection System (NSIS) for market hog slaughter establishments and (2) a voluntary NSIS for market hog establishments, under which FSIS would conduct the same offline inspection activities as traditional inspection.

Anticipated Cost and Benefits: The proposed regulations are expected to benefit establishments by removing unnecessary regulatory obstacles to innovation and allowing establishments more flexibility in line configuration. The proposed changes are also expected to reduce establishments' sampling costs. Additionally, the proposed regulations are expected to improve the effectiveness of market hog slaughter inspection, leading to a reduction in the number of human illnesses attributed to products derived from market hogs. The proposed actions make better use of the Agency's resources, which is expected to reduce the Agency's personnel and training budgetary requirements. Establishments are expected to incur increased labor and recordkeeping costs.

Risks: None.

Timetable:

ActionDateFR Cite
NPRM11/00/17

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: Businesses.

Government Levels Affected: None.

Agency Contact: Matthew Michael, Director, Issuances Staff, Department of Agriculture, Food Safety and Inspection Service, Office of Policy and Program Development, 1400 Independence Avenue SW, Washington, DC 20250-3700, Phone: 202 720-0345, Fax: 202 690-0486, Email: matthew.michael@fsis.usda.gov.

RIN: 0583-AD62

USDA—FOREST SERVICE (FS)

Final Rule Stage

8. Administrative Issuances; Involving the Public in the Formulation of Forest Service Directives (Rule)

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 16 U.S.C. 1612(a)

CFR Citation: 7 CFR 2.7; 36 CFR 200.4; 36 CFR 216.

Legal Deadline: None.

Abstract: This procedural final rule will provide greater opportunity for public participation in the formulation of standards, criteria and guidelines applicable to Forest Service programs by: (1) Expanding the scope of documents subject to such review; (2) utilizing technologies that were not available when these regulations were last amended in 1984 to ensure a broader swath of the interested public is notified of opportunities to review and comment on policy changes; and (3) increasing the efficiency of the directive revision process to reduce administrative costs and permit more frequent and timely updates. Consistent with 5 U.S.C. 553(d)(1), this rule is issued as a final rule as it imposes no additional burdens on any governmental Start Printed Page 1682entity or the public but expands the ability of such parties to comment upon the issuance of Agency policies set forth in Forest Service rules and guidance.

Statement of Need: Will update.

Summary of Legal Basis: Will update.

Alternatives: Will update.

Anticipated Cost and Benefits: Will update.

Risks: Will update.

Timetable:

ActionDateFR Cite
Final Rule01/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: None.

Agency Contact: Michael Migliori, Department of Agriculture, Forest Service, Washington, DC 20250, Phone: 202 205-2496, Email: mmigliori@fs.fed.us.

RIN: 0596-AC65

DEPARTMENT OF COMMERCE (DOC)

Statement of Regulatory and Deregulatory Priorities

Established in 1903, the Department of Commerce (Commerce) 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 by promoting innovation, entrepreneurship, competitiveness, and environmental stewardship. Commerce has 12 operating units, which are responsible for managing a diverse portfolio of programs and services, ranging from trade promotion and economic development assistance to broadband and the National Weather Service.

Commerce touches Americans daily, in many ways—making possible the daily weather reports and survey research; facilitating technology that all of us use in the workplace and in the home each day; supporting the development, gathering, and transmission of information essential to competitive business; enabling the diversity of companies and goods found in America's and the world's marketplace; and supporting environmental and economic health for the communities in which Americans live.

Commerce has a clear and compelling vision for itself, for its role in the Federal Government, and for its roles supporting the American people, now and in the future. To achieve this vision, Commerce works in partnership with businesses, universities, communities, and workers to:

1. 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;

2. Support entrepreneurship and commercialization by enabling community development and strengthening minority businesses and small manufacturers;

3. Maintain U.S. economic competitiveness in the global marketplace by promoting exports, ensuring a level playing field for U.S. businesses, advancing free, fair, and reciprocal trade, and ensuring that technology transfer is consistent with our nation's economic and security interests;

4. Provide effective management and stewardship of our nation's resources and assets to ensure sustainable economic opportunities; and

5. Make informed policy decisions and enable better understanding of the economy by providing accurate economic and demographic data.

Commerce is a vital resource base, tireless advocate, and Cabinet-level voice for job creation. This Regulatory Plan tracks the most important regulations that implement these policy and program priorities, as well as new efforts by the Department to remove unnecessary regulatory burdens on external stakeholders.

Responding to the Administration's Regulatory Philosophy and Principles

The vast majority of the Commerce's programs and activities do not involve regulation. Of Commerce's 12 primary operating units, only the National Oceanic and Atmospheric Administration (NOAA) will be planning actions that are considered the “most important” significant pre-regulatory or regulatory actions for FY 2018. During the next year, NOAA plans to publish five rulemaking actions that are designated as Regulatory Plan actions. The Bureau of Industry and Security (BIS) may also publish rulemaking actions designated as Regulatory Plan actions. Further information on these actions is provided below.

Commerce has a long-standing policy to prohibit the issuance of any regulation that discriminates on the basis of race, religion, gender, or any other suspect category and requires that all regulations be written so as to be understandable to those affected by them. The Secretary also requires that Commerce afford the public the maximum possible opportunity to participate in Departmental rulemakings, even where public participation is not required by law.

Commerce has implemented Executive Order 13771 working through its Regulatory Reform Task Force established under Executive Order 13777 to identify and prioritize deregulatory actions that each bureau within the Department can take to reduce and remove regulatory burdens on stakeholders.

In Fiscal Year 2018, Commerce expects to publish approximately 2 regulatory actions and over 30 deregulatory actions, far exceeding the requirement under Executive Order 13771 to publish two deregulatory actions for every one regulatory action. Additionally, Commerce's Regulatory Reform Task Force will continue working to execute directives under Executive Orders 13783 and 13807 to streamline regulatory process and permitting reviews for new energy and infrastructure projects. To that end, Commerce may have other deregulatory actions to implement that do not currently appear in the agenda.

Regulatory reform and agency streamlining are key elements to Commerce's agenda for the next year. Senior policy analysis, performance measurements, and employee evaluations will incorporate these priorities as the Department continues to regulate private industry through multiple bureaus within the agency.

National Oceanic and Atmospheric Administration

NOAA establishes and administers Federal policy for the conservation and management of the Nation's oceanic, coastal, and atmospheric resources. It provides a variety of essential environmental and climate services vital to public safety and to the Nation's economy, such as weather forecasts, drought forecasts, and storm warnings. It is a source of objective information on the state of the environment. NOAA plays the lead role in achieving Commerce's goal of promoting stewardship by providing assessments of the global environment.

Recognizing that economic growth must go hand-in-hand with environmental stewardship, Commerce, through NOAA, conducts programs designed to provide a better understanding of the connections between environmental health, economics, and national security. Start Printed Page 1683Commerce's emphasis on “sustainable fisheries” is designed to boost long-term economic growth in a vital sector of the U.S. economy while conserving the resources in the public trust and minimizing any economic dislocation necessary to ensure long-term economic growth. Commerce is where business and environmental interests intersect, and the classic debate on the use of natural resources is transformed into a “win-win” situation for the environment and the economy.

Three of NOAA's major components, the National Marine Fisheries Services (NMFS), the National Ocean Service (NOS), and the National Environmental Satellite, Data, and Information Service (NESDIS), exercise regulatory authority.

NMFS oversees the management and conservation of the Nation's marine fisheries, protects threatened and endangered marine and anadromous species and marine mammals, 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 the national marine sanctuaries; monitors marine pollution; and directs the national program for deep-seabed minerals and ocean thermal energy. NESDIS administers the civilian weather satellite program and licenses private organizations to operate commercial land-remote sensing satellite systems.

Commerce, through NOAA, has a unique role in promoting stewardship of the global environment through effective management of the Nation's marine and coastal resources and in monitoring and predicting changes in the Earth's environment, thus linking trade, development, and technology with environmental issues. NOAA has the primary Federal responsibility for providing sound scientific observations, assessments, and forecasts of environmental phenomena on which resource management, adaptation, and other societal decisions can be made.

In the environmental stewardship area, NOAA's goals include: Rebuilding and maintaining strong U.S. fisheries by using market-based tools and ecosystem approaches to management; conserving, protecting, and recovering threatened and endangered marine and anadromous species and marine mammals while still allowing for economic and recreational opportunities; promoting healthy coastal ecosystems by ensuring that economic development is managed in ways that maintain biodiversity and long-term productivity for sustained use; and modernizing navigation and positioning services. In the environmental assessment and prediction area, goals include: Understanding the impacts of a changing climate and communicating that understanding to government and private sector stakeholders enabling them to adapt; continually improving the National Weather Service; implementing reliable seasonal and interannual climate forecasts to guide economic planning; providing science-based policy advice on options to deal with very long-term (decadal to centennial) changes in the environment; and advancing and improving short-term warning and forecast services for the entire environment.

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). Among the several hundred rulemakings that NOAA plans to issue in FY 2018, a number of the regulatory and deregulatory actions will be significant. The exact number of such rulemakings is unknown, since they are usually initiated by the actions of eight regional Fishery Management Councils (FMCs) that are responsible for preparing fishery management plans (FMPs) and FMP amendments, and for drafting implementing regulations for each managed fishery. NOAA issues regulations to implement FMPs and FMP amendments. Once a rulemaking is triggered by an FMC, the Magnuson-Stevens Act places stringent deadlines upon NOAA by which it must exercise its rulemaking responsibilities. FMPs and FMP amendments for Atlantic highly migratory species, such as bluefin tuna, swordfish, and sharks, are developed directly by NOAA, not by FMCs.

FMPs address a variety of issues including maximizing fishing opportunities on healthy stocks, rebuilding overfished stocks, and addressing gear conflicts. One of the problems that FMPs may address is preventing overcapitalization (preventing excess fishing capacity) of fisheries. This may be resolved by market-based systems such as catch shares, which permit shareholders to harvest a quantity of fish and which can be traded on the open market. Harvest limits based on the best available scientific information, whether as a total fishing limit for a species in a fishery or as a share assigned to each vessel participant, enable stressed stocks to rebuild. Other measures include staggering fishing seasons or limiting gear types to avoid gear conflicts on the fishing grounds and establishing seasonal and area closures to protect fishery stocks.

The FMCs provide a forum for public debate and, using the best scientific information available, make the judgments needed to determine optimum yield on a fishery-by-fishery basis. Optional management measures are examined and selected in accordance with the national standards set forth in the Magnuson-Stevens Act. This process, including the selection of the preferred management measures, constitutes the development, in simplified form, of an FMP. The FMP, together with draft implementing regulations and supporting documentation, is submitted to NMFS for review against the national standards set forth in the Magnuson-Stevens Act, in other provisions of the Act, and other applicable laws. The same process applies to amending an existing approved FMP.

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 take of marine mammals. The MMPA allows, upon request, 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 we find 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 collection of wild animals for scientific research or public display or to enhance the survival of a species or stock, and established the Marine Mammal Commission, which makes recommendations to the Secretaries of the Departments of Commerce and the Interior and other Federal officials on protecting and conserving marine mammals. The Act underwent significant changes in 1994 to allow for takings incidental to commercial fishing Start Printed Page 1684operations, to provide certain exemptions for subsistence and scientific uses, and to require the preparation of stock assessments for all marine mammal stocks in waters under U.S. jurisdiction.

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. The ESA authorizes both NMFS and the Fish and Wildlife Service (FWS) to jointly administer the provisions of the ESA. NMFS manages marine and “anadromous” species, and FWS manages land and freshwater species. Together, NMFS and FWS work to protect critically imperiled species from extinction. Of the approximately 1,300 listed species found in part or entirely in the United States and its waters, NMFS has jurisdiction over approximately 60 species. NMFS' rulemaking actions 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, under the ESA, Federal agencies consult with NMFS on any proposed action authorized, funded, or carried out by that agency that may affect listed species or designated critical habitat, or that may affect proposed species or critical habitat. These interagency consultations are designed to assist Federal agencies in fulfilling their duty to ensure Federal actions do not jeopardize the continued existence of a species or destroy or adversely modify critical habitat, while still allowing Federal agencies to fulfill their respective missions (e.g., permitting infrastructure projects or oil and gas exploration, conducting military readiness activities).

NOAA's Regulatory Plan Actions

While most of the rulemakings undertaken by NOAA do not rise to the level necessary to be included in Commerce's regulatory plan, NMFS is undertaking four actions that rise to the level of “most important” of Commerce's significant regulatory actions and thus are included in this year's regulatory plan. A description of the four regulatory plan actions is provided below.

Additionally, NMFS is undertaking a series of rulemakings that are considered deregulatory, as defined by Executive Order 13771. Such actions directly benefit the regulated community by increasing access, providing more economic opportunity, reducing costs, and/or increasing flexibility. A specific example of such an action is the Commerce Trusted Trader Program, as described below. Other examples include actions implementing FMPs that alleviate or reduce previous requirements.

1. Illegal, Unregulated, and Unreported Fishing; Fisheries Enforcement; High Seas Driftnet Fishing Moratorium Protection Act (0648-BG11): The U.S. is a signatory to the Port State Measures Agreement (PSMA). The agreement is aimed at combatting illegal, unreported and unregulated (IUU) fishing activities by increased port inspection for foreign fishing vessels and closing seafood markets to the products of illegal fishing. Benefits of the rule will accrue when IUU vessels are denied entry to the U.S., 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.

2. Commerce Trusted Trader Program (0648-BG51): Under the Magnuson-Stevens Fishery Conservation and Management Act, importation of fish products taken in violation of foreign law and regulation is prohibited. To enforce this prohibition, NMFS has implemented the Seafood Import Monitoring Program (81 FR 88975, December 9, 2016) which requires U.S. importers to report on the origin of fish products and to keep supply chain records. The Commerce Trusted Trader Program will establish a voluntary program for certified seafood importers that provides benefits such as reduced targeting and inspections, and enhanced streamlined entry into the United States. The program will require that a Commerce Trusted Trader establish a secure supply chain and maintain the records necessary to verify the legality of all designated product entering into U.S. commerce, but it will excuse the Commerce Trusted Trader from entering that data into the International Trade Data System prior to entry, as required by Seafood Import Monitoring Program. This program is deregulatory in nature because it reduces reporting costs at entry and reduces recordkeeping costs due to flexibility in archiving.

3. Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico (0648-BB38): The Marine Mammal Protection Act (MMPA) prohibits the “take” (e.g., behavioral harassment, injury, or mortality) of marine mammals with certain exceptions, including through the issuance of incidental take authorizations. Where there is a reasonable likelihood of an activity resulting in the take of marine mammals—as is the case for certain methods of geophysical exploration, including the use of airgun arrays (i.e., “seismic surveys”)—action proponents must ensure that take occurs in a lawful manner. However, there has not previously been any analysis of industry survey activities in the Gulf of Mexico conducted pursuant to requirements of MMPA, and industry operators have been, and currently are, conducting their work without MMPA incidental take authorizations. In support of the oil and gas industry, the Bureau of Ocean Energy Management has requested 5-year incidental take regulations, which would provide a regulatory framework under which individual companies could apply for project-specific Letters of Authorization. Providing for industry compliance with the MMPA through the requested regulatory framework, versus companies pursuing individual authorizations, would be the most efficient way to achieve such compliance for both industry and for NMFS, and would provide regulatory certainty for industry operators.

4. Endangered and Threatened Species; Designation of Critical Habitat for Threatened Caribbean and Indo-Pacific Reef-building Corals (0648-BG26): Caribbean and Indo-Pacific reef building corals were listed under the Endangered Species Act (ESA) in September 2014. Section 4 of the ESA requires that critical habitat be specified to the maximum extent prudent and determinable at the time a species is listed (16 U.S.C. 1533(b)(6)(C)). The ESA also requires that we publish final critical habitat rules within one year of proposed rules. At the time these corals were listed, we were unable to determine what areas met the statutory definition of critical habitat. We subsequently published a proposed rule to designate critical habitat. This action would designate new critical habitat for twelve corals (Dendrogyra cylindrus, Orbicella annularis, Orbicella faveolata, Orbicella franksi, Mycetophyllia ferox, Acropora globiceps, Acropora jacquelineae, Acropora retusa, Acropora speciosa, Euphyllia paradivisa, Isopora crateriformis, and Seriatopora aculeata) and revise the 2008 critical habitat designation for two corals (Acropora palmata and Acropora cervicornis).

BIS

The Bureau of Industry and Security (BIS) advances U.S. national security, Start Printed Page 1685foreign 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 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 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. BIS export control officers are also 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 to promote effective export controls through cooperation with other Governments

BIS's Regulatory Plan Action

BIS maintains the EAR, including the Commerce Control List (CCL). The CCL describes commodities, software, and technology that are subject to licensing requirements for specific reasons for control. The Department of State, Directorate of Defense Trade Controls (DDTC), maintains the International Traffic in Arms Regulations (ITAR), including the United States Munitions List (USML), which describes defense articles subject to State's licensing jurisdiction.

In Fiscal Year 2018, BIS plans to publish a proposed rule describing how articles the President has determined no longer warrant control under USML Category I (Firearms, Close Assault Weapons and Combat Shotguns), Category II (Guns and Armament), and Category III (Ammunition/Ordnance) would be controlled on the CCL and by the EAR. This proposed rule will be published in conjunction with a DDTC proposed rule that would amend the list of articles controlled by those USML Categories to describe more precisely items warranting continued control on that list.

The changes that will be described in these proposed rules are based on a review of those categories by the Department of Defense, which worked with the Departments of State and Commerce in preparing the amendments. The review was focused on identifying the types of articles that are now controlled on the USML that are either (i) inherently military and otherwise warrant control on the USML or (ii) if of a type common to non-military firearms applications, possess parameters or characteristics that provide a critical military or intelligence advantage to the United States, and are almost exclusively available from the United States. If an article satisfies one or both of those criteria, the article will remain on the USML. If an article does not satisfy either criterion, it will be identified in the new Export Control Classification Numbers (ECCNs) included in the BIS proposed rule. Thus, the scope of the items that will be described in the proposed rule is essentially commercial items widely available in retail outlets and less sensitive military items.

Although the firearms and other items described in the proposed rule are widely used for sporting applications, BIS will not propose to “de-control” these items. BIS would require licenses to export or reexport to any country a firearm or other weapon that would be added to the CCL by the proposed rule. Rather than decontrolling firearms and other items, in publishing the proposed rule, BIS, working with the Departments of Defense and State, is trying to reduce the procedural burdens and costs of export compliance on the U.S. firearms industry while allowing the U.S. Government to control firearms appropriately and to make better use of its export control resources.

United States Patent Trademark Office

The United States Patent and Trademark Office's (USPTO) 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

USPTO is the Federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch “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.” The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3). Under this system of protection, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the nation's technological progress and achievement.

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 the stronger and more effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners. 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.

USPTO's Regulatory Plan Action

Final Rule: Setting and Adjusting Patent Fees during Fiscal Year 2017 (RIN 0651-AD02): The Leahy-Smith America Invents Act (AIA), enacted in 2011, provided USPTO with the authority to set and adjust its fees for Start Printed Page 1686patent and trademark services. In early 2013, USPTO issued a final rule, “Setting and Adjusting Patent Fees” (RIN 0651-AC54, 78 FR 4212, Jan. 18, 2013), in which USPTO for the first time set a new fee structure for patent services using the authority provided by Section 10 of the AIA. Since then, USPTO has conducted an internal biennial fee review, in which it undertook internal consideration of the current fee structure, and considering ways that the structure might be improved, including rulemaking pursuant to the USPTO's fee setting authority. This fee review process involved public outreach, including, as required by the Act, public hearings held by the USPTO's Public Advisory Committees (which were held in late 2015), as well as public comment and other outreach to the user community and public in general. In October 2016, USPTO published an NPRM proposing the setting and adjusting of patent fees. The comment period for that propose rule closed on December 2, 2016. Per E.O. 12866, this NPRM was determined to be economically significant. USPTO has reviewed all public comments received and considered made revisions to its proposed fee adjustments based on those comments. USPTO is now in the process of preparing a final rule that will set and adjust patent fees. In this final rule, the USPTO will set and adjust Patent 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, reduce the current patent application backlog, decrease patent pendency, improve quality, and upgrade the Office's business information technology capability and infrastructure. USPTO anticipates publishing this rule in the fall of 2017, with new fees to be effective 60 days after the rule publishes.

The Economic Development Administration

The Economic Development Administration (EDA) provides assistance to economically distressed communities in order to stimulate commercial growth, improve infrastructure, and generate employment opportunities. Over the next year, EDA will continue to implement grants and assistance programs that achieve the agency's mission, in line with statutory authority, and also support the President's agenda. Accordingly, EDA's regulatory activities target new efforts to streamline and simplify agency process.

EDA's Regulatory Action Plan

EDA published a final rule that focused on improving and modernizing EDA's oversight of its Revolving Loan Fund (RLF) Program under the Public Works and Economic Development Act of 1965, as amended (PWEDA). The RLF Program provides grants to eligible recipients, such as local governments and non-profit organizations, to operate lending programs that offer low-interest loans and flexible repayment terms, primarily to small businesses in distressed communities that are unable to obtain traditional bank financing. The final rule implemented a risk-based oversight approach that has improved EDA oversight of the RLF Program, consistent with recommendations from the Department's Office of Inspector General. In particular, EDA's shift to a modern risk analysis system concentrates EDA's limited oversight resources on those RLFs at greatest risk and simultaneously reduced compliance burdens on successful RLFs.

EDA's transition to risk-based monitoring of the RLF Program is expected to result in more efficient and effective oversight of the RLF Program through reduced reporting, compliance, and monitoring costs of approximately $960,000 each year. For this reason, the final rule was a “deregulatory action” under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” These regulatory changes were necessary regardless of whether EDA continues to operate or if EDA were to be eliminated by Congress as requested in the President's Fiscal Year 2018 Budget because the Department is under an obligation to administer and monitor RLF grants in perpetuity under current statutory authorities. The regulatory changes made by the Final Rule would enable EDA or the Department to more efficiently manage the residual RLF portfolio going forward.

The final rule also effectuated important, but less comprehensive, updates to other parts of EDA's regulations implementing PWEDA that enable EDA or the Department to more effectively oversee the non-RLF grant portfolio, even in the event of EDA's elimination by Congress. These non-RLF PWEDA regulations ensure that grantees continue to use projects for the purpose originally funded and to eventually execute releases of the Federal interest in the property at the expiration of the useful life, often 20 years after the date of the grant award.

DOC—NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA)

Proposed Rule Stage

9. Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys in the Gulf of Mexico

Priority: Other Significant.

E.O. 13771 Designation: Regulatory.

Legal Authority: 16 U.S.C. 1361 et seq.

CFR Citation: 50 CFR 217.

Legal Deadline: None.

Abstract: The National Marine Fisheries Service is taking this action in response to an October 17, 2016, application from the U.S. Department of the Interior (DOI) and the Bureau of Ocean Energy Management (BOEM) to promulgate regulations and issue Letters of Authorization to take marine mammals incidental to oil and gas industry sponsored seismic surveys for purposes of geophysical exploration on the Outer Continental Shelf in the Gulf of Mexico from approximately 2018 through 2023. BOEM states that underwater activities associated with sound sources (i.e., airguns, boomers, sparkers, and chirpers) may expose marine mammals in the area to noise and pressure.

Statement of Need: The Marine Mammal Protection Act (MMPA) prohibits the “take” (e.g., behavioral harassment, injury, or mortality) of marine mammals with certain exceptions, including through the issuance of incidental take authorizations. Where there is a reasonable likelihood of an activity resulting in the take of marine mammals—as is the case for certain methods of geophysical exploration, including the use of airgun arrays (i.e., “seismic surveys”)—action proponents must ensure that take occurs in a lawful manner. However, there has not previously been any analysis of industry survey activities in the Gulf of Mexico conducted pursuant to requirements of MMPA, and industry operators have been, and currently are, conducting their work without MMPA incidental take authorizations. In support of the oil and gas industry, the Bureau of Ocean Energy Management (BOEM) has requested five-year incidental take regulations, which would provide a regulatory framework under which individual companies could apply for project-specific letters of authorization. Providing for industry compliance with the MMPA through the requested regulatory framework, versus companies pursuing individual authorizations would be the most efficient way to Start Printed Page 1687achieve such compliance for both industry and for NMFS, and would provide regulatory certainty for industry operators.

Summary of Legal Basis: Marine Mammal Protection Act.

Alternatives: While the MMPA does not require consideration of alternatives in rulemaking, the regulatory impact analysis considers a more stringent and less stringent regulatory alternative. The more stringent alternative would require more mitigation of industry authorization-holders. The less stringent alternative is the basis for the proposed rule. As an alternative to regulation, individual companies could request specific permits known as incidental harassment authorizations (IHA). However, these permits require approximately six to nine months to obtain (compared with an anticipated less than three months to obtain letters of authorization under a rule), are information-intensive in terms of the required application, and require a public comment period. They also must be renewed on a yearly basis, whereas a Letter of Authorization lasts for five years.

Anticipated Cost and Benefits: The proposed rule would include mitigation, monitoring, and reporting requirements, as required by the MMPA. However, as the proposed rule would alleviate other current regulatory requirements that would otherwise be expected to cost 37.8 to 230 million dollars per year, it is estimated to result in a net annualized savings of 8 to 123 million dollars (the range of values reflects ranges of projected future activity levels). The proposed rule would result in additional indirect (non-monetized) costs as a result of the imposition of time-area restrictions on survey effort. However, these costs are expected to be minimal, as two of three proposed restrictions are in areas with low to no levels of activity and a third, which has been in place under current baseline conditions, is seasonal and therefore may be planned around. The proposed rule would also result in certain non-monetized benefits. The protection of marine mammals afforded by this rule (pursuant to the requirements of the MMPA) would benefit the regional economic value of marine mammals via tourism and recreation to some extent, as mitigation measures applied to geophysical survey activities in the GOM region are expected to benefit the marine mammal populations that support this economic activity in the GOM. The proposed rule would also afford significant benefit to the regulated industry by providing an efficient framework within which compliance with the MMPA, and the attendant regulatory certainty, may be achieved. Cost savings may be generated in particular by the reduced administrative effort required to obtain an LOA under the framework established by a rule compared to what would be required to obtain an incidental harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. Absent the rule, survey operators in the GOM would likely be required to apply for an IHA. Although not monetized, NMFS' analysis indicates that the upfront work associated with the rule (e.g., analyses, modeling, process for obtaining LOA) would likely save significant time and money for operators.

Risks: Absent the rule, oil and gas industry operators would face a highly uncertain regulatory environment due to the imminent threat of litigation. BOEM currently issues permits under a stay of ongoing litigation, in the absence of the proposed rule the litigation would continue and NMFS would be added as a defendant. The IHA application process that would be available to companies would be more expensive and time-consuming.

Timetable:

ActionDateFR Cite
NPRM12/00/17

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: Businesses.

Government Levels Affected: Federal.

Energy Effects: Statement of Energy Effects planned as required by Executive Order 13211.

Agency Contact: Donna Wieting, Director, Office of Protected Resources, Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, Phone: 301 427-8400.

RIN: 0648-BB38

DOC—NOAA

10. Illegal, Unregulated, and Unreported Fishing; Fisheries Enforcement; High Seas Driftnet Fishing Moratorium Protection Act

Priority: Other Significant.

E.O. 13771 Designation: Regulatory.

Legal Authority: Pub. L. 114-81

CFR Citation: 50 CFR 300.

Legal Deadline: None.

Abstract: This proposed rule will 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 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 will also implement the Port State Measures Agreement. To that end, this proposed rule will 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 establishes 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 combatting illegal, unreported and unregulated (IUU) fishing activities by increased port inspection for foreign fishing vessels and closing seafood markets to the products of illegal fishing.

Summary of Legal Basis: Magnuson-Stevens Fishery Conservation and Management Act.

Alternatives: Alternatives to taking action at the port would include taking action at sea against IUU fishing vessels and in the supply chain against IUU fishing products. At-sea monitoring and inspection is part of an overall strategy to combat IUU fishing, but it is extremely expensive and resources are limited. Likewise, tracing and removing illegal products already released into the market would be difficult and resource intensive. Preventing entry of IUU fishing vessels into ports or Start Printed Page 1688investigating fishing vessels at the port is an efficient and effective approach to combatting illegal activity.

Anticipated Cost and Benefits: The anticipated costs will be minimal in that foreign vessels requesting permission to visit U.S. ports 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 to meet the vessel to conduct an inspection. The minimal additional data elements required of foreign fishing vessels will be submitted electronically through the existing U.S. Coast Guard system for notices of Arrival and Departure, thus reporting costs are 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.

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 obligation under the PSMA.

Timetable:

ActionDateFR Cite
NPRM12/00/17

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: 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: John Henderschedt, Director, Office for International Affairs and Seafood Inspection, Department of Commerce, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 10362, Silver Spring, MD 20910, Phone: 301 427-8314, Email: john.henderschedt@noaa.gov.

RIN: 0648-BG11

DOC—NOAA

11. Endangered and Threatened Species; Designation of Critical Habitat for Threatened Caribbean and Indo-Pacific Reef-Building Corals

Priority: Other Significant.

E.O. 13771 Designation: Regulatory.

Legal Authority: 16 U.S.C. 1531 et seq.

CFR Citation: 50 CFR 226.

Legal Deadline: Final, Statutory, September 10, 2016, Statutory deadline for final critical habitat designation of listed Indo-Pacific corals.

Abstract: On September 10, 2014, the National Marine Fisheries Service listed 20 species of reef-building corals as threatened under the Endangered Species Act, 15 in the Indo-Pacific and five in the Caribbean. Of the 15 Indo-Pacific species, seven occur in U.S. waters of the Pacific Islands Region, including in American Samoa, Guam, the Commonwealth of the Mariana Islands, and the Pacific Remote Island Areas. This proposed rule would designate critical habitat for the seven species in U.S. waters (Acropora globiceps, Acropora jacquelineae, Acropora retusa, Acropora speciosa, Euphyllia paradivisa, Isopora crateriformis, and Seriatopora aculeata). The proposed designation would cover coral reef habitat around 17 island or atoll units in the Pacific Islands Region, including four in American Samoa, one in Guam, seven in the Commonwealth of the Mariana Islands, and five in Pacific Remote Island Areas, containing essential features that support reproduction, growth, and survival of the listed coral species. This rule also proposes to designate critical habitat for the five Caribbean corals and proposed to revise critical habitat for two, previously-listed corals, Acropora palmata and Acropora cervicornis.

Statement of Need: Caribbean and Indo-Pacific reef building corals were listed under the Endangered Species Act (ESA) in September 2014. Section 4 of the ESA requires that critical habitat be specified to the maximum extent prudent and determinable at the time a species is listed (16 U.S.C. 1533(b)(6)(C)). The ESA also requires that we publish final critical habitat rules within one year of proposed rules. At the time these corals were listed, we were unable to determine what areas met the statutory definition of critical habitat. We subsequently published a proposed rule to designate critical habitat. This action would designate new critical habitat for twelve corals (Dendrogyra cylindrus, Orbicella annularis, Orbicella faveolata, Orbicella franksi, Mycetophyllia ferox, Acropora globiceps, Acropora jacquelineae, Acropora retusa, Acropora speciosa, Euphyllia paradivisa, Isopora crateriformis, and Seriatopora aculeata) and revise the 2008 critical habitat designation for two corals (Acropora palmata and Acropora cervicornis).

Summary of Legal Basis: Endangered Species Act.

Alternatives: During the formulation of the final rule, pursuant to section 4(b)(2) of the ESA, we will evaluate the impacts of designating all and any parts of the proposed critical habitat. We are required to analyze the economic, national security, and other relevant impacts of designating critical habitat. Through this process, we have discretion to exclude areas from the final designation as long as such exclusions do not result in the extinction these coral species. Based on our draft impacts analysis supporting the proposed rule, we excluded one area in Florida, one area in Guam, and two areas in the Commonwealth of the Northern Mariana Islands for national security impacts. We also completed an Initial Regulatory Flexibility Analysis and analyzed a “no action” alternative, an alternative in which some of the identified critical habitat areas are designated, and an alternative in which all critical habitat areas identified.

Anticipated Cost and Benefits: The primary benefit of designation is the protection afforded under section 7 of the Endangered Species Act, requiring all Federal agencies to insure their actions are not likely to destroy or adversely modify designated critical habitat. In addition to these protections, the designation may also result in other forms of benefits including, but not limited to: Educational awareness and outreach benefits, benefits to tourism and recreation, and improved or sustained habitat quality. Costs specifically associated with the designation of critical habitat stem mainly from Federal agencies' requirement to consult with NMFS, under section 7 of the ESA, to insure that any action they carry out, permit (authorize), or fund will not result in the destruction or adverse modification of critical habitat of a listed species.

Risks: If critical habitat is not designated, listed corals will not be protected to the extent provided for in the ESA, posing a legal risk to the agency and a risk to the species' continued existence and recovery.

Timetable:

ActionDateFR Cite
NPRM03/00/18
Start Printed Page 1689

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Federal.

Agency Contact: Donna Wieting, Director, Office of Protected Resources, Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, Phone: 301 427-8400.

Related RIN: Merged with 0648-BG20

RIN: 0648-BG26

DOC—NOAA

12. Commerce Trusted Trader Program

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 16 U.S.C. 1801 et seq.

CFR Citation: 50 CFR 300.

Legal Deadline: None.

Abstract: This rule will establish a voluntary Commerce Trusted Trader Program for importers, aiming to provide benefits such as reduced targeting and inspections and enhanced streamlined entry into the United States for certified importers. Specifically, this rule would establish the criteria required of a Commerce Trusted Trader, and identify specifically how the program will be monitored and by whom. It will require that a Commerce Trusted Trader establish a secure supply chain and maintain the records necessary to verify the legality of all designated product entering into U.S. commerce, but will excuse the Commerce Trusted Trader from entering that data into the International Trade Data System prior to entry, as required by Seafood Import Monitoring Program (finalized on December 9, 2016). The rule will identify the benefits available to a Commerce Trusted Trader, detail the application process, and specify how the Commerce Trusted Trader will be audited by third-party entities while the overall program will be monitored by the National Marine Fisheries Service.

Statement of Need: Under the Magnuson-Stevens Fishery Conservation and Management Act, importation of fish products taken in violation of foreign law and regulation is prohibited. To enforce this prohibition, NMFS has implemented the Seafood Import Monitoring Program (81 FR 88975, December 9, 2016) which requires U.S. importers to report on the origin of fish products and to keep supply chain records. The Commerce Trusted Trader Program would reduce the burden on importers by reducing the reporting requirements and allowing more flexible approaches to keep supply chain records.

Summary of Legal Basis: Magnuson-Stevens Fishery Conservation and Management Act.

Alternatives: The Seafood Import Monitoring Program is aimed at preventing the infiltration of illegal fish products into the U.S. market. Alternatives to reduce the reporting and recordkeeping burden for U.S. importers were considered during the course of that rulemaking. Collecting less information at import about the origin of products would increase the likelihood of illegal products entering the supply chain. However, working with individual traders to secure the supply chain will be an economical approach to ensure that illegal products are precluded and records will be kept as needed for post-entry audits.

Anticipated Cost and Benefits: The costs of the Commerce Trusted Trader Program will be minimal in that applicants to the program will have a small application fee and will incur the costs for an independent audit of several entries on an annual basis. Benefits of Trusted Trader status will include reduced reporting costs at entry and reduced recordkeeping costs due to flexibility in archiving.

Risks: Risks of not implementing a Commerce Trusted Trader Program would include increased compliance costs to industry and potential increased incidence of illegal seafood infiltrating the U.S. market.

Timetable:

ActionDateFR Cite
NPRM11/00/17

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: John Henderschedt, Director, Office for International Affairs and Seafood Inspection, Department of Commerce, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 10362, Silver Spring, MD 20910, Phone: 301 427-8314, Email: john.henderschedt@noaa.gov.

Related RIN: Related to 0648-BF09

RIN: 0648-BG51

DEPARTMENT OF DEFENSE

Statement of Regulatory Priorities

Background

The mission of the Department of Defense (DoD) is to provide the military forces needed to deter war and to protect the security of our country.

The Department is America's oldest and largest government agency. Today, DoD is not only in charge of the military, but it also employs a civilian force of thousands. With over 1.3 million men and women on active duty and 742,000 civilian personnel, the Department is the nation's largest employer. Another 826 thousand serve in the National Guard and Reserve forces and more than 2 million military retirees and their family members receive benefits. Our military service members and civilians operate in every time zone and in every climate with more than 450,000 employees overseas, both afloat and ashore.

To accomplish this mission, DoD's physical plant consists of more than several hundred thousand individual buildings and structures located at more than 5,000 different locations or sites. These sites range from the very small in size such as unoccupied sites supporting a single navigational aid that sits on less than one-half acre, to the Army's vast White Sands Missile Range in New Mexico with over 3.6 million acres, or the Navy's large complex of installations at Norfolk, Virginia with more than 78,000 employees.

DoD trains and equips the armed forces through our three military departments: The Army, Navy and Air Force. The Marine Corps, mainly an amphibious force, is part of the Department of the Navy. The primary job of the military departments is to train and equip their personnel to perform warfighting, peacekeeping and humanitarian/disaster assistance tasks.

  • The Army defends the land mass of the United States, its territories, commonwealths, and possessions; it operates in more than 50 countries.
  • The Navy maintains, trains, and equips combat-ready maritime forces capable of winning wars, deterring aggression, and maintaining freedom of the seas.
  • The Air Force provides a rapid, flexible, and when necessary, air and space capability that routinely participates in peacekeeping, humanitarian, and aeromedical evacuation missions.
  • The U.S. Marine Corps maintains ready expeditionary forces, sea-based and integrated air-ground units for contingency and combat operations, and Start Printed Page 1690the means to stabilize or contain international disturbance.
  • National Guard and Reserve forces are taking on new and more important roles, at home and abroad, as we transform our national military strategy.

An all-service or “joint” service office supports the Chairman of the Joint Chiefs of Staff in his capacity as the principal military advisor to the President, the National Security Council, and the Secretary of Defense. The unified commanders are the direct link from the military forces to the President and the Secretary of Defense.

The Secretary of Defense exercises his authority over how the military is trained and equipped through the Service secretaries; but uses a totally different method to exercise his authority to deploy troops and exercise military power. This latter authority is directed, with the advice of the Chairman of the Joint Chiefs of Staff, to the nine unified commands.

The Department of Defense contributes to homeland security through its military missions overseas, homeland defense, and support to civil authorities. The Department is also responsible for homeland defense which is the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President.

Homeland Defense includes missions such as domestic air defense, maritime intercept operations, and land-based defense of critical infrastructure and assets Defense support of civil authorities, often referred to as civil support, can include Federal military forces, the Department's career civilian and contractor personnel, and DoD agency and component assets, for domestic emergencies and for designated law enforcement and other activities. The Department of Defense provides defense support of civil authorities when directed to do so by the President or Secretary of Defense.

The Office of the Secretary of Defense helps the Secretary plan, advise, and carry out the nation's security policies as directed by both the Secretary of Defense and the President. The rulemakings discussed in this regulatory statement comes out of the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics (OUSD(AT&L)) and the Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)). These Offices are described below:

  • OUSD(AT&L)—procurement of goods and services; research and development; developmental testing; contract administration; logistics, maintenance, and sustainment support; and maintenance of the defense industrial base of the United States.
  • OUSD(P&R)—readiness; National Guard and Reserve component affairs; health affairs; training; and personnel requirements and management, including equal opportunity, morale, welfare, recreation, and quality of life matters.

This Regulatory Plan tracks the most important regulations implementing the Department's policy and program priorities, as well as new efforts by the Department to remove unnecessary regulatory burdens on external stakeholders.

DoD's Regulatory Philosophy and Principles

The Department's rulemaking program strives to be responsive, efficient, and transparent. As noted in Executive Order 13609, “Promoting International Regulatory Cooperation” (May 1, 2012), international regulatory cooperation, consistent with domestic law and prerogatives and U.S. trade policy, can be an important means of promoting public health, welfare, safety, and our environment as well as economic growth, innovation, competitiveness, and job creation.

DoD, along with the Departments of State and Commerce, engages 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. DoD has been a key participant in the Administration's Export Control Reform effort that resulted in a complete overhaul of the U.S. Munitions List and fundamental changes to the Commerce Control List. New controls have facilitated transfers of goods and technologies to allies and partners while helping prevent transfers to countries of national security and proliferation concern. DOD will continue to assess new and emerging technologies to ensure items that provide critical military and intelligence capabilities are properly controlled on international export control regime lists.

Executive Order 13777, “Enforcing the Regulatory Reform Agenda” (February 24, 2017), required DoD to appoint a Regulatory Reform Officer to oversee the implementation of regulatory reform initiatives and policies and establish a Regulatory Reform Task Force (Task Force) to review and evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law.

Those reform initiatives and policies include Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs” (January 30, 2017), section 6 of Executive Order 13563, “Improving Regulation and Regulatory Review” (January 18, 2011), and Executive Order 12866. DoD is implementing a three phase effort to review, implement, and sustain its regulations:

  • Phase I: Utilizing the DoD Task Force, assess all 716 existing, codified DoD regulations to include 350 solicitation provisions and contract clauses. The Task Force will present recommendations for the repeal, replacement, or modification to the Secretary of Defense on a quarterly basis through the end of December 2018.
  • Phase II: Upon Secretary of Defense approval, DoD will begin implementing the elimination of regulations. Implementation requires drafting, internal coordination, review by the Office of Management and Budget, and providing for notice and comment, as required by law.
  • Phase III: DoD will incorporate into its policies a requirement for component's to sustain review of both new regulatory actions and existing regulations.

As a result of the ongoing review, evaluation, and recommendations of its Task Force, DoD has identified priority regulatory and deregulatory actions that reduce costs to the public by eliminating unnecessary, ineffective, and duplicative regulations.

Acquisition, Technology, and Logistics/Defense Procurement and Acquisition Policy, Personnel and Readiness/Health Affairs, and the Army Corps of Engineers will be planning actions that are considered the “most important” significant pre-regulatory or regulatory actions for FY 2018. During the next year, these DoD Components plan to publish eight rulemaking actions that are designated as significant actions. Further information on these actions is provided below.

DoD has implemented Executive Order 13771 through its Regulatory Reform Task Force established under Executive Order 13777 to identify and prioritize deregulatory actions that each component or Service can take to reduce and remove regulatory burdens on stakeholders.

In Fiscal Year 2018, DoD expects to publish more deregulatory actions than regulatory actions. Exact figures are not yet available as the regulations reported in this edition of the Unified Agenda are still under evaluation for classification Start Printed Page 1691under Executive Order 13771. Additionally, the Department Regulatory Reform Task Force will continue working to execute directives under Executive Orders 13783 and 13807 to streamline regulatory process and permitting reviews. To that end, DoD may have other actions which do not currently appear in the Agenda. DoD focuses its regulatory resources on the most serious acquisition, health, and personnel and readiness risks as discussed below.

Acquisition, Technology, and Logistics/Defense Procurement and Acquisition Policy (DPAP)

DPAP is responsible for all contracting and procurement policy matters in the Department and uses the Defense Acquisition Regulation System (DARS) to develop and maintain acquisition rules and to facilitate the acquisition workforce as they acquire the goods and services. Significant rules are highlighted below.

Rulemakings that are expected to have high net benefits well in excess of costs.

Use of the Government Property Clause (DFARS Case 2015-D035).

This rule will amend the DFARS to expand the use of Federal Acquisition Regulation (FAR) clause 52.245-1, Government Property, in certain purchase orders for repair. This FAR clause is used in contracts to require contractors comply with basic property receipt and record keeping requirements. This ensures the Government is able to track, report, and manage Government-furnished property. “Government-furnished property” is property in the possession of, or directly acquired by, the Government and subsequently furnished to the contractor for performance of a contract. It includes, but is not limited to, spares and property furnished for repair, maintenance, overhaul, or modification. Currently, the FAR clause is not required for use in purchase orders for repair, when the unit acquisition cost of the Government-furnished property to be repaired is less than the simplified acquisition threshold (currently $150,000). However, the unit cost of the item to be repaired alone is not an indicator of the criticality or sensitivity of the item. For example, firearms, body armor, night vision equipment, computers, or cryptological devices may individually be valued at less than $150,000, but accountability of these items is of vital importance to the Department. Not using the FAR clause in purchase orders for repair, significantly increases the risk of misuse or loss of Government-furnished property items. In order to strengthen the management and accountability of Government-furnished property provided to contractors, this rule will amend the DFARS to require use of the FAR clause 52.245-1 in all DoD purchase orders for repair, regardless of the unit acquisition cost of the individual items to be repaired.

Rulemakings that promote Open Government and use disclosure as a regulatory tool.

Brand Name or Equal (DFARS Case 2015-D041).

This rule proposes to amend the DFARS to implement section 888 of the NDAA for FY 2017. Section 888 requires that competition not be limited through the use of specifying brand name, brand name or equivalent descriptions, or proprietary specifications and standards, unless a justification for such specifications is provided and approved in accordance with 10 U.S.C. 2304(f). Currently, if the Government intends to procure specific “brand name” products, the contracting officer must prepare a brand name justification and obtain the appropriate approvals based on the estimated dollar value of the contracts (see FAR 6.302-1(c) and 6.304). However, a justification is not required to use “brand name or equal” descriptions in a solicitation. Rather, contracting officers are required to include in their solicitation a description of the salient physical, functional, or performance characteristics of the brand name item that an “equal” item must meet. The contracting officer will also include FAR provision 52.211-6, Brand Name or Equal, in solicitations, which informs potential offerors that offers of “equal” products must meet the salient characteristic specified in this solicitation. To implement section 888, this rule proposes to amend the DFARS to require contracting officers to take the additional step of preparing and obtaining an approval of a justification for use of “brand name or equal” descriptions, prior to including those descriptions in a solicitation. Contracting officers will include the justification with the posting of the solicitation, which will promote transparency with industry and presents an opportunity to increase competition.

Amendment to Mentor-Protégé Program (DFARS Case 2016-D011).

This rule amends Appendix I of the DFARS I to implement changes to the Pilot Mentor-Protégé Program provided by section 861 of the NDAA for FY 2016. This Program was originally established under section 831 of the NDAA for FY 1991. Under this program, eligible companies approved as “mentor firms” will enter into agreements with eligible “protégé firms.” The mentor firms provide developmental assistance to protégé firms to perform as subcontractors or suppliers on Government contracts. In return, the mentor firms may receive credit against applicable subcontracting goals under contracts with DoD or other Federal agencies. This rule amends Appendix I of the DFARS to implement the amendments to the Program provided by section 861. Specifically, the rule will require mentor firms to report additional information on the assistance they have provided to their protégé firms. DoD's Office of Small Business Programs will use this information to support decisions regarding whether to continue particular mentor-protégé agreements. In addition, this rule adds new eligibility criteria for both mentor and protégé firms and will limit the period of time a protégé firm can participate in the Program, as well as the number of mentor-protégé agreements to which a protégé can be a party. Finally, this rule also extends the Program for three years.

Rulemakings that streamline regulations and reduce unjustified burdens.

Earned Value Management Applicability (DFARS Case 2015-D038).

This rule proposes to amend the DFARS to clarify DoD's policy for Earned Value Management System (EVMS) application on DoD contracts. “Earned value management system” means a project management tool that effectively integrates the project scope of work with cost, schedule, and performance elements for optimum project planning and control. Implemented properly, an EVMS will measure progress against a baseline and provide an early warning of cost overruns and schedule delays for major acquisitions. Currently, an EVMS is required for major acquisitions for development, in accordance with OMB Circular A-11 (see FAR 34.201(a)). However, individual agencies may require an EVMS on other acquisitions, as specified in their agency procedures. DoD applies the EVMS requirement to cost or incentive contracts and subcontracts valued at $20 million or more, and requires the EVMS comply with the guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748). In addition, for DoD cost or incentive contracts and subcontracts valued at $50 million or more, the EVMS must be determined by the cognizant Federal agency to be compliant with ANSI/EIA-748. This Start Printed Page 1692DFARS rule proposes the clarify that EVMS requirements are applicable to DoD cost reimbursement or incentive fee contracts that have a dollar value of $20 million or more (inclusive of all options) and a period of performance of 18 months or longer. In addition, the rule raises the threshold for a formal EVMS system compliance determination by the Defense Contract Management Agency from $50 million to $100 million. It is expected that this rule will reduce the number of contracts subject to EVMS requirements, as well as the number of contractor EVMS reviews to determine compliance.

Contractor Purchasing System Review Threshold (DFARS Case 2017-D038).

This rule proposes to amend the DFARS to raise the threshold for determining when a contractor purchasing system review (CPSR) is required. Per FAR subpart 44.3, the Government will conduct a CPRS in order to evaluate the efficiency and effectiveness with which a prime contractor spends Government funds and complies with Government policy when subcontracting. During a CPSR, the Government will pay special attention to certain aspects of a prime contractor's subcontracting program. For example, the Government will review the degree of price competition obtained by a prime contractor on subcontracts, whether the prime contractor is complying with Government Cost Accounting Standards, and whether the appropriate contract types are being used on subcontracts (see FAR 44.303). Currently, if a contractor's sales to the Government are expected to exceed $25 million during the next 12 months, then the administrative contracting officer (ACO) will determine whether there is a need for a CPSR (see FAR 44.302(a)). This rule proposes to amend the DFARS to raise the ACO determination dollar threshold to $50 million for DoD contracts. It is expected that this rule may reduce the number of CPSRs conducted by DoD and, in turn, alleviate the burden on contractors associated with participating in the CPSR.

Rules modifying, streamlining, expanding, or repealing making DOD's regulatory program more effective or less burdensome in achieving the regulatory objectives.

Repeal of Independent Research and Development Technical Interchange (DFARS Case 2017-D041).

This final rule will amend the DFARS to remove a requirement for major contractors to have a technical interchange with the Government prior to generating independent research and development (IR&D) costs. DoD published a final rule, effective November 4, 2016, that revised DFARS 231.205-18(c)(iii)(C)(4) to require major contractors to engage in and document a technical interchange with a DoD employee, prior to generating IR&D costs for IR&D projects initiated in fiscal year 2017 and later, in order for those costs to be allowable. This requirement causes the contractor to expend time preparing for a discussion, contacting appropriate Government personnel, discussing the IR&D project, and documenting the conversation. Since contractors commonly pool all of their IR&D project costs to develop a single billing rate, this requirement would necessitate contractors having to discuss all of the IR&D projects contained in their billing rate. While some contractors may have a single project, many have close to 100 or more, which could be significantly burdensome. This regulation is being repealed pursuant to action taken by the DoD Regulatory Reform Task Force in accordance with E.O. 13777. Repealing the technical interchange prerequisite from the DFARS, will not only reduce the burden imposed on major contractors, but also free these contractors to pursue IR&D projects without including the Government in those preliminary decisions.

Personnel and Readiness/Health Affairs

The mission of DoD's health program is to enhance the Department of Defense and our nation's security by providing health support for the full range of military operations and sustaining the health of all those entrusted to our care by creating a world-class health care system that supports the military mission by fostering, protecting, sustaining and restoring health.

TRICARE is the health care program for uniformed service members including active duty and retired members of the: U.S. Army, U.S. Air Force, U.S. Navy, U.S. Marine Corps, U.S. Coast Guard, the Commissioned Corps of the U.S. Public Health Service and the Commissioned Corps of the National Oceanic and Atmospheric Association and their families around the world. It serves 9.5 million individuals worldwide. It continues to offer an increasingly integrated and comprehensive health care plan, refining and enhancing both benefits and programs in a manner consistent with the law, industry standard of care, and best practices, to meet the changing needs of its beneficiaries. The program's goal is to increase access to health care services, improve health care quality, and control health care costs.

For this component, DoD is highlighting the following rule.

Establishment of TRICARE Select and Other TRICARE Reforms, RIN 0720-AB70. This final rule implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17). This final rule advances all four components of the Military Health System's quadruple aim of improved readiness, better care, better health, and lower cost. The aim of improved readiness is served by reinforcing the vital role of the TRICARE Prime health plan to refer patients, particularly those needing specialty care, to military medical treatment facilities (MTFs) in order to ensure that military health care providers maintain clinical currency and proficiency in their professional fields. The objective of better care is enhanced by a number of improvements in beneficiary access to health care services, including increased geographical coverage for the TRICARE Select provider network, reduced administrative hurdles for TRICARE Prime enrollees to obtain urgent care services and specialty care referrals, and promotion of high value services and medications. The goal of better health is advanced by expanding TRICARE coverage of preventive care services, treatment of obesity, high-value care, and telehealth. And the aim of lower cost is furthered by refining cost-benefit assessments for TRICARE plan specifications that remain under DoD's discretion and adding flexibilities to incentivize high-value health care services.

Army Corps of Engineers

The United States Army Corps of Engineers (USACE), is a major Army command made up of some 37,000 civilian and military personnel, making it one of the world's largest public engineering, design, and construction management agencies. Although generally associated with dams, canals and flood protection in the United States, USACE is involved in a wide range of public works throughout the world. The Corps of Engineers provides outdoor recreation opportunities to the public, and provides 24% of U.S. hydropower capacity.

The corps' mission is to “Deliver vital public and military engineering services; partnering in peace and war to strengthen our Nation's security, energize the economy and reduce risks from disasters.” The most visible missions include:

  • Planning, designing, building, and operating locks and dams. Other civil engineering projects include flood Start Printed Page 1693control, beach nourishment, and dredging for waterway navigation.
  • Design and construction of flood protection systems through various federal mandates.
  • Design and construction management of military facilities for the Army, Air Force, Army Reserve and Air Force Reserve and other Defense and Federal agencies.
  • Environmental regulation and ecosystem restoration.

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). On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 rule nationwide pending further action of the court. On February 28, 2017, the President signed the “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule” which instructed the agencies to review the 2015 rule and rescind or replace it as appropriate and consistent with law. On July 27, 2017, the agencies published a Federal Register notice proposing to withdraw (STEP 1 of a comprehensive 2-STEP process) the 2015 Clean Water Rule (CWR) and reinstate pre-existing regulations and guidance (1986 regulations plus 2003 SWANCC and 2008 Rapanos Guidance); the initial 30-day comment period was extended an additional 30 days to September 28, 2017.

The Executive Order further directs that EPA and the Army “shall consider interpreting the term ‘navigable waters’ “in a manner consistent with Supreme Court Justice Scalia's opinion” in Rapanos indicating that Clean Water Act jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters. Later this fiscal year, after considering the comments received in response to the STEP 1 FRN, the agencies plan to propose a new definition to replace the definition and regulatory approach codified in the 2015 CWR. Over the past few months the agencies have been having meetings and holding webinars with Tribes, States, and organizations that request them to explain the 2-STEP process, what the Scalia Opinion means, and some of the options for developing a new definition of Waters of the United States. These briefing and listening sessions will continue through November 2017. Until the new rule is finalized, the agencies will continue to implement the regulatory definition in place prior to the 2015 CWR consistent with the SWANCC and Rapanos Guidance, while the 6th Circuit Court stay of the 2015 CWR is still in effect or the EPA and Army complete rulemaking to amend the effective date of the 2015 CWR.

DOD—DEFENSE ACQUISITION REGULATIONS COUNCIL (DARC)

Proposed Rule Stage

13. Earned Value Management Applicability (DFARS Case 2015-D038)

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 41 U.S.C. 1303

CFR Citation: 48 CFR 234; 48 CFR 252.

Legal Deadline: None.

Abstract: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify DoD's policy for Earned Value Management System (EVMS) application on DoD contracts, beyond the basic triggers of contract types and dollar values. Specifically, the rule:

  • Clarifies that EVMS requirements are applicable to all DoD contracts, task orders, and delivery orders, that are cost reimbursement or incentive fee; have a value of $20 million or more (inclusive of all options); and have a period of performance of 18 months or longer;
  • Clarifies that, with the exception of a contractor EVMS under the cognizance of the Naval Sea Systems Command, where system approval is not delegated to the Defense Contract Management Agency (DCMA), DCMA is responsible for approving a contractor's EVMS;
  • Removes the reference to American National Standards Institute (ANSI) guidelines and states that EVMS must comply with guidelines in Electronic Industries Alliance (EIA) Standard 748 (EIA-748);
  • Raises the threshold for a formal earned value management system compliance determination by the Defense Contract Management Agency from $50 million to $100 million; and
  • Clarifies that EVMS requirements apply unless the requirements package includes a determination of earned value management nonapplicability or a waiver signed by the component acquisition executive.

This rule will not increase costs for contractors. DoD expects that this rule will decreases costs for contractors by increasing the dollar threshold for formal EVMS compliance determinations from $50 million to $100 million, and providing for earned value management non-applicability determinations and waivers. DoD estimates that this rule will reduce the number of contractor reviews by nearly 20 percent with very little risk to the Government, since over 97 percent of the contract dollars will still be covered by the increased threshold.

Statement of Need: This rule is necessary to ensure proper application of EVMS requirements in DoD contracts, task orders, and delivery orders based on contract type and period of performance, and increase the contractual threshold for an approved earned value management system from $50 million to $100 million.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations.

Alternatives: No alternatives were considered.

Anticipated Cost and Benefits: Based on the DoD Performance Assessments and Root Cause Analyses (PARCA) Earned Value Management Division's assessment of DoD application of earned value management, the reduction in DoD EVMS compliance surveillance will allow for the valuable repurposing of an estimated 50 personnel to support other essential priorities and missions, resulting in direct savings to the Department in excess of $3 million. Furthermore, corresponding savings in reduced DoD contractor overhead costs are conservatively estimated at two to three times the DoD savings (One contractor alone in PARCA's study estimated approximately $6 million company-wide savings annually). Since the actual cost impact is difficult to quantify, DoD is conservatively estimating annualized savings of $10 million.

Risks: Failure to implement this rule will perpetuate the unproductive regulatory earned value management compliance requirements on industry for certain types of contracts where such oversight is unnecessary.

Timetable:

ActionDateFR Cite
NPRM01/00/18
NPRM Comment Period End03/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal.

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Start Printed Page 1694Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ10

DOD—DARC

14. • Contractor Purchasing System Review Threshold (DFARS CASE 2017-D038)

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 41 U.S.C. 1303

CFR Citation: 48 CFR 244.

Legal Deadline: None.

Abstract: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement to establish a higher dollar threshold for conducting contractor purchasing system reviews. This rule proposes, in lieu of the threshold at Federal Acquisition Regulation 44.302(a), the administrative contracting officer shall determine the need for a contractors purchasing system review if a contractor's sales to the Government are expected to exceed $50 million during the next 12 months. This rule is not expected to increase costs for contractors; rather, the rule may reduce the number of contractor purchasing system reviews conducted by the Government, thus alleviating burden on contractors.

Statement of Need: There is a need to increase the threshold for a contractor purchasing system review from $25 to $50 million to reduce the administrative burden on contractors and the Government for maintaining and reviewing an approved contractor purchasing system.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, Functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations.

Alternatives: No alternatives to this action are being considered at this time.

Anticipated Cost and Benefits: Implementing this rule provides a net annualized savings of approximately $12 million. This estimate is based on data available in the Federal Procurement Data System (FPDS) data for fiscal year 2016, which indicates that 958 unique vendors received awards valued at $25 million or more, but less than $50 million, that were subject to the purchasing system review. Removing this requirement would relieve these contractors from the time and cost burden required to establish, maintain, audit, document, and train for an approved purchasing system.

Risks: If this rule is not finalized, the public will continue to experience additional costs to comply with this rule at the current threshold.

Timetable:

ActionDateFR Cite
NPRM12/00/17
NPRM Comment Period End02/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal.

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ48

DOD—DARC

15. • Brand Name or Equal (DFARS Case 2017-D040)

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: 41 U.S.C. 1303; Pub. L. 113-291, sec. 888; 10 U.S.C. 2304(f)

CFR Citation: 48 CFR 206; 48 CFR 211.

Legal Deadline: Final, Statutory, December 23, 2016, Effective upon enactment.

Abstract: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement to implement section 888 of the National Defense Authorization Act for FY 2017, which requires that competition not be limited through the use of specifying brand names or brand name or equivalent descriptions, or proprietary specifications and standards, unless a justification for such specifications is provided and approved in accordance with 10 U.S.C. 2304(f). This rule affects the internal operating procedures of the Government, and is not expected to increase costs for contractors or offerors.

Statement of Need: This case is necessary to ensure contracting officers comply with section 888 of the NDAA for FY 2015 (Pub. L. 113-291). Specifically, it will ensure contracting officers properly justify for the use of brand name and brand name or equivalent descriptions, or proprietary specifications or standards.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, Functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations. In addition, this rule is necessary to implement the statutory amendments made by section 888 of the NDAA for FY 2017.

Alternatives: There are no viable alternatives that are consistent with the stated objectives of the statute.

Anticipated Cost and Benefits: The Department does not expect this proposed rule to have any cost impact on contractors or offerors. Rather, preparing a justification for the use of brand name descriptions or specifications provides increased transparency into the acquisition planning and source selection strategy process for department goods and services.

Risks: If this rule is not finalized, the department will not be in compliance with section 888 of the NDAA for FY 2017, therefore losing an opportunity to increase competition, expand the defense industrial base and secure reduced pricing.

Timetable:

ActionDateFR Cite
NPRM03/00/18
NPRM Comment Period End05/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal.

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ50

DOD—DARC

Final Rule Stage

16. Amendment to Mentor-Protégé Program (DFARS Case 2016-D011)

Priority: Other Significant.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: 41 U.S.C. 1303; Pub. L. 114-92, sec. 861

CFR Citation: 48 CFR 219; 48 CFR, ch. 2, app I.

Legal Deadline: None.

Abstract: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement to implement section 861 of the National Defense Authorization Act for FY 2016, which provides the following amendments to the DoD Pilot Mentor-Protégé Program (“the Program”):

  • Requires mentor firms to report assistance provided to or obtained for Start Printed Page 1695protégé firms; new subcontracts awarded to protégé firms; any extensions, increases in the scope of work, or additional, unreported payments to protégé firms; all Federal contracts awarded to the mentor and protégé firms as a joint venture; whether the terms of the mentor-protégé agreement have changed; and a narrative describing the success assistance provided under the Program has had in addressing the protégé firm's developmental needs, the impact on DoD contracts, and addressing any problems encountered.
  • Requires mentor firms and protégé firms to meet new eligibility criteria.
  • Limits the number of mentor-protégé agreements to which a protégé firm may be a party to one at a time.
  • Limits the period of time during which a protégé firm may participate in mentor-protégé agreements under the Program to five years.
  • Requires mentor-protégé agreements to address the benefits of the agreement to DoD and goals for additional awards for which the protégé firm can compete outside the Program.
  • Removes business development assistance using mentor firm personnel and cash in exchange for an ownership interest in the protégé firm from the types of assistance that a mentor firm may provide to a protégé firm.
  • Prohibits reimbursement of any fee assessed by the mentor firm for certain services provided to the protégé firm while participating in a joint venture with the protégé firm.

One respondent submitted a public comment on the proposed rule. This rule will slightly increase the costs for contractors participating in the program by introducing new reporting requirements, as required by the statute; however, these costs are offset by benefits offered by the Program. For example, the Program provides incentives to both mentor and protégé firms. Mentor firms may receive credit toward the goals in their small business subcontracting plan for the funds they spend on developmental assistance for their protégé firms. The Program offers protégé firms the opportunity to learn about contracting with DoD and to receive subcontracts from an established, successful DoD contractor.

Statement of Need: This final rule amends the DFARS to implement section 861 of the National Defense Authorization Act (NDAA) for Fiscal Year 2016, which provides amendments to the DoD Pilot Mentor-Protégé Program (the Program). These amendments include new reporting requirements that will provide information to DoD's Office of Small Business Programs to support decisions regarding continuation of particular mentor-protégé agreements; a three-year extension of the Program; and changes to the requirements for business development assistance provided by a mentor firm and for the reimbursement of fees assessed by the mentor firm. This rule is needed to implement these statutory requirements.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, Functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations. In addition, this rule is necessary to implement the statutory amendments made to the mentor protege program by section 861 of the NDAA for FY 2016.

Alternatives: There are no viable alternatives that are consistent with the stated objectives of the statute.

Anticipated Cost and Benefits: The annualized cost to the public is anticipated to be approximately $20,000 over the next four years, after which the Program is scheduled to end. Nearly all of these costs are borne by mentor firms. The anticipated cost is based on the number of firms currently participating in the Program, the number of new mentor applications DoD receives each year, and the number of new mentor-protégé agreements submitted for DoD approval each year under the Program. The Government estimated the cost of various activities mentor and protégé firms must perform to comply with the rule, including submission of reports.

The anticipated costs are offset by benefits offered by the Program. For mentor firms, these benefits include credit toward the goals in their small business subcontracting plans for the developmental assistance they provide to their protégé firms. Participation in the Program as a mentor is one way for mentors to demonstrate a good-faith effort to comply with their subcontracting plans. For protégé firms, the benefits of the Program include an opportunity to gain assistance from a successful mentor that will enable them to grow and develop as a business. Such assistance will help them obtain subcontracts with DoD contractors and eventually contracts with DoD.

Risks: If this rule is not finalized, all developmental assistance provided under the Program will end on September 30, 2018. As of that date, mentor firms will no longer be able to receive credit toward the goals in their small business subcontracting plans for developmental assistance provided to protégé firms. Protégé firms will no longer have the opportunity to learn about contracting with DoD from a mentor who is a successful DoD contractor. In addition, the Government will lose access to a pool of potential new contractors and subcontractors, therefore losing an opportunity to strengthen and diversify the defense industrial base.

Timetable:

ActionDateFR Cite
NPRM09/23/1681 FR 65610
NPRM Comment Period End11/22/16
Final Action03/00/18
Final Action Effective03/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal.

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ05

DOD—DARC

17. Use of the Government Property Clause (DFARS Case 2015-D035)

Priority: Other Significant.

E.O. 13771 Designation: Regulatory.

Legal Authority: 41 U.S.C. 1303

CFR Citation: 48 CFR 245.

Legal Deadline: None.

Abstract: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement to expand the prescription for use of Federal Acquisition Regulation (FAR) clause 52.245-1, Government Property, to apply to all purchase orders for repair, maintenance, overhaul, or modification to Government property regardless of the acquisition cost of the items to be repaired. Currently, the FAR clause is optional for use in purchase orders for repair when the acquisition cost of the item to be repaired is less than the simplified acquisition threshold; however, acquisition cost alone is not an indicator of the criticality or sensitivity of the property. The acquisition cost of individual items of firearms, body armor, night-vision equipment, computers, or cryptologic devices may be below the simplified acquisition threshold, but the accountability requirements for these items are fairly stringent. Requiring the clause in all purchase orders for repair, regardless of the acquisition cost of the item to be repaired, will ensure DoD has Start Printed Page 1696better accountability and insight into military reparable assets.

One respondent submitted comments on the proposed rule. This rule will increase costs for contractors, including small entities, who receive purchase orders for repair of Government property, because these contractors will be required to comply with the reporting requirements associated with Government property clause. However, the rule also provides the contractors with the protections of the Government Property clause (where the Government self-insures the property provided to the contractor), and provides DoD better accountability of its property.

Statement of Need: The rule is required to achieve greater accountability of Government furnished property (GFP) and decrease the risk of misuse or loss of Government property. Accountability of assets is an important part of audit readiness. This rule facilitates DoD's goal of achieving full accountability and visibility of equipment provided to contractors as GFP, including critical and sensitive equipment items. This rule closes an existing accountability gap by treating purchase orders for repair, maintenance, overhaul, or modification of GFP no different from other contractual instruments involving repair of GFP, such as delivery orders awarded under Basic Ordering Agreements or issued under Indefinite Delivery Contracts.

The rule also enables compliance with DoD Instruction 4161.02 entitled Accountability and Management of Government Contract Property, which requires DoD components to use electronic transactions when transferring GFP to a contractor and upon the return of the property to DoD. Use of FAR clause 52.245-1, Government Property, in conjunction with associated DFARS clauses, creates an electronic end-to-end process for GFP management.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, Functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations.

Alternatives: There are no viable alternatives that would provide tracking and accountability of GFP provided to contractors for repair that would provide full visibility of Government assets and integrate with existing GFP procedures and electronic systems. The rule reflects marketplace practices, which limits the consideration of alternatives. Many of the requirements contained in FAR 52.245-1, e.g., receiving reports, discrepancy reports and property records, are typical commercial practices, and so not unduly burdensome. For example, customary commercial practice is to create receiving reports and keep records for incoming assets regardless of the source of such assets. In addition, the policy at FAR 45.103(b) permits contractors to use their own existing property management procedures, practices, and systems to account for and manage Government property.

Anticipated Cost and Benefits: The annual estimated cost to the public is based on Federal Procurement Data System transaction data for fiscal year 2015 for purchase orders for repairs of Government equipment. Using this baseline, costs were calculated for contractor reporting, record keeping, and compliance costs. Some contractors may be required to setup a property management system; however, this impact is minimal since contractors may use their own existing practices and systems. The annualized cost is estimated to be approximately $350,000.

Benefits of this rule accrue to both contractors and the Government resulting from improved accountability of GFP, which should reduce losses and mitigate potential property ownership issues. This will serve to minimize contract disputes, claims, and litigation; thereby reducing administrative costs for both contractors and the Government. Accountability of GFP facilitates proper disposition and adjudication of all property during contract closeout and should result in prompt contract payment.

Risks: This rule addresses an accountability gap in managing and accounting for Government assets and should mitigate the risk of loss of Government property. Some equipment requiring repairs that would now be covered by this rule are deemed critical and sensitive, e.g., firearms, body armor, night-vision equipment, computers, and cryptologic devices. Loss or theft of such devices could have far reaching consequences.

Timetable:

ActionDateFR Cite
NPRM10/21/1681 FR 73002
NPRM Comment Period End12/20/16
Final Action02/00/18
Final Action Effective02/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal.

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ11

DOD—DARC

18. • Repeal of Independent Research and Development Technical Interchange (DFARS Case 2017-D041)

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 41 U.S.C. 1303

CFR Citation: 48 CFR 231.

Legal Deadline: None.

Abstract: DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to remove the requirement at DFARS 231.205-18(c)(iii)(C)(4) for contractors to conduct a technical interchange with a DoD Government employee before independent research and development (IR&D) costs are generated for IR&D projects initiated in FY 2017 or later, as a prerequisite for those costs to be determined allowable. This rule is expected to decrease costs for contractors and offerors.

Statement of Need: This action is necessary relieve excess burden experienced by industry when deciding to invest in innovative technologies that may benefit the Department.

Summary of Legal Basis: This rule is proposed under the authority at 41 U.S.C. 1303, Functions and authority, which provides the authority to issue and maintain the Federal Acquisition Regulation and executive agency implementing regulations.

Alternatives: No alternatives to this action are being considered at this time.

Anticipated Cost and Benefits: Implementing this rule provides a net annualized savings of approximately $2 million. This estimate is based on data available in the Federal Procurement Data System (FPDS) data for FY 2016, which indicates that 307 unique vendors were awarded a non-commercial, cost-type contract subject to cost accounting standards and certified cost and pricing data. IR&D costs are most commonly included in non-commercial, cost-type contracts that are subject to certified cost and pricing data and cost accounting standards. Public comments on the case implementing this requirement in the Defense Federal Acquisition Regulation Supplement indicate that a contractor may invest in numerous IR&D projects that would be incorporated into their proposed IR&D rate. Removing this requirement would relieve contractors Start Printed Page 1697from the time burden of preparing for a discussion, locating the appropriate Government contact, discussing with the Government, and documenting a technical interchange for an IR&D project.

Risks: If this rule is not finalized, the public will experience additional costs to comply with this rule, as well as the possibility of not being reimbursed for IR&D costs under a Government contract.

Timetable:

ActionDateFR Cite
Final Action01/00/18
Final Action Effective01/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Federal./

Agency Contact: Jennifer Hawes, Defense Acquisition Regulations System, Department of Defense, 3060 Defense Pentagon, Room 3B941, Washington, DC 20301-3060, Phone: 571 372-6115, Email: jennifer.l.hawes2.civ@mail.mil.

RIN: 0750-AJ51

DOD—OFFICE OF ASSISTANT SECRETARY FOR HEALTH AFFAIRS (DODOASHA)

Final Rule Stage

19. Establishment of Tricare Select and Other Tricare Reforms

Priority: Other Significant.

E.O. 13771 Designation: Not subject to, not significant.

Legal Authority: 10 U.S.C. ch. 55; NDAA-17 sec. 701; NDAA-17 sec. 706; NDAA-17 sec. 715; NDAA-17 sec. 718; NDAA-17 sec. 729

CFR Citation: 32 CFR 199.

Legal Deadline: Other, Statutory, June 23, 2017, NDAA 17 section 718. Other, Statutory, January 1, 2018, NDAA 17 section 729.

Abstract: This interim final rule implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17). The law makes significant changes to the TRICARE program, especially to the health maintenance organization (HMO)-like health plan, known as TRICARE Prime; to the preferred provider organization health plan, previously called TRICARE Extra and now to be called TRICARE Select; and to the third health care option, known as TRICARE Standard, which will be terminated as of December 31, 2017, and replaced by TRICARE Select. The statute also adopts a new health plan enrollment system under TRICARE and new provisions for access to care, high value services, preventive care, and healthy lifestyles. In implementing the statutory changes, this interim final rule makes a number of improvements to TRICARE. Specifically, this rule will enhance beneficiary access to health care services, including increased geographic coverage for the TRICARE Select provider network, reduced administrative hurdles for TRICARE Prime enrollees to obtain urgent care services and specialty care referrals, and promotion of high value services and medications and telehealth services. It will also expand TRICARE coverage of preventive care services and prevention and treatment of obesity and refining cost-benefit assessments for TRICARE plan specifications that remain under DoD's discretion.

Statement of Need: This interim final rule implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17). The law makes significant changes to the TRICARE program, especially to the health maintenance organization (HMO)-like health plan, known as TRICARE Prime; to the preferred provider organization health plan, previously called TRICARE Extra and now to be called TRICARE Select; and to the third health care option, known as TRICARE Standard, which will be terminated as of December 31, 2017, and replaced by TRICARE Select. The statute also adopts a new health plan enrollment system under TRICARE and new provisions for access to care, high-value services, preventive care, and healthy lifestyles. In implementing the statutory changes, this interim final rule makes a number of improvements to TRICARE.

In implementing section 701 and partially implementing several other sections of NDAA-17, this interim final rule advances all four components of the Military Health System's quadruple aim of stronger readiness, better care, healthier people, and smarter spending. The aim of stronger readiness is served by reinforcing the vital role of the TRICARE Prime health plan to refer patients, particularly those needing specialty care, to military medical treatment facilities in order to ensure that military health care providers maintain clinical currency and proficiency in their professional fields. The objective of better care is enhanced by a number of improvements in beneficiary access to health care services, including geographical coverage for the TRICARE Select provider network, reduced administrative hurdles for TRICARE Prime enrollees to obtain urgent care services and specialty care referrals, and promotion of high-value services and medications and telehealth services. The goal of healthier people is advanced by expanding TRICARE coverage of preventive care services and prevention and treatment of obesity. And the aim of smarter spending is furthered by sharpening cost-benefit assessments for TRICARE plan specifications that remain under the DoD's discretion.

Summary of Legal Basis: This interim final rule is required to implement or partially implement several sections of NDAA-17, including 701, 706, 715, 718, and 729. The legal authority for this rule also includes chapter 55 of title 10, United States Code.

Alternatives: None.

Anticipated Cost and Benefits: This rule is not anticipated to have an annual effect on the economy of $100M or more, thus it is not an economically significant rule under the Executive Order and the Congressional Review Act. The rule includes estimated program costs associated with implementation that include administrative startup costs ($11M) information systems changes ($10M). Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, seeks to control costs associated with the government imposition of private expenditures required to comply with Federal regulations and to reduce regulations that impose such costs. Consistent with the analysis of transfer payments under OMB Circular A-4, this interim final rule does not involve regulatory costs subject to E.O. 13771.

Risks: The rule does not impose any risks. The risks lie in not implementing statutorily required changes.

Timetable:

ActionDateFR Cite
Interim Final Rule09/29/1782 FR 45438
Interim Final Rule Comment Period End11/28/17
Final Action04/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: None.

Agency Contact: Mark Ellis, Department of Defense, Office of Assistant Secretary for Health Affairs, 5111 Leesburg Pike, Suite 810A, Falls Church, VA 22041, Phone: 703 681-0039.Start Printed Page 1698

RIN: 0720-AB70

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 in order to ensure that all Americans, including those with disabilities, receive a high-quality education and are prepared for high-quality employment. 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, postsecondary students, members of the public, families, and many others. These efforts are helping to ensure that all children and students from pre-kindergarten through grade 12 will be ready for, and succeed in, postsecondary education or employment, and that students attending postsecondary institutions 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, and support innovative 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 2017-18 school year, about 56 million students will attend an estimated 133,000 elementary and secondary schools in approximately 13,600 districts, and about 20 million students will enroll in degree-granting postsecondary schools. All of these students may benefit from some degree of financial assistance or support from the Department.

In developing and implementing regulations, guidance, technical assistance, evaluations, data gathering and reporting, and monitoring related to our programs, we are committed to working closely with affected persons and groups. We know that improving education starts with allowing greater decision-making authority at the State and local levels while also recognizing that the ultimate form of local control occurs when parents and students are empowered to choose their own educational paths forward. Our core mission includes this empowerment of local education, serving the most vulnerable, and facilitating equal access for all, to ensure all students receive a high-quality 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, colleges, rehabilitation service providers, adult education providers, professional associations, 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 Docketing 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.

We are committed to reducing burden with regard to regulations, guidance, and information collections, reducing the burden on information providers involved in our programs, and making information easily accessible to the public. To that end and consistent with Executive Order 13777 (“Enforcing the Regulatory Reform Agenda”), we are in the process of reviewing all of our regulations and guidance to modify and rescind items that: (1) Eliminate jobs, or inhibit job creation; (2) are outdated, unnecessary, or ineffective; (3) impose costs that exceed benefits; (4) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (5) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or (6) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

II. Regulatory and Deregulatory Priorities

Proposed Rulemakings

The following actions are the significant new rulemaking actions the Department is planning for the coming year. Because we are just now beginning the rulemaking process for these regulations, we have limited information about the potential costs and benefits and therefore whether these would be considered regulatory or deregulatory actions under Executive Order 13771.

Postsecondary Education/Federal Student Aid

The Secretary is planning two new rulemakings in the area of higher education and Federal Student Aid under the Higher Education Act of 1965, as amended (HEA). In 2014, we completed a rulemaking to establish regulations governing certain postsecondary educational programs that prepare students for gainful employment in a recognized occupation, and in 2016, we completed a rulemaking to establish regulations governing, among other issues, borrower defenses to repayment of student loans. In the two new rulemakings, described below, we are planning to revisit these regulations with the goals of alleviating unnecessary regulatory burdens and ensuring appropriate protections for students, institutions, the taxpayers, and the Federal government. Through the use of the negotiated rulemaking process, we will receive input from a diverse range of interests and affected parties and will have the opportunity to reach consensus on a set of regulations that best meets those parties' needs and our overall goals.

More specifically, the Secretary plans to establish new regulations governing Start Printed Page 1699the William D. Ford Federal Direct Loan (Direct Loan) Program regarding the standard and the process for determining whether a borrower has a defense to repayment on a loan based on an act or omission of a school. We also may amend other sections of the Direct Loan Program regulations, including those that codify our current policy regarding the impact that discharges have on the 150 percent Direct Subsidized Loan Limit; and the Student Assistance General Provisions regulations providing the financial responsibility standards and disclosure requirements for schools. In addition, we may amend the discharge provisions in the Federal Perkins Loan, Direct Loan, Federal Family Education Loan, and Teacher Education Assistance for College and Higher Education Grant programs.

The Secretary is also commencing rulemaking to amend the gainful employment regulations, including those provisions relating to institutional eligibility, reporting, and disclosures.

Civil Rights/Title IX

The Secretary is planning a new rulemaking to address significant issues under Title IX of the Education Amendments of 1972, as amended. In this action, we seek to clarify schools' obligations in redressing sex discrimination, including complaints of sexual misconduct, and the procedures by which they must do so.

Deregulatory Actions

The Department anticipates issuing a number of deregulatory actions in the upcoming fiscal year. We have thus far been focusing our deregulatory efforts on eliminating outdated regulations. In many instances, our deregulatory actions are being taken because legislation has superseded our regulations. For example, we are planning to rescind a number of sections from our Office of Elementary and Secondary Education regulations to clarify which regulations were superseded by the recently enacted Every Student Succeeds Act. These deregulatory actions, such as rescinding the Adequate Yearly Progress regulations at 34 CFR 200.13-22, will clarify for our stakeholders and the general public which of our regulations are still in effect, and which have been rescinded. Similarly, we are planning to rescind a number of the Office of Special Education and Rehabilitative Services regulations issued by the Department's former National Institute on Disability and Rehabilitation Research (NIDRR). Congress transferred NIDRR to the Department of Health and Human Services, and this deregulatory action will rescind regulations that the Department no longer administers, thereby avoiding confusion. The unified agenda identifies other deregulatory actions that provide cost savings and clarity.

III. Regulatory Review

As stated previously, the Department is undertaking a comprehensive regulatory reform effort pursuant to Executive Order 13777, focusing on rescinding and modifying all outdated, unnecessary, or ineffective regulations, guidance, and information collections. Section 3(e) of the Executive Order requires the Department, as part of this effort, to “seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations” on regulations that meet some or all of the criteria above.

Consistent with section 3(e), on June 22, 2017, the Department published a Federal Register notice soliciting such input from the public to inform its evaluation of existing regulations and guidance. We specified in the notice that we are particularly interested in regulatory provisions that are unduly costly or unnecessarily burdensome. The public's comments will be closely reviewed and considered as part of our overall regulatory reform initiative.

IV. 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

20. • Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 20 U.S.C. 1681 et seq.

CFR Citation: 34 CFR 106.

Legal Deadline: None.

Abstract: The Secretary plans to issue a notice of proposed rulemaking to clarify schools' obligations in redressing sex discrimination, including complaints of sexual misconduct, and the procedures by which they must do so.

Statement of Need: This regulatory action will address issues regarding schools' obligations under Title IX of the Education Amendments of 1972, as amended, to redress sex discrimination.

Summary of Legal Basis: 20 U.S.C. 1681, et seq.

Alternatives: These will be presented in a Notice of Proposed Rulemaking and discussed in the Final Regulations.

Anticipated Cost and Benefits: These will be presented in a Notice of Proposed Rulemaking and discussed in the Final Regulations.

Risks: These will be presented in a Notice of Proposed Rulemaking and discussed in the Final Regulations.

Timetable: Start Printed Page 1700

ActionDateFR Cite
NPRM03/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

URL For Public Comments: www.regulations.gov.

Agency Contact: Alejandro Reyes, Department of Education, Office for Civil Rights, 400 Maryland Avenue SW, Room 4E213, Washington, DC 20202, Phone: 202 453-7100, Email: t9ocrcomments@ed.gov.

RIN: 1870-AA14

ED—OFFICE OF POSTSECONDARY EDUCATION (OPE)

Proposed Rule Stage

21. Borrower Defense and Related Issues

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Other.

Legal Authority: 20 U.S.C. 1082(a)(5), (a)(6); 20 U.S.C.1087(a); 20 U.S.C. 1087e(h); 20 U.S.C. 1221e-3; 20 U.S.C. 1226a-1; 20 U.S.C. 1234(a); 31 U.S.C. 3711

CFR Citation: 34 CFR 30; 34 CFR 668; 34 CFR 674; 34 CFR 682; 34 CFR 685; 34 CFR 686; and other sections as applicable.

Legal Deadline: None.

Abstract: The Secretary plans to establish new regulations governing the William D. Ford Federal Direct Loan (Direct Loan) Program regarding the standard and the process for determining whether a borrower has a defense to repayment on a loan based on an act or omission of a school. We also may amend other sections of the Direct Loan Program regulations, including those that codify our current policy regarding the impact that discharges have on the 150 percent Direct Subsidized Loan Limit; and the Student Assistance General Provisions regulations providing the financial responsibility standards and disclosure requirements for schools. In addition, we may amend the discharge provisions in the Federal Perkins Loan (Perkins Loan), Direct Loan and Federal Family Education Loan (FFEL) program regulations.

Statement of Need: The Secretary is initiating negotiated rulemaking to revise current regulations governing borrower defenses to loan repayment.

Summary of Legal Basis: Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs authorized under title IV of the HEA, the Secretary obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations from the public, the Secretary conducts negotiated rulemaking to develop the proposed regulations. Section 455(h) of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1087e(h), authorizes the Secretary to specify in regulation which acts or omissions of an institution of higher education a borrower may assert as a defense to repayment of a Direct Loan.

Alternatives: These will be identified through the negotiated rulemaking process, presented in a Notice of Proposed Rulemaking, and discussed in the Final Regulations.

Anticipated Cost and Benefits: These will be identified through the negotiated rulemaking process, in a Notice of Proposed Rulemaking and discussed in the Final Regulations.

Risks: These will be identified through the negotiated rulemaking process, in a Notice of Proposed Rulemaking and discussed in the Final Regulations.

Timetable:

ActionDateFR Cite
Notice of Intention to Commence Negotiated Rulemaking06/16/1782 FR 27640
NPRM05/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Small Entities Affected: Businesses, Governmental Jurisdictions.

Government Levels Affected: Federal, Local, State.

Federalism: Undetermined.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Annmarie Weisman, Department of Education, Office of Postsecondary Education, 400 Maryland Avenue SW, Room 6W245, Washington, DC 20202, Phone: 202 453-6712, Email: annmarie.weisman@ed.gov.

RIN: 1840-AD26

ED—OPE

22. • Program Integrity; Gainful Employment

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Other.

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)

CFR Citation: 34 CFR 668.

Legal Deadline: None.

Abstract: The Secretary plans to amend regulations on institutional eligibility under the Higher Education Act of 1965, as amended (HEA), and the Student Assistance General Provisions, including the regulations governing whether certain postsecondary educational programs prepare students for gainful employment in a recognized occupation, and the conditions under which these educational programs remain eligible under the Federal Student Aid programs authorized under title IV of the HEA.

Statement of Need: The Secretary is initiating negotiated rulemaking to revise the gainful employment regulations published by the Department on October 31, 2014 (79 FR 64889).

Summary of Legal Basis: Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs authorized under title IV of the HEA, the Secretary obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations from the public, the Secretary conducts negotiated rulemaking to develop the proposed regulations. Section 431 of the Department of Education Organization Act provides authority to the Secretary, in relevant part, to inform the public regarding federally supported education programs; and collect data and information on applicable programs for the purpose of obtaining objective measurements of the effectiveness of such programs in achieving the intended purposes of such programs. 20 U.S.C. 1231a.

Alternatives: These will be identified through the negotiated rulemaking process, presented in a Notice of Proposed Rulemaking, and discussed in the Final Regulations.

Anticipated Cost and Benefits: These will be identified through the negotiated rulemaking process, presented in a Notice of Proposed Rulemaking, and discussed in the Final Regulations.

Risks: These will be identified through the negotiated rulemaking process, presented in a Notice of Proposed Rulemaking, and discussed in the Final Regulations.

Timetable:

ActionDateFR Cite
Notice of Intention to Commence Negotiated Rulemaking06/16/1782 FR 27640
Start Printed Page 1701
NPRM06/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Small Entities Affected: Businesses, Governmental Jurisdictions.

Government Levels Affected: Federal, Local, State.

URL For Public Comments: www.regulations.gov.

Agency Contact: Annmarie Weisman, Department of Education, Office of Postsecondary Education, 400 Maryland Avenue SW, Room 6W245, Washington, DC 20202, Phone: 202 453-6712, Email: annmarie.weisman@ed.gov.

RIN: 1840-AD31

DEPARTMENT OF ENERGY

Statement of Regulatory and Deregulatory Priorities

The Department of Energy (DOE or The Department) 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 ensure America's security and prosperity by addressing its energy, environmental, and nuclear challenges through transformative science and technology solutions.

Through its regulatory and deregulatory activities, the Department works to ensure it both achieves its critical mission, and implements the administration's initiative to reduce regulation and control regulatory costs as outlined in Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs.” As such, the Department strives to act in a prudent and financially responsible manner in the expenditure of funds, from both public and private sources, and manages appropriately the costs associated with private expenditures required for compliance with DOE regulations. Ultimately, DOE aims to promote meaningful regulatory burden reduction, while at the same time achieve its regulatory objectives and statutory obligations.

Regulatory and Deregulatory Priorities

DOE's regulatory and deregulatory priorities reflect the Department's efforts to achieve meaningful burden reduction while continuing to achieve the Department's statutory obligations.

DOE's regulatory priorities reflect the Department's statutory obligations. The Energy Policy and Conservation Act (EPCA) requires DOE to review its appliance efficiency standards at least once every six years to determine whether a new standard can be implemented at a level that achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified. The Department continues to work to meet these obligations.

DOE is also engaging in a number of deregulatory activities aimed at reducing regulatory costs and burdens. These activities include expediting the approval process for applicants proposing to export small volumes of natural gas and taking a number of actions to right-size the safety requirements for persons conducting activities that affect, or may affect, the safety of DOE nuclear facilities.

Aggregate Number of Anticipated Regulatory and Deregulatory Actions

For fiscal year 2017 and 2018 DOE plans to implement 7 regulatory actions and 16 deregulatory actions. DOE is largely focusing its resources on pursuing the deregulatory actions listed in the Regulatory Agenda. While none of the rulemakings listed as regulatory actions in DOE's regulatory agenda meet the Regulatory Plan criterion of “most important significant regulatory actions” of the agency, DOE is placing one action in its Regulatory Plan, for the purpose of transparency and due to the non-trivial costs of the proposed action: Energy Conservation Standards for Residential Conventional Cooking Products. At the 7% and 3% discount rate the primary annualized cost for this rule is expected to be 42.6 million and 42.3 million dollars respectively. The primary annualized benefits at the 7% and 3% discount rate are expected to be 126 million and 178 million respectively.

In all its rulemakings, as required by E.O. 12866, “Regulatory Planning and Review,” DOE ensures that the net benefits of any rule it publishes outweigh the costs of the rulemaking. Further, DOE will not issue a rule if that rule contains unjustified burdens.

Retrospective Analyses of Existing Rules

As part of its efforts to comply with Section 6 of E.O. 13563, “Improving Regulation and Regulatory Review,” which requires agencies to conduct a retrospective review of existing rules to identify rules that are “outmoded, ineffective, insufficient, or excessively burdensome,” and to determine whether such regulations should be “modified, streamlined, expanded, or repealed” DOE issued a request for information (RFI) on May 30, 2017, 82 FR 24582. Among other issues, this RFI requested insight from the public as to what regulations may meet the definition of E.O. 13563. DOE is reviewing all 132 comments received to gain a better insight into possible regulations that can be modified, streamlined, expanded or repealed. As required by Executive Order 13777, “Enforcing the Regulatory Reform Agenda”, DOE also has established a regulatory reform task force, tasked with the mission of identifying regulations in need of reform, as specified in the order. The task force's activities are intended to assist DOE in meeting the objectives of E.O. 13563.

DOE—ENERGY EFFICIENCY AND RENEWABLE ENERGY (EE)

Proposed Rule Stage

23. Energy Conservation Standards and Definition for General Service Lamps

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: This action may affect the private sector under Public Law 104-4.

E.O. 13771 Designation: Other.

Legal Authority: 42 U.S.C. 6295(i)(6)(A)

CFR Citation: 10 CFR 430.

Legal Deadline: Final, Judicial, Date will be determined based on prior actions required by the settlement agreement.

Abstract: The Department will issue a supplemental notice of proposed rulemaking that includes a proposed determination with respect to whether to amend or adopt standards for general service light-emitting diode (LED) lamps and that may include a proposed determination with respect to whether to amend or adopt standard for compact fluorescent lamps. According to the Settlement agreement between NEMA vs DOE, DOE will use its best efforts to issue GSL SNOPR within five months of publishing the final rule on vibration service and rough service lamps.

Statement of Need: DOE is directed under EPCA to determine when to establish standards for GSL's, and that DOE complete the rulemaking by January 1, 2017.

Summary of Legal Basis: Amendments to EPCA in the Energy Independence and Security Act of 2007 (EISA) directed DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSL's (42 U.S.C. 6295(i)(6)(A)-(B)). Furthermore, pursuant to EPCA, any new or amended energy conservation standard that the Start Printed Page 1702Department of Energy (DOE) prescribes for certain products, such as general service lamps, 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 General Service Lamps outweigh the burdens. DOE estimates that energy savings will be .85 quads over 30 years and the net benefit to the Nation will be between $4.4 billion and $9.1 billion.

Risks:

Timetable:

ActionDateFR Cite
Framework Document Availability; Notice of Public Meeting12/09/1378 FR 73737
Framework Document Comment Period End01/23/14
Framework Document Comment Period Extended01/23/1479 FR 3742
Framework Document Comment Period Extended End02/07/14
Preliminary Analysis; Notice of Public Meeting12/11/1479 FR 73503
Preliminary Analysis Comment Period End02/09/15
Preliminary Analysis Comment Period Extended01/30/1580 FR 5052
Preliminary Analysis Comment Period Extended End02/23/15
Notice of Public Meeting; Webinar03/15/1681 FR 13763
NPRM03/17/1681 FR 14528
NPRM Comment Period End05/16/16
Notice of Public Meeting; Webinar10/05/1681 FR 69009
Proposed Definition and Data Availability10/18/1681 FR 71794
Proposed Definition and Data Availability Comment Period End11/08/16
Final Rule Adopting a Definition for GSL01/19/1782 FR 7276
Final Rule Adopting a Definition for GSL Effective01/01/20
Final Rule Adopting a Definition for GSL Including IRL01/19/1782 FR 7322
Final Rule Adopting a Definition for GSL Including IRL Effective01/01/20
GSL Supplemental NPRM03/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: None.

International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.

URL For More Information: www1.eere.energy.gov/​buildings/​appliance_​standards/​rulemaking.aspx?​ruleid=​83.

URL For Public Comments: www.regulations.gov/​#!docketDetail;​D=​EERE-2013-BT-STD-0051.

Agency Contact: Lucy DeButts, Buildings Technologies Office, EE-5B, Department of Energy, Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW, Washington, DC 20585, Phone: 202 287-1604, Email: lucy.debutts@ee.doe.gov.

RIN: 1904-AD09

DOE—EE

24. Energy Conservation Standards For Residential Conventional Cooking Products

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: This action may affect the private sector under Public Law 104-4.

E.O. 13771 Designation: Regulatory.

Legal Authority: 42 U.S.C. 6295(m)(1); 42 U.S.C. 6292 (a)(10); 42 U.S.C. 6295(h)

CFR Citation: 10 CFR 429; 10 CFR 430.

Legal Deadline: Other, Statutory, Subject to 6-year-look-back at 6295(m).

Abstract: EPCA, as amended by EISA 2007, requires the Secretary to determine whether updating the statutory energy conservation standards for residential conventional cooking products would yield a significant savings in energy use and is technically feasible and economically justified. DOE is reviewing to make such determination.

Statement of Need: The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including residential conventional cooking products. 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 is proposing new and amended energy conservation standards for residential conventional cooking products, specifically conventional cooking tops and conventional ovens.

Summary of Legal Basis: EPCA provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards (42 U.S.C. 6295(m)(1)). In accordance with this statutory provision, DOE proposes new and amended energy conservation standards for residential conventional cooking products.

Alternatives: Additional compliance flexibilities may be available through other means. EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8 million may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standard (42 U.S.C. 6295(t)). Additionally, section 504 of the Department of Energy Organization Act, 42 U.S.C. 7194, provides authority for the Secretary to adjust a rule issued under EPCA in order to prevent special hardship, inequity, or unfair distribution of burdens that may be imposed on that manufacturer as a result of such rule.

Anticipated Cost and Benefits: Using a 7-percent discount rate for benefits and costs, the estimated cost of the proposed standards for consumer Start Printed Page 1703conventional cooking products is $42.6 million per year in increased equipment costs, while the estimated annual benefits are $120.3 million in reduced equipment operating costs.

Using a 3-percent discount rate for all benefits and costs, the estimated cost of the proposed standards for consumer conventional cooking products is $42.3 million per year in increased equipment costs, while the estimated annual benefits are $163.3 million in reduced operating costs.

The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the reference year through the end of the analysis period (2017 to 2049). Using a real discount rate of 9.1 percent, DOE estimates that the INPV for manufacturers of consumer conventional cooking products is $1,241.6 million in 2016 dollars. Under the proposed standards, DOE expects that manufacturers may experience a reduction of up to 4.7 percent of their INPV, which is approximately $58.4 million in 2016.

The cumulative net present value (NPV) of total consumer benefits of the standards for consumer conventional cooking products ranges from $1.08 billion (at a 7-percent discount rate) to $2.63 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for consumer conventional cooking products purchased in 2020-2049.

Risks:

Timetable:

ActionDateFR Cite
Request for Information (RFI)02/12/1479 FR 8337
RFI Comment Period End03/14/14
RFI Comment Period Extended03/03/1479 FR 11714
RFI Comment Period Extended End04/14/14
NPRM and Public Meeting06/10/1580 FR 33030
NPRM Comment Period Extended07/30/1580 FR 45452
NPRM Comment Period Extended End09/09/15
Supplemental NPRM09/02/1681 FR 60784
SNPRM Comment Period End10/03/16
SNPRM Comment Period Extended09/30/1681 FR 67219
SNPRM Comment Period Extended End11/02/16
Supplemental NPRM10/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Undetermined.

URL For More Information: www1.eere.energy.gov/​buildings/​appliance_​standards/​rulemaking.aspx?​ruleid=​85.

URL For Public Comments: www.regulations.gov/​#!docketDetail;​D=​EERE-2014-BT-STD-0005.

Agency Contact: Stephanie Johnson, General Engineer, Department of Energy, Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW, Building Technologies Office, EE5B, Washington, DC 20002, Phone: 202 287-1943, Email: stephanie.johnson@ee.doe.gov.

RIN: 1904-AD15

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Statement of Regulatory Priorities for Fiscal Year 2018

The Department of Health and Human Services (HHS) carries out a wide array of activities in order to fulfill its mission of protecting and promoting the health and well-being of the American people. From supporting cutting-edge research and disease surveillance to regulating products and facilities to administering programs that help our citizens most in need of access to health care and social services, HHS's work has a clear impact on the daily life of all Americans.

In order to successfully carry out its mission, HHS is committed to a regulatory agenda that is focused on better meeting the needs of the individuals served by its programs, empowering individuals and communities by reducing the burden of compliance, and maximizing the impact of federal investments. Through its rulemakings in the coming fiscal year, HHS will take concrete steps towards streamlining its regulations and improving the transparency, flexibility, and accountability of its regulatory processes in order to realize a future where science, health care, and human services are fundamentally person-centered.

I. More Effectively Meeting the Needs of Individuals

In order to better serve the American people through its programs, HHS will propose a number of regulatory actions aimed at improving service delivery through meaningful information sharing, supporting consumer autonomy and decision-making, and better aligning programs with the most current science.

Improving Service Delivery Through Meaningful and Appropriate Information Sharing

In order to deliver quality health care and human services, stronger and clearer regulatory systems that promote the judicious sharing of personally identifiable information among care teams, individuals, and families are necessary, while protecting the confidentiality and security of that information. The Office of Civil Rights (OCR), the Office of the National Coordinator for Health Information Technology (ONC), and the Substance Abuse and Mental Health Services Administration (SAMHSA) intend to promulgate rules related to the sharing of electronic data and records. In particular, OCR plans to propose a rule clarifying information sharing with family members when patients are incapacitated.

Supporting Consumer Autonomy

Integral to a person-centered approach to health care is the concept of autonomy and personal responsibility: Providing consumers with the information they need and choices so they can take responsibility for their health and better direct their own care. In order to provide patients with information that is useful, actionable, and comprehensible, the Food and Drug Administration (FDA) plans to amend its regulations regarding the information patients receive for outpatient-administered prescription drugs. To encourage more consumer-directed care, FDA also plans to propose regulations to facilitate access to more treatments for common conditions by using new approaches, including new technologies, to assist consumers in self-selection and use of products that have previously been available only by prescription.

Aligning Programs With Scientific Advancements

In order to best respond to the needs of patients, it is crucial that HHS regulations and programs reflect current science. HHS is fulfilling this need by updating regulations so that the Department can utilize the full spectrum Start Printed Page 1704of current scientific thinking when carrying out program activities. Specifically, the Health Resources and Services Administration (HRSA) plans to revise the Vaccine Injury Table to include vaccines that the Centers for Disease Control and Prevention (CDC) recommends for administration to pregnant women. This revision will allow injuries related to these vaccines to be eligible for the National Vaccine Injury Compensation Program. Additionally, FDA intends to propose a new rule that will modernize mammography quality by recognizing new technologies, making improvements in facility processes, and the reporting of breast density, which is now widely recognized as a risk factor for breast cancer.

II. Empowering Individuals and Communities Through Reducing Regulatory Burden

In order to make HHS programs more person-centered, the rulemakings described above must be accompanied by serious efforts to decrease the burden of complying with Federal regulations. Regulatory burden can result from a variety of sources, including reporting requirements, outdated restrictions, requirements and/or conditions not required by the authorizing statutes, and a lack of clear regulatory guidelines. HHS is committed to streamlining and clarifying its regulations to reduce unnecessary burden while continuing to protect the public health and to meet the human services needs of the American people.

Minimizing Duplication and Burdensome Requirements

The Department recognizes the burden that requirements for many of its programs place on States, territories, tribes, local governments, industry, providers and facilities, caseworkers, grant recipients, and individuals. HHS plans to actively engage stakeholders in transparent, deliberative processes to ensure that the Department strikes an appropriate balance between reducing burden and continuing to administer high-quality programs. For example, The Administration for Children and Families (ACF) plans to issue an Advanced Notice of Proposed Rulemaking seeking public comment on its 2016 Final Rule on the Adoption and Foster Care Analysis and Reporting System (AFCARS), which doubled reporting requirements for States and tribes. Through careful consideration of all comments submitted by the public during this process, ACF believes it can streamline the 2016 Rule so that States and tribes are able to devote less time and fewer resources to administrative work and redirect those efforts to the children they serve.

The Centers for Medicare & Medicaid Services (CMS) plans to propose changes to the current Conditions of Participation (CoPs) or Conditions for Coverage (CfCs) that health care organizations must meet in order to begin and continue participating in the Medicare and Medicaid programs. These changes will simplify and streamline the current regulations by reducing the frequency of certain required activities and, where appropriate, revising timelines for certain requirements for providers and suppliers. These changes will also increase provider flexibility and reduce excessively burdensome regulations, while allowing providers to focus on providing high-quality health care to their patients. Ultimately, these proposals balance patient safety and quality, while also providing broad regulatory relief for providers and suppliers.

Through initiatives to eliminate regulatory burdens that negatively impact the doctor-patient relationship, the Department will take steps to remove duplicative requirements, streamline data collection and reporting requirements, and make meaningful reforms to programs that limit access to care. For example, CMS plans to finalize the physician fee schedule, which will eliminate the redundant reporting of the modifier in the professional claim to reduce burden for eligible practitioners. The Inpatient Prospective Payment System (IPPS), which HHS has finalized for fiscal year 2018, also reduces the electronic quality reporting measures from eight to four measures, to reduce burden for eligible practitioners and ensure they are spending more time caring for the patient rather than in front of a computer screen. HHS intends to continue building on this progress in the next fiscal year rule.

Eliminating Outdated Restrictions and Obsolete Regulations

In addition to minimizing regulatory burden, HHS realizes that many of its regulations may contain provisions that are outdated, obsolete, or otherwise not applicable to the current environment. HHS has resolved to reform its processes so that those providing care and other services to Americans are able to thrive within the State and federal regulatory environment. As an early step in this broader effort, CMS plans to issue a proposed rule that will remove unnecessary and outdated requirements from the conditions of participation for the Medicare and Medicaid programs for Long-Term Care facilities. Currently, these requirements often impede the delivery of quality care and divert resources away from facility residents.

Providing Necessary Regulatory Clarity to Industry Stakeholders

While the above rulemakings seek to correct overregulation, in some cases, HHS programs lack the necessary regulations in order to make their processes transparent and predictable. For example, in the context of FDA's tobacco program, rulemaking is needed to clarify for industry what is required to be included in premarket applications and the procedures that will be followed in submitting and reviewing these submissions as part of a comprehensive framework to regulate nicotine and tobacco and advance the public health. In addition, FDA is updating important rules for medical device applications so the rules reflect risk-based and least burdensome pathways to market for devices, including new and innovative devices. These rules will fill gaps to ensure that manufacturers in these sectors know how to bring innovative products to market that may save lives or reduce health risks. FDA intends to begin rulemaking this fiscal year to fill these regulatory gaps so that these processes become more fair, efficient, and predictable.

In response to extensive outreach to physician stakeholders, HHS anticipates a number of changes associated with private practice physicians and their arrangements with Medicare Advantage Organizations (MAOs). Of the nearly 200 regulatory burdens reported by more than 30 trade associations, 12 percent of the groups requested clarity with regards to the ways MAOs audit physicians and their practices. CMS plans on issuing a Part C and D rule for Contract Year 2019, that responds to these concerns. The rule will also seek comment on ways to improve MAO audits of solo practitioners and their practices.

III. Maximizing the Impact of Every Federal Dollar Spent

In order to truly protect and promote the health and wellbeing of the American people, HHS must ensure that each and every taxpayer dollar it spends is used wisely and managed responsibly. HHS's efforts to reduce burden and move toward more person-centered programs must be coupled with a department-wide determination to do more with the resources that it has. By doing so, HHS hopes to use taxpayer funds responsibly to reach as many Americans in need as possible Start Printed Page 1705directly through its programs and to empower its community partners to do the same.

Protecting the Integrity of HHS Programs

A key component of maximizing the impact of HHS's investments—and protecting taxpayer dollars—is program integrity. Without consistent efforts to identify fraud, waste, and abuse and respond accordingly, the Department cannot be certain that its funds are going toward their intended use nor can it maintain the public's confidence in its programs. As such, the Department is committed to keeping program integrity a priority in the coming years. This year, CMS plans to finalize a rule that will implement crucial authorities provided by Congress to deny or revoke a provider or supplier's Medicare enrollment in certain circumstances specified in the rule. Additionally, HRSA plans to publish an NPRM imposing civil monetary penalties on drug manufacturers who knowingly and intentionally charge 340B program participants a price higher than the program ceiling price.

Promoting Flexibility for States, Grantees, and Regulated Entities

Alongside program integrity activities, HHS intends to enhance regulatory flexibility so that its State and community partners are able to better tailor their programs to fit the needs of the people they serve. Particularly in the context of the Secretary's three clinical priorities—combatting the opioid crisis, childhood obesity, and serious mental illness—the Department has begun looking seriously at its programs to see how it can maximize the number of people reached through amending its regulations to remove or change regulatory limitations on grantees and regulated entities. Specifically, SAMHSA plans to publish an NPRM exploring ways that it could better facilitate the ability of individuals with an Opioid Use Disorder to access interim maintenance treatment while they are waiting to begin a comprehensive treatment plan. In addition, ACF plans to consider revising minimum service duration requirements for Head Start center-based programs. Rulemaking carried out in 2016 nearly doubled the current minimum. If revised again, center-based Head Start programs would likely be able to serve more children and choose a duration that better reflects the needs and daily schedules of the families they serve.

As a way of promoting flexibility for States, CMS also plans to propose a rule related to Medicaid and CHIP Managed Care. This rule would streamline the regulatory framework and provide burden reductions to ensure state Medicaid agencies are able to work effectively with CMS to design, develop, and deploy managed care programs that meet the state population's needs. These changes support state flexibility, local leadership, and innovation in the delivery of care.

In the coming fiscal year, HHS plans to consider a number of regulatory and deregulatory actions intended to make its processes more flexible, efficient, and transparent. In order to fully realize the potential of these efforts, HHS recognizes the need for a collaborative rulemaking process where the concerns of stakeholders are appropriately considered. By working with its community partners to understand the challenges that they face under HHS's current regulatory structures and where there are opportunities for improvement, the Department hopes to modernize and streamline its regulations to better serve the needs of the American people.

HHS—OFFICE FOR CIVIL RIGHTS (OCR)

Proposed Rule Stage

25. • HIPAA Privacy Rule: Presumption of Good Faith of Healthcare Providers

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Health Insurance Portability and Accountability (HIPAA) Act of 1996, Pub. L. 104-191

CFR Citation: 45 CFR 164.510.

Legal Deadline: None.

Abstract: The proposed rule would modify the HIPAA Privacy Rule to clarify that healthcare providers are presumed to be acting in the individual's best interests when they share information with an incapacitated patient's family members unless there is evidence that a provider was acted in bad faith.

Statement of Need: HIPAA allows medical professionals to share protected health information with an individual's loved ones in emergency or dangerous situations but misunderstandings to the contrary persist and create obstacles to family support that is crucial to the proper care, treatment, and recovery of people experiencing a crisis situation. Therefore, the Department, through the Office for Civil Rights (OCR) intends to propose regulatory changes to the HIPAA Privacy Rule to clarify that healthcare providers are presumed to be acting in the individual's best interests when they share information with an incapacitated patient's family members, unless there is evidence that a provider acted in bad faith. OCR by delegation from the Secretary, has broad authority under HIPAA to make modifications to the Privacy Rule, as provided by section 264 of HIPAA (codified at 42 U.S.C. and 1320d-2(note)).

Summary of Legal Basis: OCR has broad authority under the HIPAA statute to make modifications to the Privacy Rule, within the statutory constraints of the HITECH Act and other applicable law (e.g., the Administrative Procedures Act).

Alternatives: The alternative is to not issue a proposed rule.

Anticipated Cost and Benefits: The proposed rule will not create any new requirements or costs for regulated entities or the public. It will provide assurances to health care providers about their ability to make disclosures that are in the best interests of patients.

Risks: OCR has not identified any risks associated with this proposal. OCR currently defers to a healthcare provider's professional judgment in these circumstances and has never taken enforcement action against a healthcare provider who shared information in good faith, thus, the proposed regulatory change will not decrease the privacy protections for individuals' protected health information, or significantly alter HIPAA enforcement policy.

Timetable:

ActionDateFR Cite
NPRM05/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Andra Wicks, Health Information Privacy Specialist, Department of Health and Human Services, Office for Civil Rights, 200 Independence Avenue SW, Washington, DC 20201, Phone: 202 774-3081, TDD Phone: 800 537-7697, Email: andra.wicks@hhs.gov.

RIN: 0945-AA09

HHS—OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION TECHNOLOGY (ONC)

Proposed Rule Stage

26. • Health Information Technology: Interoperability and Certification Enhancements

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Regulatory.Start Printed Page 1706

Legal Authority: Pub. L. 114-255

CFR Citation: Not Yet Determined.

Legal Deadline: None.

Abstract: The proposed rule would update certain provisions of the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act) and implement certain provisions of the 21st Century Cures Act (Cures Act) including provisions related to conditions of certification and maintenance of certification for a health information technology (IT) developer or entity, the voluntary certification of health IT for use by pediatric health providers, health information network voluntary attestation to their adoption of a trusted exchange framework and common agreement in support of network-to-network exchange, and provisions related to reasonable and necessary activities that do not constitute information blocking.

Statement of Need: In part, Title IV of the 21st Century Cures Act requires the Secretary to engage in notice and comment rulemaking that would help advance interoperability and the exchange of health information, including by addressing information blocking. The interoperability of health information is 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 proposed provision would be implemented under the authority of the Public Health Service Act, as amended by the HITECH Act and the Cures Act.

Alternatives: ONC will consider different options to improve 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 will be incurred by health IT developers in terms of meeting new requirements and continual compliance with the regulations. We expect, however, that through implementation and compliance with the regulations the market particularly providers, patients, and payers will benefit greatly from increased interoperability and access to electronic heath information (e.g., the need for less interfaces or making health information more accessible at lower costs). Other proposed changes are aimed at relieving some administrative burdens for health IT developers.

Risks: None identified at this time.

Timetable:

ActionDateFR Cite
NPRM04/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Michael Lipinski, JD, Director, Division of Federal Policy and Regulatory Affairs, 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.

RIN: 0955-AA01

HHS—SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA)

Proposed Rule Stage

27. • Certification of Opioid Treatment Programs

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Sec. 303(g) of the Controlled Substances Act (CSA); (21 U.S.C. 823(g)) establishes procedures for determining whether a health care practitioner can dispense opioid drugs for the purpose of treating opioid use disorders

CFR Citation: Not Yet Determined.

Legal Deadline: None.

Abstract: This proposed rule would delete outmoded requirements for transitional certification and add new language permitting private, for-profit entities to serve as opioid treatment programs.

Statement of Need: SAMHSA plans to promulgate a rule to remove the transitional certification provisions that are now outdated. Additionally, updating language to permit private, for-profit entities to serve as opioid treatment programs could improve patient access to this treatment.

Summary of Legal Basis: Section 303(g) of the Controlled Substances Act (CSA) (21 U.S.C. 823(g) establishes procedures for determining whether a healthcare practitioner can dispense opioid drugs for the purpose of treating opioid use disorders. HHS has adopted regulations at 42 CFR part 8 to provide additional details. These regulations were most recently substantively revised in July 2016 (81 FR 44712).

Alternatives: The alternatives include not making these changes or making only one of the above changes rather than both (i.e., either updating the regulatory language to permit private, for-profit entities to serve as OTPs or removing the transitional certification provisions but not both of these changes).

Anticipated Cost and Benefits: Eliminating outmoded transition regulations will make the regulations less confusing. In addition, permitting private, for-profit entities to qualify for certification potentially will broaden access to opioid treatment programs. SAMHSA is unsure how to quantify costs and benefits for these changes.

Risks: Some advocates may argue that controversies about patient brokering raise questions about whether private, for-profit entities would best uphold the interests of patients but SAMHSA has no specific information that permitting private, for-profit entities to manage OTPs will increase risks to patients.

Timetable:

ActionDateFR Cite
NPRM10/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Chris Carroll, Director of Health Care Financing and Systems Integration, Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 1 Choke Cherry Road, Rockville, MD 02857, Phone: 240 276-1765, Email: christopher.carroll@samhsa.hhs.gov.

RIN: 0930-AA27

HHS—SAMHSA

Final Rule Stage

28. Confidentiality of Substance Use Disorder Patient Records

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Regulatory.

Legal Authority: 42 U.S.C. 290dd-2

CFR Citation: Not Yet Determined.

Legal Deadline: None.

Abstract: The action would finalize the proposed additional clarifications to the part 2 regulations which were included in the Supplemental NPRM published on January 18, 2017, (82 FR 5485). This proposed to permit lawful holders and their contractors and subcontractors' to, under certain Start Printed Page 1707circumstances, use and disclose part 2-covered data for purposes of carrying out payment, healthcare operations, and other healthcare related activities.

Statement of Need: This action should improve information sharing for purposes of carrying out payment, healthcare operations, and other healthcare related activities.

Summary of Legal Basis: The governing statute, 42 U.S.C. 290dd-2, establishes that records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential. The statute requires that HHS issue regulations, which are codified at 42 CFR part 2. SAMHSA. This final rule will adopt changes proposed in the SNPRM.

Alternatives: Based on public comments, SAMHSA anticipates that these modifications will enhance efficiency of such payment and health care operations as claims processing, business management, training and customer service. The alternative would be not to finalize these changes in which case it would remain unclear in some cases as to when and whether part 2 programs could work with contractors or subcontractors on payment and health care operations activities.

Anticipated Cost and Benefits: The changes proposed will make it easier for part 2 programs to work with contractors, subcontractors, and legal representatives on payment and healthcare operations activities. SAMHSA also will develop an abbreviated notice of redisclosure that may make it easier for some entities to use electronic health records.

Risks: None known.

This rule, if finalized, would permit lawful holders of part 2 information to work with contractors, subcontractors and legal representatives to make additional disclosures of part 2 information for certain payment and health care operations purposes when initial patient consent is obtained. The rule includes language which provides that the contractor and any subcontractor or legal representative are or will be fully bound by the provisions of part 2 upon receipt of the patient identifying data, and, as such that each disclosure shall be accompanied by a required redisclosure notice. SAMHSA does not believe the additional disclosures permitted will increase risks of data breaches or other risks to patients.

Timetable:

ActionDateFR Cite
Final Action01/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Chris Carroll, Director of Health Care Financing and Systems Integration, Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 1 Choke Cherry Road, Rockville, MD 02857, Phone: 240 276-1765, Email: christopher.carroll@samhsa.hhs.gov.

RIN: 0930-AA26

HHS—Food and Drug Administration (FDA)

Proposed Rule Stage

29. Mammography Quality Standards Act; Regulatory Amendments

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Regulatory.

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 proposing to amend its regulations governing mammography. The amendments would update the regulations issued under the Mammography Quality Standards Act of 1992 (MQSA). 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 proposing to update the mammography regulations that were 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.

FDA is also proposing updates to modernize the regulations by incorporating current science and mammography best practices, including addressing breast density reporting to patients and health care providers.

These updates are intended to improve the delivery of mammography services.

Summary of Legal Basis: Mammography is an X-ray imaging examination device that is regulated under the authority of the FD&C Act. FDA is proposing these amendments to the mammography regulations (set forth in 21 CFR part 900) under section 354 of the Public Health Service Act (42 U.S.C. 263b), and sections 519, 537, and 704(e) of the FD&C Act (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 primary public health benefits of the rule will come from the potential for earlier breast cancer detection, improved morbidity and mortality, resulting in reductions in cancer treatment costs. The primary costs of the rule will come from industry labor costs and costs associated with supplemental testing and biopsies.

Risks: If a final regulation does not publish, the potential reduction in fatalities and earlier breast cancer detection, resulting in reduction in cancer treatment costs, will not materialize to the detriment of public health.

Timetable:

ActionDateFR Cite
NPRM10/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: State.

Federalism: This action may have federalism implications as defined in E.O. 13132.

Agency Contact: Erica Blake-Payne, Regulatory Counsel, Department of Health and Human Services, Food and Drug Administration, Center for Devices and Radiological Health, WO 66, Room 5522, 10903 New Hampshire Avenue, Silver Spring, MD 20993, Phone: 301 796-3999, Fax: 301 847-8145, Email: erica.payne@fda.hhs.gov.

RIN: 0910-AH04

HHS—FDA

30. Medical Device De Novo Classification Process

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.Start Printed Page 1708

E.O. 13771 Designation: Deregulatory.

Legal Authority: 21 U.S.C. 513; 21 U.S.C. 701

CFR Citation: 21 CFR 860.

Legal Deadline: None.

Abstract: De novo classification decreases regulatory burdens because manufacturers can use a less burdensome application pathway under the FD&C Act to market their devices. The proposed rule would establish procedures and criteria for the de novo process and would make it more transparent and predictable for manufacturers.

Statement of Need: FDA is taking this action to implement amendments to the De Novo classification process in the FD&C Act that were enacted by the Food and Drug Administration Modernization Act of 1997 (FDAMA), and the Food and Drug Administration Safety and Innovation Act of 2012 (FDASIA), and the 21st Century Cures Act of 2016 (Cures).

Summary of Legal Basis: The FD&C Act (21 U.S.C. 301 et seq.), as amended, establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act established three categories (classes) of medical devices based on the regulatory controls sufficient to provide reasonable assurance of safety and effectiveness of the device. In 1997, Congress enacted section 513()(2) to include a De Novo classification process for some devices for which reasonable assurance of safety and effectiveness could be established through the De Novo process. FDASIA and cures expanded and modified this process.

Alternatives: The De Novo classification process is based on authority from the FD&C Act. The De Novo classification program must continue because it is required by statute. If the proposed rule is not finalized, then procedures and details about the application process and handling of De Novo applications might be unclear to potential applicants, and the program may not be as efficient as it might be.

Anticipated Cost and Benefits: By classifying the requirements for the De Novo classification process. FDA expects that the rule would reduce the time and costs associated with preparing and reviewing De Novo requests, and would generate net benefits in the form of cost savings for both private and government sectors.

Risks: If the proposed rule is not finalized, then some aspects of the De novo classification process may not be clear, and potential applicants may miss the opportunity for using this less burdensome process when seeking premarket clearance. This could potentially delay getting new medical devices to the market and to patients.

Timetable:

ActionDateFR Cite
NPRM05/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: None.

Agency Contact: Jean M. Olson, Regulatory Counsel, Department of Health and Human Services, Food and Drug Administration, Health and Human Services, 10903 New Hampshire Avenue, Building 66, Room 5508, Silver Spring, MD 20993, Phone: 301 796-6579.

RIN: 0910-AH53

HHS—FDA

31. • Requirement for Access or Safe use of Certain Nonprescription Drug Products

Priority: Economically Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Deregulatory.

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 314.56; 21 CFR 201.67.

Legal Deadline: None.

Abstract: The proposed rule is intended to increase access to a wider variety of nonprescription drug products. Under the proposed rule, an applicant could submit an application to FDA for approval of a nonprescription drug product with a requirement that ensures consumers' appropriate self-selection, appropriate actual use, or both in order to obtain the drug without a prescription.

Statement of Need: Nonprescription products have traditionally been limited to drugs that can be labeled with information for consumers to safely and appropriately self-select and use the drug product without supervision of a health care provider. There are certain prescription medications that may have comparable risk-benefit profiles to over-the-counter medications in selected populations. However, appropriate consumer selection and use may be difficult to achieve in the nonprescription setting based solely on information that may be included in labeling. FDA is proposing regulations that would allow for approval of a nonprescription drug product that would have additional requirements that could be met by consumers to obtain the drug without a prescription. The proposed rule outlines a framework for the use of innovative approaches to assist consumers with nonprescription drug product self-selection or use. This pathway should lead to approval of a wider range of nonprescription drug products.

Summary of Legal Basis: FDA's proposed revisions to the regulations regarding labeling and applications for nonprescription drug products labeling are authorized by the FD&C Act (21 U.S.C. 321 et seq.) and by the Public Health Service Act (42 U.S.C. 262 and 264).

Alternatives: FDA evaluated various requirements for new drug applications to assess flexibility of nonprescription drug product design through drug labeling for appropriate self-selection and appropriate use.

Anticipated Cost and Benefits: The benefits of the proposed rule would include increased consumer access to drug products which could translate to a reduction in under treatment of certain diseases and conditions. Benefits to industry would arise from the flexibility in drug product approval. The proposed rule would impose costs arising from the development of an innovative approach to assist consumers with nonprescription drug product self-selection or use.

Risks: None.

Timetable:

ActionDateFR Cite
NPRM08/00/18

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: chris.wheeler@fda.hhs.gov.

RIN: 0910-AH62

HHS—FDA

32. • Medication Guides; Patient Medication Information

Priority: Economically Significant. Major status under 5 U.S.C. 801 is undetermined.

E.O. 13771 Designation: Regulatory.Start Printed Page 1709

Legal Authority: 21 U.S.C 321 et seq.; 42 U.S.C. 262; 42 U.S.C. 264; 21 U.S.C. 371

CFR Citation: 21 CFR 208; 21 CFR 606.123 (new); 21 CFR 310.501 and 310.515 (removal); 21 CFR 201.57 (a)(18) (revision); 21 CFR 201.809(f)(2) (revision); 21 CFR 314.70(b)(2)(v)(B) (revision); 21 CFR 610.60(a)(7) (removal); . . .

Legal Deadline: None.

Abstract: The proposed rule would amend FDA medication guide regulations to require a new form of patient labeling, Patient Medication Information, for submission to and review by the FDA for human prescription drug products used, dispensed, or administered on an outpatient basis. The proposed rule would include requirements for Patient Medication Information development, consumer testing, and distribution. The proposed rule would require clear and concise written prescription drug product information presented in a consistent and easily understood format to help patients use their prescription drug products safely and effectively.

Statement of Need: Patients may currently receive one or more types of written patient information regarding prescription drug products. Research has shown that frequently the information received is duplicative, incomplete, conflicting, or difficult to read and understand and such information is not sufficient to meet the needs of patients. Patient Medication Information is a new type of one-page Medication Guide that FDA is proposing to require for certain prescription drug products. Patient Medication Information is intended to improve public health by providing clear, concise, accessible, and useful written prescription drug product information, delivered in a consistent and easily understood format, to help patients use prescription drug products safely and effectively and potentially reduce adverse drug reactions due to incorrect use and improve health outcomes.

Summary of Legal Basis: FDA's proposed revisions to the regulations regarding format and content requirements for prescription drug 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 providing additional guidance to entities that supply patients information about prescription drugs and various formats for patient medication information.

Anticipated Cost and Benefits: The monetary benefit of the proposed rule stems from an increase in medication adherence due to patients having more complete and understandable information about their prescription drug products. The proposed rule would impose costs that stem from developing and approving Patient Medication Information.

Risks: The current system does not consistently provide patients with useful written information to help them use their prescription drug products safely and effectively. The proposed rule would require FDA- approved Patient Medication Information for certain prescription drug products used, dispensed, or administered on an outpatient basis.

Timetable:

ActionDateFR Cite
NPRM05/ 00/ 0;18

Regulatory Flexibility Analysis Required: Yes.

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: chris.wheeler@fda.hhs.gov.

RIN: 0910-AH68

HHS—FDA

33. • Format and Content of Reports Intended To Demonstrate Substantial Equivalence

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 21 U.S.C. 371; 21 U.S.C. 374; 21 U.S.C. 387; 42 U.S.C. 4332

CFR Citation: 21 CFR 1107.

Legal Deadline: None.

Abstract: This proposed rule would establish the format and content of reports intended to demonstrate substantial equivalence (SE) in tobacco products and would provide information as to how the Agency will review and act on these submissions.

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), requires premarket submissions for new tobacco products. Substantial equivalence reports are one type of premarket submission that manufacturers of new tobacco products may use to obtain marketing authorization for a new tobacco product. This regulation is necessary to provide information to manufacturers to aid them in preparing and submitting substantial equivalence reports.

Summary of Legal Basis: Section 905(j) of the FD&C Act, as amended by the Tobacco Control Act, provides for the submission of substantial equivalence reports and authorizes FDA to prescribe the form and manner of these reports. Section 910 of the FD&C Act mandates the premarket review of new tobacco products, establishes definitions of substantial equivalence and characteristics, and requires health information as part of a submission under section 905(j) of the FD&C Act. Section 909 establishes record and report requirements for tobacco products. Sections 701 and 704 of the FD&C Act authorize the promulgation of regulations to implement the FD&C Act and inspections.

Alternatives: In addition to the benefits and costs of the proposed rule, FDA assessed the benefits and costs of several alternatives to the proposed rule: (1) Extending the effective date of the rule, (2) allowing for more deficiency letters and review cycles, and (3) allowing for only one review cycle.

Anticipated Cost and Benefits: The costs of the rule are compliance costs on affected entities, e.g., to read and understand the rule, to revise internal procedures, and fill out a form for substantial equivalence reports. The quantified benefits of the proposed rule are cost-savings resulting from shorter FDA review times and fewer staff to review substantial equivalence reports. The cost savings to the government is expected to be larger than the compliance cost for industry and the net result is an overall net positive benefit from this proposed rule. The qualitative benefits of the rule include additional clarity to industry about the requirements for the content and format of substantial equivalence reports, as well as the establishment of procedures for substantial equivalence report review and communication with applicants. These changes make the substantial equivalence marketing pathway clearer for both FDA and applicants.

Risks: Premarket submissions for new tobacco products are required by the FD&C Act. But to prepare premarket submissions such as substantial equivalence reports intended to meet those requirements, manufacturers need more information about content and Start Printed Page 1710format requirements. This rule provides more information on content and format requirements and describes possible FDA actions on the substantial equivalence report.

Timetable:

ActionDateFR Cite
NPRM01/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Annette L. Marthaler, 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: ctpregulations@fda.hhs.gov.

RIN: 0910-AH89

HHS—HEALTH RESOURCES AND SERVICES ADMINISTRATION (HRSA)

Proposed Rule Stage

34. • 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: Pub. L. 102-585: Veterans HealthCare Act of 1992

CFR Citation: 42 CFR 10.

Legal Deadline: None.

Abstract: This proposed rule would amend the definition of `knowingly and intentionally' at section 10.3 and amend section 10.10(b) regarding 340B ceiling price. The sections being amended were included in a final rule that published on January 5, 2017 (82 FR 1210; RIN 0906-AA89). The January 5, 2017, final rule set forth the calculation of the ceiling price and application of civil monetary penalties.

Statement of Need: This statutorily required rule defines the standards and methodology for the calculation of ceiling prices within the 340B Program and imposes civil monetary penalties on drug manufacturers who knowingly and intentionally charge a covered entity a price above the 340B ceiling price.

Summary of Legal Basis: This rule would implement provisions of section 340B of the Public Health Service Act (PHSA), referred to as the 340B Drug Pricing Program or the 340B Program.

Alternatives: None. This rule implements statutory requirements.

Anticipated Cost and Benefits: This proposed rule will not have economic impacts of $100 million or more in any 1 year, and, therefore, has not been designated an economically significant rule under section 3(f)(1) of Executive Order 12866. This proposed rule proposes to modify current policy regarding calculation of the 340B ceiling price.

Risks: None.

Timetable:

ActionDateFR Cite
NPRM12/00/17

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: CAPT Krista Pedley, Department of Health and Human Services, Health Resources and Services Administration, Health Services and Resources Administration, 5600 Fishers Lane, 10C-03, Rockville, MD 20857, Phone: 301 443-5294, Email: krista.pedley@hrsa.hhs.gov.

Related RIN: Related to 0906-AA89

RIN: 0906-AB12

HHS—HRSA

35. • National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: 21st Century Cures Act; FR 114-255

CFR Citation: 42 CFR 100.

Legal Deadline: None.

Abstract: This proposed rule would revise the Vaccine Injury Table to include vaccines recommended by the Centers for Disease Control and Prevention for routine administration in pregnant women. The addition of this category of vaccines to the Vaccine Injury Table is necessary to allow related injury claims to be eligible for adjudication through the Vaccine Injury Compensation Program.

Statement of Need: This statutorily required regulation revises the Vaccine Injury Table to include vaccines recommended by the Centers for Disease Control and Prevention for routine administration in pregnant women. This category of vaccines must be added to the Table for such injury claims to be eligible for adjudication through the Vaccine Injury Compensation Program.

Summary of Legal Basis: This rule would implement provisions of the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended.

Alternatives: None. This rule implements statutory requirements.

Anticipated Cost and Benefits: An estimate of costs of this regulation is not available at this time. There are no anticipated costs to this regulation.

Risks: This category of vaccines must be added to the Table for such injury claims to be eligible for adjudication through the Vaccine Injury Compensation Program.

Timetable:

ActionDateFR Cite
NPRM09/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: Undetermined.

Agency Contact: Tamara Overby, Deputy Director, Division of Injury Compensation Programs, Department of Health and Human Services, Health Resources and Services Administration, 5600 Fishers Lane, 08N142, Rockville, MD 20857, Phone: 301 443-3766, Email: toverby@hrsa.gov.

RIN: 0906-AB14

HHS—CENTERS FOR MEDICARE & MEDICAID SERVICES (CMS)

Proposed Rule Stage

36. Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for Contract Year 2019 (CMS-4182-P)

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Pub. L. 114-198, sec. 702; Pub. L. 114-255, secs. 17005 & 17006; 42 U.S.C. 1302; 42 U.S.C. 1395hh

CFR Citation: 42 CFR 417; 42 CFR 422; 42 CFR 423; 42 CFR 483; . . .

Legal Deadline: None.

Abstract: This proposed rule would set forth programmatic and operational changes to the Medicare Advantage (MA) and prescription drug benefit programs for contract year 2019.

Statement of Need: This rule is necessary to make revisions to the MA program (Part C) and Prescription Drug Benefit Program (Part D), and other changes to the regulations based on our continued experience in the administration of the Part C and Part D programs.Start Printed Page 1711

Summary of Legal Basis: This rule addresses multiple sections of the Social Security Act (including secs. 1102 and 1871) and the Public Health Service Act. It also implements section 704 of the Comprehensive Addiction and Recovery Act (CARA) and sections 17005 and 17006 of the 21 st Century Cures Act.

Alternatives: This rule proposes approaches to improve the quality, accessibility and affordability of the Medicare Part C and Part D programs and to improve the CMS customer experience. The Agency will consider options that support these improvements.

Anticipated Cost and Benefits: The rule includes changes that support innovative approaches by Medicare Advantage (MA) organizations and Part D sponsors in administering the benefit and that prevent improper provision of services, implementing changes in line with the Comprehensive Addiction and Recovery Act of 2016 and the 21st Century Cures Act. We believe the proposed changes will result in a reduction of burden to MA Organizations and Part D Sponsors and generate program savings. As we move toward publication, estimates of the cost and benefits of these provisions will be included in the rule.

Risks: If this regulation is not published timely, changes will not be in place for contract year 2019.

Timetable:

ActionDateFR Cite
NPRM11/00/17

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations.

Government Levels Affected: Federal.

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: christian.bauer@cms.hhs.gov.

RIN: 0938-AT08

HHS—CMS

37. • Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction (CMS-3346-P)

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 42 U.S.C. 263a, 273, 1302, 1320a-7, 1320b-8,1395, 1395eee(f),1395hh, 1395i, 1395rr, 1396r, 1396u-4(f)); 42 U.S.C. 273; 42 U.S.C. 1302; 42 U.S.C. 1320a-7; 42 U.S.C. 1320b-8; 42 U.S.C. 1395; 42 U.S.C. 1395eee(f); 42 U.S.C. 1395hh; 42 U.S.C. 1395i; 42 U.S.C. 1395rr; 42 U.S.C. 1396r; 42 U.S.C. 1396u-4(r)

CFR Citation: 42 CFR 403; 42 CFR 405; 42 CFR 416; 42 CFR 418; . . .

Legal Deadline: None.

Abstract: This proposed rule would reform Medicare regulations that CMS has identified as unnecessary, obsolete, or excessively burdensome on healthcare providers and suppliers. This rule would increase the ability of healthcare professionals to devote resources to improving patient care by eliminating or reducing requirements that impede quality patient care or that divert resources away from providing high quality patient care.

Statement of Need: CMS is committed to transforming the healthcare delivery system, and the Medicare program, by putting an additional focus on patient-centered care and working with providers, physicians, and patients to improve outcomes. We seek to reduce burdens for hospitals, physicians, and patients, improve the quality of care, decrease costs, and ensure that patients and their providers and physicians are making the best healthcare choices possible.

We are therefore proposing changes to the current Conditions of Participation (CoPs) or Conditions for Coverage (CfCs) that would simplify and streamline the current regulations and thereby increase provider flexibility and reduce excessively burdensome regulations, while also allowing providers to focus on providing high-quality healthcare to their patients.

Summary of Legal Basis: Sections 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).

Alternatives: From within the entire body of CoPs and CfCs, the most viable candidates for reform were those identified by stakeholders, by recent research, or by experts as unusually burdensome if not changed. This subset of the universe of standards is the focus of this proposed rule. For all of the proposed provisions, we considered not making these changes or changing them in other manners.

Anticipated Cost and Benefits: This rule would create ongoing cost savings to providers and suppliers in many areas and significant additional health benefits. Other changes we have proposed would clarify existing policy and relieve some administrative burdens.

Risks: Our estimates of the effects of this regulation are subject to significant uncertainty. While we are confident that these reforms will provide flexibilities to facilities that will yield major cost savings, there are uncertainties about the magnitude of these effects.

Timetable:

ActionDateFR Cite
NPRM02/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses, Organizations.

Government Levels Affected: None.

Agency Contact: Alpha-Banu Huq, 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: alpha-banu.huq@cms.hhs.gov.

RIN: 0938-AT23

HHS—CMS

38. • Hospital Inpatient Prospective Payment System for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and FY 2019 Rates (CMS-1694-P) (Section 610 Review)

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 42 U.S.C. 1302; 42 U.S.C. 1395hh

CFR Citation: 42 CFR 412; 42 CFR 413.

Legal Deadline: NPRM, Statutory, April 1, 2018. Final, Statutory, August 1, 2018.

Abstract: This annual proposed rule would revise the Medicare hospital inpatient and long-term care hospital prospective payment systems for operating and capital-related costs. This proposed rule would implement changes arising from our continuing experience with these systems.

Statement of Need: CMS annually revises the Medicare hospital inpatient prospective payment systems (IPPS) for operating and capital-related costs to implement changes arising from our continuing experience with these systems. In addition, we describe the proposed changes to the amounts and factors used to determine the rates for Medicare hospital inpatient services for operating costs and capital-related costs. Also, CMS annually updates the Start Printed Page 1712payment rates for the Medicare prospective payment system (PPS) for inpatient hospital services provided by long-term care hospitals (LTCHs). The rule solicits comments on the proposed IPPS and LTCH payment rates and new policies. CMS will issue a final rule containing the payment rates for the FY 2019 IPPS and LTCHs at least 60 days before October 1, 2018.

Summary of Legal Basis: The Social Security Act (the Act) sets forth a system of payment for the operating costs of acute care hospital inpatient stays under Medicare Part A (Hospital Insurance) based on prospectively set rates. The Act requires the Secretary to pay for the capital-related costs of hospital inpatient and Long Term Care stays under a PPS. Under these systems, Medicare payment for hospital inpatient and Long Term Care operating and capital-related costs is made at predetermined, specific rates for each hospital discharge. These changes would be applicable to services furnished on or after October 1, 2018.

Alternatives: This proposed rule will provide descriptions of the statutory provisions that are addressed, identify the proposed policies, and present rationales for our decisions and alternatives that were considered.

Anticipated Cost and Benefits: Total expenditures will be adjusted for FY 2019; however, at this time, the impact is expected to affect transfers only and not contain costs/benefits outside of Medicare spending.

Risks: If this regulation is not published timely, inpatient hospital and LTCH services will not be paid appropriately beginning October 1, 2018.

Timetable:

ActionDateFR Cite
NPRM04/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Federal.

Agency Contact: Donald Thompson, Deputy Director, Division of Acute Care, Department of Health and Human Services, Centers for Medicare & Medicaid Services, Center for Medicare, MS: C4-08-06, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 410 786-6504, Email: donald.thompson@cms.hhs.gov.

RIN: 0938-AT27

HHS—CMS

39. • Requirements for Long-Term Care Facilities: Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction (CMS-3347-P)

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Sec. 1819 and 1919 of the Social Security Act; sec. 1819(d)(4)(B) and 1919(d)(4)(B) of the Social Security Act; sec. 1819(b)(1)(A) and 1919(b)(1)(A) of the Social Security Act

CFR Citation: 42 CFR 483; 42 CFR 488.

Legal Deadline: None.

Abstract: This proposed rule would reform the requirements that long-term care facilities must meet to participate in the Medicare and Medicaid programs, that CMS has identified as unnecessary, obsolete, or excessively burdensome on facilities. This rule would increase the ability of healthcare professionals to devote resources to improving resident care by eliminating or reducing requirements that impede quality care or that divert resources away from providing high quality care.

Statement of Need: CMS is committed to transforming the healthcare delivery system, and the Medicare program, by putting an additional focus on patient-centered care and working with providers, physicians, and patients to improve outcomes. We seek to reduce burdens for long-term care facilities; healthcare professionals and residents; improve the quality of care; decrease costs; and, ensure that residents and their providers are making the best healthcare choices possible.

We are therefore proposing revisions to the requirements that long-term care facilities must meet to participate in the Medicare and Medicaid programs that would increase the ability of healthcare professionals to devote resources to improving resident care by eliminating or reducing requirements that impede quality care or that divert resources away from providing high quality care.

Summary of Legal Basis: This proposed rule is in accordance with the January 30, 2017 Executive Order Reducing Regulation and Controlling Regulatory Costs (E.O. 13771).

Alternatives: For all of the proposed provisions, we considered not making these changes. Specifically, we considered the impact that any revisions would have on the health and safety of residents in long-term care facilities and if such revisions would realistically be burden reducing for facilities. Ultimately, we believe that the proposed revisions will be burden reducing and do not impede on the health and safety of residents.

Anticipated Cost and Benefits: This proposed rule would create ongoing cost savings to long-term care facilities in many areas. In addition, various proposals would clarify existing policy and relieve some administrative burdens.

Risks: Our estimates of the effects of this regulation are subject to significant uncertainty. While we are confident that these reforms would provide flexibilities to facilities that will yield major cost savings, there are uncertainties about the magnitude of these effects.

Timetable:

ActionDateFR Cite
NPRM06/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: Federal.

Agency Contact: Ronisha Blackstone, 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: 410 786-6882, Email: ronisha.blackstone@cms.hhs.gov.

RIN: 0938-AT36

HHS—CMS

40. • Medicaid and CHIP Managed Care (CMS-2408-P)

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 42 U.S.C. 1302

CFR Citation: 42 CFR 430; 42 CFR 431; 42 CFR 438.

Legal Deadline: None.

Abstract: This proposed rule would streamline the regulatory framework and provide burden reductions to ensure state Medicaid agencies are able to work effectively with CMS to design, develop, and deploy managed care programs that meet the state population's needs.

Statement of Need: This proposed rule would advance CMS' efforts to streamline Medicaid and CHIP managed care and reflects a broader strategy to relieve regulatory burdens; support state flexibility and local leadership; empower the patient-doctor relationship Start Printed Page 1713in health care; and promote transparency, flexibility, and innovation in the delivery of care.

Summary of Legal Basis: Section 1102 of the Social Security Act (42 U.S.C. 1302).

Alternatives: The HHS letter to the nation's governors on March 14, 2017, committed to a review of the managed care regulations in order to prioritize beneficiary outcomes and State priorities. We are reviewing the managed care regulations in accordance with this commitment and recommending appropriate rulemaking.

Anticipated Cost and Benefits: This proposed rule is intended to streamline the federal requirements for Medicaid and CHIP managed care. We anticipate that these changes will likely be economically significant.

Risks: The current revisions of the regulations are intended to ensure that the regulatory framework is efficient and feasible for States to implement in a cost effective manner and address the risks identified in previous rulemaking. This would ensure that States operating State Medicaid and CHIP managed care programs can implement program and fiscal integrities without undue administrative burdens.

Timetable:

ActionDateFR Cite
NPRM08/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations.

Government Levels Affected: Federal, Local, State, Tribal.

Agency Contact: James Golden, Director, Division of Managed Care Plans, Department of Health and Human Services, Centers for Medicare & Medicaid Services, Center for Medicaid and CHIP Services, MS: S2-14-26, 7500 Security Boulevard, Baltimore, MD 21244, Phone: 410 786-7111, Email: james.golden@cms.hhs.gov.

RIN: 0938-AT40

HHS—ADMINISTRATION FOR CHILDREN AND FAMILIES (ACF)

Prerule Stage

41. • Adoption and Foster Care Analysis and Reporting System

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Sections 474(f), 479 and 1102 of the Social Security Act

CFR Citation: 45 CFR 1355.

Legal Deadline: None.

Abstract: This advanced notice of proposed rulemaking seeks public suggestions in particular from state and tribal title IV-E agencies and Indian tribes, tribal organizations and consortiums, for streamlining the Adoption and Foster Care Analysis and Reporting System (AFCARS) data elements and removing any undue burden related to reporting AFCARS.

Statement of Need: The reporting requirements for the Adoption and Foster Care Analysis and Reporting System (AFCARS) have doubled in the past year. In an effort to ensure that an appropriate balance is achieved between reporting burden and administering high-quality programs that provide services to children and families. By engaging in this rulemaking process, the public and stakeholders will be afforded an opportunity to provide input on what data collections are most useful to the administration of child welfare programs.

Summary of Legal Basis: Section 479 of the Social Security Act requires HHS regulate a national data collection system which provides comprehensive information on adopted and foster children and their parents.

Alternatives: None. This rule implements statutory requirements.

Anticipated Cost and Benefits: An estimate of costs to states to modify their existing data systems is not available at this time.

Risks: None.

Timetable:

ActionDateFR Cite
ANPRM10/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: None.

Agency Contact: Kathleen McHugh, ACYF/Children's Bureau, Department of Health and Human Services, Administration for Children and Families, Washington, DC 20013, Phone: 202 401-5789, Email: kmchugh@acf.dhhs.gov.

RIN: 0970-AC72

HHS—ACF

Proposed Rule Stage

42. • Head Start Service Duration Requirements

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Section 641A of the Head Start Act

CFR Citation: 45 CFR 1302.

Legal Deadline: None.

Abstract: This rule would address the requirement in the Head Start Program Performance Standards (HSPPS) that increases service duration for all Head Start center-based programs to a minimum of 1,020 hours.

Statement of Need: The Head Start Program Performance Standards (HSPPS) regulation includes two requirements that increase service duration for all Head Start center-based programs. The first requirement, effective on August 1, 2019, requires center-based programs to operate 50 percent of their slots for 1,020 annual hours. The second requirement, effective August 1, 2021, requires center-based programs to operate 100 percent of their slots for 1,020 annual hours. Each requirement will go into effect unless the Secretary acts to lower each percentage 18 months prior to its respective effective date. The Secretary, through the HSPPS regulation, has the authority to lower the 50 percent requirement through a public notice. Elimination of the 1,020 annual hour requirements allows maximum flexibility for Head Start grantees. Programs could choose to operate for longer than the 448-hour minimum based on demonstrated need in their communities, but it would not be a requirement. The Head Start Act allows programs to convert part-day slot to full-day or full-working-day slots.

Summary of Legal Basis: HHS believes that the Secretary could not yet make a defensible determination to reduce the second requirement of 100 percent, based on an assessment of the availability of sufficient funding to mitigate a substantial reduction in funded enrollment, because the effective date of the 100 percent requirement is several budget cycles away. With several years before the 100 percent requirement would go into effect, there is sufficient time to complete the regulatory notice and comment process and to issue a final rule eliminating these duration requirements.

Alternatives: None. The service duration requirements were codified in regulation and in order to remove the 100 percent requirement a regulation must be issued.

Anticipated Cost and Benefits: The estimated cost of the 100 percent Head Start center-based duration requirement (effective August 1, 2021) is approximately $1.2 billion.

Risks: Without additional funding, this requirement would likely result in a loss of between 130,000 and 140,000 Head Start slots.

Timetable: Start Printed Page 1714

ActionDateFR Cite
NPRM08/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Colleen Rathgeb, Division Director, Department of Health and Human Services, Administration for Children and Families, 330 C Street SW, Washington, DC 20447, Phone: 202 358-3263, Email: collen.rathgeb@acf.hhs.gov.

RIN: 0970-AC73

DEPARTMENT OF HOMELAND SECURITY (DHS)

Fall 2017 Statement of Regulatory Priorities

The Department of Homeland Security (DHS or Department) was created 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.”

Fulfilling this mission requires the dedication of more than 225,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, but our goal is clear—keeping America safe.

Leading a unified national effort, DHS has five core missions: (1) Prevent terrorism and enhance security, (2) secure and manage our borders, (3) enforce and administer our immigration laws, (4) safeguard and secure cyberspace, and (5) ensure resilience to disasters. In addition, we must specifically focus on maturing and strengthening the homeland security enterprise itself.

In achieving these goals, we are continually strengthening our partnerships with communities, first responders, law enforcement, and Government agencies—at the State, local, tribal, Federal, and international levels. We are accelerating the deployment of science, technology, and innovation in order to make America more secure, and we are becoming leaner, smarter, and more efficient, ensuring that every security resource is used as effectively as possible. For a further discussion of our mission, see the DHS website at http://www.dhs.gov/​our-mission.

The regulations we have summarized below in the Department's fall 2017 regulatory plan and agenda support the Department's responsibility areas. These regulations will improve the Department's ability to accomplish its mission. Also, the regulations we have identified in this year's regulatory plan continue to address legislative initiatives such as the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public Law 110-53 (Aug. 3, 2007).

DHS strives for organizational excellence and uses a centralized and unified approach in 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 to ensure that the project fosters and supports the Department's mission.

The Department is committed to ensuring that all of its regulatory initiatives are aligned with its guiding principles to protect civil rights and civil liberties, integrate our actions, build coalitions and partnerships, develop human resources, innovate, and be accountable to the American public.

Executive Order 13771 Requirements

In fiscal year 2018, DHS plans to finalize the following actions:

We provide further information about these actions in the DHS Regulatory Plan and Unified Agenda.

DHS is also 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Finally, the Department values public involvement in the development of its regulatory plan, agenda, and regulations, and takes particular concern with the impact its regulations have on small businesses. 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.

The fall 2017 regulatory plan for DHS includes regulations from several DHS components, including U.S. Citizenship and Immigration Services (USCIS), the U.S. Coast Guard (Coast Guard), U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), the Federal Emergency Management Agency (FEMA), and the Transportation Security Administration (TSA). Below is a discussion of the regulations that comprise the DHS fall 2017 regulatory plan.

United States Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States. USCIS's role is to efficiently adjudicate and manage petitions, applications, and requests for immigration benefits for foreign nationals seeking lawful immigration status in the United States and for individuals seeking to become citizens of the United States, and other matters within the jurisdiction of the agency, in a manner that detects, deters, and prevents fraud, protects the jobs and working conditions of American workers as appropriate, and ensures the national security, public safety, and welfare of the American people. In the coming year, USCIS will promulgate several regulatory and deregulatory actions to directly support these commitments and goals.

Rescission of International Entrepreneur Rule. USCIS will propose to rescind the final rule published in the Federal Register on January 17, 2017. The final rule established a program that would allow for consideration of parole into the United States, on case-by-case basis, of certain inventors, researchers, and entrepreneurs who had established a U.S. start-up entity, and who had been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization. USCIS will Start Printed Page 1715also propose to rescind the final rule published in the Federal Register on February 25, 2015. The 2015 final rule amended DHS regulations by extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.

H-1B Nonimmigrant Program and Petitioning Process Regulations. In order to improve U.S. worker protections as well as to address the requirements of Executive Order 13788, Buy American and Hire American, USCIS proposes to issue regulations with the focus of improving the H-1B nonimmigrant program and petitioning process. Such initiatives include a proposed rule that would establish an electronic registration program for H-1B petitions subject to annual numerical limitations and would improve the H-1B numerical limitation allocation process (Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations); and a proposed rule that would revise the definition of specialty occupation to increase focus on truly obtaining the best and brightest foreign nationals via the H-1B program and would revise the definition of employment and employer-employee relationship to help better protect U.S. workers and wages. (Strengthening the H-1B Nonimmigrant Visa Classification Program.)

Heightened Screening and Vetting of Immigration Programs Regulations. USCIS will propose regulations guiding the inadmissibility determination whether an alien is likely at any time to become a public charge under section 212(a)(4) of the Immigration and Nationality Act. (Inadmissibility and Deportability on Public Charge Grounds.)

Employment Creation Immigrant Regulations. USCIS will amend its regulations modernizing the employment-based, fifth preference (EB-5) immigrant investor category based on current economic realities and to reflect statutory changes made to the program. (EB-5 Immigrant Investor Program Modernization). In addition, USCIS will propose to update its regulations for the EB-5 Immigrant Investor Regional Center Program to better reflect realities for regional centers and EB-5 immigrant investors, to increase predictability and transparency in the adjudication process, to improve operational efficiency, and to enhance program integrity. (EB-5 Immigrant Investor Regional Center Program.)

United States Coast Guard

The U.S. Coast Guard (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 the $4.5 trillion maritime transportation system, including maritime safety, security, and stewardship. The Coast Guard delivers daily value to the nation through multi-mission resources, authorities, and capabilities.

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.

The Coast Guard does not have significant regulatory actions planned for the coming fiscal year; however, the Coast Guard is highlighting the following Executive Order 13771 deregulatory action.

Marine Casualty Reporting Property Damage Thresholds. This rule would raise the monetary property damage threshold for reporting a marine casualty, and for reporting a type of marine casualty called a “serious marine incident.” Currently, whether and how a marine casualty must be reported to the Coast Guard depends in part on the dollar value of the property damage resulting from the casualty. The dollar threshold amounts date to the 1980s and have not been updated to keep pace with inflation; consequently, relatively minor casualties must be reported and may require mandatory drug and alcohol testing. Updating the thresholds would reduce a reporting burden on vessel owner and operators, and reduce the Coast Guard resources expended to investigate minor incidents. (Note: There is no associated Regulatory Plan entry for this rule, because this rule is non-significant under Executive Order 12866. There is an entry, however, in the Unified Agenda.)

United States Customs and Border Protection

U.S. 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 and at official crossings 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 priority 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 into the United States of goods, 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.Start Printed Page 1716

In carrying out its mission, CBP's goal is to facilitate the processing of legitimate trade and people efficiently without compromising security. Consistent with its primary mission of homeland security, CBP intends to issue several regulations during the next fiscal year that are intended to improve security at our borders and ports of entry. During the upcoming year, CBP will also be working on various projects to streamline CBP processing, reduce duplicative processes, reduce various burdens on the public, and automate various paper forms. Below are descriptions of CBP's planned actions for fiscal year 2018.

Air Cargo Advance Screening (ACAS). To address ongoing aviation security threats, CBP intends to amend its regulations pertaining to the submission of advance air cargo data to implement a mandatory Air Cargo Advance Screening (ACAS) program for any inbound aircraft required to make entry under the CBP regulations that will have commercial cargo aboard. The ACAS program will require the inbound carrier or other eligible party to electronically transmit specified advance cargo data (ACAS data) to CBP for air cargo transported onboard U.S.-bound aircraft as early as practicable, but no later than prior to loading of the cargo onto the aircraft. The ACAS program will enhance the security of the aircraft and passengers on U.S.-bound flights by enabling CBP to perform targeted risk assessments on the air cargo prior to the aircraft's departure for the United States. These risk assessments will identify and prevent high-risk air cargo from being loaded on the aircraft that could pose a risk to the aircraft during flight. CBP, in cooperation with TSA, has been operating ACAS as a voluntary pilot program since 2010 and intends to publish an interim final rule in the next fiscal year to implement ACAS as a regulatory program.

Collection of Biometric Data Upon Entry to and Departure from the United States. DHS is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometric identifiers, of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system. Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports. To provide the legal framework for DHS to begin a comprehensive biometric entry-exit system, DHS intends to issue an interim final rule in the next fiscal year to amend the regulations to remove the references to pilot programs and the port limitation. In addition, to facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition, this rule would also provide that all travelers may be required to provide photographs upon entry or departure.

In addition to the regulations that CBP issues to promote DHS's mission, CBP also 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 addition to its plans to continue issuing regulations to enhance border security, CBP, in the coming year, 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.

Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders—Automation of CBP Form I-94W. During the next fiscal year, CBP intends to amend DHS regulations to implement the ESTA requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry. Currently, aliens from VWP countries must provide certain biographic information to U.S. CBP officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States. Travelers will bear opportunity costs and CBP will bear information technology costs as a result of this rule. Both travelers and CBP, however, will enjoy opportunity cost savings as a result of this rule, resulting in an overall net savings. In addition, the public will benefit from improved security.

Modernization of the Customs Brokers Regulations. CBP will issue a proposed rule to amend the requirements for customs brokers. Specifically, CBP will propose to simplify the broker permitting framework by eliminating district permits and the corresponding district permit requirements. Additionally, CBP will propose to update the responsible supervision and control oversight framework to better reflect the modern business environment. (Note: There is no associated Regulatory Plan entry for this rule, because this rule is non-significant under Executive Order 12866. There is an entry, however, in the Unified Agenda.)

Automation of CBP Form I-418 for Vessels. CBP intends to issue this rule amending the regulations regarding the submission of Form I-418, Passenger List—Crew List. Currently, the master or agent of every commercial vessel arriving in the United States, with limited exceptions, must submit a paper Form I-418, along with certain information regarding longshore work, to CBP at the port where immigration inspection is performed. Most commercial vessel operators are also required to submit a paper Form I-418 to CBP at the final U.S. port prior to departing for a foreign port. Under this rule, most vessel operators would be required to electronically submit the data elements on Form I-418 to CBP through the National Vessel Movement Center in lieu of submitting a paper form. This rule would eliminate the need to file the paper Form I-418 in most cases. This will result in an opportunity cost savings for vessel operators as well as a reduction in their printing and storage costs. (Note: There is no associated Regulatory Plan entry for this rule, because this rule is not significant under Executive Order 12866. There is an entry, however, in the Unified Agenda.)

Federal Emergency Management Agency

The Federal Emergency Management Agency's (FEMA's) mission is to support our citizens and first responders to ensure that as a Nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards. FEMA's ethos is to serve the Nation by helping its people Start Printed Page 1717and first responders, especially when they are most in need.

FEMA is working on various deregulatory actions in the coming fiscal year. FEMA will propose to remove outdated regulations that require publication of community loss of eligibility notices in the Federal Register. (Removal of Federal Register Publication Requirement for Community Loss of Eligibility Notices under the National Flood Insurance Program. Note: There is no associated Regulatory Plan entry for this rule, because this rule is non-significant under Executive Order 12866. There is an entry, however, in the Unified Agenda.) FEMA will also issue other deregulatory actions, such as removing regulations with sunset programs, which will result in general cleanup of the Code of Federal Regulations.

Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster. In addition, FEMA plans to promulgate this significant regulation during the fiscal year. The Sandy Recovery Improvement Act of 2013 requires the FEMA Administrator to review, update, and revise through rulemaking the individual assistance factors FEMA uses to measure the severity, magnitude, and impact of a disaster. FEMA published a proposed rule on November 12, 2015, and now plans to issue a final rule.

Federal Law Enforcement Training Center

The Federal Law Enforcement Training Center (FLETC) does not have any significant regulations planned for fiscal year 2018.

United States Immigration and Customs Enforcement

Immigration and Customs Enforcement (ICE) is the principal criminal investigative arm of DHS and one of the three Department components charged with the 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 fiscal year 2018, ICE will focus rulemaking efforts on three priority regulations: Increasing the fees paid to the Student and Exchange Visitor Program (SEVP) to recover costs for services; Flores Settlement Agreement provisions; and comprehensive reform of practical training for foreign students with an F or M visa.

Below are ICE's significant regulatory actions for the coming fiscal year:

Adjusting Program Fees for the Student and Exchange Visitor Program. ICE will propose to adjust the fees that the Student and Exchange Visitor Program (SEVP) charges individuals and organizations. In 2016, SEVP conducted a comprehensive fee study and determined that current fees do not recover the full costs of the services provided. ICE has determined that adjusting fees is necessary to fully recover the increased costs of SEVP operations, program requirements, and to provide the necessary funding to sustain initiatives critical to supporting national security. DHS will propose to adjust its fees for individuals and organizations to establish a more equitable distribution of costs and to establish a sustainable revenue level. The SEVP fee schedule was last adjusted in a rule published on September 26, 2008.

Apprehension, Processing, Care, and Custody of Alien Minors. ICE will issue a proposed rule related to the detention, processing, and release of alien children. In 1985, a class-action suit challenged the policies of the former Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty-five days after publication of regulations implementing the agreement. Since 1997, intervening statutory changes, including passage of the Homeland Security Act (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), have significantly changed the applicability of certain provisions of the FSA. The proposed rule will codify the substantive terms of the FSA and enable the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, DHS will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA. The rule will also implement related provisions of the TVPRA.

Practical Training Reform. ICE will issue a proposed rule that improves protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule will be a comprehensive reform of practical training options; it is intended to reduce fraud and abuse.

National Protection and Programs Directorate

The National Protection and Programs Directorate's (NPPD) vision is a safe, secure, and resilient infrastructure where the American way of life can thrive. NPPD leads the national effort to protect and enhance the resilience of the Nation's physical and cyber infrastructure. Although NPPD does not plan to finalize any significant regulations within the next fiscal year, NPPD will undertake reviews of its existing regulations in accordance with Executive Order 13771. NPPD is also working on several future rulemaking projects, as reflected in the Unified Agenda.

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 TSA's mission. This approach results in layers of security to mitigate risks effectively and efficiently. TSA uses established processes, working with stakeholders, to review programs, requirements, and procedures for appropriate modifications based upon changes in the environment, whether those changes result from an evolving threat or enhancements available through new technologies.

For the coming fiscal year, TSA is prioritizing deregulatory actions and regulatory actions that are required to meet statutory mandates and that are necessary for national security. Below are the planned TSA actions for fiscal year 2018.

Security Training for Surface Transportation Employees. TSA will finalize a rule requiring higher-risk public transportation agencies (including rail mass transit and bus systems), railroad carriers (freight and passenger), and over-the-road bus (OTRB) owner/operators to conduct security training for frontline employees. This regulation will implement mandates of the Implementing Regulations of the 9/11 Commission Act of 2007, (9/11 Act), which addressed recommendations of the 9/11 Commission for enhancing the nation's security based upon vulnerabilities identified in the aftermath of September 11, 2001. In compliance with the definition of Start Printed Page 1718frontline employees in pertinent provisions of the 9/11 Act, the rule will include identification of which employees are required to receive security training and the content of that training. The final rule will also propose definitions for transportation security-sensitive materials, as required by section 1501 of the 9/11 Act.

Vetting of Certain Surface Transportation Employees. 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 OTRB owner/operators. The NPRM will also propose provisions to implement TSA's statutory requirement to recover its cost of vetting through user fees. TSA is in the process of determining the costs and benefits of this rulemaking. 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.

Amending Vetting Requirements for Employees with Access to a Security Identification Display Area. The Aviation 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 revisions that enhance the eligibility requirements and disqualifying criminal offenses for individuals seeking or having unescorted access to any Security Identification Display Area of an airport.

Protection of Sensitive Security Information. Through a joint rulemaking with the Department of Transportation (DOT), TSA will streamline existing requirements to protect sensitive security information (SSI). This action finalizes an Interim Final Rule for a statutorily-required regulation related to national security. The rule amends TSA's and DOT's regulations to provide three options for the SSI distribution statement, one significantly abbreviated, to address concerns that the current marking requirements are unduly burdensome. TSA is considering further deregulatory action to align the requirement for the handling of Federal Flight Deck Officer (FFDO) names consistent with the handling of Federal Air Marshal names (two names listed together qualify as SSI). The modification to TSA's SSI regulations would protect lists of FFDO names, rather than a single FFDO name. (Note: There is no associated Regulatory Plan entry for this rule, because this rule is non-significant under Executive Order 12866. There is an entry, however, in the Unified Agenda.)

Ronald Reagan Washington National Airport: Enhanced Security Procedures for Certain Operations. This IFR reopened Ronald Reagan Washington National Airport (DCA) to general aviation (GA) aircraft operations after an approximately four-year closure (from September 2001 to August 2005) with measures in place to minimize the security risk to vital government assets in the Washington, DC metropolitan area. While prohibiting GA access to DCA imposes an economic hardship on these operations, access without appropriate security measures increases the risk of an airborne strike originating from DCA. Under the requirements of this regulation, aircraft operations into and out of DCA must have and implement a DCA Access Standard Security Program (DASSP) approved by TSA.

In response to recommendations from industry submitted through the Aviation Security Advisory Committee (ASAC), TSA is assessing the risks associated with eliminating a requirement to have an armed security officer on flights accessing DCA. The DASSP requires each aircraft operating into or out of DCA with passengers to have onboard at least one armed security officer. The only exception to this requirement is for flights with a Federal Air Marshal on board. After this requirement was put in place, TSA implemented the Secure Flight program, which provides for vetting of passengers against the Terrorist Screening Database. The requirement for an armed security officer could be modified, and TSA could accept other alternative procedures, including Secure Flight vetting, that provide commensurate levels of security at lower costs. These procedures could include a requirement to limit passengers and crewmembers to those with a Known Traveler Number (KTN). A critical dependency for this proposed repeal of the armed security officer requirement would be the ability of DHS/TSA to quickly process requests for KTNs and the willingness of the regulated parties to bear the cost of obtaining a KTN.

This rule would streamline TSA's regulations to eliminate a burden no longer necessary under the current operating environment, and result in a net benefit, most likely to small businesses providing GA services. Finalizing this rule will ensure the continued balance between providing access and ensuring vital government assets in the Washington, DC metropolitan area. The security requirements in the final rule are necessary to defeat the threat posed by members of terrorist groups to vital U.S. assets and security in a manner that protects the nation's transportation systems to ensure freedom of movement for people and commerce.

Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees. This rule would streamline regulations and reduce burden for the alien flight student program (AFSP). This action finalizes an IFR for a national security rule that is required to implement a statutory requirement. The AFSP program requires security threat assessments for aliens seeking flight training in the United States and imposes additional security measures on the flight schools training these individuals. In response to recommendations from industry through the ASAC, TSA is considering revising these requirements to reduce costs and industry burden. For example, reporting and recordkeeping requirements for the program are estimated at an annual cost of $7.4 million, discounted at 7 percent. These costs include maintaining paper records on alien flight students. TSA is considering an electronic recordkeeping platform where all flight providers would upload required student information to a TSA-managed website. Also at industry's request, TSA is considering changing the interval for security threat assessments of alien flight students, eliminating the requirement for a new security threat assessment for each “training event.” A related change to the current information collection request pertaining to the AFSP program will be part of this deregulatory action.

United States Secret Service

The United States Secret Service does not have any significant regulations planned for fiscal year 2018.

DHS Regulatory Plan for Fiscal Year 2018

A more detailed description of the priority regulations that comprise the DHS fall regulatory plan follows.

Start Printed Page 1719

DHS—U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

Proposed Rule Stage

43. Inadmissibility and Deportability on Public Charge Grounds

Priority: Other Significant.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: 8 U.S.C. 1101 to 1103; 8 U.S.C. 1182 and 1183; . . .

CFR Citation: 8 CFR 212; 8 CFR 237; 8 CFR 245a.18.

Legal Deadline: None.

Abstract: The Department of Homeland Security (DHS) will propose regulatory provisions guiding the inadmissibility determination on whether an alien is likely at any time to become a public charge under section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4). DHS proposes to add a regulatory provision, which would define the term public charge and would outline DHS's public charge considerations.

Statement of Need: To ensure that foreign nationals coming to the United States or adjusting status to permanent residence, either temporarily or permanently, have adequate means of support while in the United States, and that foreign nationals do not become dependent on public benefits for support.

Summary of Legal Basis: INA 212(a)(4).

Alternatives:

Anticipated Cost and Benefits: DHS is currently considering the specific cost and benefit impacts of the proposed provisions. In general, DHS anticipates that by clarifying the meaning of public charge some stakeholders would incur costs. The anticipated costs to individuals requesting immigration benefits are associated with the opportunity cost of time to complete and file required forms and documentation, and possible costs associated with any additional background checks. DHS anticipates there will be benefits associated with ensuring that foreign nationals coming to the United States have adequate means of support and do not become dependent on public assistance.

Risks:

Timetable:

ActionDateFR Cite
NPRM05/26/9964 FR 28676
NPRM Comment Period End07/26/99
NPRM07/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: Federal.

Additional Information: CIS No. 1989-99. Transferred from RIN 1115-AF45.

Agency Contact: Mark Phillips, Chief, Residence and Naturalization Division, Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529, Phone: 202 272-8377, Email: mark.phillips@uscis.dhs.gov.

RIN: 1615-AA22

DHS—USCIS

44. Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1184(g)

CFR Citation: 8 CFR 214.

Legal Deadline: None.

Abstract: The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Statement of Need: This regulation would help to streamline the process for administering the H-1B cap process and to ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.

Summary of Legal Basis:

Alternatives: DHS is currently in the process of considering policies that align with our overarching goals of ensuring the allocation of H-1B cap numbers are provided to the best and brightest foreign national beneficiaries, and ensuring that the operational process is as efficient as possible.

Anticipated Cost and Benefits: While DHS is currently in the process of assessing the costs and benefits of the policy changes under consideration, DHS believes that in aggregate the proposed changes would result in better resource management and predictability for both USCIS and petitioning employers. DHS anticipates that implementing a pre-registration process could benefit the regulated public by potentially reducing the cost and time involved in petitioning for H-1B nonimmigrants, through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire Petition for a Nonimmigrant Worker, Form I-129.

Risks:

Timetable:

ActionDateFR Cite
NPRM03/03/1176 FR 11686
NPRM Comment Period End05/02/11
NPRM02/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: None.

Additional Information: USCIS 2443-08. Includes Retrospective Review under E.O. 13563.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Kevin Cummings, Division Chief, Business and Foreign Workers Division, Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529, Phone: 202 272-8377, Fax: 202 272-1480, Email: kevin.j.cummings@uscis.dhs.gov.

RIN: 1615-AB71

DHS—USCIS

45. Rescission of International Entrepreneur Rule

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1182(d)(5)(A)

CFR Citation: 8 CFR 212.5.

Legal Deadline: None.

Abstract: On January 17, 2017, DHS published the International Entrepreneur Final Rule (the IE final rule) in the Federal Register at 82 FR 5238, with an original effective date of July 17, 2017. On July 11, 2017, DHS published a final rule at 82 FR 31887 delaying the effective date of the IE final Start Printed Page 1720rule until March 14, 2018, to allow for a full review of the rule. This notice of proposed rulemaking (NPRM) will propose to rescind the IE final rule. The NPRM will solicit public comments on the proposal to rescind the IE final rule.

Statement of Need: DHS is reviewing the IE final rule in light of issuance of Executive Order 13767, Border Security and Immigration Enforcement.

Summary of Legal Basis: The Secretary's authority for this proposed regulatory amendment can be found in the Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and INA section 103, 8 U.S.C. 1103, which give the Secretary the authority to administer and enforce the immigration and nationality laws, as well as INA section 212(d)(5), 8 U.S.C. 1182(d)(5), which refers to the Secretary's discretionary authority to grant parole and provides DHS with regulatory authority to establish terms and conditions for parole once authorized.

Alternatives:

Anticipated Cost and Benefits: The economic costs of the IE final rule would have resulted from the filing costs of principal applicants applying for parole and from the associated filing costs of dependents of principal applicants. Therefore, this proposal to withdraw the IE final rule would result in those costs not being realized. This withdrawal of the IE final rule would also result in time saved by DHS adjudicators, as they would not be required to process the relevant parole applications. Furthermore, DHS would also save from expending any additional costs in technology and related systems updates that would otherwise be necessary.

Risks:

Timetable:

ActionDateFR Cite
NPRM08/31/1681 FR 60129
NPRM Comment Period End10/17/16
Final Rule01/17/1782 FR 5238
Final Rule Effective07/17/17
Final Rule Delay of Effective Date07/11/1782 FR 31887
NPRM11/00/17

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.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Kevin Cummings, Division Chief, Business and Foreign Workers Division, Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529, Phone: 202 272-8377, Fax: 202 272-1480, Email: kevin.j.cummings@uscis.dhs.gov.

RIN: 1615-AC04

DHS—USCIS

46. EB-5 Immigrant Investor Regional Center Program

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1153(b)(5); Pub. L. 102-395, secs. 610 and 601(a); Pub. L. 107-273, sec. 11037; Pub. L. 101-649, sec. 121(a); Pub. L. 105-119, sec. 116; Pub. L. 106-396, sec. 402; Pub. L. 108-156, sec. 4; Pub. L. 112-176, sec. 1; Pub. L. 114-113, sec. 575; Pub. L. 114-53, sec. 131; Pub. L. 107-273

CFR Citation: 8 CFR 204; 8 CFR 216.

Legal Deadline: None.

Abstract: The Department of Homeland Security (DHS) is considering making regulatory changes to the EB-5 Immigrant Investor Regional Center Program. DHS issued an Advance Notice of Proposed Rulemaking (ANPRM) to seek comment from all interested stakeholders on several topics, including: (1) The process for initially designating entities as regional centers, (2) a potential requirement for regional centers to utilize an exemplar filing process, (3) continued participation requirements for maintaining regional center designation, and (4) the process for terminating regional center designation. While DHS has gathered some information related to these topics, the ANPRM sought additional information that can help the Department make operational and security updates to the Regional Center Program while minimizing the impact of such changes on regional center operations and EB-5 investors.

Statement of Need: Based on decades of experience operating the program, DHS has determined that program changes are needed to better reflect business realities for regional centers and EB-5 immigrant investors, to increase predictability and transparency in the adjudication process for stakeholders, to improve operational efficiency for the agency, and to enhance program integrity.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: DHS is still in the process of reviewing potential changes it would propose to the regional center process. DHS may propose to implement an exemplar filing requirement for all designated regional centers that would require regional centers to file exemplar project requests. An exemplar filing requirement could cause some projects to not go forward, but DHS is still in the process of assessing the impacts on the number of projects that may be affected. DHS anticipates that any proposed changes to the regional center program would increase overall program efficiency and predictability for both USCIS and EB-5 stakeholders.

Risks:

Timetable:

ActionDateFR Cite
ANPRM01/11/1782 FR 3211
ANPRM Comment Period End04/11/17
NPRM10/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: None.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Lori S. MacKenzie, Division Chief, Operations Policy & Stakeholder Communications, Immigrant Investor Program, Department of Homeland Security, U.S. Citizenship and Immigration Services, 131 M Street NE, Washington, DC 20529-2200, Phone: 202 357-9214, Email: lori.s.mackenzie@uscis.dhs.gov.

RIN: 1615-AC11

DHS—USCIS

47. • Strengthening the H-1B Nonimmigrant Visa Classification Program

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1184

CFR Citation: 8 CFR 214.2(h)(4).

Legal Deadline: None.

Abstract: The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, Start Printed Page 1721and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Statement of Need: The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: DHS is still considering the cost and benefit impacts of the proposed provisions. In general, DHS anticipates that there may be some filing fees and opportunity costs of time in preparing and filing forms for the eligible population. DHS also anticipates benefits in the form of reduced fraud and abuses of the current H-1B program.

Risks:

Timetable:

ActionDateFR Cite
NPRM10/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Kevin Cummings, Division Chief, Business and Foreign Workers Division, Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529, Phone: 202 272-8377, Fax: 202 272-1480, Email: kevin.j.cummings@uscis.dhs.gov.

RIN: 1615-AC13

DHS—USCIS

48. • Removing H-4 Dependent Spouses From the Class of Aliens Eligible for Employment Authorization

Priority: Economically Significant. Major under 5 U.S.C. 801.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 6 U.S.C. 112; 8 U.S.C. 1103(a); 8 U.S.C. 1184(a)(1); 8 U.S.C. 1324a(H)(3)(B)

CFR Citation: 8 CFR 214; 8 CFR 274a.

Legal Deadline: None.

Abstract: On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Statement of Need: DHS is reviewing the 2015 final rule in light of issuance of Executive Order 13788, Buy American and Hire American.

Summary of Legal Basis: The Secretary of Homeland Security (Secretary) has the authority to amend this regulation under section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe the time and conditions of nonimmigrants' admissions to the United States. Also, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary's discretionary authority to extend employment authorization.

Alternatives:

Anticipated Cost and Benefits: DHS anticipates that there would be two primary impacts that DHS can estimate: The cost-savings accruing to forgone future filings by H-4 spouses, and labor turnover costs that employers of H-4 workers could incur.

Risks:

Timetable:

ActionDateFR Cite
NPRM02/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: None.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Kevin Cummings, Division Chief, Business and Foreign Workers Division, Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529, Phone: 202 272-8377, Fax: 202 272-1480, Email: kevin.j.cummings@uscis.dhs.gov.

Related RIN: Related to 1615-AB92

RIN: 1615-AC15

DHS—USCIS

Final Rule Stage

49. EB-5 Immigrant Investor Program Modernization

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1153(b)(5)

CFR Citation: 8 CFR 204.6; 8 CFR 216.6.

Legal Deadline: None.

Abstract: In January 2017, the Department of Homeland Security (DHS) proposed to amend its regulations governing the employment-based, fifth preference (EB-5) immigrant investor classification. In general, under the EB-5 program, individuals are eligible to apply for lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. This rule sought public comment on a number of proposed changes to the EB-5 program regulations. Such proposed changes included: Raising the minimum investment amount; allowing certain EB-5 petitioners to retain their original priority date; changing the designation process for targeted employment areas; and other miscellaneous changes to filing and interview processes.

Statement of Need: The proposed regulatory changes are necessary to reflect statutory changes and codify existing policies, more accurately reflect existing and future economic realities, improve operational efficiencies to provide stakeholders with a higher level of predictability and transparency in the adjudication process, and enhance program integrity by clarifying key eligibility requirements for program participation and further detailing the processes required. Given the complexities involved in adjudicating benefit requests in the EB-5 program, along with continued program integrity concerns and increasing adjudication processing times, DHS has decided to revise the existing regulations to modernize key areas of the program.

Summary of Legal Basis: The Immigration Act (INA) authorizes the Secretary of Homeland Security (Secretary) to administer and enforce the immigration and nationality laws including establishing regulations Start Printed Page 1722deemed necessary to carry out his authority, and section 102 of the Homeland Security Act, 6 U.S.C. 112, authorizes the Secretary to issue regulations. 8 U.S.C. 1103(a), INA section 103(a). INA section 203(b)(5), 8 U.S.C. 1153(b)(5), also provides the Secretary with authority to make visas available to immigrants seeking to engage in a new commercial enterprise in which the immigrant has invested and which will benefit the United States economy and create full-time employment for not fewer than 10 U.S. workers. Further, section 610 of Public Law 102-395 (8 U.S.C. 1153 note) created the Immigrant Investor Pilot Program and authorized the Secretary to set aside visas for individuals who invest in regional centers created for the purpose of concentrating pooled investment in defined economic zones, and was last amended by Public Law 107-273.

Alternatives:

Anticipated Cost and Benefits: Due to data limitations and the complexity of EB-5 investment structures, it is difficult to quantify and monetize the costs and benefits of the proposed provisions, with the exception of application costs for dependents who would file the Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829) separately from principal investors, and familiarization costs to review the rule.

The proposal to raise the investment amounts and reform the targeted employment area (TEA) geography could deter some investors from participating in the EB-5 program. The increase in investment could reduce the number of investors as they may be unable or unwilling to invest at the higher proposed levels of investment. On the other hand, raising the investment amounts increases the amount invested by each investor and thereby potentially increases the total economic benefits of U.S. investment under this program. The proposed TEA provision would rule out TEA configurations that rely on a large number of census tracts indirectly linked to the actual project tract by numerous degrees of separation, and may better target investment capital to areas where unemployment rates are the highest.

Risks:

Timetable:

ActionDateFR Cite
NPRM01/13/1782 FR 4738
NPRM Comment Period End04/11/17
Final Action02/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: None.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Lori S. MacKenzie, Division Chief, Operations Policy & Stakeholder Communications, Immigrant Investor Program, Department of Homeland Security, U.S. Citizenship and Immigration Services, 131 M Street NE, Washington, DC 20529-2200, Phone: 202 357-9214, Email: lori.s.mackenzie@uscis.dhs.gov.

Related RIN: Related to 1205-AB69

RIN: 1615-AC07

DHS—U.S. CUSTOMS AND BORDER PROTECTION (USCBP)

Final Rule Stage

50. Air Cargo Advance Screening (ACAS)

Priority: Economically Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: 19 U.S.C. 2071 note

CFR Citation: 19 CFR 122.

Legal Deadline: None.

Abstract: To address ongoing aviation security threats, CBP intends to amend its regulations pertaining to the submission of advance air cargo data to implement a mandatory Air Cargo Advance Screening (ACAS) program for any inbound aircraft required to make entry under the CBP regulations that will have commercial cargo aboard. The ACAS program will require the inbound carrier or other eligible party to electronically transmit specified advance cargo data (ACAS data) to CBP for air cargo transported onboard U.S.-bound aircraft as early as practicable, but no later than prior to loading of the cargo onto the aircraft. The ACAS program will enhance the security of the aircraft and passengers on U.S.-bound flights by enabling CBP to perform targeted risk assessments on the air cargo prior to the aircraft's departure for the United States. These risk assessments will identify and prevent high-risk air cargo from being loaded on the aircraft that could pose a risk to the aircraft during flight.

Statement of Need: DHS has identified an elevated risk associated with cargo being transported to the United States by air. This rule will help address this risk by giving DHS the data it needs to improve targeting of the cargo prior to departure.

Summary of Legal Basis: The Trade Act of 2002 authorizes CBP to promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-approved electronic data interchange (EDI) system before the cargo is brought into or departs the United States by any mode of commercial transportation. Under the Trade Act, the required cargo information is that which is reasonably necessary to ensure cargo safety and security pursuant to the laws enforced and administered by CBP.

Alternatives: In addition to the proposed rule, CBP analyzed two alternatives—Requiring the data elements to be transmitted to CBP further in advance than the proposed rule requires; and requiring fewer data elements. CBP concluded that the proposal rule provides the most favorable balance between security outcomes and impacts to air transportation.

Anticipated Cost and Benefits: To improve CBP's risk assessment and targeting capabilities and to enable CBP to target and identify risk cargo prior to departure of the aircraft to the United States, ACAS would require the submission of certain of the advance electronic information for air cargo earlier in the process. In most cases, the information would have to be submitted as early as practicable, but no later than prior to the loading of cargo onto an U.S.-bound aircraft. CBP, in conjunction with TSA, has been operating ACAS as a voluntary pilot program since 2010. CBP believes this pilot program has proven successful by not only mitigating risks to the United States, but also minimizing costs to the private sector. To address ongoing aviation security threats, CBP is transitioning the ACAS pilot program into an ongoing mandatory regulatory program. Costs of this program to carriers include one-time costs to upgrade systems to facilitate transmission of these data to CBP and recurring per transmission costs. Benefits of the program include improved security that will result from receiving the data earlier.

Risks:

Timetable:

ActionDateFR Cite
Interim Final Rule01/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

International Impacts: This regulatory action will be likely to have international trade and investment Start Printed Page 1723effects, or otherwise be of international interest.

Agency Contact: Craig Clark, Branch Chief, Advance Data Programs and Cargo Initiatives, Department of Homeland Security, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Washington, DC 20229, Phone: 202 344-3052, Email: craig.clark@cbp.dhs.gov.

RIN: 1651-AB04

DHS—USCBP

51. Collection of Biometric Data Upon Entry to and Exit From the United States

Priority: Other Significant.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1365a; 8 U.S.C. 1365b

CFR Citation: 19 CFR 215.8; 19 CFR 235.1.

Legal Deadline: None.

Abstract: The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometric identifiers, of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system. Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports. To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation. In addition, to facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition, DHS is amending the regulations as they pertain to the provision of photographs upon entry and exit.

Statement of Need: This rule is necessary to provide the legal framework for DHS to begin implementing a comprehensive biometric entry-exit system. Collecting biometrics at departure will allow CBP and DHS to know with better accuracy whether aliens are departing the country when they are required to depart, reduce visa fraud, and improve CBP's ability to identify criminals and known or suspected terrorists before they depart the United States.

Summary of Legal Basis: Numerous Federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometric identifiers. See, e.g., Immigration and Naturalization Service Data Management Improvement Act of 2002, the Intelligence Reform and Terrorism Prevention Act of 2004, and the 2016 Consolidated Appropriations Act. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.

Alternatives:

Anticipated Cost and Benefits: This rule will allow CBP to know with greater certainty whether foreign visa holders depart the country when required. It will also prevent visa fraud and allow CBP to more easily identify criminals or terrorists when they attempt to leave the country. The technology used to implement this rule could also eventually be used to modify entry and exit procedures to reduce processing and wait times. This rule imposes opportunity and technology acquisition and maintenance costs on CBP and opportunity costs on the traveling public.

Risks:

Timetable:

ActionDateFR Cite
Interim Final Rule04/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Michael Hardin, Deputy Director, Department of Homeland Security, U.S. Customs and Border Protection, Customs and Border Protection, Entry/Exit Policy and Planning, 1300 Pennsylvania Avenue NW, Office of Field Operations, 5th Floor, Washington, DC 20229, Phone: 202 325-1053, Email: michael.hardin@cbp.dhs.gov.

RIN: 1651-AB12

DHS—USCBP

52. Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders—Automation of CBP Form I-94W

Priority: Other Significant.

E.O. 13771 Designation: Other.

Legal Authority: Pub. L. 110-53

CFR Citation: 8 CFR 212.1; 8 CFR 217.2; 8 CFR 217.3; 8 CFR 217.5; 8 CFR 286.9.

Legal Deadline: None.

Abstract: This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry. Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States. DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry.

Statement of Need: This rule is necessary to implement the Electronic System for Travel Authorization (ESTA) under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 for aliens who intend to enter the United States under the Visa Waiver Program at land ports of entry. ESTA was implemented at air and sea ports of entry in 2008. At that time, however, CBP did not have the ability to implement the program at land ports of entry. This rule will ensure that ESTA is now implemented at all ports of entry.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: In addition to fulfilling a statutory mandate, the ESTA Land rule will strengthen national security through enhanced traveler vetting, streamline entry processing through Form I-94W automation, reduce inadmissible traveler arrivals, and produce a consistent, modern VWP admission policy in all U.S. travel environments, which will benefit VWP travelers, CBP, and the public. The rule will also introduce time and fee costs to VWP Start Printed Page 1724travelers required to complete an ESTA application.

Risks:

Timetable:

ActionDateFR Cite
Interim Final Rule04/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Suzanne Shepherd, Director, Electronic System for Travel Authorization, Department of Homeland Security, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Washington, DC 20229, Phone: 202 344-2073, Email: suzanne.m.shepherd@cbp.dhs.gov.

RIN: 1651-AB14

DHS—TRANSPORTATION SECURITY ADMINISTRATION (TSA)

Proposed Rule Stage

53. Vetting of Certain Surface Transportation Employees

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 49 U.S.C. 114; Pub. L. 110-53, secs. 1411, 1414, 1512, 1520, 1522, and 1531

CFR Citation: Not Yet Determined.

Legal Deadline: Other, Statutory, August 3, 2008, Background and immigration status check for all public transportation frontline employees is due no later than 12 months after date of enactment.

Other, Statutory, August 3, 2008, Background and immigration status check for all railroad frontline employees is due no later than 12 months after date of enactment.

Sections 1411 and 1520 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (121 Stat. 266, Aug. 3, 2007), require background checks of frontline public transportation and railroad employees not later than one year from the date of enactment. Requirement will be met through regulatory action.

Abstract: The 9/11 Act requires vetting of certain railroad, public transportation, and over-the-road bus employees. Through this rulemaking, the Transportation Security Administration (TSA) intends to propose the mechanisms and procedures to conduct the required vetting. This regulation is related to 1652-AA55, Security Training for Surface Transportation Employees.

Statement of Need: Employee vetting is an important and effective tool for averting or mitigating potential attacks by those with malicious intent who may target surface transportation and plan or perpetrate actions that may cause significant injuries, loss of life, or economic disruption.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: TSA is in the process of determining the costs and benefits of this rulemaking.

Risks:

Timetable:

ActionDateFR Cite
NPRM05/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Chandru (Jack) Kalro, Deputy Director, Surface Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-1145, Email: surfacefrontoffice@tsa.dhs.gov.

Alex Moscoso, Chief Economist, Economic Analysis Branch-Cross Modal Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-5839, Email: alex.moscoso@tsa.dhs.gov.

Laura Gaudreau, Attorney-Advisor, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Office of Chief Counsel, 601 South 12th Street, Arlington, VA 20598-6002, Phone: 571 227-1088, Email: laura.gaudreau@tsa.dhs.gov.

Related RIN: Related to 1652-AA55

RIN: 1652-AA69

DHS—TSA

54. Amending Vetting Requirements for Employees With Access to a Security Identification Display Area (SIDA)

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: Pub. L. 114-190, sec. 3405

CFR Citation: 49 CFR 1524.209.

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.

According to sec, 3405 of Title III of the FAA Extension, Safety, and Security Act, 2016 (Aviation Security Act of 2016), Public Law 114-190 (130 Stat. 615, July 15, 2016), a final rule revising the regulations under 49 U.S.C. 44936 is due 180 days after the date of enactment.

Abstract: As required by the Aviation Security Act of 2016, the Transportation Security Administration (TSA) will propose a rule to revise its regulations, with 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 a waiver process for approving the issuance of credentials for unescorted access, and propose an extension of the look back period for disqualifying crimes.

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.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: TSA is in the process of determining the costs and benefits of this rulemaking.

Risks:

Timetable:

ActionDateFR Cite
NPRM09/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Alex Moscoso, Chief Economist, Economic Analysis Branch—Cross Modal Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Start Printed Page 1725Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-5839, Email: alex.moscoso@tsa.dhs.gov.

John Vergelli, Senior Counsel, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Office of Chief Counsel, 601 South 12th Street, Arlington, VA 20598-6002, Phone: 571 227-4416, Email: john.vergelli@tsa.dhs.gov.

Related RIN: Related to 1652-AA11

RIN: 1652-AA70

DHS—TSA

Final Rule Stage

55. Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

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 TSA to issue an interim final rule within 60 days of enactment of Vision 100.

Requires the Transportation Security Administration (TSA) to establish a process to implement the requirements of sec. 612(a) of Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176, Dec. 12, 2003; 117 Stat. 2490), including the fee provisions, not later than 60 days after the enactment of the Act.

Abstract: The interim final rule (IFR) was published and effective on September 20, 2004. The IFR created a new part 1552, Flight Schools, in title 49 of the Code of Federal Regulations (CFR). This IFR applies to flight schools and to individuals who apply for or receive flight training. TSA subsequently issued exemptions and interpretations in response to comments on the IFR and questions raised during operation of the program since 2004. TSA also issued a fee notice on April 13, 2009. This regulation requires flight schools to notify TSA when aliens, and other individuals designated by TSA, apply for flight training or recurrent training. TSA is considering a final rule 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 Alien Flight Student Program (AFSP) could be improved. TSA's internal procedures and processes for vetting applicants also have improved and advanced. Publishing a final rule that addresses external recommendations and aligns with modern TSA vetting practices would streamline the AFSP application, vetting, and recordkeeping process for all parties involved.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: TSA is considering revising the requirements of the AFSP to reduce costs and industry burden. For example, reporting and recordkeeping requirements for the program are estimated at an annual cost of $7.4 million, discounted at seven percent. This cost includes maintaining paper records on alien flight students. TSA is considering an electronic recordkeeping platform where all flight providers would upload certain information to a TSA-managed website. Also at industry's request, TSA is considering changing the interval for a security threat assessment of each alien flight student, eliminating the requirement for a security threat assessment for each separate training event. This change would result in an annual savings, although there may be additional start-up and record retention costs for the agency as a result of these revisions. The benefits of these deregulatory actions would be immediate cost savings to flight schools and alien students without compromising the security profile.

Risks:

Timetable:

ActionDateFR Cite
Interim Final Rule; Request for Comments09/20/0469 FR 56324
Interim Final Rule Effective09/20/04
Interim Final Rule; Comment Period End10/20/04
Notice—Information Collection; 60-Day Renewal11/26/0469 FR 68952
Notice—Information Collection; 30-Day Renewal03/30/0570 FR 16298
Notice—Information Collection; 60-Day Renewal06/06/0873 FR 32346
Notice—Information Collection; 30-Day Renewal08/13/0873 FR 47203
Notice—Alien Flight Student Program Recurrent Training Fees04/13/0974 FR 16880
Notice—Information Collection; 60-Day Renewal09/21/1176 FR 58531
Notice—Information Collection; 30-Day Renewal01/31/1277 FR 4822
Notice—Information Collection; 60-Day Renewal03/10/1580 FR 12647
Notice—Information Collection; 30-Day Renewal06/18/1580 FR 34927
Final Rule09/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Johannes Knudsen, Program Manager, Alien Flight Student Program, Department of Homeland Security, Transportation Security Administration, Office of Intelligence and Analysis, 601 South 12th Street, Arlington, VA 20598-6010, Phone: 571 227-2188, Email: johannes.knudsen@tsa.dhs.gov.

Alex Moscoso, Chief Economist, Economic Analysis Branch—Cross Modal Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-5839, Email: alex.moscoso@tsa.dhs.gov.

David Ross, Attorney-Advisor, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Office of Chief Counsel, 601 South 12th Street, Arlington, VA 20598-6002, Phone: 571 227-2465, Email: david.ross1@tsa.dhs.gov.

Related RIN: Related to 1652-AA61

RIN: 1652-AA35

Start Printed Page 1726

DHS—TSA

56. Ronald Reagan Washington National Airport: Enhanced Security Procedures for Certain Operations

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 49 U.S.C. 114; 49 U.S.C. 40113; 49 U.S.C. 41718 note; 49 U.S.C. 44901 to 44905; 49 U.S.C. 44916 to 44918; 49 U.S.C. 46105

CFR Citation: 49 CFR 1520; 49 CFR 1540; 49 CFR 1562.

Legal Deadline: None.

Abstract: The interim final rule (IFR), published by the Transportation Security Administration (TSA) on July 19, 2005, created a new part 1562, subpart B, for General Aviation (GA), in title 49 of the Code of Federal Regulations (CFR). The IFR restored access to Ronald Reagan Washington National Airport (DCA) for passenger aircraft operations not otherwise regulated under 49 CFR 1546.101(a) or (b) (foreign air carriers) or 49 CFR part 1544 (U.S. air carriers operating under a full security program). From September 11, 2001, until the IFR became effective on August 18, 2005, GA aircraft operations had been prohibited at DCA. The IFR reopened access to the extent requirements are met to maintain the security of critical Federal Government and other assets in the Washington, DC metropolitan area. In general, this rule requires GA aircraft operators to adopt and carry out security measures that are comparable to the security measures required of regularly scheduled, commercial aircraft. This rule also established security procedures for GA aircraft operators and gateway airport operators, and security requirements relating to crewmembers, passengers, and armed security officers onboard aircraft operating to or from DCA. TSA plans to take final action on the IFR to respond to the public comments and close out this rulemaking. TSA is also considering a recommendation from the Aviation Security Advisory Committee to remove the armed security officer requirement for flights operating under the DCA Access Standard Security Program to the extent other security safeguards are in effect, such as all passengers onboard the flight having a Department of Homeland Security Known Traveler Number (KTN).

Statement of Need: The purpose of this regulation is to allow GA aircraft operations access to DCA without decreasing the security of vital government assets in the Washington, DC metropolitan area. Prohibiting GA access to DCA imposes an economic hardship on these operations. But access, without appropriate security measures, increases the risk that an airborne strike initiated from DCA, located moments away from vital national assets, could occur. While TSA recognizes that such an impact may not cause substantial damage to property or a large structure, it could potentially result in an undetermined number of fatalities and injuries, as well as reduced tourism. The resulting tragedies would adversely impact the regional economies. Finalizing the IFR will ensure the continued balance between these interests; providing access without decreasing security of the vital government assets in the Washington, DC metropolitan area. The security requirements in the final rule are necessary to defeat the threat posed by members of terrorist groups to vital U.S. assets and security, in a manner that protects the nation's transportation systems to ensure freedom of movement.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: If TSA repeals the requirement for an ASO, with acceptance of alternative procedures in its place, this modification is likely to provide commensurate levels of security at lower costs. To the extent these alternative procedures include a requirement for all passengers and crewmembers to have a KTN, there is a dependency linked to the ability of DHS/TSA to quickly process requests for KTNs and the willingness of the regulated parties (or their passengers) to bear the cost of obtaining a KTN. The benefits of the repeal of the ASO requirement would be cost savings to DASSP operators from no longer having to hire an ASO. DASSP operators would receive a cost savings from no longer hiring an ASO for each departure from or arrival into DCA.

Risks:

Timetable:

ActionDateFR Cite
Interim Final Rule; Request for Comments07/19/0570 FR 41586
Interim Final Rule Effective08/18/05
Interim Final Rule; Comment Period End09/19/05
Notice—Information Collection; Approval and 60-Day Renewal08/26/0570 FR 50391
Notice—Information Collection; 30-Day Renewal10/26/0570 FR 61831
Notice—Information Collection; 60-Day Renewal10/20/0873 FR 62304
Notice—Information Collection; 30-Day Renewal12/29/0873 FR 79499
Notice—Information Collection; 60-Day Renewal02/29/1277 FR 12321
Notice—Information Collection; 30-Day Renewal04/27/1277 FR 25188
Notice—Information Collection; 60-Day Renewal01/03/1681 FR 943
Notice—Information Collection; 30-Day Renewal03/17/1681 FR 14470
Final Rule06/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: Businesses, Organizations.

Government Levels Affected: None.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Kevin Knott, Branch Manager, Industry Engagement Branch—Aviation Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-4370, Email: kevin.knott@tsa.dhs.gov.

Alex Moscoso, Chief Economist, Economic Analysis Branch—Cross Modal Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-5839, Email: alex.moscoso@tsa.dhs.gov.

David Kasminoff, Senior Counsel, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Office of Chief Counsel, 601 South 12th Street, Arlington, VA 20598-6002, Phone: 571 227-3583 Email: david.kasminoff@tsa.dhs.gov.

Related RIN: Related to 1652-AA08

RIN: 1652-AA49

Start Printed Page 1727

DHS—TSA

57. Security Training for Surface Transportation Employees

Priority: Other Significant. Major under 5 U.S.C. 801.

E.O. 13771 Designation: Other.

Legal Authority: 49 U.S.C. 114; Pub. L. 110-53, secs. 1405, 1408, 1501, 1512, 1517, 1531, and 1534

CFR Citation: 49 CFR 1500; 49 CFR 1520; 49 CFR 1570; 49 CFR 1580; 49 CFR 1582 (new); 49 CFR 1584 (new).

Legal Deadline: Final, Statutory, November 1, 2007, Interim Rule for public transportation agencies is due 90 days after date of enactment.

Final, Statutory, August 3, 2008, Rule for public transportation agencies is due one year after date of enactment.

Final, Statutory, February 3, 2008, Rule for railroads and over-the-road buses is due six months after date of enactment.

According to sec. 1408 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (121 Stat. 266, Aug. 3, 2007), interim final regulations for public transportation agencies are due 90 days after the date of enactment (Nov. 1, 2007), and final regulations are due one year after the date of enactment. According to sec. 1517 of the 9/11 Act, final regulations for railroads and over-the-road buses are due no later than six months after the date of enactment.

Abstract: The 9/11 Act requires security training for employees of higher-risk freight railroad carriers, public transportation agencies (including rail mass transit and bus systems), passenger railroad carriers, and over-the-road bus (OTRB) companies. This final rule implements the regulatory mandate. Owner/operators of these higher-risk railroads, systems, and companies will be required to train employees performing security-sensitive functions, using a curriculum addressing preparedness and how to observe, assess, and respond to terrorist-related threats and/or incidents. As part of this rulemaking, the Transportation Security Administration (TSA) is expanding its current requirements for rail security coordinators and reporting of significant security concerns (currently limited to freight railroads, passenger railroads, and the rail operations of public transportation systems) to include the bus components of higher-risk public transportation systems and higher-risk OTRB companies. TSA is also adding a definition for Transportation Security-Sensitive Materials (TSSM). Other provisions are being amended or added, as necessary, to implement these additional requirements.

Statement of Need: Employee training 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.

Summary of Legal Basis: 49 U.S.C. 114; sections 1402, 1408, 1501, 1517, 1531, and 1534 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266).

Alternatives: TSA is required by statute to publish regulations requiring security training programs for these owner/operators. As part of its notice of proposed rulemaking, TSA sought public comment on alternatives in which the final rule could carry out the requirements of the statute.

Anticipated Cost and Benefits: Owner/operators will incur costs for training their employees, developing a training plan, maintaining training records, and participating in inspections for compliance. Some owner/operators will also incur additional costs associated with assigning security coordinators and reporting significant security incidents to TSA. TSA will incur costs associated with reviewing owner/operators' training plans, registering owner/operators' security coordinators, responding to owner/operators' reported significant security incidents, and conducting inspections for compliance with this rule. In the NPRM, TSA estimated the annual cost from this regulation to be approximately $22 million, discounted at 7 percent. As part of TSA's risk-based security, benefits include mitigating potential attacks by heightening awareness of employees on the frontline. In addition, by designating security coordinators and reporting significant security concerns to TSA, TSA has a direct line for communicating threats and receiving information necessary to analyze trends and potential threats across all modes of transportation.

Risks: The Department of Homeland Security aims to prevent terrorist attacks within the United States and to reduce the vulnerability of the United States to terrorism. By providing for security training for personnel, TSA intends in this rulemaking to reduce the risk of a terrorist attack on this transportation sector.

Timetable:

ActionDateFR Cite
NPRM12/16/1681 FR 91336
NPRM Comment Period End03/16/17
Final Rule09/00/18

Regulatory Flexibility Analysis Required: Yes.

Small Entities Affected: Businesses.

Government Levels Affected: Local.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov.

Agency Contact: Chandru (Jack) Kalro, Deputy Director, Surface Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-1145, Email: surfacefrontoffice@tsa.dhs.gov.

Alex Moscoso, Chief Economist, Economic Analysis Branch—Cross Modal Division, Department of Homeland Security, Transportation Security Administration, Office of Security Policy and Industry Engagement, 601 South 12th Street, Arlington, VA 20598-6028, Phone: 571 227-5839, Email: alex.moscoso@tsa.dhs.gov.

Traci Klemm, Assistant Chief Counsel, Regulations and Security Standards, Department of Homeland Security, Transportation Security Administration, Office of Chief Counsel, 601 South 12th Street, Arlington, VA 20598-6002, Phone: 571 227-3596, Email: traci.klemm@tsa.dhs.gov.

Related RIN: Related to 1652-AA56, Merged with 1652-AA57, Merged with 1652-AA59

RIN: 1652-AA55

DHS—U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (USICE)

Proposed Rule Stage

58. • Adjusting Program Fees for the Student and Exchange Visitor Program

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1372; 8 U.S.C. 1762; 8 U.S.C. 1101; 8 U.S.C. 1356; 31 U.S.C 901-903; 31 U.S.C. 902; . . .

CFR Citation: 8 CFR 214.

Legal Deadline: None.

Abstract: ICE will propose to adjust fees that the Student and Exchange Visitor Program (SEVP) charges individuals and organizations. In 2017, Start Printed Page 1728SEVP conducted a comprehensive fee study and determined that current fees do not recover the full costs of the services provided. ICE has determined that adjusting fees is necessary to fully recover the increased costs of SEVP operations, program requirements, and to provide the necessary funding to sustain initiatives critical to supporting national security. ICE will propose to adjust its fees for individuals and organizations to establish a more equitable distribution of costs and to establish a sustainable revenue level. The SEVP fee schedule was last adjusted in a rule published on September 26, 2008.

Statement of Need: The Student and Exchange Visitor Program (SEVP) conducted a comprehensive fee study in 2017 and determined that current fees, most recently adjusted in 2008, do not recover the full costs of the services provided. ICE has determined that adjusting fees is necessary to fully recover the increased costs of SEVP operations, program requirements, and to provide the necessary funding to implement and sustain initiatives critical to supporting national security. ICE will propose to adjust its fees for individuals and organizations to establish a more equitable distribution and sustainable level of costs relevant to services.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: ICE is in the process of assessing the costs, benefits, and transfers of this rule. In order to recover the full cost of its budget for the services it provides, SEVP proposes to increase the amounts of its fees for SEVP certified schools and for those schools that will seek SEVP certification, for F and M nonimmigrant students, and for J nonimmigrant exchange visitors. The fee adjustment would allow to continue to maintain and improve SEVIS in order to uphold the integrity of the U.S. immigration laws regarding student and exchange visitors.

Risks:

Timetable:

ActionDateFR Cite
NPRM04/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Federal, Local, State.

Federalism: Undetermined.

Agency Contact: Sharon Snyder, Unit Chief, Policy and Response Unit, Department of Homeland Security, U.S. Immigration and Customs Enforcement, Potomac Center North STOP 5600, 500 12th Street SW, Washington, DC 20536-5600, Phone: 703 603-5600.

RIN: 1653-AA74

DHS—USICE

59. • Apprehension, Processing, Care and Custody of Alien Minors

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: 8 U.S.C. 1103; 8 U.S.C. 1182; 8 U.S.C. 1225 to 1227; 8 U.S.C. 1362

CFR Citation: Not Yet Determined.

Legal Deadline: None.

Abstract: In 1985, a class-action suit challenged the policies of the former Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty-five days after publication of regulations implementing the agreement.

Since 1997, intervening statutory changes, including passage of the Homeland Security Act (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), have significantly changed the applicability of certain provisions of the FSA. The proposed rule will codify the substantive terms of the FSA and enable the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, ICE will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA. The rule will also implement related provisions of the TVPRA.

Statement of Need: In 1985, a class-action suit challenged the policies of the former INS relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the FSA. The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty-five days after publication of regulations implementing the agreement.

Since 1997, intervening legal changes including passage of the HSA and TVPRA have significantly changed the applicability of certain provisions of the FSA. The proposed rule will codify the substantive terms of the FSA and enable the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, ICE will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA. The rule will also implement related provisions of the TVPRA.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: ICE is in the process of determining the costs and benefits which would be incurred by regulated entities and individuals, as well as the costs and benefits to ICE for ensuring compliance with the requirements of this rule.

ICE expects to incur costs related to new or additional procedures for immigration proceedings for alien minors. Benefits include enhancing the process and protections for alien minors. This regulation will also strengthen DHS efforts to combat human trafficking of minors. Other benefits are enabling the U.S. Government to seek termination of the FSA and litigation concerning its enforcement, as well as bringing clarity and certainty to the process of addressing alien minors.

Risks:

Timetable:

ActionDateFR Cite
NPRM09/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Sara Shaw, Deputy Assistant Director, Department of Homeland Security, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536, Phone: 202 732-3994, Email: sara.shaw@ice.dhs.gov.

RIN: 1653-AA75

Start Printed Page 1729

DHS—USICE

60. • Practical Training Reform

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

Unfunded Mandates: Undetermined.

E.O. 13771 Designation: Other.

Legal Authority: Not Yet Determined

CFR Citation: Not Yet Determined.

Legal Deadline: None.

Abstract: ICE will propose this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse.

Statement of Need: ICE will prepare this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule would implement new requirements that would reduce fraud and abuse in the practical training programs. The proposed provisions include increased oversight of the schools and students participating in the program to ensure compliance with requirements of the program.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits: ICE is in the process of assessing the costs and benefits that would be incurred by regulated entities and individuals, as well as the costs and benefits to the public at large. ICE, SEVP certified schools, nonimmigrant students who participate in practical training, and their employers for practical training would incur costs for increased oversight requirements. This rule is intended to decrease the incidence of immigrant employment fraud and improve the integrity of nonimmigrant student employment opportunities.

Risks:

Timetable:

ActionDateFR Cite
NPRM10/00/18

Regulatory Flexibility Analysis Required: Undetermined.

Government Levels Affected: Undetermined.

Federalism: Undetermined.

Agency Contact: Sharon Snyder, Unit Chief, Policy and Response Unit, Department of Homeland Security, U.S. Immigration and Customs Enforcement, Potomac Center North STOP 5600, 500 12th Street SW, Washington, DC 20536-5600, Phone: 703 603-5600.

RIN: 1653-AA76

DHS—FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

Final Rule Stage

61. Factors Considered When Evaluating a Governor's Request for Individual Assistance for a Major Disaster

Priority: Other Significant.

E.O. 13771 Designation: Fully or Partially Exempt.

Legal Authority: 42 U.S.C. 5121 to 5207

CFR Citation: 44 CFR 206.48(b).

Legal Deadline: Final, Statutory, January 29, 2014, Section 1109 of the Sandy Recovery Improvement Act of 2013, Public Law 113-2.

The Sandy Recovery Improvement Act of 2013 (SRIA) requires the Administrator of the Federal Emergency Management Agency (FEMA), in cooperation with representatives of State, tribal, and local emergency management agencies, to review, update, and revise through rulemaking the individual assistance factors FEMA uses to measure the severity, magnitude, and impact of a disaster (not later than 1 year after enactment).

Abstract: FEMA is issuing a final rule to revise its regulations to comply with Section 1109 of SRIA. SRIA requires FEMA, in cooperation with State, local, and Tribal emergency management agencies, to review, update, and revise through rulemaking the Individual Assistance factors FEMA uses to measure the severity, magnitude, and impact of a disaster. FEMA published a Notice of Proposed Rulemaking on the matter on November 12, 2015.

Statement of Need: On January 29, 2013, SRIA was enacted into law (Pub. L. 113-2). Section 1109 of SRIA requires FEMA, in cooperation with State, local, and Tribal emergency management agencies, to review, update, and revise through rulemaking the factors found at 44 CFR 206.48 that FEMA uses to determine whether to recommend provision of Individual Assistance (IA) during a major disaster. These factors help FEMA measure the severity, magnitude, and impact of a disaster, as well as the capabilities of the affected jurisdictions.

FEMA is issuing this final rule to comply with SRIA and to provide clarity on the IA factors that FEMA currently considers in support of its recommendation to the President on whether a major disaster declaration authorizing IA is warranted. The additional clarity may reduce delays in the declaration process by decreasing the back and forth between States and FEMA during the declaration process.

Summary of Legal Basis: FEMA has authority for this final rule pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). 42 U.S.C. 5121 et seq. Section 401 of the Stafford Act lays out the procedures for a declaration for FEMA's major disaster assistance programs when a catastrophe occurs in a State. The specific changes in this final rule comply with section 1109 of SRIA, Public Law 113-2.

Alternatives:

Anticipated Cost and Benefits: The 2015 NPRM proposed to codify current declaration considerations and introduced new factors that FEMA would use when reviewing and recommending a major disaster declaration request that includes IA. Codifying the factors that capture FEMA's current declaration practice and considerations would not result in additional costs. However, the new factors would have small burden increases associated with obtaining the additional information. FEMA does not anticipate the rule would impact the number of major disaster declaration requests received that include IA or the amount of IA assistance provided, and therefore there would be no impact to transfer payments.

FEMA estimated the 10-year present value total cost of the proposed rule would be $15,806 and $13,302 if discounted at 3 and 7 percent, respectively. The annualized cost of the proposed rule would be $1,853 at 3 percent and $1,894 at 7 percent. (All amounts in the NPRM are presented in 2013 dollars.) Benefits of the proposed rule include clarifying FEMA's existing practices, reducing processing time for requests due to clarifications, and providing States with notice of the new information FEMA is proposing to consider as part of the IA declarations process.

Risks:

Timetable:

ActionDateFR Cite
NPRM11/12/1580 FR 70116
NPRM Comment Period End01/11/16
Final Rule09/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: Federal, State, Tribal.

Additional Information: Docket ID FEMA-2014-0005.

URL For More Information: www.regulations.gov.

URL For Public Comments: www.regulations.gov. Start Printed Page 1730

Agency Contact: Mark Millican, Individual Assistance Division, Department of Homeland Security, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472-3100, Phone: 202 212-3221, Email: fema-ia-regulations@fema.dhs.gov.

RIN: 1660-AA83

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Fall 2017 Statement of Regulatory Priorities for Fiscal Year 2018

Introduction

The Regulatory Plan for the Department of Housing and Urban Development (HUD) for Fiscal Year (FY) 2018 highlights the most significant regulations and policy initiatives that HUD seeks to complete during the upcoming fiscal year. As the federal agency that serves as the nation's housing agency, committed to addressing the housing needs of Americans, promoting economic and community development, and enforcing the nation's fair housing laws, HUD plays a significant role in the lives of families and in communities throughout America. The Department's programs help to provide decent, safe, and sanitary housing, and create suitable living environments for all Americans. HUD also provides housing and other essential support to a wide range of individuals and families with special needs, including homeless individuals, the elderly, and persons with disabilities.

HUD's regulatory plan for FY2018 reflects the leadership and vision of Secretary Carson who has directed HUD, consistent with Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” to identify and eliminate or streamline regulation that are wasteful, inefficient or unnecessary. Executive Order 13771 directs that agencies manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward this end, Executive Order 13771 directs that for every one new regulation issued, at least two prior regulations be identified for elimination and requires that the cost of planned regulations be prudently managed and controlled. Consistent with this policy goal, the Secretary has also led HUD's implementation of Executive Order 13777, entitled “Enforcing the Regulatory Reform Agenda.” The Executive Order 13777 supplements and reaffirms the rulemaking principles of Executive Order 13771 by directing each agency to establish a Regulatory Reform Task Force to evaluate existing regulations to identify those that merit repeal, replacement, modification, are outdated, unnecessary, or are ineffective, eliminate or inhibit job creation, impose costs that exceed benefits, or derive from or implement Executive Orders that have been rescinded or significantly modified. HUD's Regulatory Reform Task Force has been hard at work to provide recommendations on which regulations to repeal, modify or keep to ensure those that remain effectively manage scarce federal resources, adequately protect low-income families and facilitate the development of affordable housing and provide the provide the opportunity for families to become self-sufficient. As a result, HUD's Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions lists two anticipated regulatory actions and eleven deregulatory actions.

The rules highlighted in HUD's regulatory plan for FY2018 reflect HUD's efforts to fulfill its mission and improve performance, including by removing regulations that HUD has determined are outdated, unnecessary, or are ineffective.

Implementing the Housing Opportunity Through Modernization Act of 2016

Regulatory Priority: Deregulation

The Housing Opportunity Through Modernization Act of 2016 (HOTMA) (Pub. L. 114-201, approved July 29, 2016) amended the United States Housing Act of 1937 (1937 Act) and other housing laws to modify multiple HUD programs, along with the Department of Agriculture's Single Family Housing Guaranteed Loan Program. Significant amendments included setting a maximum income level for continued occupancy in public housing, expanding the availability of Family Unification Program vouchers for children aging out of foster care, changes to the housing quality standards for Section 8 Voucher units, multiple changes to the Project-Based Voucher (PBV) program, modifying requirements for mortgage insurance for condominiums under the Federal Housing Administration, creating a Special Assistant for Veterans Affairs in HUD, and changing the allocation formula for the Housing Opportunities for Persons With AIDS (HOPWA) program.

On October 24, 2016, at 81 FR 73030, HUD issued a notice in the Federal Register announcing which provisions of the statute were self-implementing and which would require further action by HUD. This was followed up by a notice for comment on November 29, 2016 (81 FR 85996) seeking public input on the best way to determine the income limit for public housing residents.

HUD published another notice in the Federal Register on January 18, 2017 (82 FR 5458), utilizing authority granted by HOTMA to implement certain provisions by notice, but also soliciting public comment on HUD's implementation methods. That notice implemented new statutory provisions regarding certain inspection requirements for both housing choice voucher (HCV) tenant-based and PBV assistance (found in § 101(a)(1) of HOTMA), the definition of public housing agency (PHA)-owned housing (§ 105 of HOTMA), and changes to the PBV program at large (§ 106 of HOTMA) by providing the additional information needed for PHAs and owners to use those provisions. The notice also implemented and provided guidance on the statutory change to the HCV housing assistance payment (HAP) calculation for families who own manufactured housing and are renting the manufactured home space (§ 112 of HOTMA).

Many of the statutory provisions in HOTMA are intended to streamline administrative processes and reduce burdens on PHAs and private owners. The January 18, 2017, notice implemented provisions that reduced the number and frequency of inspections required before allowing a family to move into a unit, limited the definition of PHA-owned housing and therefore reduced requirements for getting third parties involved in inspections, and reduced some of the requirements for submission to HUD for PHAs looking to project-base voucher assistance in projects currently under contract or previously assisted under a different form of assistance. Other provisions in HOTMA not yet implemented increase a PHA's ability to access databases to ease the burden of verifying income and also allow a family to self-certify as to the value of their assets when their assets are valued at less than $50,000.

HUD further intends to implement the new HOTMA provisions in such a way as to align policies and procedures across program offices, to include multifamily programs and programs that are administered by the Office of Community Planning and Development. Alignment will reduce disparities between the programs and better enable PHAs and owners to use multiple forms Start Printed Page 1731of assistance to best serve their communities.

HUD intends to complete this rulemaking in Fiscal Year 2018.

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 2018. HUD expects that the neither the total economic costs nor the total efficiency gains will exceed $100 million.

HUD Office: Offices of the Assistant Secretary for Public and Indian Housing, Assistant Secretary for Housing, and Assistant Secretary for Community Planning and Development, HUD.

Rulemaking Stage: Proposed Rule.

Priority: Significant.

Legal Authority: 42 U.S.C. 1437a; 42 U.S.C. 1437f; 42 U.S.C. 3535(d); Pub. L. 114-201, 130 Stat. 782

CFR Citation: 24 CFR parts 5, 92, 574, 576, 583, 850, 880, 882, 884, 886, 891, 960,982, 983.

Legal Deadline: None.

Abstract: Through this rule, HUD proposes to codify the changes the Housing Opportunity Act of 2016 (HOTMA) made to the U.S. Housing Act of 1937 that affect the Section 8 Project-Based Rental Assistance (PBRA), Housing Choice Voucher (HCV) and Public Housing programs. The areas most impacted by HOTMA include unit inspections in the HCV program, project-based voucher assistance in the HCV program; income and rent calculations for Public Housing, HCV, and multifamily housing programs, and operating fund and capital fund flexibility in public housing.

Many of the statutory provisions in HOTMA are intended to streamline administrative processes and reduce burdens on PHAs and private owners. The January 18, 2017, notice implemented provisions that reduced the number and frequency of inspections required before allowing a family to move into a unit, limited the definition of PHA-owned housing and therefore reduced requirements for getting third parties involved in inspections, and reduced some of the requirements for submission to HUD for PHAs looking to project-base voucher assistance in projects currently under contract or previously assisted under a different form of assistance. Other provisions in HOTMA not yet implemented increase a PHA's ability to access databases to ease the burden of verifying income and also allow a family to self-certify as to the value of their assets when their assets are valued at less than $50,000, which reduces the work required to determine the family's annual income.

HUD CPD programs that have mimicked provisions in the U.S. Housing Act of 1937 that were changed by HOTMA will also be affected. Alignment will reduce disparities between the programs and better enable PHAs and owners to use multiple forms of assistance to best serve their communities.

Statement of Need

HOTMA provided HUD the authority to implement some statutory changes by notice, but not all of the changes included that authority. For those changes that were implemented by notice, HUD must make conforming changes to the regulations.

Alternatives: None.

Anticipated Costs and Benefits

Many of the changes included additional flexibilities for public housing agencies (PHAs) and private owners, such as allowing for alternative inspection methods to reduce duplicative inspections, reducing paperwork requirements for project-basing vouchers in PHA-owned properties, and allowing for longer-term housing assistance payments contracts. The rule will also provide for more timely reviews of significant changes in family income to ensure the effective provision of assistance.

Compliance costs are expected to be minimal and one-time as PHAs and owners shift their practices to meet the new requirements.

Risks: Reduced oversight of unit quality could increase the amount of poor housing quality, but the increased flexibilities will allow HUD, PHAs, and private owners to better direct resources to entities that pose higher risks, improving the overall quality and effectiveness of the programs.

Timetable:

ActionDateFR Cite
Federal Register Notice10/24/201681 FR 73030
Federal Register Notice01/18/201782 FR 5458
Next Action06/00/2018

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: State, Local.

Federalism Affected: No.

Energy Affected: No.

International Impacts: No.

Agency Contact: Danielle Bastarache, Deputy Assistant Secretary, Office of Policy, Programs and Legislative Initiatives, Department of Housing and Urban Development, Office of Public and Indian Housing, 451 Seventh Street SW, Room 3178, Washington, DC 20410, Phone: 202 402-5264.

RIN: 2577-AD03

HUD—OFFICE OF HOUSING (OH)

Final Rule Stage

62. Project Approval for Single Family Condominium (FR-5715)

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 12 U.S.C. 1707, 1709, 1710; 12 U.S.C. 1715b; 12 U.S.C. 1715y; 12 U.S.C. 1715z-16; 12 U.S.C. 1715u; 42 U.S.C. 3535(d)

CFR Citation: 24 CFR 203.

Legal Deadline: None.

Abstract: Through this rule, HUD will amend its policies and procedures for projects to be approved as condominiums in which individual units would be eligible for mortgage insurance. Insurance of condominiums in approved projects was first authorized by the Housing and Economic Recovery Act (HERA) of 2008. HERA moved the insurance of a single unit condominium unit in a project without a blanket mortgage from Section 234 of the National Housing Act. There are no existing regulations under section 203. While HERA permitted the program to be operated via guidance pending the issuance of regulations, more recently, the Housing Opportunity Through Modernization Act of 2016, Public Law 114-201 (HOTMA) contains specific provisions regarding condominiums under section 203. Relevant to this rule, HOTMA requires: changes in requirements for project recertification; requests for exceptions to the commercial space percentage requirement to be made either through the HUD review process or through the lender review and approval process; and for HUD to issue guidance, by rule, notice, or mortgagee letter, regarding the percentage of units that must be owner-occupied, including as a secondary residence. The rule also includes a savings provision preserving section 234 insurance where the project has a blanket mortgage.

Statement of Need: The Housing Opportunities through Modernization Act of 2016 requires HUD to issue regulations on the commercial space requirements for condominium projects; these regulations would be codified in HUD's Code of Federal Regulations Start Printed Page 1732(CFR) volume. Having one portion of the basic program rules codified in the CFR and others not codified would be confusing and unfriendly to the public. Additionally, the current program rules are overly rigid. The rule will add needed flexibility and logically codify the basic rules of the program, similar to HUD's other single-family programs.

Summary of Legal Basis: The legal basis (in addition to HUD's general rulemaking authority under 42 U.S.C. 3535(d)) is the definition of mortgage in section 201 of the Act (12 U.S.C. 1707), which definition also applies to section 203 of the Act (12 U.S.C. 1709). The definition was revised by the Housing and Economic Recovery Act of 2008 (Pub. L. 110-289, approved July 30, 2008) to include a mortgages on a one-family unit in a multifamily project, and an undivided interest in the common areas and facilities which serve the project (this is the arrangement that characterizes the large majority of condo projects). More recently, the Housing Opportunity Through Modernization Act (Pub. L. 114-201, approved July 29, 2016), requires HUD to: Streamline the condominium recertification process; issue regulations to amend the limitations on commercial space to allow such requests to be processed under either HUD or lender review and to consider factors relating to the economy for the locality in which such project is located or specific to project, including the total number of family units in the project. HUD will be addressing these issues through the regulation.

Alternatives: None.

Anticipated Cost and Benefits: The rule will produce cost savings of $1 million per year by reducing the paperwork required for recertification of an approved project. There are some costs associated with qualifying to participate in the Direct Endorsement Lender Review and Approval Process (DELRAP). However, HUD anticipates that many provisions of the rule, such as single-unit approvals, flexible standards, and a longer interval for condominium approvals would reduce or eliminate the compliance costs of the rule.

Risks: The DELRAP process (which gives underwriting responsibility to qualified lenders) and single unit approvals (which allow HUD to insure mortgages in unapproved condominium projects) could increase the risk of defaults. However, the rule would add safeguards to fully mitigate these risks. The participating DELRAP lenders would have to meet qualification standards, and HUD would monitor their performance on an ongoing basis, and would have authority to take corrective actions if a lender's performance is deficient. In addition, single unit approvals would require that HUD not insure mortgages in an unapproved project if the percentage of such mortgages exceeds an amount determined by the Commissioner to be necessary for the protection of the insurance fund.

Timetable:

ActionDateFR Cite
NPRM09/28/1681 FR 66565
NPRM Comment Period End11/28/16
Final Action03/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

URL For Public Comments: www.regulations.gov/​searchResults?​rpp=​25&​po=​0&​s=​FR-5715&​fp=​true&​ns=​true.

Agency Contact: Elissa Saunders, Director, Office of Single Family Program Development, Office of Housing, Department of Housing and Urban Development, Office of Housing, 451 Seventh Street, Washington, DC 20410, Phone: 202 708-2121.

RIN: 2502-AJ30

HUD—OFFICE OF PUBLIC AND INDIAN HOUSING (PIH)

Proposed Rule Stage

63. • Housing Opportunity Through Modernization Act of 2016 (FR-6057)

Priority: Other Significant. Major status under 5 U.S.C. 801 is undetermined.

E.O. 13771 Designation: Deregulatory.

Legal Authority: Pub. L. 114-201; 130 Stat. 782

CFR Citation: 24 CFR 5; 24 CFR 92; 24 CFR 574; 24 CFR 576; 24 CFR 583; 24 CFR 850; 24 CFR 880; 24 CFR 882; 24 CFR 884; 24 CFR 886; 24 CFR 891; 24 CFR 960; 24 CFR 982; 24 CFR 983.

Legal Deadline: None.

Abstract: Through this rule, HUD proposes to codify the changes the Housing Opportunity Act of 2016 (HOTMA) made to the U.S. Housing Act of 1937 that affect the Section 8 Project-Based Rental Assistance (PBRA), Housing Choice Voucher (HCV) and Public Housing programs. The areas most impacted by HOTMA include unit inspections in the HCV program, project-based voucher assistance in the HCV program; income and rent calculations for Public Housing, HCV, and multifamily housing programs, and operating fund and capital fund flexibility in public housing. HUD CPD programs that have mimicked provisions in the U.S. Housing Act of 1937 that were changed by HOTMA will also be affected.

Statement of Need: HOTMA provided HUD the authority to implement some statutory changes by notice, but not all of the changes included that authority. For those changes that were implemented by notice, HUD must make conforming changes to the regulations.

Summary of Legal Basis: 42 U.S.C. 1437a; 42 U.S.C. 1437f; 42 U.S.C. 3535(d).

Alternatives: None.

Anticipated Cost and Benefits: Many of the changes included additional flexibilities for public housing agencies (PHAs) and private owners, such as allowing for alternative inspection methods to reduce duplicative inspections, reducing paperwork requirements for project-basing vouchers in PHA-owned properties, and allowing for longer-term housing assistance payments contracts. The rule will also provide for more timely reviews of significant changes in family income to ensure the effective provision of assistance. Compliance costs are expected to be minimal and one-time as PHAs and owners shift their practices to meet the new requirements.

Risks: Reduced oversight of unit quality could increase the amount of poor housing quality, but the increased flexibilities will allow HUD, PHAs, and private owners to better direct resources to entities that pose higher risks, improving the overall quality and effectiveness of the programs.

Timetable:

ActionDateFR Cite
NPRM06/00/18

Regulatory Flexibility Analysis Required: No.

Small Entities Affected: No.

Government Levels Affected: Local, State.

Agency Contact: Danielle Bastarache, Deputy Assistant Secretary, Office of Policy & Legislative Initiatives, Department of Housing and Urban Development, Office of Public and Indian Housing, 451 7th Street SW, Washington, DC 20410, Phone: 202 402-5264.

RIN: 2577-AD03

Start Printed Page 1733

DEPARTMENT OF THE INTERIOR REGULATORY PLAN

Introduction

The U.S. Department of the Interior (Interior) serves the American people by managing one in every five acres of land in the United States, as well as on the Outer Continental Shelf. Interior manages these resources under a legal framework that includes regulations that ultimately affect many American's lives and livelihoods. Interior's Office of Natural Resources Revenue (ONRR) collects over $10 billion dollars annually from onshore and offshore energy production, one of the Federal Government's largest sources of non-tax revenue.

Interior manages more than 500 million acres of Federal lands, including more than 400 park units, more than 500 wildlife refuges, and more than a billion submerged offshore acres. Hundreds of millions of people visit Interior-managed lands each year for camping, hiking, hunting, and other outdoor recreation, which supports local communities and their economies. Interior provides access on public lands for energy development, which creates jobs and stimulates the U.S. economy. Interior manages water projects that are a lifeline and economic engine for many communities in the West; and manages forests and fights wildfires.

Regulatory Reform

President Trump has made it a priority of his administration to reform regulatory requirements that negatively impact our economy while maintaining environmental standards. Since day one, Secretary Zinke has been committed to regulatory reform. Interior is playing a key role in regulatory reform and, pursuant to Executive Order 13777, has established a Regulatory Reform Task Force to make Interior's regulations work better for the American people. Interior continues to encourage and seek public input on these regulatory reform efforts. See (82 FR 28429, June 22, 2017) and https://www.doi.gov/​regulatory-reform. Interior is committed to a conservation ethic that also recognizes that unnecessary regulations create harmful economic consequences on the U.S. economy. Therefore, Interior expects to reduce regulatory burdens, promote effective and efficient regulations, and respect property rights as it implements its regulatory agenda for fiscal year 2018.

Regulatory and Deregulatory Priorities

Interior's regulatory and deregulatory priorities focus on:

  • Promoting American Energy Independence
  • Increasing outdoor recreation opportunities for all Americans
  • Enhancing conservation stewardship
  • Improving management of species and their habitats
  • Upholding trust responsibilities to the federally recognized American Indian and Alaska Native tribes and addressing the challenges of economic development.

Promoting American Energy Independence

In Executive Order 13783, Promoting Energy Independence and Economic Growth (March 28, 2017), President Trump announced it was in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. The Executive Order directed the executive departments and agencies to immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. Interior's review and actions are included in its Final Report on Actions that Potentially Burden Domestic Energy (Final Energy Report). This report is available on the internet at https://www.doi.gov/​sites/​doi.gov/​files/​uploads/​interior_​energy_​actions_​report_​final.pdf.

Among the actions that Interior identified and explained more fully in the Final Energy Report are the following:

  • BLM published a proposed rule on July 25, 2017 (82 FR 24464), to rescind the final rule entitled “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” 80 FR 16128 (March 26, 2015).
  • BLM will review and revise the final rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” 81 FR 83008 (November 18, 2016).
  • The U.S. Fish and Wildlife Service will review the final rule entitled “Management of Non-Federal Oil and Gas Rights,” 81 FR 79948 (November 14, 2016); and
  • the Bureau of Safety and Environmental Enforcement and/or the Bureau of Ocean Energy Management will review

○ The proposed rule “Offshore Air Quality Control, Reporting, and Compliance” published on April 5, 2016. See 81 FR 19717;

○ The final rule “Oil and Gas and Sulfur Operations in the Outer Continental Shelf—Blowout Preventer Systems and Well Control,” published on April 29, 2016. See 81 FR 25887, and

○ The final rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” published on July 15, 2016. See 81 FR 46478.

Increasing Outdoor Recreation for All Americans, Enhancing Conservation Stewardship, and Improving Management of Species and Their Habitat

On March 2, 2017, Secretary Zinke signed Secretarial Order (S.O.) 3347, Conservation Stewardship and Outdoor Recreation, which established a goal to enhance conservation stewardship, increase outdoor recreation, and improve the management of game species and their habitat. In S.O. No. 3356, Hunting, Fishing, Recreational Shooting, and Wildlife Conservation Opportunities and Coordination with States, Tribes, and Territories (September 15, 2017), Interior announced continued efforts to enhance conservation stewardship; increase outdoor recreation opportunities for all Americans, including opportunities to hunt and fish; and improve the management of game species and their habitats for this generation and beyond.

To help meet these goals, S.O. 3356 directs, among other actions, Interior bureaus and offices to:

  • Work cooperatively with state, tribal, and territorial wildlife agencies to ensure that hunting and fishing regulations for Department lands and waters complement the regulations on the surrounding lands and waters to the extent legally practicable;
  • in close coordination and cooperation with the appropriate state, tribal, or territorial wildlife agency, begin the necessary process to modify regulations in order to advance shared wildlife conservation goals/objectives that align predator management programs, seasons, and methods of take permitted on all Department-managed lands and waters with corresponding programs, seasons, and methods established by state, tribal, and territorial wildlife management agencies to the extent legally practicable; andStart Printed Page 1734
  • create a plan to update all existing regulations to be consistent with the Order.

Upholding Trust Responsibilities to the Federally Recognized American Indian and Alaska Native Tribes and Addressing the Challenges of Economic Development

BIA is committed to identifying opportunities to promote economic growth and the welfare of the people BIA serves by removing barriers to the development of energy and other resources in Indian country.

Aggregate Deregulatory and Significant Regulatory Actions

Interior has made substantial progress reducing its regulatory burdens upon the American public. After a thorough review of existing regulations planned for publication, Interior removed 154 regulatory actions from its Spring 2017 Agenda of Regulatory Actions. This reduced its previous inventory of 321 by almost half. In fiscal year 2018, Interior expects to finalize 28 deregulatory actions, resulting in more than a billion net present dollars (present value) of deregulatory cost savings. Interior does not currently expect to publish any significant regulatory actions during the next year that are subject to E.O. 13771. Throughout this document, the terms “deregulatory action” and “significant regulatory action” refer to actions that are subject to E.O. 13771.

Bureaus and Offices Within the Department of the Interior

The following sections give an overview of some of the major deregulatory and regulatory priorities of DOI bureaus and offices.

Indian Affairs

The Bureau of Indian Affairs (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. BIA also provides quality education opportunities to students in Indian schools. BIA maintains a government-to-government relationship with the 567 federally recognized Indian tribes. The Bureau 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 Indians and Indian tribes.

Deregulatory and Regulatory Actions

In the coming year, BIA's regulatory plan focuses on priorities that ease regulatory burdens on Tribes, American Indians and Alaska Natives, and others subject to BIA regulations, in accordance with Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda. BIA has identified one deregulatory action on the current Agenda that would streamline the right-of-way process for governmental entities seeking a waiver of the requirement to obtain a bond in certain cases. BIA has one significant regulatory action on the Agenda that would revise existing regulations governing off-reservation trust acquisitions to establish new items that must be included in an application and threshold criteria that must be met for off-reservation acquisitions before National Environmental Policy Act (NEPA) compliance will be required. The rule would also reinstate the 30-day delay for taking land into trust following a decision by the Secretary or Assistant Secretary. This rule is expected to have de minimis economic impacts and therefore likely exempt from offset requirements under E.O. 13771.

Because many of its existing regulations require compliance with the NEPA, BIA will examine whether it can streamline NEPA implementation, in accordance with E.O. 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, and S.O. 3355, Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807.

Bureau of Land Management

The Bureau of Land Management (BLM) manages more than 245 million acres of public land, primarily located in 12 Western states including Alaska. The BLM also administers 700 million acres of sub-surface mineral estate throughout the nation, creating jobs throughout the country and generating non-tax royalty revenue for the Federal government. As stewards, BLM has a multiple-use mission to provide opportunities for economic growth through energy development, ranching, mining, and logging, as well as outdoor recreation activities such as camping, hunting, and fishing, while also supporting conservation efforts. Public lands provide valuable tangible goods and materials the American people use every day to heat their homes, build their roads, and feed their families. The BLM works hard to be a good neighbor in the communities it serves, and is committed to keeping public landscapes healthy and productive.

Deregulatory and Regulatory Actions

BLM has identified the following four deregulatory actions for the coming year with total estimated cost savings of at least $156 million:

  • Rescission of the 2015 BLM Hydraulic Fracturing Rule (RIN 1004-AE51)
  • Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Implementation Dates for Certain Requirements (RIN 1004-AE54)
  • Revision or Rescission of the 2016 Waste Prevention, Production Subject to Royalties, and Resource Conservation rule (RIN 1004-AE53)
  • Resource Management Planning (RIN 1004-AE39—CRA nullification conforming rule)

BLM has no significant regulatory actions subject to E.O. 13771 planned in FY 2018.

  • Rescission of the 2015 BLM Hydraulic Fracturing Rule

In March 2015, the BLM finalized a rule that would impose requirements on operators using hydraulic fracturing on Federal and Indian oil and gas leases. However, before the rule became effective, a U.S. Federal District Court granted a preliminary injunction and then set aside the rule, preventing the BLM from implementing it. The rule has never gone into effect. The Court of Appeals for the Tenth Circuit, however, vacated the district court's decision in September 2017. If there are no further proceedings in the Tenth Circuit, the mandate will issue to the district court on November 13, 2017. If that were to happen, the BLM would need to decide how to phase in compliance with the rule. The rescission of these requirements would not leave hydraulic fracturing operations unregulated, as operators still need to comply with other Federal regulations and requirements, state regulations, and tribal regulations, where applicable.

This is a good example of a regulation that is a prime candidate for regulatory reform because of the multiple regulations by authorities at the Federal, State, and tribal levels. The BLM found that all 32 states with Federal oil and gas operations leases currently have laws or regulations to address hydraulic fracturing. Furthermore, since the 2015 final rule, more companies are using state-level resources to ensure compliance with other applicable Federal and state-level regulations. This redundancy makes the BLM rule an unnecessary regulatory burden, irrespective of whether BLM even has the authority to regulate hydraulic fracturing.Start Printed Page 1735

Secretary of the Interior Ryan K. Zinke issued Secretarial Order No. 3349 entitled, “American Energy Independence” on March 29, 2017, which, among other things, directed the BLM to proceed expeditiously to propose to rescind the 2015 final rule. Upon further review of the 2015 final rule, as directed by Executive Order 13783, and Secretarial Order No. 3349, the BLM determined that the 2015 final rule unnecessarily burdens industry with compliance costs and information requirements that duplicate regulatory programs of many states and some tribes. As a result, on July 25, 2017 BLM proposed to rescind, in its entirety, the 2015 final rule. Rescinding the hydraulic fracturing rule will reduce regulatory burdens by enabling oil and gas operations to operate under one set of regulations within each state or tribal lands, rather than two.

  • Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Implementation Dates for Certain Requirements

Executive Order 13783 required Interior to review the final rule entitled, “Oil and Gas, Waste Prevention, Production Subject to Royalties, and Resource Conservation,” 81 FR 83008 (Nov. 18, 2016), also known as the “Venting and Flaring” rule. S.O. 3349 also ordered the BLM to review the rule. During the review, the BLM found that parts of the rule imposed unnecessary burdens on industry. It published a proposed rule in the Federal Register on October 5, 2017, seeking comment on temporarily suspending or delaying certain requirements until January 17, 2019.

A temporary suspension or delay, if implemented, would avoid compliance costs on operators for requirements that may be rescinded or significantly revised in the near future. For certain requirements in the 2016 rule that have yet to be implemented, the proposed rule would temporarily postpone the implementation dates. For certain requirements in the 2016 rule that are currently in effect, the proposed rule would temporarily suspend them. This would give the BLM sufficient time to review the 2016 final rule and consider revising or rescinding its requirements. This will also provide industry additional time to plan for and engineer responsive infrastructure modifications that will comply with the regulation. It will lower the cost of compliance and spread the cost over more time.

  • Revision or Rescission of the 2016 Waste Prevention, Production Subject to Royalties, and Resource Conservation rule

During the review of the Venting and Flaring rule, the BLM determined that the rule is inconsistent with the policy stated in E.O. 13783 that “it is in the national interest to promote clean and safe development of our nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” Consistent with this finding, the BLM intends to issue a proposed rule that would eliminate overlap with the Environmental Protection Agency's (EPA) Clean Air Act authorities and clarify requirements related to the beneficial use of gas on Federal and Indian lands.

  • Resource Management Planning

The BLM published the Planning 2.0 Rule on December 12, 2016 (81 FR 89580). The rule became effective on January 11, 2017. However, President Trump signed a resolution of disapproval under the Congressional Review Act (CRA), which was signed into law as Public Law 115-12 on March 27, 2017. Under the terms of the Congressional Review Act, the rule is “treated as though such rule had never taken effect.” 5 U.S.C. 801(f). The BLM is publishing a rule to remove nullified language from the Code of Federal Regulations to conform the Code of Federal Regulations to the CRA resolution. OMB views actions under the CRA as deregulatory for purposes of E.O. 13771. Some commenters expressed concern that the nullified rule would have moved decisions to the BLM Director in Washington, DC and away from states and local communities that are most affected by land use decisions.

Bureau of Ocean Energy Management

BOEM is committed to the Administration proposition that “A brighter future depends on energy policies that stimulate our economy, ensure our security, and protect our health.” In accordance with Executive Order 13783 of March 28, 2017, Promoting Energy independence and Economic Growth, BOEM is committed to the safe and orderly development of our offshore energy land and mineral resources, with the goal of avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. BOEM is committed to identifying regulatory and deregulatory opportunities and policies that lower costs and stimulate development. BOEM continues to strengthen U.S. energy security and energy independence. BOEM creates jobs, benefits local communities, and strengthens the economy by offering opportunities to develop the conventional and renewable energy and mineral resources of the Outer Continental Shelf (OCS).

Deregulatory and Regulatory Actions

BOEM is carefully analyzing two Interior rules related to offshore energy that are identified in E.O. 13795 (Implementing an America-First Offshore Energy Strategy). To implement that Executive Order, Interior issued S.O. 3350, America-First Offshore Energy Strategy, which enhances opportunities for energy exploration, leasing, and development on the OCS; establishes regulatory certainty for OCS activities; and enhances conservation stewardship, thereby providing jobs, energy security, and revenue for the American people. That order also provides deadlines for review of the rules identified in the E.O. Specifically, S.O. 3350 directs BOEM to:

  • Immediately cease all activities to promulgate the “Offshore Air Quality Control, Reporting, and Compliance” proposed rule, published on April 5, 2016 (81 FR 19717). As directed, BOEM also provided a report explaining the effects of not issuing a new rule addressing offshore air quality, and providing options for revising or withdrawing the proposed rule. BOEM withdrew the proposed rule and is now considering best options going forward.
  • Promptly review, in consultation with the Bureau of Safety and Environmental Enforcement (BSEE), the final rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” published on July 15, 2016 (81 FR 46478), for consistency with the policy set forth in section 2 of the Executive Order and provide a report summarizing the review and providing recommendations on whether to suspend, revise, or rescind the rule. In coordination with BSEE and consultation with stakeholders, BOEM will decide whether it should proceed with deregulatory options that could allow operators to continue operating later into the drilling season, providing jobs, strengthening the economy, and supporting the development of America's energy reserves.

BOEM has no significant regulatory actions planned for fiscal year 2018.

Streamlining Renewable Energy Regulations

Since renewable energy regulations were promulgated in 2009, BOEM has made substantial progress moving forward with the planning and Start Printed Page 1736implementation of seven lease sales, the issuance of twelve commercial leases, with a thirteenth in progress, and the processing of a number of significant project survey and site assessment plans. BOEM has worked closely with industry and solicited public input throughout the early stages of its program to help identify several regulatory improvements that: (1) Simplify and clarify requirements; (2) reduce the regulatory burden on industry by providing more flexibility in developing proposals and acquiring needed authorizations; (3) defer certain planning and development costs on industry; and (4) resolve contradictions and administrative inconsistencies. Overall, the proposed regulatory improvements are corrective, and will facilitate the efficient business development of renewable energy resources on the OCS.

Compliance With Executive, Secretary, and Statutory Mandates

BOEM will continue to be responsive to the various regulatory reform initiatives, including identifying and acting upon any regulations, orders, guidance, policies or any similar actions that could potentially burden the development or utilization of domestically produced energy sources.

Bureau of Safety and Environmental Enforcement

The Bureau of Safety and Environmental Enforcement's (BSEE) mission is to promote offshore conservation, development and production of offshore energy resources while ensuring that offshore operations are safe and environmentally responsible. BSEE's priorities in fulfillment of its mission are to: (1) Promote and regulate offshore energy development using the full range of authorities, policies, and tools to ensure safety and environmental responsibility; and (2) build and sustain the organizational, technical, and intellectual capacity within and across BSEE's key functions in order to keep pace with offshore industry technology improvements, innovate in economically sound regulation and enforcement, and reduce risk through appropriate risk assessment and regulatory and enforcement actions.

Consistent with the directions in Executive Orders (E.O.s) issued in March 2017 (E.O. 13783—Promoting Energy Independence and Economic Growth) and in April 2017 (E.O. 13795—Implementing an America-First Offshore Energy Strategy), as well as with the President's January 30, 2017 E.O. on Reducing Regulation and Controlling Regulatory Costs, BSEE is reviewing existing regulations to determine whether they may potentially burden the development or use of domestically produced energy resources, constrain economic growth, or prevent job creation. BSEE is well-positioned to help maintain the Nation's position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is performed in a safe and environmentally sustainable manner.

Deregulatory and Regulatory Actions

BSEE has identified the following four deregulatory actions under E.O. 13771 as high priorities:

  • Well Control and Blowout Prevention Systems Rule Revision

In April 2016, BSEE issued a final rule entitled “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control.” BSEE will propose a rule to reduce regulatory burdens and encourage job-creating development, while still ensuring safe and environmentally sustainable offshore operations. Among the changes it is considering are:

○ Revising the requirements for sufficient accumulator capacity and remotely-operated vehicle (ROV) capability to both open and close rams on subsea Blowout Preventers (BOPs) (i.e., to only require capability to close the rams);

○ Revising the requirement to shut in platforms when a lift boat approaches within 500 feet;

○ Extending the 14-day interval between pressure testing of BOP systems to 21 Days in appropriate situations;

○ Clarifying that the requirement for weekly testing of two BOP control stations means testing one station (not both stations) per week;

○ Simplifying testing pressures for verification of ram closure; and

○ Revising or deleting the requirement to submit test results to BSEE District Managers within 72 hours.

  • Exploratory Drilling on the Arctic Outer Continental Shelf Rule

In July 2016, BSEE and BOEM jointly issued a final rule entitled “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf.” BSEE is reviewing its provisions in the joint rule to identify potential opportunities reduce regulatory burdens while still ensuring safe and environmentally sustainable offshore operations. Some of the revisions BSEE is considering are:

○ Eliminating the requirement for capture of water-based muds and cuttings;

○ Eliminating the requirement for a cap and flow system and containment dome that are capable of being located at the well site within 7 days of loss of well control;

○ Eliminating the reference to the expected return of sea ice from the requirements to be able to drill a relief well within 45 days of loss of well control; and

○ Eliminating the reference to equivalent technology from the mudline cellar requirement.

BOEM and BSEE are also exploring joint options that would allow greater flexibility for operators to continue to drill later into the Arctic drilling season. If they are successful in implementing this strategy, exploration of the Nation's Arctic oil and gas reserves will increase while providing appropriate safety and environmental protection.

BOEM and BSEE will engage stakeholders before proposing rulemaking and the list of potential areas for proposed reform may be adjusted based on feedback received.

  • Production Safety Systems Rule

In September 2016, BSEE issued a final rule entitled “Oil and Gas and Sulfur Operations on the Outer Continental Shelf-Oil and Gas Production Safety Systems.” BSEE is reviewing the rule to identify opportunities to reduce regulatory burdens while still ensuring safe and environmentally sustainable offshore operations. If BSEE identifies areas for deregulation, it plans to tier a proposed rule behind the Well Control Rule and Arctic rule in terms of potential burden reduction.

In addition to the rules previously identified, BSEE is reviewing the remainder of its regulations to identify other requirements that could be modified to increase efficiency, streamline processes, reduce industry burden, and maximize energy resources while ensuring offshore operations are performed in a safe and environmentally sustainable manner.

BSEE has no significant regulatory actions subject to E.O. 13771 planned for fiscal year 2018.

Office of Natural Resources Revenue

For the benefit of all Americans, the Office of Natural Resources Revenue (ONRR) collects, accounts for, and verifies natural resource and energy revenues due to States, American Indians, and the U.S. Treasury. This revenue goes to State governments, as Start Printed Page 1737well as several Federal funds that support projects at the local and national levels, including support for critical infrastructure projects and to develop public outdoor recreation areas. ONRR disburses 100% of revenue collected from resource extraction on American Indian lands back to the Indian Tribes and individual Indian landowners.

Deregulatory and Regulatory Actions

ONRR finalized the repeal of its Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Reform rule on September 6, 2017. ONRR plans one deregulatory action for fiscal year 2018, the repeal of its rule on service of official correspondence.

ONRR has no significant regulatory actions subject to E.O. 13771 planned for fiscal year 2018.

ONRR also will seek ideas to reduce the Federal regulatory burden through advice received from the reinstatement of key committees that will assess and advise ONRR on royalty policies and regulatory actions related to natural resource and energy revenues.

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). Under SMCRA, OSMRE has two principal functions—the regulation of surface coal mining and reclamation operations, and the reclamation and restoration of abandoned coal mine lands. In enacting SMCRA, Congress directed OSMRE to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” OSMRE seeks to develop and maintain a regulatory program that provides a safe, cost-effective, and environmentally sound supply of coal to help support the Nation's economy and local communities.

Deregulatory and Regulatory Actions

  • Stream Protection.

The Stream Protection rule was nullified under the Congressional Review Act. OSMRE will conform the Code of Federal Regulations to the Congressional action and will consider options to protect resources in a way that does not unnecessarily burden the American people. OSMRE estimates that this action will result in deregulatory cost savings of approximately $82 million. See 82 FR 54924 (November 17, 2017).

OSMRE is reviewing additional actions to reduce burdens on coal development, including, for example, reviewing the state program amendment process to reduce the time it takes to formally amend an approved regulatory program.

OSMRE has no significant regulatory actions planned for fiscal year 2018.

U.S. Fish and Wildlife Service

The mission of the U.S. Fish and Wildlife Service (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. FWS also provides opportunities for Americans to enjoy the outdoors and our shared natural heritage.

FWS fulfills its responsibilities through a diverse array of programs that:

  • Protect and recover endangered and threatened species;
  • Monitor and manage migratory birds;
  • Enforce Federal wildlife laws and regulate international trade;
  • Conserve and restore wildlife habitat such as wetlands;
  • Help foreign governments conserve wildlife through international conservation efforts;
  • Distribute Federal funds to States, territories, and tribes for fish and wildlife conservation projects; and
  • Manage the more than 150 million acres of land and water from the Caribbean to the remote Pacific in National Wildlife Refuge System, which protects and conserves fish and wildlife and their habitats, and allows the public to engage in outdoor recreational activities.

Deregulatory and Regulatory Actions

During the next year, FWS regulatory priorities will include:

  • Regulations under the Endangered Species Act (ESA).

FWS will take multiple regulatory actions under the ESA to prevent the extinction of and facilitate recovery of both domestic and foreign animal and plant species. Accordingly, FWS will add species to, remove species from, and reclassify species on the Lists of Endangered and Threatened Wildlife and Plants and designate critical habitat for certain listed species, in accordance with the National Listing Workplan. The Workplan enables us to prioritize our workload 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, non-profit organizations, and other diverse stakeholders and partners, with the goal of encouraging proactive conservation so that federal protections are not needed in the first place. The Workplan represents the conservation priorities of the U.S. Fish and Wildlife Service (Service) based on our review of scientific information. In addition, FWS, jointly with the National Marine Fisheries Service, will improve how the ESA is administered and reduce unneeded burdens. FWS will review opportunities to create efficiencies and streamline the consultation process and the listing and delisting process.

Regulations under the Migratory Bird Treaty Act (MBTA).

In carrying out our responsibility to manage migratory bird populations, we issue annual migratory bird hunting regulations, which establish the frameworks (outside limits) for States to establish season lengths, bag limits, and areas for migratory game bird hunting.

To become more efficient and timely, the FWS is reviewing public input and considering whether additional regulatory changes would be appropriate to reduce the burden on industry and allow applicants to proceed more quickly through the bald and golden eagle permit process.

  • Regulations to administer the National Wildlife Refuge System (NWRS).

In carrying out its statutory responsibility to provide wildlife-dependent recreational opportunities on NWRS lands, FWS issues an annual rule to update the hunting and fishing regulations on specific refuges.

  • Regulations to carry out the Pittman-Robertson Wildlife Restoration and Dingell-Johnson Sport Fish Restoration Acts (Acts).

Under the Acts, the FWS distributes annual apportionments to States from trust funds derived from excise tax revenues and fuel taxes. FWS continues to work closely with state fish and wildlife agencies on how to use these funds to implement conservation projects. To strengthen its partnership with State conservation organizations, FWS is working on several rules to update and clarify our regulations. Planned regulatory revisions will help to reflect several new decisions agreed upon by state conservation organizations.

  • Regulations to carry out the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Lacey Act.

In accordance with section 3(a) of Executive Order 13609 (Promoting International Regulatory Cooperation), FWS will update its CITES regulations to incorporate provisions resulting from the 16th and 17th Conference of the Start Printed Page 1738Parties to CITES. The revisions will help FWS more effectively promote species conservation and help U.S. importers and exporters of wildlife products understand how to conduct lawful international trade.

FWS has no significant regulatory actions that are subject to E.O. 13771 planned for fiscal year 2018.

National Park Service

The National Park Service (NPS) preserves the natural and cultural resources and values within 417 units of the National Park System encompassing nearly 84 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.

Deregulatory and Regulatory Actions

The NPS intends to issue a number of deregulatory actions in this regulatory period and no significant regulatory actions.

Deregulatory Actions

The NPS will undertake deregulatory actions under Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) that will reduce regulatory costs. Several of these actions also comply with section 6 of Executive Order 13563 (“Improving Regulation and Regulatory Review”) because they will remove or modify outdated and excessively complicated and burdensome regulations.

  • The NPS intends to issue a proposed rule that would revise existing regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA) to streamline requirements for museums and Federal agencies. The rule would describe the NAGPRA process in accessible language with clear time parameters, eliminate ambiguity, clarify terms, and improve efficiency.
  • The NPS will issue a final rule that removes an outdated reference to a document establishing environmental criteria for power transmissions lines that is no longer used by the NPS to evaluate applications for rights of way.
  • The NPS intends to issue a proposed rule containing technical and clarifying edits. This rule would remove obsolete regulations establishing different criminal penalties for violating NPS regulations in military parks and national historic sites. This rule would also clarify existing regulations to comply with recent decisions by the U.S. Supreme Court. This clarification would state that a motor vehicle operator may not be required to submit a blood test to measure blood alcohol and drug content without a search warrant.
  • The NPS intends to issue a proposed rule that would state that the NPS will not prohibit nor require a permit for or prohibit an individual from transporting a bow or crossbow that is not ready for immediate use across National Park System Units if the possession and transportation of the bow or crossbow is in compliance with state law.

Additionally, enabling regulations are considered deregulatory under guidance to E.O. 13771. The NPS will undertake several enabling regulatory actions in the coming year that will provide new opportunities for the public to enjoy and experience certain areas within the National Park System. These include regulations authorizing (i) off-road vehicle use at Cape Lookout National Seashore (final rule) and Glen Canyon National Recreation Area (proposed rule); (ii) bicycling at Rocky Mountain National Park (final rule) and Pea Ridge National Military Park (proposed rule); and (iii) the launching of non-motorized vessels from Colonial National Historic Park (proposed rule).

All of these actions will allow the public to use NPS-administered lands and waters in a manner that protects the resources and values of the National Park System.

Regulatory Review

Through S.O. 3349, American Energy Independence (Mar. 29, 2017), the U.S. Department of the Interior announced its intention to review all existing actions that potentially burden the development or utilization of domestically produced energy resources and suspend, revise, or rescind such agency actions as soon as practicable. In accordance with this Secretarial Order, the NPS will review the final rule entitled “General Provisions and Non-Federal Oil and Gas Rights,” 81 FR 77972 (November 4, 2016).

The NPS intends to take a fresh look at a final rule on sport hunting and trapping in Alaska that published in October 2015 (80 FR 65325). This final rule amended 36 CFR 13, Subparts A, B, and F, to revise regulations for sport hunting and trapping in National Preserves in Alaska. The rule also updated the procedures for closing an area or restricting an activity in National Park Service areas in Alaska; updated subsistence regulations that are obsolete; prohibited the obstruction of persons lawfully engaged in hunting or trapping; and authorized the use of native species as bait for fishing. NPS will consider public comments and may revise the rule. See 82 FR 52868 (November 15, 2017).

The NPS intends to finalize a regulation allowing the free-distribution of message bearing items such as readable electronic media; clothing and accessories; buttons; pins; and bumper stickers. This will give visitors an additional channel of communication when visiting NPS-administered areas.

Regulatory Actions

Bureau of Reclamation

The Bureau of Reclamation's 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, we employ management, engineering, and science to achieve effective and environmentally sensitive solutions. Reclamation 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. We have continued to focus on increased security at our facilities.

Deregulatory and regulatory actions

The Bureau of Reclamation will publish no deregulatory or significant regulatory actions in fiscal year 2018.

Its regulatory program focus in Fiscal Year 2018 is to publish a proposed nonsignificant amendment to 43 CFR part 429 to bring it into compliance with the requirements of 43 CFR part 5, Commercial Filming and Similar Projects and Still Photography on Certain Areas under Department Jurisdiction. Publishing this rule would implement the provisions of Public Law 106-206, which directs the establishment of permits and reasonable fees for commercial filming and certain still photography activities on public lands.

DOI—BUREAU OF LAND MANAGEMENT (BLM)

Final Rule Stage

64. Rescission of the 2015 BLM Hydraulic Fracturing Rule

Priority: Other Significant.

E.O. 13771 Designation: Deregulatory.

Legal Authority: 25 U.S.C. 396d; 25 U.S.C. 2107; 30 U.S.C. 189; 30 U.S.C. Start Printed Page 1739306; 30 U.S.C. 359; 30 U.S.C. 1751; 43 U.S.C. 1732(b); 43 U.S.C. 1733; 43 U.S.C. 1740

CFR Citation: 43 CFR 3160.

Legal Deadline: None.

Abstract: This Proposed Rule would rescind the Bureau of Land Management's 2015 Final Rule, Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (2015 Final Rule). Consistent with the President's January 30, 2017, Executive Order on Reducing Regulation and Controlling Regulatory Costs, the Department of the Interior has been reviewing existing regulations to determine whether revisions or rescissions are appropriate to streamline the regulatory process and eliminate duplicative regulations. As part of this process, the Department has determined that the 2015 Final Rule does not reflect those policies and priorities, and therefore is proposing to rescind the 2015 Final Rule.

Statement of Need: Upon further review of the BLM's 2015 hydraulic fracturing final rule, as directed by Executive Order 13783, and Secretarial Order No. 3349, the BLM believes that the 2015 final rule unnecessarily burdens industry with compliance costs and information requirements that are duplicative of regulatory programs of many states and some tribes. As a result, we are proposing to rescind, in its entirety, the 2015 final rule.

Summary of Legal Basis:

Alternatives:

Anticipated Cost and Benefits:

Risks:

Timetable:

ActionDateFR Cite
NPRM07/25/1782 FR 34464
NPRM Comment Period End09/25/17
Final Action01/00/18

Regulatory Flexibility Analysis Required: No.

Government Levels Affected: None.

Agency Contact: Catherine Cook, Acting Division Chief, Fluid Minerals Division, Department of the Interior, Bureau of Land Management, Room 2134 LM, 20 M Street SE, Washington, DC 20003, Phone: 202 912-7145, Email: ccook@blm.gov.

RIN: 1004-AE52

DEPARTMENT OF JUSTICE (DOJ)—FALL 2017

Statement of Regulatory Priorities

The solemn duty of the Department of Justice is to uphold the Constitution and laws of the United States so that all Americans can live in peace and security. As the chief law enforcement agency of the United States government, the Department of Justice's most fundamental mission is to protect people by enforcing the rule of law. To fulfill this mission, the Department is devoting the resources necessary and utilizing the legal authorities available to combat violent crime and terrorism, prosecute drug offenses, and enforce immigration laws. Because the Department of Justice is primarily a law enforcement agency and not a regulatory agency, it carries out its principal investigative, prosecutorial, and other enforcement activities through means other than the regulatory process.

This year, the Department of Justice has substantially revised and improved its procedures for evaluating new regulatory actions and analyzing the costs that would be imposed. Executive Order 13771 (E.O. 13771), titled “Reducing Regulation and Controlling Regulatory Costs,” 82 FR 9339 (Feb. 3, 2017), requires an agency, unless prohibited by law, to identify two existing regulations to be repealed when the agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of E.O. 13771 requires the new incremental costs associated with new regulations, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Section 3(a) states that starting with fiscal year 2018, “the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in section 2(c) of [E.O. 13771], and provide the agency's best approximation of the totals costs or savings associated with each new regulation or repealed regulation.”

The Department does not anticipate publishing any new significant Regulatory actions during fiscal year 2018 that would impose additional costs or burdens. Accordingly, none of the Department's anticipated fiscal year 2018 rulemaking actions would be subject to the two-for-one offset requirements of E.O. 13771. Instead, the Department has identified five Deregulatory actions (RIN 1117-AB42; RIN 1117-AB44; RIN 1117-AB46; RIN 1121-AA85; and RIN 1125-AA25), along with one revision to an information collection, expected to be finalized during fiscal year 2018, The Department and its regulatory components also are already reviewing other possible regulatory changes to reduce regulatory burdens and to streamline existing regulations, though those initiatives are not expected to be promulgated in final form during fiscal year 2018.

In addition to the new cost analyses being conducted pursuant to E.O. 13771, the Department is actively carrying out the provisions of E.O. 13777, “Enforcing the Regulatory Reform Agenda,” 82 FR 12285 (Mar. 1, 2017). The Department's Regulatory Reform Task Force, chaired by Associate Attorney General Rachel Brand, is actively working to evaluate existing Department regulatory actions and to make recommendations regarding their repeal, replacement, or modification in order to reduce unnecessary burdens. The Task Force published a public notice in the Federal Register on June 28, 2017, to solicit comments on this goal and received over 30 recommendations that are under consideration.

The regulatory priorities of the Department include initiatives in the areas of federal grant programs, criminal law enforcement, immigration, and civil rights. These initiatives are summarized below. In addition, several other components of the Department carry out important responsibilities through the regulatory process. Although their regulatory efforts are not separately discussed in this overview of the regulatory priorities, those components have key roles in implementing the Department's anti-terrorism and law enforcement priorities.

Office of Justice Programs (OJP)

OJP provides innovative leadership to federal, state, local, and tribal justice systems; by disseminating state-of-the-art knowledge and practices; and providing financial assistance for the implementation of crime fighting strategies. OJP, through the Public Safety Officers' Benefits (PSOB) Program, supports public safety officers by providing financial assistance to eligible officers who sustain qualifying line-of-duty injuries, and to the eligible survivors of officers killed in the line of duty. The program also provides educational assistance to certain survivors of public safety officers.

In fiscal year 2018, OJP will promulgate a significant final rule amending and updating the regulations implementing the Public Safety Officers Benefits (PSOB) Program (RIN 1121-AA85). This rule will finalize two proposed rules to update and improve the OJP regulations implementing the PSOB Program, in order to incorporate several statutory changes enacted in recent years, and improve the efficiency of the PSOB Program claims process.Start Printed Page 1740

The final rule makes conforming changes required by the Dale Long Public Safety Officers' Benefits Improvement Act of 2012 pertaining, among other things, to members of a rescue squad or ambulance crew engaging in rescue activity or in the provision of emergency medical services. That Act also amended provisions relating to cases involving certain medical conditions and the payment offset scheme for the PSOB Program relative to the September 11th Victim Compensation Fund Program. The final rule also makes changes in response to perceived ambiguities and gaps in existing regulations, as well as opportunities to simplify and improve the program's administration—for example, making explicit the agency's authority to prescribe an online claim filing system, creating a process to facilitate the interaction between evidence gathering and claim processing, simplifying the process for claimant representatives to seek fees for their services, and updating various definitions. These changes are responsive to the public comments on the proposed rules as well as recommendations from an OIG Audit finalized in July 2015, and other internal reviews that identified the need to streamline the claims review process to reduce delays and increase transparency.

In addition to the PSOB final rule, OJP will continue to review its existing regulations to streamline them, where possible. OJP is drafting the final rule for the OJJDP Formula Grant Program, for which OJP published a partial fina