Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions-Fall 2021
Federal RegisterJan 31, 2022
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REGULATORY INFORMATION SERVICE CENTER
Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions—Fall 2021
AGENCY:
Regulatory Information Service Center.
ACTION:
Introduction to the Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions.
SUMMARY:
Publication of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions represents a key component of the regulatory planning mechanism prescribed in Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” (58 FR 51735) and reaffirmed in E.O. 13563, “Improving Regulation and Regulatory Review,” (76 FR 3821). The Regulatory Flexibility Act requires that agencies publish semiannual regulatory agendas in the
Federal Register
describing regulatory actions they are developing that may have a significant economic impact on a substantial number of small entities (5 U.S.C. 602).
The Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), published in the fall and spring, helps agencies fulfill all of these requirements. All federal regulatory agencies have chosen to publish their regulatory agendas as part of this publication. The complete Unified Agenda and Regulatory Plan can be found online at
www.reginfo.gov
and a reduced print version can be found in the
Federal Register
. Information regarding obtaining printed copies can also be found on the
Reginfo.gov
website (or below, VI. How Can Users Get Copies of the Plan and the Agenda?).
The Fall 2021 Unified Agenda publication appearing in the
Federal Register
includes the Regulatory Plan and agency regulatory flexibility agendas, in accordance with the publication requirements of the Regulatory Flexibility Act. Agency regulatory flexibility agendas contain only those Agenda entries for rules that are likely to have a significant economic impact on a substantial number of small entities and entries that have been selected for periodic review under section 610 of the Regulatory Flexibility Act.
The complete Fall 2021 Unified Agenda contains the Regulatory Plans of 27 Federal agencies and 67 Federal agency regulatory agendas.
ADDRESSES:
Regulatory Information Service Center (MR), General Services Administration, 1800 F Street NW, Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT:
For further information about specific regulatory actions, please refer to the agency contact listed for each entry. To provide comment on or to obtain further information about this publication, contact: Boris Arratia, Director, Regulatory Information Service Center (MR), General Services Administration, 1800 F Street NW, Washington, DC 20405, 703-795-0816. You may also send comments to us by email at:
RISC@gsa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
Introduction to the Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions
I. What are the Regulatory Plan and the Unified Agenda?
II. Why are the Regulatory Plan and the Unified Agenda published?
III. How are the Regulatory Plan and the Unified Agenda organized?
IV. What information appears for each entry?
V. Abbreviations
VI. How can users get copies of the Plan and the Agenda?
Introduction to the Fall 2021 Regulatory Plan
Agency Regulatory Plans
Cabinet Departments
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy
Department of Health and Human Services
Department of Homeland Security
Department of Housing and Urban Development
Department of the Interior
Department of Justice
Department of Labor
Department of Transportation
Department of the Treasury
Department of Veterans Affairs
Other Executive Agencies
Architectural and Transportation Barriers Compliance Board
Environmental Protection Agency
General Services Administration
National Aeronautics and Space Administration
National Archives and Records Administration
National Science Foundation
Office of Management and Budget
Office of Personnel Management
Pension Benefit Guaranty Corporation
Small Business Administration
Social Security Administration
Independent Regulatory Agencies
Consumer Product Safety Commission
Federal Trade Commission
National Indian Gaming Commission
Nuclear Regulatory Commission
Agency Agendas
Cabinet Departments
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy
Department of Health and Human Services
Department of Homeland Security
Department of the Interior
Department of Labor
Department of Transportation
Department of the Treasury
Other Executive Agencies
Committee for Purchase From People Who Are Blind or Severely Disabled
Environmental Protection Agency
General Services Administration
Office of Management and Budget
Office of Personnel Management
Small Business Administration
Joint Authority
Department of Defense/General Services Administration/National Aeronautics and Space Administration (Federal Acquisition Regulation)
Independent Regulatory Agencies
Consumer Financial Protection Bureau
Consumer Product Safety Commission
Federal Communications Commission
Federal Reserve System
National Labor Relations Board
Nuclear Regulatory Commission
Securities and Exchange Commission
Surface Transportation Board
Introduction to the Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions
I. What are the Regulatory Plan and the Unified Agenda?
The Regulatory Plan serves as a defining statement of the Administration's regulatory and deregulatory policies and priorities. The Plan is part of the fall edition of the Unified Agenda. Each participating agency's regulatory plan contains: (1) A narrative statement of the agency's regulatory and deregulatory priorities, and, for the most part, (2) a description of the most important significant regulatory and deregulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year. This edition includes the regulatory plans of 30 agencies.
The Unified Agenda provides information about regulations that the Government is considering or reviewing. The Unified Agenda has appeared in the
Federal Register
twice each year since 1983 and has been available online since 1995. The complete Unified Agenda is available to the public at
www.reginfo.gov.
The online Unified Agenda offers flexible search tools and access to the historic
Unified Agenda database to 1995. The complete online edition of the Unified Agenda includes regulatory agendas from 65 Federal agencies. Agencies of the United States Congress are not included.
The Fall 2021 Unified Agenda publication appearing in the
Federal Register
consists of The Regulatory Plan and agency regulatory flexibility agendas, in accordance with the publication requirements of the Regulatory Flexibility Act. Agency regulatory flexibility agendas contain only those Agenda entries for rules that are likely to have a significant economic impact on a substantial number of small entities and entries that have been selected for periodic review under section 610 of the Regulatory Flexibility Act. Printed entries display only the fields required by the Regulatory Flexibility Act. Complete agenda information for those entries appears, in a uniform format, in the online Unified Agenda at
www.reginfo.gov.
The following agencies have no entries for inclusion in the printed regulatory flexibility agenda. An asterisk (*) indicates agencies that appear in The Regulatory Plan. The regulatory agendas of these agencies are available to the public at
www.reginfo.gov.
Cabinet Departments
Department of Justice*
Department of Housing and Urban Development*
Department of State*
Department of Veterans Affairs*
Other Executive Agencies
Agency for International Development
Architectural and Transportation Barriers Compliance Board
Commission on Civil Rights
Corporation for National and Community Service
Council on Environmental Quality
Court Services and Offender Supervision Agency for the District of Columbia
Federal Mediation Conciliation Service
Institute of Museum and Library Services
Inter-American Foundation
National Aeronautics and Space Administration*
National Archives and Records Administration*
National Endowment for the Arts
National Endowment for the Humanities
National Mediation Board
National Science Foundation
Office of Government Ethics
Office of National Drug Control Policy
Office of Personnel Management*
Peace Corps
Pension Benefit Guaranty Corporation*
Railroad Retirement Board*
Social Security Administration*
Tennessee Valley Authority
U.S. Agency for Global Media
Independent Agencies
Commodity Futures Trading Commission
Council of the Inspectors General on Integrity and Efficiency
Farm Credit Administration
Federal Deposit Insurance Corporation
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Maritime Commission
Federal Mine Safety and Health Review Commission
Federal Permitting Improvement Steering Council
Federal Trade Commission*
National Credit Union Administration
National Indian Gaming Commission*
National Labor Relations Board
National Transportation Safety Board
Postal Regulatory Commission
Council of the Inspectors General on Integrity and Efficiency
Farm Credit Administration
Federal Deposit Insurance Corporation
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Maritime Commission
Federal Mine Safety and Health Review Commission
Federal Trade Commission*
National Credit Union Administration
National Indian Gaming Commission*
National Labor Relations Board
National Transportation Safety Board
Postal Regulatory Commission
The Regulatory Information Service Center compiles the Unified Agenda for the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget. OIRA is responsible for overseeing the Federal Government's regulatory, paperwork, and information resource management activities, including implementation of Executive Order 12866 (incorporated in Executive Order 13563). The Center also provides information about Federal regulatory activity to the President and his Executive Office, the Congress, agency officials, and the public.
The activities included in the Agenda are, in general, those that will have a regulatory action within the next 12 months. Agencies may choose to include activities that will have a longer timeframe than 12 months. Agency agendas also show actions or reviews completed or withdrawn since the last Unified Agenda. Executive Order 12866 does not require agencies to include regulations concerning military or foreign affairs functions or regulations related to agency organization, management, or personnel matters.
Agencies prepared entries for this publication to give the public notice of their plans to review, propose, and issue regulations. They have tried to predict their activities over the next 12 months as accurately as possible, but dates and schedules are subject to change. Agencies may withdraw some of the regulations now under development, and they may issue or propose other regulations not included in their agendas. Agency actions in the rulemaking process may occur before or after the dates they have listed. The Regulatory Plan and Unified Agenda do not create a legal obligation on agencies to adhere to schedules in this publication or to confine their regulatory activities to those regulations that appear within it.
II. Why are the Regulatory Plan and the Unified Agenda published?
The Regulatory Plan and the Unified Agenda helps agencies comply with their obligations under the Regulatory Flexibility Act and various Executive orders and other statutes.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires agencies to identify those rules that may have a significant economic impact on a substantial number of small entities (5 U.S.C. 602). Agencies meet that requirement by including the information in their submissions for the Unified Agenda. Agencies may also indicate those regulations that they are reviewing as part of their periodic review of existing rules under the Regulatory Flexibility Act (5 U.S.C. 610). Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” signed August 13, 2002 (67 FR 53461), provides additional guidance on compliance with the Act.
Executive Order 12866
Executive Order 12866, “Regulatory Planning and Review,” September 30, 1993 (58 FR 51735), requires covered agencies to prepare an agenda of all regulations under development or review. The Order also requires that certain agencies prepare annually a regulatory plan of their “most important significant regulatory actions,” which appears as part of the fall Unified Agenda. Executive Order 13497, signed January 30, 2009 (74 FR 6113), revoked the amendments to Executive Order 12866 that were contained in Executive Order 13258 and Executive Order 13422.
Executive Order 13563
Executive Order 13563, “Improving Regulation and Regulatory Review,”
January 18, 2011 (76 FR 3821) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866, which includes the general principles of regulation and public participation, and orders integration and innovation in coordination across agencies; flexible approaches where relevant, feasible, and consistent with regulatory approaches; scientific integrity in any scientific or technological information and processes used to support the agencies' regulatory actions; and retrospective analysis of existing regulations.
Executive Order 13132
Executive Order 13132, “Federalism,” August 4, 1999 (64 FR 43255), directs agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have “federalism implications” as defined in the Order. Under the Order, an agency that is proposing a regulation with federalism implications, which either preempt State law or impose non-statutory unfunded substantial direct compliance costs on State and local governments, must consult with State and local officials early in the process of developing the regulation. In addition, the agency must provide to the Director of the Office of Management and Budget a federalism summary impact statement for such a regulation, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which those concerns have been met. As part of this effort, agencies include in their submissions for the Unified Agenda information on whether their regulatory actions may have an effect on the various levels of government and whether those actions have federalism implications.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, title II) requires agencies to prepare written assessments of the costs and benefits of significant regulatory actions “that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any 1 year.” The requirement does not apply to independent regulatory agencies, nor does it apply to certain subject areas excluded by section 4 of the Act. Affected agencies identify in the Unified Agenda those regulatory actions they believe are subject to title II of the Act.
Executive Order 13211
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” May 18, 2001 (66 FR 28355), directs agencies to provide, to the extent possible, information regarding the adverse effects that agency actions may have on the supply, distribution, and use of energy. Under the Order, the agency must prepare and submit a Statement of Energy Effects to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, for “those matters identified as significant energy actions.” As part of this effort, agencies may optionally include in their submissions for the Unified Agenda information on whether they have prepared or plan to prepare a Statement of Energy Effects for their regulatory actions.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, title II) established a procedure for congressional review of rules (5 U.S.C. 801
et seq.
), which defers, unless exempted, the effective date of a “major” rule for at least 60 days from the publication of the final rule in the
Federal Register
. The Act specifies that a rule is “major” if it has resulted, or is likely to result, in an annual effect on the economy of $100 million or more or meets other criteria specified in that Act. The Act provides that the Administrator of OIRA will make the final determination as to whether a rule is major.
III. How are the Regulatory Plan and the Unified Agenda organized?
The Regulatory Plan appears in part II in a daily edition of the
Federal Register
. The Plan is a single document beginning with an introduction, followed by a table of contents, followed by each agency's section of the Plan. Following the Plan in the
Federal Register
, as separate parts, are the regulatory flexibility agendas for each agency whose agenda includes entries for rules which are likely to have a significant economic impact on a substantial number of small entities or rules that have been selected for periodic review under section 610 of the Regulatory Flexibility Act. Each printed agenda appears as a separate part. The sections of the Plan and the parts of the Unified Agenda are organized alphabetically in four groups: Cabinet departments; other executive agencies; the Federal Acquisition Regulation, a joint authority (Agenda only); and independent regulatory agencies. Agencies may in turn be divided into subagencies. Each printed agency agenda has a table of contents listing the agency's printed entries that follow. Each agency's part of the Agenda contains a preamble providing information specific to that agency. Each printed agency agenda has a table of contents listing the agency's printed entries that follow.
Each agency's section of the Plan contains a narrative statement of regulatory priorities and, for most agencies, a description of the agency's most important significant regulatory and deregulatory actions. Each agency's part of the Agenda contains a preamble providing information specific to that agency plus descriptions of the agency's regulatory and deregulatory actions.
The online, complete Unified Agenda contains the preambles of all participating agencies. Unlike the printed edition, the online Agenda has no fixed ordering. In the online Agenda, users can select the particular agencies' agendas they want to see. Users have broad flexibility to specify the characteristics of the entries of interest to them by choosing the desired responses to individual data fields. To see a listing of all of an agency's entries, a user can select the agency without specifying any particular characteristics of entries.
Each entry in the Agenda is associated with one of five rulemaking stages. The rulemaking stages are:
1. Prerule Stage
—actions agencies will undertake to determine whether or how to initiate rulemaking. Such actions occur prior to a Notice of Proposed Rulemaking (NPRM) and may include Advance Notices of Proposed Rulemaking (ANPRMs) and reviews of existing regulations.
2. Proposed Rule Stage
—actions for which agencies plan to publish a Notice of Proposed Rulemaking as the next step in their rulemaking process or for which the closing date of the NPRM Comment Period is the next step.
3. Final Rule Stage
—actions for which agencies plan to publish a final rule or an interim final rule or to take other final action as the next step.
4. Long-Term Actions
—items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda. Some of the entries in this section may contain abbreviated information.
5. Completed Actions
—actions or reviews the agency has completed or withdrawn since publishing its last agenda. This section also includes items the agency began and completed between issues of the Agenda.
6. Long-Term Actions
—are rulemakings reported during the publication cycle that are outside of the required 12-month reporting period for which the Agenda was intended. Completed Actions in the publication cycle are rulemakings that are ending their lifecycle either by Withdrawal or completion of the rulemaking process. Therefore, the Long-Term and Completed RINs do not represent the ongoing, forward-looking nature intended for reporting developing rulemakings in the Agenda pursuant to Executive Order 12866, section 4(b) and 4(c). To further differentiate these two stages of rulemaking in the Unified Agenda from active rulemakings, Long-Term and Completed Actions are reported separately from active rulemakings, which can be any of the first three stages of rulemaking listed above. A separate search function is provided on
www.reginfo.gov
to search for Completed and Long-Term Actions apart from each other and active RINs.
A bullet (•) preceding the title of an entry indicates that the entry is appearing in the Unified Agenda for the first time.
In the printed edition, all entries are numbered sequentially from the beginning to the end of the publication. The sequence number preceding the title of each entry identifies the location of the entry in this edition. The sequence number is used as the reference in the printed table of contents. Sequence numbers are not used in the online Unified Agenda because the unique Regulation Identifier Number (RIN) is able to provide this cross-reference capability.
Editions of the Unified Agenda prior to fall 2007 contained several indexes, which identified entries with various characteristics. These included regulatory actions for which agencies believe that the Regulatory Flexibility Act may require a Regulatory Flexibility Analysis, actions selected for periodic review under section 610(c) of the Regulatory Flexibility Act, and actions that may have federalism implications as defined in Executive Order 13132 or other effects on levels of government. These indexes are no longer compiled, because users of the online Unified Agenda have the flexibility to search for entries with any combination of desired characteristics. The online edition retains the Unified Agenda's subject index based on the
Federal Register
Thesaurus of Indexing Terms. In addition, online users have the option of searching Agenda text fields for words or phrases.
IV. What information appears for each entry?
All entries in the online Unified Agenda contain uniform data elements including, at a minimum, the following information:
Title of the Regulation
—a brief description of the subject of the regulation. In the printed edition, the notation “Section 610 Review” following the title indicates that the agency has selected the rule for its periodic review of existing rules under the Regulatory Flexibility Act (5 U.S.C. 610(c)). Some agencies have indicated completions of section 610 reviews or rulemaking actions resulting from completed section 610 reviews. In the online edition, these notations appear in a separate field.
Priority
—an indication of the significance of the regulation. Agencies assign each entry to one of the following five categories of significance.
(1) Economically Significant
As defined in Executive Order 12866, a rulemaking action that will have an annual effect on the economy of $100 million or more or will adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The definition of an “economically significant” rule is similar but not identical to the definition of a “major” rule under 5 U.S.C. 801 (Pub. L. 104-121). (See below.)
(2) Other Significant
A rulemaking that is not Economically Significant but is considered Significant by the agency. This category includes rules that the agency anticipates will be reviewed under Executive Order 12866 or rules that are a priority of the agency head. These rules may or may not be included in the agency's regulatory plan.
(3) Substantive, Nonsignificant
A rulemaking that has substantive impacts, but is neither Significant, nor Routine and Frequent, nor Informational/Administrative/Other.
(4) Routine and Frequent
A rulemaking that is a specific case of a multiple recurring application of a regulatory program in the Code of Federal Regulations and that does not alter the body of the regulation.
(5) Informational/Administrative/Other
A rulemaking that is primarily informational or pertains to agency matters not central to accomplishing the agency's regulatory mandate but that the agency places in the Unified Agenda to inform the public of the activity.
Major
—whether the rule is “major” under 5 U.S.C. 801 (Pub. L. 104-121) because it has resulted or is likely to result in an annual effect on the economy of $100 million or more or meets other criteria specified in that Act. The Act provides that the Administrator of the Office of Information and Regulatory Affairs will make the final determination as to whether a rule is major.
Unfunded Mandates
—whether the rule is covered by section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The Act requires that, before issuing an NPRM likely to result in a mandate that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector of more than $100 million in 1 year, agencies, other than independent regulatory agencies, shall prepare a written statement containing an assessment of the anticipated costs and benefits of the Federal mandate.
Legal Authority
—the section(s) of the United States Code (U.S.C.) or Public Law (Pub. L.) or the Executive order (E.O.) that authorize(s) the regulatory action. Agencies may provide popular name references to laws in addition to these citations.
CFR Citation
—the section(s) of the Code of Federal Regulations that will be affected by the action.
Legal Deadline
—whether the action is subject to a statutory or judicial deadline, the date of that deadline, and whether the deadline pertains to an NPRM, a Final Action, or some other action.
Abstract
—a brief description of the problem the regulation will address; the need for a Federal solution; to the extent available, alternatives that the agency is considering to address the problem; and potential costs and benefits of the action.
Timetable
—the dates and citations (if available) for all past steps and a projected date for at least the next step for the regulatory action. A date displayed in the form 12/00/19 means the agency is predicting the month and year the action will take place but not the day it will occur. In some instances, agencies may indicate what the next action will be, but the date of that action is “To Be Determined.” “Next Action Undetermined” indicates the agency does not know what action it will take next.
Regulatory Flexibility Analysis Required
—whether an analysis is required by the Regulatory Flexibility Act (5 U.S.C. 601
et seq.
) because the rulemaking action is likely to have a significant economic impact on a substantial number of small entities as defined by the Act.
Small Entities Affected
—the types of small entities (businesses, governmental jurisdictions, or organizations) on which the rulemaking action is likely to have an impact as defined by the Regulatory Flexibility Act. Some agencies have chosen to indicate likely effects on small entities even though they believe that a Regulatory Flexibility Analysis will not be required.
Government Levels Affected
—whether the action is expected to affect levels of government and, if so, whether the governments are State, local, tribal, or Federal.
International Impacts
—whether the regulation is expected to have international trade and investment effects, or otherwise may be of interest to the Nation's international trading partners.
Federalism
—whether the action has “federalism implications” as defined in Executive Order 13132. This term refers to actions “that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Independent regulatory agencies are not required to supply this information.
Included in the Regulatory Plan
—whether the rulemaking was included in the agency's current regulatory plan published in fall 2021.
Agency Contact
—the name and phone number of at least one person in the agency who is knowledgeable about the rulemaking action. The agency may also provide the title, address, fax number, email address, and TDD for each agency contact.
Some agencies have provided the following optional information:
RIN Information URL
—the internet address of a site that provides more information about the entry.
Public Comment URL
—the internet address of a site that will accept public comments on the entry.
Alternatively, timely public comments may be submitted at the Governmentwide e-rulemaking site,
www.regulations.gov.
Additional Information
—any information an agency wishes to include that does not have a specific corresponding data element.
Compliance Cost to the Public
—the estimated gross compliance cost of the action.
Affected Sectors
—the industrial sectors that the action may most affect, either directly or indirectly. Affected sectors are identified by North American Industry Classification System (NAICS) codes.
Energy Effects
—an indication of whether the agency has prepared or plans to prepare a Statement of Energy Effects for the action, as required by Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” signed May 18, 2001 (66 FR 28355).
Related RINs
—one or more past or current RIN(s) associated with activity related to this action, such as merged RINs, split RINs, new activity for previously completed RINs, or duplicate RINs.
Statement of Need
—a description of the need for the regulatory action.
Summary of the Legal Basis
—a description of the legal basis for the action, including whether any aspect of the action is required by statute or court order.
Alternatives
—a description of the alternatives the agency has considered or will consider as required by section 4(c)(1)(B) of Executive Order 12866.
Anticipated Costs and Benefits
—a description of preliminary estimates of the anticipated costs and benefits of the action.
Risks
—a description of the magnitude of the risk the action addresses, the amount by which the agency expects the action to reduce this risk, and the relation of the risk and this risk reduction effort to other risks and risk reduction efforts within the agency's jurisdiction.
V. Abbreviations
The following abbreviations appear throughout this publication:
ANPRM
—An Advance Notice of Proposed Rulemaking is a preliminary notice, published in the
Federal Register
, announcing that an agency is considering a regulatory action. An agency may issue an ANPRM before it develops a detailed proposed rule. An ANPRM describes the general area that may be subject to regulation and usually asks for public comment on the issues and options being discussed. An ANPRM is issued only when an agency believes it needs to gather more information before proceeding to a notice of proposed rulemaking.
CFR
—The Code of Federal Regulations is an annual codification of the general and permanent regulations published in the
Federal Register
by the agencies of the Federal Government. The Code is divided into 50 titles, each title covering a broad area subject to Federal regulation. The CFR is keyed to and kept up to date by the daily issues of the
Federal Register
.
E.O.
—An Executive order is a directive from the President to Executive agencies, issued under constitutional or statutory authority. Executive orders are published in the
Federal Register
and in title 3 of the Code of Federal Regulations.
FR
—The
Federal Register
is a daily Federal Government publication that provides a uniform system for publishing Presidential documents, all proposed and final regulations, notices of meetings, and other official documents issued by Federal agencies.
FY
—The Federal fiscal year runs from October 1 to September 30.
NPRM
—A Notice of Proposed Rulemaking is the document an agency issues and publishes in the
Federal Register
that describes and solicits public comments on a proposed regulatory action. Under the Administrative Procedure Act (5 U.S.C. 553), an NPRM must include, at a minimum: A statement of the time, place, and nature of the public rulemaking proceeding.
Legal Authority
—A reference to the legal authority under which the rule is proposed; and either the terms or substance of the proposed rule or a description of the subjects and issues involved.
Pub. L.
—A public law is a law passed by Congress and signed by the President or enacted over his veto. It has general applicability, unlike a private law that applies only to those persons or entities specifically designated. Public laws are numbered in sequence throughout the 2-year life of each Congress; for example, Public Law 112-4 is the fourth public law of the 112th Congress.
RFA
—A Regulatory Flexibility Analysis is a description and analysis of the impact of a rule on small entities, including small businesses, small governmental jurisdictions, and certain small not-for-profit organizations. The Regulatory Flexibility Act (5 U.S.C. 601
et seq.
) requires each agency to prepare an initial RFA for public comment when it is required to publish an NPRM and to make available a final RFA when the final rule is published, unless the agency head certifies that the rule would not have a significant economic impact on a substantial number of small entities.
RIN
—The Regulation Identifier Number is assigned by the Regulatory Information Service Center to identify
each regulatory action listed in the Regulatory Plan and the Unified Agenda, as directed by Executive Order 12866 (section 4(b)). Additionally, OMB has asked agencies to include RINs in the headings of their Rule and Proposed Rule documents when publishing them in the
Federal Register
, to make it easier for the public and agency officials to track the publication history of regulatory actions throughout their development.
Seq. No.
—The sequence number identifies the location of an entry in the printed edition of the Regulatory Plan and the Unified Agenda. Note that a specific regulatory action will have the same RIN throughout its development but will generally have different sequence numbers if it appears in different printed editions of the Unified Agenda. Sequence numbers are not used in the online Unified Agenda.
U.S.C.
—The United States Code is a consolidation and codification of all general and permanent laws of the United States. The U.S.C. is divided into 50 titles, each title covering a broad area of Federal law.
VI. How can users get copies of the Plan and the Agenda?
Copies of the
Federal Register
issue containing the printed edition of The Regulatory Plan and the Unified Agenda (agency regulatory flexibility agendas) are available from the Superintendent of Documents, U.S. Government Publishing Office, P.O. Box 371954, Pittsburgh, PA 15250-7954.
Telephone: (202) 512-1800 or 1-866-512-1800 (toll-free).
Copies of individual agency materials may be available directly from the agency or may be found on the agency's website. Please contact the particular agency for further information.
All editions of The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions since fall 1995 are available in electronic form at
www.reginfo.gov,
along with flexible search tools.
The Government Publishing Office's GPO GovInfo website contains copies of the Agendas and Regulatory Plans that have been printed in the
Federal Register
. These documents are available at
www.govinfo.gov.
Dated: December 7, 2021.
Boris Arratia,
Director.
Introduction to the Fall 2021 Regulatory Plan
Executive Order 12866, issued in 1993, requires the annual production of a Unified Regulatory Agenda and Regulatory Plan. It does so in order to promote transparency—or in the words of the Executive Order itself, “to have an effective regulatory program, to provide for coordination of regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve the public and its State, local, and tribal officials in regulatory planning, and to ensure that new or revised regulations promote the President's priorities and the principles set forth in this Executive order.” The requirements of Executive Order 12866 were reaffirmed in Executive Order 13563, issued in 2011.
We are now providing the first Regulatory Plan of the Biden-Harris Administration for public scrutiny and review. The regulatory plans and agendas submitted by agencies and included here offer blueprints for how the Administration plans to continue delivering on the President's agenda as we build back better. This agenda is fully consistent with the priorities outlined by the President as reflected in his executive orders and our previous regulatory agenda. We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.
These new plans build on significant progress the Administration has already made advancing our priorities and proving that our Government can deliver results—from confronting the pandemic, to creating a stronger and fairer economy, to addressing climate change and advancing equity. For example, since releasing the spring regulatory agenda, we have proposed or finalized regulatory protections to:
•
Protect the Public from COVID
—The Centers for Disease Control and Prevention (CDC) issued orders requiring all people to wear face masks while on public transportation and in transportation hubs. In addition, CDC issued Global Testing Orders for all international air travelers, strengthening protocols to protect travelers and the health and safety of American communities.
•
Combat Housing Discrimination.
Following President Biden's Presidential Memorandum directing his Administration to address racial discrimination in the housing market, the Department of Housing and Urban Development (HUD) published an interim final rule requiring HUD funding recipients to affirmatively further fair housing, including by completing an assessment of fair housing issues, identifying fair housing priorities and goals, and then committing to meaningful actions to meet those goals and remedy identified issues.
•
Tackle the Climate Crisis.
The Environmental Protection Agency (EPA) took an important step forward to advance President Biden's commitment to action on climate change and protect people's health by proposing comprehensive new protections to sharply reduce pollution from the oil and natural gas industry—including, for the first time, reductions from existing sources nationwide. The proposed new Clean Air Act rule would lead to significant, cost-effective reductions in methane emissions and other health-harming air pollutants that endanger nearby communities.
•
Improve Pipeline Safety and Environmental Standards.
In a major step to enhance and modernize pipeline safety and environmental standards, the Department of Transportation issued a final rule that—for the first time—applies federal pipeline safety regulations to tens of thousands of miles of unregulated gas gathering pipelines. This rule will improve safety, reduce greenhouse gas emissions, and result in more jobs for pipeline workers that are needed to help upgrade the safety and operations of these lines.
In addition to these significant actions, the Administration has also made key progress advancing another core objective: Effectively implementing the American Rescue Plan (ARP). Since the ARP went into effect in March, the Administration has promulgated 17 proposed and 32 final rules to get much needed relief to the communities across the countries efficiently and equitably. For example:
•
The Department of Education
established requirements to ensure that state and local educational agencies consult members of the public in determining how to use school emergency relief funds, and develop plans for a safe return to in-person instruction.
•
The Department of Housing and Urban Development
finalized a rule so the agency could require that operators of project-based rental assistance housing (such as Section 8) notify tenants of the availability of emergency rent relief, and give tenants time to secure that relief.
•
The Small Business Administration
finalized a rule to deliver much needed support to small business by streamlining forgiveness of small loans under the Paycheck Protection Program (a program extended by the ARP Act).
In this agenda, we are adding important new measures under
consideration to advance additional Administration priorities, including:
•
Uncovering Hidden Airline Service Fees.
The Department of Transportation plans to better protect consumers and improve competition by ensuring that consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees” at the time of ticket purchase. The Department also plans to examine whether fees for certain ancillary services should be disclosed at the first point in a search process where a fare is listed.
•
Stopping Super-Pollutants.
The EPA is considering restricting—fully, partially, or on a graduated schedule—the use of Hydrofluorocarbons (HFCs) in sectors or subsectors including the refrigeration, air conditioning, aerosol, and foam sectors. HFCs are potent greenhouse gases found in a range of appliances and substances, including refrigerators, air conditioners and foams, and have an impact on warming our climate that is hundreds to thousands of times greater than the same amount of carbon dioxide.
•
Transitioning Toward Zero-Emission Technologies.
The EPA plans to strengthen greenhouse gas emission standards for light- and heavy-duty vehicles, with an eye towards encouraging automakers to transition to zero-emission technologies. If implemented, the new standards would save consumers money, cut pollution, boost public health, advance environmental justice, and tackle the climate crisis.
•
Lowering Mental Health and Substance Use Treatment Costs.
The Department of Labor, Department of Health and Human Services, and Department of Treasury are considering changes to clarify health insurance plans' and issuers' obligations to cover mental health and substance use treatment in light of new legislative enactments and experience implementing the MHPAEA law since the last relevant rulemaking in 2014.
•
Increasing Access for People With Disabilities.
As part of the Administration's commitment to equity, the Department of Justice is exploring a new rule to ensure that individuals with disabilities can use sidewalks and other pedestrian facilities.
Between this regulatory agenda and the next in spring 2022, agencies will also be developing plans for implementing the Infrastructure Investment and Jobs Act (IIJA), historic legislation to rebuild crumbling infrastructure, create good paying jobs, and grow our economy. These plans will provide greater detail on how agencies will administer new IIJA programs in a manner that delivers meaningful results to all Americans, strengthens American manufacturing, and advances climate resilience. These plans will provide an opportunity for the public to be partners in the implementation of the IIJA—and all government programs. Public engagement in IIJA implementation can only make it better and more responsive to what our families and communities most need.
Department of Agriculture
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
1
Poultry Grower Ranking Systems (AMS-FTPP-21-0044)
0581-AE03
Proposed Rule Stage.
2
Clarification of Scope of the Packers and Stockyards Act (AMS-FTPP-21-0046)
0581-AE04
Proposed Rule Stage.
3
Unfair Practices in Violation of the Packers and Stockyards Act (AMS-FTPP-21-0045)
0581-AE05
Proposed Rule Stage.
4
Organic Livestock and Poultry Standards
0581-AE06
Proposed Rule Stage.
5
Establishing AWA Standards for Birds
0579-AE61
Proposed Rule Stage.
6
Voluntary Labeling of Meat Products With “Product of USA” and Similar Statements
0583-AD87
Proposed Rule Stage.
7
Revision of the Nutrition Facts Panels for Meat and Poultry Products and Updating Certain Reference Amounts Customarily Consumed
0583-AD56
Final Rule Stage.
8
Prior Label Approval System: Expansion of Generic Label Approval
0583-AD78
Final Rule Stage.
Department of Commerce
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
9
Request for Comments Concerning the Imposition of Export Controls on Certain Brain-Computer Interface (BCI) Emerging Technology
0694-AI41
Prerule Stage.
10
Foundational Technologies: Proposed Controls; Request for Comments
0694-AH80
Proposed Rule Stage.
11
Removal of Certain General Approved Exclusions (GAEs) Under the Section 232 Steel and Aluminum Tariff Exclusions Process
0694-AH55
Final Rule Stage.
12
Information Security Controls: Cybersecurity Items
0694-AH56
Final Rule Stage.
13
Authorization of Certain “Items” to Entities on the Entity List in the Context of Specific Standards Activities
0694-AI06
Final Rule Stage.
14
Commerce Control List: Expansion of Controls on Certain Biological Equipment “Software”
0694-AI08
Final Rule Stage.
15
Changes To Implement Provisions of the Trademark Modernization Act of 2020
0651-AD55
Final Rule Stage.
Department of Defense
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
16
Department of Defense (DoD)-Defense Industrial Base (DIB) Cybersecurity (CS) Activities
0790-AK86
Proposed Rule Stage.
17
Nondiscrimination on the Basis of Disability in Programs or Activities Assisted or Conducted by the DoD
0790-AJ04
Final Rule Stage.
18
Federal Voting Assistance Program
0790-AK90
Final Rule Stage.
19
Small Business Innovation Research Program Data Rights (DFARS Case 2019-D043)
0750-AK84
Proposed Rule Stage.
20
Reauthorization and Improvement of Mentor-Protege Program (DFARS Case 2020-D009)
0750-AK96
Proposed Rule Stage.
21
Maximizing the Use of American-Made Goods (DFARS Case 2019-D045)
0750-AK85
Final Rule Stage.
22
Policy and Procedures for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408
0710-AB22
Proposed Rule Stage.
23
Credit Assistance for Water Resources Infrastructure Projects
0710-AB31
Proposed Rule Stage.
24
Flood Control Cost-Sharing Requirements Under the Ability to Pay Provision
0710-AB34
Proposed Rule Stage.
25
Revised Definition of “Waters of the United States”—Rule 1
0710-AB40
Proposed Rule Stage.
26
Revised Definition of “Waters of the United States”—Rule 2 (Reg Plan Seq No. XX)
0710-AB47
Proposed Rule Stage.
27
TRICARE Coverage and Payment for Certain Services in Response to the COVID-19 Pandemic
0720-AB81
Final Rule Stage.
28
TRICARE Coverage of Certain Medical Benefits in Response to the COVID-19 Pandemic
0720-AB82
Final Rule Stage.
29
TRICARE Coverage of National Institute of Allergy and Infectious Disease Coronavirus Disease 2019 Clinical Trials
0720-AB83
Final Rule Stage.
30
Expanding TRICARE Access to Care in Response to the COVID-19 Pandemic
0720-AB85
Final Rule Stage.
Department of Education
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
31
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
1870-AA16
Proposed Rule Stage.
32
Family Educational Rights and Privacy Act
1875-AA15
Proposed Rule Stage.
33
Determining the Amount of Federal Education Assistance Funds Received by Institutions of Higher Education (90/10)
1840-AD55
Prerule Stage.
34
Borrower Defense
1840-AD53
Proposed Rule Stage.
35
Pell Grants for Prison Education Programs
1840-AD54
Proposed Rule Stage.
36
Gainful Employment
1840-AD57
Proposed Rule Stage.
37
Improving Student Loan Cancellation Authorities
1840-AD59
Proposed Rule Stage.
38
Income Contingent Repayment
1840-AD69
Proposed Rule Stage.
39
Public Service Loan Forgiveness
1840-AD70
Proposed Rule Stage.
Department of Energy
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
40
Energy Conservation Standards for Commercial Water Heating-Equipment
1904-AD34
Proposed Rule Stage.
41
Backstop Requirement for General Service Lamps
1904-AF09
Proposed Rule Stage.
42
Energy Efficiency Standards for New Federal Commercial and Multi-Family High-Rise Residential Buildings Baseline Standards Update
1904-AE44
Final Rule Stage.
43
Energy Conservation Program for Appliance Standards: Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment
1904-AF13
Final Rule Stage.
Department of Health and Human Services
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
44
Amendments to Civil Monetary Penalty Law Regarding Grants, Contracts, and Information Blocking
0936-AA09
Final Rule Stage.
45
Rulemaking on Discrimination on the Basis of Disability in Critical Health and Human Services Programs or Activities
0945-AA15
Proposed Rule Stage.
46
Confidentiality of Substance Use Disorder Patient Records
0945-AA16
Proposed Rule Stage.
47
Nondiscrimination in Health Programs and Activities
0945-AA17
Proposed Rule Stage.
48
ONC Health IT Certification Program Updates, Health Information Network Attestation Process for the Trusted Exchange Framework and Common Agreement, and Enhancements to Support Information Sharing
0955-AA03
Proposed Rule Stage.
49
Treatment of Opioid Use Disorder With Buprenorphine Utilizing Telehealth
0930-AA38
Proposed Rule Stage.
50
Treatment of Opioid use Disorder With Extended Take Home Doses of Methadone
0930-AA39
Proposed Rule Stage.
51
Requirement for Proof of Vaccination or Other Proof of Immunity Against Quarantinable Communicable Diseases
0920-AA80
Final Rule Stage.
52
Nonprescription Drug Product With an Additional Condition for Nonprescription Use
0910-AH62
Proposed Rule Stage.
53
Nutrient Content Claims, Definition of Term: Healthy
0910-AI13
Proposed Rule Stage.
54
Biologics Regulation Modernization
0910-AI14
Proposed Rule Stage.
55
Medical Devices; Ear, Nose and Throat Devices; Establishing Over-the-Counter Hearing Aids and Aligning Other Regulations
0910-AI21
Proposed Rule Stage.
56
Tobacco Product Standard for Characterizing Flavors in Cigars
0910-AI28
Proposed Rule Stage.
57
Conduct of Analytical and Clinical Pharmacology, Bioavailability and Bioequivalence Studies
0910-AI57
Proposed Rule Stage.
58
Tobacco Product Standard for Menthol in Cigarettes
0910-AI60
Proposed Rule Stage.
59
340B Drug Pricing Program; Administrative Dispute Resolution
0906-AB28
Proposed Rule Stage.
60
Catastrophic Health Emergency Fund (CHEF)
0917-AA10
Proposed Rule Stage.
61
Acquisition Regulations; Buy Indian Act; Procedures for Contracting
0917-AA18
Final Rule Stage.
62
Streamlining the Medicaid and Chip Application, Eligibility Determination, Enrollment, and Renewal Processes (CMS-2421)
0938-AU00
Proposed Rule Stage.
63
Provider Nondiscrimination Requirements for Group Health Plans and Health Insurance Issuers in the Group and Individual Markets (CMS-9910)
0938-AU64
Proposed Rule Stage.
64
Assuring Access to Medicaid Services (CMS-2442)
0938-AU68
Proposed Rule Stage.
65
Implementing Certain Provisions of the Consolidated Appropriations Act and Other Revisions to Medicare Enrollment and Eligibility Rules (CMS-4199)
0938-AU85
Proposed Rule Stage.
66
Requirements for Rural Emergency Hospitals (CMS-3419)
0938-AU92
Proposed Rule Stage.
67
Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021 (CMS-9902)
0938-AU93
Proposed Rule Stage.
68
Coverage of Certain Preventive Services (CMS-9903)
0938-AU94
Proposed Rule Stage.
69
Omnibus COVID-19 Health Care Staff Vaccination (CMS-3415)
0938-AU75
Final Rule Stage.
70
Native Hawaiian Revolving Loan Fund Eligibility Requirements
0970-AC84
Proposed Rule Stage.
71
Paternity Establishment Percentage Performance Relief
0970-AC86
Proposed Rule Stage.
72
ANA Non-federal Share Emergency Waivers
0970-AC88
Proposed Rule Stage.
73
Foster Care Legal Representation
0970-AC89
Proposed Rule Stage.
74
Separate Licensing Standards for Relative or Kinship Foster Family Homes
0970-AC91
Proposed Rule Stage.
75
National Institute for Disability, Independent Living, and Rehabilitation Research Notice of Proposed Rulemaking
0985-AA16
Proposed Rule Stage
Department of Homeland Security
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
76
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
1615-AC42
Proposed Rule Stage.
77
Deferred Action for Childhood Arrivals
1615-AC64
Proposed Rule Stage.
78
Asylum and Withholding Definitions
1615-AC65
Proposed Rule Stage.
79
Rescission of “Asylum Application, Interview, & Employment Authorization” Rule and Change to “Removal of 30 Day Processing Provision for Asylum Applicant Related Form I-765 Employment Authorization”
1615-AC66
Proposed Rule Stage.
80
U.S. Citizenship and Immigration Services Fee Schedule
1615-AC68
Proposed Rule Stage.
81
Bars to Asylum Eligibility and Procedures
1615-AC69
Proposed Rule Stage.
82
Inadmissibility on Public Charge Grounds
1615-AC74
Proposed Rule Stage.
83
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal and Cat Protection Claims by Asylum Officers
1615-AC67
Final Rule Stage.
84
Electronic Chart and Navigation Equipment Carriage Requirements
1625-AC74
Prerule Stage.
85
Shipping Safety Fairways Along the Atlantic Coast
1625-AC57
Proposed Rule Stage.
86
MARPOL Annex VI; Prevention of Air Pollution from Ships
1625-AC78
Proposed Rule Stage.
87
Advance Passenger Information System: Electronic Validation of Travel Documents
1651-AB43
Proposed Rule Stage.
88
Automation of CBP Form I-418 for Vessels
1651-AB18
Final Rule Stage.
89
Vetting of Certain Surface Transportation Employees
1652-AA69
Proposed Rule Stage.
90
Indirect Air Carrier Security
1652-AA72
Proposed Rule Stage.
91
Flight Training Security
1652-AA35
Final Rule Stage.
92
Surface Transportation Cybersecurity Measures
1652-AA74
Long-Term Actions.
93
Fee Adjustment for U.S. Immigration and Customs Enforcement Form I-246, Application for a Stay of Deportation or Removal
1653-AA82
Proposed Rule Stage.
94
RFI National Flood Insurance Program's Floodplain Management Standards for Land Management & Use, & an Assessment of the Program's Impact on Threatened and Endangered Species & Their Habitats
1660-AB11
Prerule Stage.
95
National Flood Insurance Program: Standard Flood Insurance Policy, Homeowner Flood Form
1660-AB06
Proposed Rule Stage.
96
Amendment to the Public Assistance Program's Simplified Procedures Large Project Threshold
1660-AB10
Final Rule Stage.
97
Individual Assistance Program Equity
1660-AB07
Long-Term Actions.
98
Ammonium Nitrate Security Program
1670-AA00
Proposed Rule Stage.
Department of Housing and Urban Development
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
99
Increased 40-year Term for Loan Modifications (FR-6263)
2502-AJ59
Proposed Rule Stage.
100
Affirmatively Furthering Fair Housing (FR-6250)
2529-AB05
Proposed Rule Stage.
Department of Justice
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
101
Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture
1190-AA76
Prerule Stage.
102
Implementation of the ADA Amendments Act of 2008: Federally Conducted (Section 504 of the Rehabilitation Act of 1973)
1190-AA73
Proposed Rule Stage.
103
Nondiscrimination on the Basis of Disability by State and Local Governments; Public Right-of-Way
1190-AA77
Proposed Rule Stage.
104
Definition of “Frame or Receiver” and Identification of Firearms
1140-AA54
Final Rule Stage.
105
Factoring Criteria for Firearms With an Attached Stabilizing Brace
1140-AA55
Final Rule Stage.
106
Bars to Asylum Eligibility and Procedures
1125-AB12
Proposed Rule Stage.
107
Asylum and Withholding Definitions
1125-AB13
Proposed Rule Stage.
108
Procedures for Asylum and Withholding of Removal
1125-AB15
Proposed Rule Stage.
109
Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
1125-AB18
Proposed Rule Stage.
110
Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances
1125-AA83
Final Rule Stage.
111
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal and CAT Protection Claims by Asylum Officers
1125-AB20
Final Rule Stage.
Department of Labor
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
112
Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption
1250-AA09
Proposed Rule Stage.
113
Modification of Procedures to Resolve Potential Employment Discrimination
1250-AA14
Proposed Rule Stage.
114
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees
1235-AA39
Proposed Rule Stage.
115
Modernizing the Davis-Bacon and Related Acts Regulations
1235-AA40
Proposed Rule Stage.
116
Tip Regulations Under the Fair Labor Standards Act (FLSA)
1235-AA21
Final Rule Stage.
117
E.O. 14026, Increasing the Minimum Wage for Federal Contractors
1235-AA41
Final Rule Stage.
118
Wagner-Peyser Act Staffing
1205-AC02
Proposed Rule Stage.
119
Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations
1205-AC06
Proposed Rule Stage.
120
Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights
1210-AC03
Proposed Rule Stage.
121
Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021
1210-AC11
Proposed Rule Stage.
122
Requirements Related to Surprise Billing, Part 1
1210-AB99
Final Rule Stage.
123
Requirements Related to Surprise Billing, Part 2
1210-AC00
Final Rule Stage.
124
Respirable Crystalline Silica
1219-AB36
Proposed Rule Stage.
125
Safety Program for Surface Mobile Equipment
1219-AB91
Proposed Rule Stage.
126
Prevention of Workplace Violence in Health Care and Social Assistance
1218-AD08
Prerule Stage.
127
Heat Illness Prevention in Outdoor and Indoor Work Settings
1218-AD39
Prerule Stage.
128
Infectious Diseases
1218-AC46
Proposed Rule Stage.
Department of Transportation
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
129
Processing Buy America and Buy American Waivers Based on Nonavailability
2105-AE79
Proposed Rule Stage.
130
Accessible Lavatories on Single-Aisle Aircraft: Part II
2105-AE89
Proposed Rule Stage.
131
Enhancing Transparency of Airline Ancillary Service Fees
2105-AF10
Proposed Rule Stage.
132
Registration and Marking Requirements for Small Unmanned Aircraft
2120-AK82
Final Rule Stage.
133
Greenhouse Gas Emissions Measure
2125-AF99
Proposed Rule Stage.
134
Manual on Uniform Traffic Control Devices for Streets and Highways
2125-AF85
Final Rule Stage.
135
Heavy Vehicle Automatic Emergency Braking
2127-AM36
Proposed Rule Stage.
136
Light Vehicle Automatic Emergency Braking (AEB) with Pedestrian AEB
2127-AM37
Proposed Rule Stage.
137
Corporate Average Fuel Economy (CAFE) Preemption
2127-AM33
Final Rule Stage.
138
Passenger Car and Light Truck Corporate Average Fuel Economy Standards
2127-AM34
Final Rule Stage.
139
Train Crew Staffing
2130-AC88
Proposed Rule Stage.
140
Pipeline Safety: Class Location Requirements
2137-AF29
Long-Term Actions.
Department of Veterans Affairs
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
141
Modifying Copayments for Veterans at High Risk for Suicide
2900-AQ30
Proposed Rule Stage.
142
VA Pilot Program on Graduate Medical Education and Residency
2900-AR01
Proposed Rule Stage.
143
Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program
2900-AR16
Final Rule Stage.
Environmental Protection Agency
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
144
National Emission Standards for Hazardous Air Pollutants: Ethylene Oxide Commercial Sterilization and Fumigation Operations
2060-AU37
Proposed Rule Stage.
145
Control of Air Pollution From New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards
2060-AU41
Proposed Rule Stage.
146
Amendments to the NSPS for GHG Emissions From New, Modified, Reconstructed Stationary Sources: EGUs
2060-AV09
Proposed Rule Stage.
147
Emission Guidelines for Greenhouse Gas Emissions from Fossil Fuel-Fired Existing Electric Generating Units
2060-AV10
Proposed Rule Stage.
148
Renewable Fuel Standard (RFS) Program: RFS Annual Rules
2060-AV11
Proposed Rule Stage.
149
NESHAP: Coal- and Oil-Fired Electric Utility Steam Generating Units-Revocation of the 2020 Reconsideration, and Affirmation of the Appropriate and Necessary Supplemental Finding
2060-AV12
Proposed Rule Stage.
150
Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review
2060-AV16
Proposed Rule Stage.
151
Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act
2060-AV20
Proposed Rule Stage.
152
Restrictions on Certain Uses of Hydrofluorocarbons Under Subsection (i) of the American Innovation and Manufacturing Act
2060-AV46
Proposed Rule Stage.
153
Review of the National Ambient Air Quality Standards for Particulate Matter
2060-AV52
Proposed Rule Stage.
154
Pesticides; Modification to the Minimum Risk Pesticide Listing Program and Other Exemptions Under FIFRA Section 25(b)
2070-AK55
Proposed Rule Stage.
155
Cyclic Aliphatic Bromide Cluster (HBCD); Rulemaking Under TSCA Section 6(a)
2070-AK71
Proposed Rule Stage.
156
Asbestos (Part 1: Chrysotile Asbestos); Rulemaking under TSCA Section 6(a)
2070-AK86
Proposed Rule Stage.
157
Designating PFOA and PFOS as CERCLA Hazardous Substances
2050-AH09
Proposed Rule Stage.
158
Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy Surface Impoundments
2050-AH14
Proposed Rule Stage.
159
Accidental Release Prevention Requirements: Risk Management Program Under the Clean Air Act; Retrospection
2050-AH22
Proposed Rule Stage.
160
Federal Baseline Water Quality Standards for Indian Reservations
2040-AF62
Proposed Rule Stage.
161
Clean Water Act Section 401: Water Quality Certification
2040-AG12
Proposed Rule Stage.
162
Revised Definition of “Waters of the United States”—Rule 1
2040-AG13
Proposed Rule Stage.
163
Revised Definition of “Waters of the United States”—Rule 2
2040-AG19
Proposed Rule Stage.
164
Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards
2060-AV13
Final Rule Stage.
165
Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program
2050-AH07
Final Rule Stage.
166
Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Implementation of Closure
2050-AH18
Final Rule Stage.
167
Cybersecurity in Public Water Systems
2040-AG20
Final Rule Stage.
168
National Primary Drinking Water Regulations for Lead and Copper: Regulatory Revisions
2040-AG16
Long-Term Actions.
169
Per- and polyfluoroalkyl Substances (PFAS): Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) National Primary Drinking Water Regulation Rulemaking
2040-AG18
Long-Term Actions.
Pension Benefit Guaranty Corporation
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
170
Special Financial Assistance by PBGC
1212-AB53
Final Rule Stage.
Small Business Administration
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
171
Service-Disabled Veteran-Owned Small Business Certification
3245-AH69
Prerule Stage.
Social Security Administration
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
172
Omitting Food From In-Kind Support and Maintenance Calculations
0960-AI60
Proposed Rule Stage
173
$20 Tolerance Rule to Establish That the Individual Meets the Pro-Rata Share of Household Expenses When Living in the Household of Another
0960-AI68
Proposed Rule Stage.
174
Inquiry About SSI Eligibility at Application Filing Date Which Will Remove the Requirement for a Signed Written Statement and Will Expand Protective Filing
0960-AI69
Proposed Rule Stage.
Nuclear Regulatory Commission
Sequence No.
Title
Regulation
Identifier No.
Rulemaking stage
175
Cyber Security at Fuel Cycle Facilities [NRC-2015-0179]
3150-AJ64
Proposed Rule Stage.
176
Alternative Physical Security Requirements for Advanced Reactors [NRC-2017-0227]
3150-AK19
Proposed Rule Stage.
177
Revision of Fee Schedules: Fee Recovery for FY 2022 [NRC-2020-0031]
3150-AK44
Proposed Rule Stage.
178
Advanced Nuclear Reactor Generic Environmental Impact Statement [NRC-2020-0101]
3150-AK55
Proposed Rule Stage.
179
Emergency Preparedness Requirements for Small Modular Reactors and Other New Technologies [NRC-2015-0225]
3150-AJ68
Final Rule Stage.
180
NuScale Small Modular Reactor Design Certification [NRC-2017-0029]
3150-AJ98
Final Rule Stage.
181
American Society of Mechanical Engineers 2019-2020 Code Editions [NRC-2018-0290]
3150-AK22
Final Rule Stage.
BILLING CODE 6820-27-P
The U.S. Department of Agriculture's (USDA) fall 2021 Regulatory Agenda and Plan prioritizes initiatives fostering 21st century innovation, job creation, economic and market opportunity in rural America, particularly among historically underserved people and communities, and a safe end to the pandemic. USDA will continue to leverage existing programs in response to unforeseen events and national emergencies affecting the American farm economy, schools, individual households, and our National Forests. All USDA programs, including the priorities contained in this Regulatory Plan, will be structured to advance the cause of equity by removing barriers and opening new opportunities.
In 2021, the USDA:
Agricultural Marketing Service (AMS) implemented a
Dairy Donation Program
to reimburse dairy organization for donated dairy products to non-profit organizations for distribution to recipient individuals and families. The new program was brought about by the 2020 COVID-19 pandemic which disrupted dairy supply chains and displaced significant volumes of milk normally used in food service channels. This led to milk being dumped or fed to animals across the United States. The new program is intended to encourage the donation of dairy products and to prevent and minimize food waste. Farm Service Agency (FSA) implemented a new
Heirs' Property Relending Program
authorized by changes that the Agriculture Improvement Act of 2018 (2018 Farm Bill) made to the Consolidated Farm and Rural Development Act. The relending program provides revolving loan funds to eligible intermediary lenders to resolve ownership and succession on farmland with multiple owners. The lenders give loans to qualified individuals to resolve these ownership issues. The intermediary lenders consolidate and coordinate the ownerships of the land-ownership interests.
Outlined below are some of our most important upcoming regulatory actions. These include efforts to restore and expand economic opportunity amid a safe end to the pandemic; address the climate change emergency; and support agricultural markets that are free, open and promote competition. This Regulatory Plan also reflects USDA's continued commitments to ensuring a safe and nutritious food supply and animal welfare protections. As always, our Semiannual Regulatory Agenda contains information on a broad-spectrum of USDA's initiatives and upcoming regulatory actions.
Restore and Expand Economic Opportunity Amid a Safe End to the Pandemic
Pandemic Assistance Programs
USDA will provide additional direct financial assistance to producers of agricultural commodities who suffered eligible revenue losses in calendar year 2020 during the COVID-19 pandemic; this will expand on the assistance USDA provided last year. Payments will be made using funds under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act; Pub. L. 116-136). The rule will also implement the expanded Pandemic Cover Crop Program (PCCP) to help agricultural producers impacted by the effects of the COVID-19 outbreak. Given cover crop cultivation requires sustained, long-term investments to improve soil health and gain other agronomic benefits, the economic challenges due to the pandemic made maintaining cover cropping systems financially challenging for many producers. In addition, the rule will also update the regulations for the Emergency Conservation Program (ECP); the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP); and the Livestock Forage Disaster Program (LFP); Livestock Indemnity Program (LIP); and payment eligibility provisions. For more information about this rule, see RIN 0503-AA75.
Address the Climate Change Emergency
Special Areas; Roadless Area Conservation; National Forest System Lands in Alaska:
USDA proposes to repeal a final rule promulgated in 2020 that exempted the Tongass National Forest from the 2001 Roadless Area Conservation Rule (2001 Roadless Rule). The 2001 Roadless Rule prohibited timber harvest and road construction or reconstruction within designated Inventoried Roadless Areas, with limited exceptions. This proposal is consistent with President Biden's Executive Order 13990,
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,
directing action to address Federal regulations issued during the previous four years that may conflict with protecting the environment and to immediately commence work to confront the climate crisis. For more information about this rule, see RIN 0596-AD51.
Support Agricultural Markets That Are Free, Open and Promote Competition
On July 9, 2021, President Biden signed Executive Order 14036 to address the growing concerns over competition and concentration in the U.S. economy, including the agriculture sector. The order includes 72 initiatives by more than a dozen federal agencies including USDA to promptly tackle some of the most pressing competition problems across the economy. Specifically, the White House fact sheet looks to “empower family farmers and increase their incomes by strengthening the Department of Agriculture's tools to stop the abusive practices of some meat processors.” One of USDA's initiatives is this area will be to revitalize, through the following rulemakings, the Packers and Stockyards Act to fight unfair practices and rebuild a competitive marketplace:
Poultry Grower Ranking Systems:
The proposal would address the use of poultry grower ranking systems as a method of payment and settlement grouping for poultry growers under contract in poultry growing arrangements with live poultry dealers. The proposal would establish certain requirements with which a live poultry dealer must comply if a poultry grower ranking system is utilized to determine grower payment. A live poultry dealer's failure to comply would be deemed an unfair, unjustly discriminatory, and deceptive practice according to factors outlined in the proposed rule. For more information about this rule, see RIN 0581-AE03.
Clarification of Scope of the Packers and Stockyards Act:
The proposal would revise regulations under the Packers and Stockyards Act (Act), providing clarity regarding conduct that may violate the Act. The proposal would make clear that it is not necessary to demonstrate harm or likely harm to competition to establish a violation of either section 202(a) or (b) of the Act. For more information about this rule, see RIN 0581-AE04.
Unfair Practices in Violation of the Packers and Stockyards Act:
The proposal supplements recent updates to the regulations issued under the Act that provided criteria for the Secretary to consider when determining whether certain conduct or actions by packers, swine contractors, or live poultry dealers is unduly or unreasonably preferential or advantageous. The proposal clarifies the conduct USDA considers unfair, unjustly discriminatory, or deceptive and a violation of the Act, regardless of whether such action harms or is likely to harm competition. The proposal also clarifies the criteria and types of conduct considered unduly preferential, advantageous, prejudicial, or disadvantageous and violations of the Act. For more information about this rule, see RIN 0581-AE05.
Ensuring That America's Food Supply Is Safe and Nutritious
USDA's Food Safety and Inspection Service (FSIS) continues to ensure that meat, poultry, and egg products are properly marked, labeled, and packaged, and prohibits the distribution in-commerce of meat, poultry, and egg products that are adulterated or misbranded. Consistent with the President's priorities of advancing the country's economic recovery and promoting economic resilience, FSIS is proposing several rules to improve regulatory certainty, which assure consumers that meat, poultry, and egg products are safe and truthfully labeled and fosters fair competition among the regulated industry. In a similar vein, AMS has prepared proposed standards for organic livestock and poultry production.
Voluntary Labeling of Meat Products With “Product of USA” and Similar Statements:
In accordance with Executive Order 14036, Promoting Competition in the American Economy, FSIS will propose to address concerns that the voluntary “Product of USA” label claim may confuse consumers about the origin of FSIS regulated products. FSIS intends to clarify the voluntary claim so that it is more meaningful to consumers and ensures a fair and competitive marketplace for American farmers and ranchers. For more information about this rule, see RIN 0583-AD87.
Revision of the Nutrition Facts Panels for Meat and Poultry Products and Updating Certain Reference Amounts Customarily Consumed; Prior Label Approval System: Expansion of Generic Label Approval:
FSIS plans to finalize two rules, one to update nutrition labeling for meat and poultry products and another to expand the categories of meat and poultry product labels deemed generically approved that may be used
in commerce without prior FSIS review and approval. The rule expanding the categories of generically approved labels would reduce labeling costs for meat and poultry establishments, including small and very small establishments. Both rules will provide additional certainty about what is required for meat and poultry labeling while ensuring that consumers have access to the information they need about the food they buy. For more information about these rules, see RINs 0583-AD56 and 0583-AD78.
National Organic Program; Organic Livestock and Poultry Standards:
The proposal would establish standards that support additional practice standards for organic livestock and poultry production. This proposed action would add provisions to the USDA organic regulations to address and clarify livestock and poultry living conditions (for example, outdoor access, housing environment and stocking densities), health care practices (for example physical alterations, administering medical treatment, euthanasia), and animal handling and transport to and during slaughter. For more information about this rule, see RIN 0581-AE06.
Animal Welfare Protections
Standards for the Humane Handling, Care, Treatment and Transportation of Birds Not Bred for Use in Research under the Animal Welfare Act:
The proposal would establish standards for humane handling, care, treatment, and transportation of birds not bred for use in research when those birds are engaged in any activity covered under the Animal Welfare Act. For more information about this rule, see RIN 0579-AE61.
USDA—AGRICULTURAL MARKETING SERVICE (AMS)
Proposed Rule Stage
1. Poultry Grower Ranking Systems (AMS-FTPP-21-0044)
Priority:
Other Significant.
Legal Authority:
7 U.S.C. 181 to 229c
CFR Citation:
9 CFR 201.
Legal Deadline:
None.
Abstract:
The U.S. Department of Agriculture's Agricultural Marketing Service proposes to amend the regulations issued under the Packers and Stockyards Act (P&S Act) to address the use of poultry grower ranking systems as a method of payment and settlement grouping for poultry growers under contract in poultry growing arrangements with live poultry dealers. The proposed regulation would establish certain requirements with which a live poultry dealer must comply if a poultry grower ranking system is utilized to determine grower payment. A live poultry dealer's failure to comply would be deemed an unfair, unjustly discriminatory, and deceptive practice.
Statement of Need:
Although poultry grower ranking systems may promote healthy competition among growers and the use of improved technologies, differences in size and imbalances of power between parties in contractual poultry growing arrangements can have detrimental effects on one of the contracting parties and may result in marketplace inefficiencies. An often-cited concern is the live poultry dealer's full control over inputs,
e.g.,
chick, feed, medication, etc., to the poultry growing process. Industry members have asked the Agricultural Marketing Service (AMS) to address such imbalances by specifying the conduct that would be considered violative of the Packers and Stockyards Act (Act).
Summary of Legal Basis:
The Agricultural Marketing Service (AMS) is delegated authority by the Secretary of Agriculture to enforce the P&S Act. AMS has received numerous complaints regarding the imbalance of power in poultry growing agreements, wherein one side controls all of the inputs, then arbitrarily ranks grower performance against other growers to determine pay.
Alternatives:
AMS considered finalizing a 2016 proposed rule that would have identified criteria for determining whether a live poultry dealer's use of a grower ranking system for payment purposes might be unlawful under the Packers and Stockyards Act.
Anticipated Cost and Benefits:
USDA estimates the first-year costs associated with this proposed rule to be $17.37 million. Subsequent year costs are expected to be significantly less than first-year costs, resulting in a ten-year total cost of $34.64 million. USDA expects the primary benefit of the regulation will be the increased ability to protect poultry growers from unfair practices associated with the use of poultry grower ranking systems. At the same time, the rule is expected to improve efficiencies through the use of new technologies and to reduce market failures among poultry growers.
Risks:
Extended litigation over legal challenges from the industry could result in the rule being struck down by the courts, hindering the agency's ability to enforce the Act for years.
Timetable:
Action
Date
FR Cite
NPRM
01/00/22
Regulatory Flexibility Analysis Required:
Yes.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Michael V. Durando, Deputy Administrator, Fair Trade Practices Program, Department of Agriculture, Agricultural Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-0237,
Phone:
202 720-0219.
RIN:
0581-AE03
USDA—AMS
2. Clarification of Scope of the Packers and Stockyards Act (AMS-FTPP-21-0046)
Priority:
Other Significant.
Legal Authority:
7 U.S.C. 181 to 229c
CFR Citation:
9 CFR 201.
Legal Deadline:
None.
Abstract:
USDA proposes to revise the regulations issued under the Packers and Stockyards Act (Act) (7 U.S.C. 181 229c) to provide clarity regarding conduct that may violate the Act. This action is intended to support market growth, assure fair trade practices and competition, and protect livestock and poultry growers and producers. The proposed rule addresses long-standing issues related to competitiveness and whether all allegations of violations of the Act must be accompanied by a showing of harm or likely harm to competition.
Statement of Need:
Revisions to regulations pertaining to the Packers and Stockyards Act (Act) that would clarify the scope of the Act are needed to establish what conduct or action, depending on their nature and the circumstances, violate the Act without a finding of harm or likely harm to competition. Such revisions reflect the Department of Agriculture's (USDA) longstanding position in this regard and complement two concurrent rules related to poultry grower ranking systems and conduct that constitutes unfair trade practices under the Act.
Summary of Legal Basis:
The Act provides USDA with the authority to assure fair competition and trade practices and to safeguard farmers against receiving less than the true market value of their livestock. Sections 202(c), (d), and (e) of the Act limit the application of those sections to acts or practices that have an adverse effect on competition, such as acts restraining commerce, creating a monopoly, or
producing another type of antitrust injury. However, provisions in sections 202(a) and (b) restrict practices that are deceptive, unfair, unjust, undue, and unreasonable; terms that are understood to encompass more than anticompetitive conduct. USDA's position is that Congress did not intend application of sections 202(a) and (b) to be limited to instances in which there is harm to competition.
Alternatives:
USDA considered doing nothing, not challenging standing court decisions. However, courts are not unanimous in their findings. Further, several courts disagree with USDA's position. Lack of clarity hinders the agency's ability to consistently administer and enforce the Act.
Anticipated Cost and Benefits:
USDA estimate annual costs related to this rule of $9 million for the first five years, decreasing in subsequent years, for total ten-year costs of $66 million. We believe the primary benefit of the proposed regulation is the increased ability to protect producers and growers through enforcement of the Act for violations of section 202(a) and/or (b) that do not result in harm, or a likelihood of harm, to competition.
Risks:
Courts have recognized that the proper analysis of alleged violations of these two sections depends on the facts of each case. However, four courts of appeals have disagreed with USDA's interpretation of the Act and have concluded that plaintiffs could not prove their claims under those sections without proving harm to competition or likely harm to competition. There is a risk if future legal challenge of USDA interpretation of sections 202(c), (d), and (e) of the Act.
Timetable:
Action
Date
FR Cite
NPRM
01/00/22
Regulatory Flexibility Analysis Required:
No.
Government Levels Affected:
None.
Agency Contact:
Michael V. Durando, Deputy Administrator, Fair Trade Practices Program, Department of Agriculture, Agricultural Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-0237,
Phone:
202 720-0219.
RIN:
0581-AE04
USDA—AMS
3. Unfair Practices in Violation of the Packers and Stockyards Act (AMS-FTPP-21-0045)
Priority:
Other Significant.
Legal Authority:
7 U.S.C. 181 to 229c
CFR Citation:
9 CFR 201.
Legal Deadline:
None.
Abstract:
USDA proposes to supplement a recent revision to regulations issued under the Packers and Stockyards Act (Act) (7 U.S.C. 181 229c) that provided criteria for the Secretary to consider when determining whether certain conduct or action by packers, swine contractors, or live poultry dealers is unduly or unreasonably preferential or advantageous. The proposed supplemental amendments would clarify the conduct the Department considers unfair, unjustly discriminatory, or deceptive and a violation of sections 202(a) and (b) of the Act. USDA would also clarify the criteria and types of conduct that would be considered unduly or unreasonably preferential, advantageous, prejudicial, or disadvantageous and violations of the Act.
Statement of Need:
Revisions to regulations pertaining to the Packers and Stockyards Act (Act) would clarify the types of conduct by packers, swine contractors, or live poultry dealers that the Agricultural Marketing Service (AMS) considers unfair, unjustly discriminatory, or deceptive and a violation of section 202(a) of the Act, regardless of whether such action harms or is likely to harm competition. The proposed rule would also clarify the criteria and/or types of conduct that would be considered unduly or unreasonably preferential, advantageous, prejudicial, or disadvantageous and a violation of section 202(b) of the Act.
Sections 202(a) and 202(b) of the P&S Act are broadly written to prohibit unfair practices and undue preferences and prejudices. Industry members have complained that the regulations effectuating the Act are too vague and do not provide adequate clarity about the types of conduct or action that are likely to violate the Act. This rule is needed to provide essential clarity about what would be considered violations of the Act, regardless of whether such violations harm or are likely to harm competition.
Summary of Legal Basis:
The Packers and Stockyards Act (Act) authorizes AMS to determine if conduct within the poultry and livestock industries are unfair, unjustly discriminatory, or deceptive and, therefore a violation of the Act.
Alternatives:
AMS considered taking no further action, allowing 100 years of case law to determine precedent in making determinations about whether certain behaviors violate the Act. AMS also considered revisiting the withdrawn 2016 rulemaking approach that would have identified criteria with which to determine whether certain behaviors violate the Act.
Anticipated Cost and Benefits:
USDA estimates first-year costs associated with this proposed rule to be $27.19 million, with significantly decreased costs each year thereafter, resulting in a ten-year total cost of $54.21 million. AMS expects this proposed rule to benefit all segments of the industry, providing greater clarity about what would be considered violations of the Act. AMS expects this proposed rule, coupled with a concurrent rule on the scope of the Act, to strengthen enforcement of the Act, resulting in fairer and more competitive markets for producers and poultry growers.
Risks:
Industry is divided about adding lists or examples of specific prohibited conduct to the regulations. Some argue such lists would inhibit freedom to forge contracts that fit individual situations, while others contend greater specificity is required so that affected parties can more readily identify violative behavior. Industry is also split on the question of whether identified prohibited behaviors must be found to harm or likely harm competition to be considered violations of the Act. AMS expects to resolve some of the controversy by being proactive and transparent with the industry to allow for critical discussions and decisions on the rule.
Timetable:
Action
Date
FR Cite
NPRM
01/00/22
Regulatory Flexibility Analysis Required:
Yes.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Michael V. Durando, Deputy Administrator, Fair Trade Practices Program, Department of Agriculture, Agricultural Marketing Service, 1400 Independence Avenue SW, Washington, DC 20250-0237,
Phone:
202 720-0219.
RIN:
0581-AE05
USDA—AMS
4. • Organic Livestock and Poultry Standards
Priority:
Economically Significant. Major under 5 U.S.C. 801.
Legal Authority:
7 U.S.C. 6501-7 U.S.C. 6524
CFR Citation:
7 CFR 205
Legal Deadline:
None.
Abstract:
This action would establish additional practice standards l for organic livestock and poultry production. This action would add provisions to the USDA organic regulations to address and clarify that livestock and poultry living conditions (for example, outdoor access, housing environment, and stocking densities), health care practices (for example, physical alterations, administering medical treatment, and euthanasia), and animal handling and transport to and during slaughter are part of the organic certification.
Statement of Need:
The Organic Livestock and Poultry Standards (OLPS) proposed rule is needed to clarify the USDA organic standards for livestock and poultry living conditions and health practices. The current regulations for livestock production provide general requirements but some of these provisions are ambiguous and have led to inconsistent divergent practices, particularly in the organic poultry sector. This rule responds to nine recommendations from the National Organic Standards Board and findings from a USDA Office of Inspector General (OIG) report. (See USDA, Office of the Inspector General. March 2010. Audit Report 01601-03-Hy, Oversight of the National Organic Program. Available at:
http://www.usda.gov/oig/rptsauditsams.htm.
) This proposed rule includes provisions to support the expression of natural behaviors and the welfare of organic livestock and poultry.
Summary of Legal Basis:
OLPS is authorized by the Organic Foods Production Act of 1990 (OFPA), 7 U.S.C. 65016524. OFPA authorizes the USDA to establish national standards governing the marketing of certain agricultural products as organically produced products to assure consumers that organically produced products meet a consistent standard and to facilitate interstate commerce in fresh and processed food that is organically produced.
Alternatives:
AMS considered several alternatives and presents these in the proposed rule. AMS presents two compliance date alternatives in the proposed rule that would affect the costs and benefits of the rule. Additionally, AMS discusses alternatives to specific policies included in the proposed rule, including alternative indoor and outdoor space requirements, and non-regulatory alternatives, including consumer education or no rule.
Anticipated Cost and Benefits:
AMS estimates an annual cost of approximately $4 million annually for layer operations and an associated benefit of approximately $14 million annually. Additionally, AMS estimates an annual cost to broiler producers of approximately $12 million annually and an associated benefit of nearly $100 million annually. The costs of the rule would primarily affect USDA-certified organic operations that produce livestock and poultry. Qualitatively, AMS also anticipates the rule will establish a clear standard protecting the value of the USDA organic seal to consumers, provide a consistent, level playing field for organic livestock producers, and facilitate enforcement of organic livestock and poultry standards.
Risks:
A final rule that is very similar to this proposed rule was published on January 19, 2017. That rule was subsequently withdrawn and never became effective. The USDA continues to face two legal challenges related to the withdrawal of the rule. Publishing a new proposed rule will indicate that the USDA is taking steps to advance the regulations. This could be viewed favorably by some, although others would prefer reinstating the January 2017 rule without the associated steps required to finalize a new rule.
The final rule published in January 2017 elicited mixed responses and was opposed by a multitude of producer groups, representing both organic and non-organic producers. Publication of this proposed rule is likely to produce similar responses. Additionally, USDA argued in its withdrawal of the rule that USDA had no authority under the Organic Foods Production Act to promulgate the rule, so there is legal risk in reversing direction and publishing a similar rule.
Finally, AMS plans to seek comment on providing an extended compliance date (15 years) for poultry operations that do not provide birds with access to soil or vegetation in outdoor spaces (
i.e.,
porch systems). AMS's presentation of this option is likely to invoke strong opinions among some stakeholders.
Timetable:
Action
Date
FR Cite
NPRM
03/00/22
Regulatory Flexibility Analysis Required:
Yes.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Erin Healy, Director, Standards Division, National Organic Program, Department of Agriculture, Agricultural Marketing Service, Washington, DC 20024,
Phone:
202 617-4942,
Email: erin.healy@usda.gov.
Related RIN:
Related to 0581-AD44, Related to 0581-AD74, Related to 0581-AD75.
RIN:
0581-AE06
USDA—ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS)
Proposed Rule Stage
5. Establishing AWA Standards for Birds
Priority:
Other Significant.
Legal Authority:
7 U.S.C. 2131 to 2159
CFR Citation:
9 CFR 1 to 3.
Legal Deadline:
NPRM, Judicial, February 2022.
Mandated by the U.S. District Court for the District of Columbia in a May 26, 2020 Stay (Case # 1:18-cv-01138-TNM).
Abstract:
This rulemaking would extend APHIS enforcement of the Animal Welfare Act (AWA) to birds, other than birds bred for use in research. This would help ensure the humane care and treatment of such birds.
Statement of Need:
Although the AWA authorizes the regulation of birds not bred for use in research, APHIS has not to this date promulgated regulations and standards for the humane care and treatment of such birds.
Summary of Legal Basis:
7 U.S.C. 2131 to 2159; 7 CFR 2.22, 2.80, and 371.7.
Alternatives:
N/A.
Anticipated Cost and Benefits:
Undetermined.
Risks:
Failure to issue the rule would not comport with the Court's order in the Stay, and could place at risk the humane care and treatment of birds, other than birds bred for use in research.
Timetable:
Action
Date
FR Cite
NPRM
02/00/22
Regulatory Flexibility Analysis Required:
Undetermined.
Government Levels Affected:
Undetermined.
Additional Information:
Additional information about APHIS and its programs is available on the internet at
http://www.aphis.usda.gov.
Agency Contact:
Lance Bassage, DVM, Director, National Policy Staff, Animal Care, Department of Agriculture, Animal and Plant Health Inspection Service, 4700 River Road, Unit 84, Riverdale, MD 20737,
Phone:
518 218-7551,
Email: lance.h.bassage@usda.gov.
RIN:
0579-AE61
USDA—FOOD SAFETY AND INSPECTION SERVICE (FSIS)
Proposed Rule Stage
6. Voluntary Labeling of Meat Products With “Product of USA” and Similar Statements
Priority:
Other Significant.
Legal Authority:
21 U.S.C. 601,
et seq.
CFR Citation:
9 CFR 317.8.
Legal Deadline:
None.
Abstract:
The Food Safety and Inspection Service (FSIS) is proposing to amend its regulations to define the conditions under which the labeling of meat product labels can bear voluntary statements indicating that the product is of United States (U.S.) origin, such as Product of USA, or Made in the USA.
Statement of Need:
In 2018 and 2019, FSIS received two petitions requesting that it change its policy regarding the labeling of meat products to indicate U.S. origin. After considering the petitions and the public comments submitted in response to them, FSIS concluded that adherence to the current labeling policy guidance may be causing confusion in the marketplace with respect to certain imported meat and that the current labeling policy may no longer meet consumer expectations of what the Product of USA claim signifies. The Agency wants to ensure that any changes to its current policy are accomplished by an open and transparent process. Therefore, FSIS decided that, instead of changing the Policy Book entry, it would initiate rulemaking to define the conditions under which the labeling of meat products would be permitted to bear voluntary statements indicating that the product is of U.S. origin.
Summary of Legal Basis:
The Federal Meat Inspection Act (21 U.S.C. 601
et seq.
).
Alternatives:
FSIS has considered the current labeling guidance and the alternatives proposed in the two petitions: (1) To amend the FSIS Policy Book to state that meat products may be labeled as Product of USA only if significant ingredients having a bearing on consumer preference such as meat, vegetables, fruits, dairy products, etc., are of domestic origin and; (2) to amend the FSIS Policy Book to provide that any beef product labeled as Made in the USA, Product of the USA, USA Beef or in any other manner that suggests that the origin is the United States, be derived from cattle that have been born, raised, and slaughtered in the United States. FSIS will now be conducting a comprehensive review of origin labeling claims for meat and conducting a consumer perception survey pursuant to developing the proposed regulations.
Anticipated Cost and Benefits:
Establishments may incur costs associated with voluntarily changing their labels as a result of any revised Product of USA labeling claim definition. This proposed rule is expected to benefit consumers by providing them more specific information on what Product of USA means for single-ingredient beef and pork products.
Risks:
N/A.
Timetable:
Action
Date
FR Cite
NPRM
10/00/22
Regulatory Flexibility Analysis Required:
No.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Matthew Michael, Director, Regulations Development Staff, Department of Agriculture, Food Safety and Inspection Service, Office of Policy and Program Development, 1400 Independence Avenue SW, Washington, DC 20250-3700,
Phone:
202 720-0345,
Fax:
202 690-0486,
Email: matthew.michael@usda.gov.
RIN:
0583-AD87
USDA—FSIS
Final Rule Stage
7. Revision of the Nutrition Facts Panels for Meat and Poultry Products and Updating Certain Reference Amounts Customarily Consumed
Priority:
Other Significant.
Legal Authority:
21 U.S.C. 601
et seq.,
Federal Meat Inspection Act; 21 U.S.C. 451
et seq.,
Poultry Products Inspection Act
CFR Citation:
9 CFR 317; 9 CFR 381; 9 CFR 413.
Legal Deadline:
None.
Abstract:
Consistent with the changes that the Food and Drug Administration (FDA) finalized, the Food Safety and Inspection Service (FSIS) is amending the Federal meat and poultry products inspection regulations to update and revise the nutrition labeling requirements for meat and poultry products to reflect recent scientific research and dietary recommendations and to improve the presentation of nutrition information to assist consumers in maintaining healthy dietary practices. The final rule will: (1) Update the list of nutrients that are required or permitted to be declared; (2) provide updated Daily Reference Values (DRV) and Reference Daily Intake (RDI) values that are based on current dietary recommendations from consensus reports; and (3) amend the requirements for foods represented or purported to be specifically for children under the age of four years and pregnant and lactating women and establish nutrient reference values specifically for these population subgroups. FSIS is also revising the format and appearance of the Nutrition Facts Panel; amending the definition of a single-serving container; requiring dual-column labeling for certain containers; and updating and modifying several reference amounts customarily consumed (RACCs or reference amounts). FSIS is also consolidating the nutrition labeling regulations for meat and poultry products into a new Code of Federal Regulations (CFR) part.
Statement of Need:
On May 27, 2016, the Food and Drug Administration (FDA) published two final rules: (1) “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (81 FR 33742); and (2) “Food Labeling: Serving Sizes of Foods that Can Reasonably be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments” (81 FR 34000). FDA finalized these rules to update the Nutrition Facts label to reflect new nutrition and public health research, to reflect recent dietary recommendations from expert groups, and to improve the presentation of nutrition information to help consumers make more informed choices and maintain healthy dietary practices. FSIS has reviewed FDA's analysis and, to ensure that nutrition information is presented consistently across the food supply, FSIS will propose to amend the nutrition labeling regulations for meat and poultry products to parallel, to the extent possible, FDA's regulations. This approach will help increase clarity of information to consumers and will improve efficiency in the marketplace.
Summary of Legal Basis:
The Federal Meat Inspection Act (21 U.S.C. 601
et seq.
) and the Poultry Products Inspection Act (21 U.S.C. 451
et seq.
).
Alternatives:
FSIS is considering different alternatives for the compliance period of the final rule.
Anticipated Cost and Benefits:
These proposed regulations are expected to benefit consumers by increasing and improving dietary information available in the market. An estimate of the monetary benefits from these market improvements can be obtained by calculating the medical cost savings generated by linking information use to improved consumer diets. In addition, FSIS believes that the public would be
better served by having the regulations governing nutrition labeling consolidated in one part of title 9. Rather than searching through two separate parts of title 9, CFR parts 317 and 381, to find the nutrition labeling regulations, interested parties would only have to survey one, part 413, to be able to apply nutrition panels to their meat and poultry products. Firms would incur a one-time cost for relabeling, recordkeeping costs, and costs associated with voluntary reformulation. Many firms have voluntarily begun using the FDA format, which will reduce costs.
Risks:
None.
Timetable:
Action
Date
FR Cite
NPRM
01/19/17
82 FR 6732
NPRM Comment Period End
04/19/17
Final Action
06/00/22
Regulatory Flexibility Analysis Required:
No.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Matthew Michael, Director, Regulations Development Staff, Department of Agriculture, Food Safety and Inspection Service, Office of Policy and Program Development, 1400 Independence Avenue SW, Washington, DC 20250-3700,
Phone:
202 720-0345,
Fax:
202 690-0486,
Email: matthew.michael@usda.gov.
RIN:
0583-AD56
USDA—FSIS
8. Prior Label Approval System: Expansion of Generic Label Approval
Priority:
Other Significant.
Legal Authority:
21 U.S.C. 601
et seq.;
21 U.S.C. 451
et seq.
CFR Citation:
9 CFR 412.2 (a) (1); 9 CFR 317.7; 9 CFR 381.128; 9 CFR 412.2 (b).
Legal Deadline:
None.
Abstract:
The Food Safety and Inspection Service (FSIS) is amending its labeling regulations to expand the categories of meat and poultry product labels that it will deem generically approved and thus not required to be submitted to FSIS. These reforms will reduce the regulatory burden on producers seeking to bring products to market, as well as the Agency costs expended to evaluate the labels.
Statement of Need:
This action is needed to reduce the regulatory burden on producers seeking to bring products to market, as well as the Agency costs expended to evaluate the labels. Based on FSIS experience evaluating the labels in question and the ability of inspection personnel to verify labeling in the field, FSIS anticipates this action will have no impact on food safety or the accuracy of meat and poultry product labeling.
Summary of Legal Basis:
The Acts direct the Secretary of Agriculture to maintain meat and poultry inspection programs designed to assure consumers that these products are safe, wholesome, not adulterated, and properly marked, labeled, and packaged. Section 7(d) of the Federal Meat Inspection Act (21 U.S.C. 607(d)) states: No article subject to this title shall be sold or offered for sale by any person, firm, or corporation, in commerce, under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the Secretary are permitted. The Poultry Products Inspection Act contains similar language in section 21 U.S.C. 457(c).
Alternatives:
FSIS considered three alternatives to the proposed rule: Taking no action, adopting the current proposal except with continued evaluation of labels that would otherwise be generically approved, and allowing all labels to be generically approved.
Anticipated Cost and Benefits:
There are no additional costs to industry, or the Agency associated with this rule. FSIS will continue to verify that product labels, including those that are generically approved, are truthful and not misleading and otherwise comply with FSIS's requirements.
This rule is expected to reduce the number of labels industry is required to submit to FSIS for evaluation by approximately 35 percent. Establishments will realize a cost savings because they will no longer need to incur costs for submitting certain types of labels to FSIS for evaluation (
e.g.,
preparing a printer's proof). In addition, streamlining the evaluation process for specific types of labels would allow a faster introduction of products into the marketplace by reducing wait times for label approvals.
FSIS will also benefit from a reduction in the number of labels submitted to it for review. FSIS will be able to reallocate staff hours from evaluating labels towards the development of labeling policy.
Timetable:
Action
Date
FR Cite
NPRM
09/14/20
85 FR 56538
NPRM Comment Period End
11/13/20
Final Rule
04/00/22
Regulatory Flexibility Analysis Required:
No.
Small Entities Affected:
Businesses.
Government Levels Affected:
None.
Agency Contact:
Matthew Michael, Director, Regulations Development Staff, Department of Agriculture, Food Safety and Inspection Service, Office of Policy and Program Development, 1400 Independence Avenue SW, Washington, DC 20250-3700,
Phone:
202 720-0345,
Fax:
202 690-0486,
Email: matthew.michael@usda.gov.
RIN:
0583-AD78
BILLING CODE 3410-90-P
DEPARTMENT OF COMMERCE
Statement of Regulatory and Deregulatory Priorities
Established in 1903, the Department of Commerce (Commerce or Department) is one of the oldest Cabinet-level agencies in the Federal Government. Commerce's mission is to create the conditions for economic growth and opportunity across all American communities by promoting innovation, entrepreneurship, competitiveness, and environmental stewardship. Commerce has 12 operating units, which manage a diverse portfolio of programs and services ranging from trade promotion and economic development assistance to improved broadband access and the National Weather Service, and from standards development and statistical data production, including the decennial census, to patents and fisheries management. Across these varied activities, the Department seeks to provide a foundation for a more equitable, resilient, and globally competitive economy.
To fulfill its mission, Commerce works in partnership with businesses, educational institutions, community organizations, government agencies, and individuals to:
• Innovate by creating new ideas through cutting-edge science and technology, from advances in nanotechnology to ocean exploration to broadband deployment, and by protecting American innovations through the patent and trademark system;
• Support entrepreneurship and commercialization by enabling community development and
strengthening minority businesses and small manufacturers;
• Maintain U.S. economic competitiveness in the global marketplace by promoting exports and foreign direct investment, ensuring a level playing field for U.S. businesses, and ensuring that technology transfer is consistent with our nation's economic and security interests;
• Provide effective management and stewardship of our nation's resources and assets to ensure sustainable economic opportunities; and
• Make informed policy decisions and enable better understanding of the economy and our communities by providing timely, accessible, and accurate economic and demographic data.
Responding to the Administration's Regulatory Philosophy and Principles
Commerce's Regulatory Plan tracks the most important regulations that the Department anticipates issuing to implement these policy and program priorities and foster sustainable and equitable growth. Of Commerce's 12 primary operating units, three bureaus—the National Oceanic and Atmospheric Administration (NOAA), the United States Patent and Trademark Office (USPTO), and the Bureau of Industry and Security (BIS)—issue the vast majority of the Department's regulations, and these three bureaus account for all the planned actions that are considered the Department's most important significant pre-regulatory or regulatory actions for FY 2022.
National Oceanic and Atmospheric Administration
NOAA's mission is built on three pillars: Science, service, and stewardship—to understand and predict changes in climate, weather, oceans, and coasts; to share that knowledge and information with others; and to conserve and manage coastal and marine ecosystems and resources.
At its core, NOAA is a scientific agency. It observes, measures, monitors, and collects data from the depths of the ocean to the surface of the sun, and it does so following principles of scientific integrity. These data are turned into weather and climate models and forecasts that are then used for everything from local weather forecasts to predicting the movement of wildfire smoke to identifying the impacts of climate change on fisheries and living marine resources.
With respect to service, NOAA not only collects data but is mandated to make it operational, and NOAA seeks to be the authoritative provider of climate products and services. By providing Federal, State, and local government partners, the private sector, and the public with actionable environmental information, NOAA can facilitate decisions in the face of climate change. Such decisions can range from businesses planning the location of offices; insurance companies trying to incorporate climate risk into their insurance policies; and municipalities looking to ensure that plans for construction of new housing developments will be resilient to increasing sea level risk, flooding, and heavy precipitation.
The final pillar of NOAA's mission is stewardship. NOAA seeks to conserve our lands, waters, and natural resources, protecting people and the environment now and for future generations. As part of Commerce, moreover, NOAA recognizes that economic growth must go hand-in-hand with environmental stewardship. For example, with respect to the nation's fisheries, NOAA looks simultaneously to optimize productivity and ensure sustainability in order to boost long-term economic growth and competitiveness in this vital sector of the U.S. economy. Similarly, national marine sanctuaries both protect important natural resources and also are significant drivers of eco-tourism and local recreation.
Within NOAA, the National Marine Fisheries Services (NMFS) and the National Ocean Service (NOS) are the components that most often exercise regulatory authority to implement NOAA's mission. NMFS oversees the management and conservation of the nation's marine fisheries; protects marine mammals and Endangered Species Act (ESA)-listed marine and anadromous species; and promotes economic development of the U.S. fishing industry. NOS assists the coastal states in their management of land and ocean resources in their coastal zones, including estuarine research reserves; manages national marine sanctuaries; monitors marine pollution; and directs the national program for deep-seabed minerals and ocean thermal energy.
Much of NOAA's rulemaking is conducted pursuant to the following key statutes:
Magnuson-Stevens Fishery Conservation and Management Act
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) rulemakings concern the conservation and management of fishery resources in the U.S. Exclusive Economic Zone (generally 3-200 nautical miles from shore). As itemized in the Unified Agenda, NOAA plans to take several hundred actions in FY 2022 under Magnuson-Stevens Act authority, of which roughly 20 are expected to be significant rulemakings, as defined in Executive Order 12866. With certain exceptions, rulemakings under Magnuson-Stevens are usually initiated by the actions of eight regional Fishery Management Councils (FMCs or Councils). These Councils are comprised of representatives from the commercial and recreational fishing sectors, environmental groups, academia, and Federal and State government, and they are responsible for preparing fishery management plans (FMPs) and FMP amendments, and for recommending implementing regulations for each managed fishery. FMPs address a variety of issues, including maximizing fishing opportunities on healthy stocks, rebuilding overfished stocks, and addressing gear conflicts. After considering the FMCs' recommendations in light of the standards and requirements set forth in the Magnuson-Stevens Act and in other applicable laws, NOAA may issue regulations to implement the proposed FMPs and FMP amendments.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (MMPA) provides the authority for the conservation and management of marine mammals under U.S. jurisdiction. It expressly prohibits, with certain exceptions, the intentional take of marine mammals. The MMPA allows, upon request and subsequent authorization, the incidental take of marine mammals by U.S. citizens who engage in a specified activity (
e.g.,
oil and gas development, pile driving) within a specified geographic region. NMFS authorizes incidental take under the MMPA if it finds that the taking would be of small numbers, have no more than a “negligible impact” on those marine mammal species or stock, and would not have an “unmitigable adverse impact” on the availability of the species or stock for “subsistence” uses. NMFS also initiates rulemakings under the MMPA to establish a management regime to reduce marine mammal mortalities and injuries as a result of interactions with fisheries. In addition, the MMPA allows NMFS to permit the take or import of wild animals for scientific research or public display or to enhance the survival of a species or stock.
Endangered Species Act
The Endangered Species Act of 1973 (ESA) provides for the conservation of
species that are determined to be “endangered” or “threatened,” and the conservation of the ecosystems on which these species depend. NMFS and the Department of Interior's Fish and Wildlife Service (FWS) jointly administer the provisions of the ESA: NMFS manages marine and several anadromous species, and FWS manages land and freshwater species. Together, NMFS and FWS work to protect critically imperiled species from extinction. NMFS rulemaking actions under the ESA are focused on determining whether any species under its responsibility is an endangered or threatened species and whether those species must be added to the list of protected species. NMFS is also responsible for designating, reviewing and revising critical habitat for any listed species. In addition, as indicated in the list of highlighted actions below, NMFS and FWS may also issue rules clarifying how particular provisions of the ESA will be implemented.
The National Marine Sanctuaries Act
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary of Commerce to designate and protect as national marine sanctuaries areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or aesthetic qualities. The primary objective of the NMSA is to protect marine resources, such as coral reefs, sunken historical vessels, or unique habitats.
NOAA's Office of National Marine Sanctuaries (ONMS), within NOS, has the responsibility for management of national marine sanctuaries. ONMS regulations, issued pursuant to NMSA, prohibit specific kinds of activities, describe and define the boundaries of the designated national marine sanctuaries, and set up a system of permits to allow the conduct of certain types of activities that would otherwise not be allowed.
These regulations can, among other things, regulate and restrict activities that may injure natural resources, including all extractive and destructive activities, consistent with community-specific needs and NMSA's purpose to “facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas.” In FY 2022, NOAA is expected to have at least three regulatory actions under NMSA.
Coastal Zone Management Act
The Coastal Zone Management Act (CZMA) was passed in 1972 to preserve, protect, and develop and, where possible, to restore and enhance the resources of the nation's coastal zone. The CZMA creates a voluntary state-federal partnership, where coastal states (States in, or bordering on, the Atlantic, Pacific or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes), may elect to develop comprehensive programs that meet federal approval standards. Currently, 34 of the 35 eligible entities are implementing a federally approved coastal management plan approved by the Secretary of Commerce.
NOAA's Regulatory Plan Actions
Of the numerous regulatory actions that NOAA is planning for this year and that are included in the Unified Agenda, there are five, described below, that the Department considers to be of particular importance.
1.
Illegal, Unreported, and Unregulated Fishing; Fisheries Enforcement; High Seas Driftnet Fishing Moratorium Protection Act
(
0648-BG11
): The United States is a signatory to the Port State Measures Agreement (PSMA). The agreement is aimed at combating illegal, unreported, and unregulated (IUU) fishing activities through increased port inspection of foreign fishing vessels and by preventing the products of illegal fishing from landing and entering into commerce. The High Seas Driftnet Fishing Moratorium Act (Fishing Moratorium Act) implemented provisions of the PSMA, and NOAA issued regulations under the Fishing Moratorium Act in 2011 and 2013. Since then, the provisions of the Fishing Moratorium Act have been amended by the Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015 (Pub. L. 114-81) and the Ensuring Access to Pacific Fisheries Act (Pub. L. 114-327). This proposed rule would implement amendments made by these later two laws. NMFS will also propose changes to the definition of IUU fishing for the purposes of identifying and certifying nations.
2.
Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule (0648-BI88):
Regulatory modifications are needed to further reduce the likelihood of mortalities and serious injuries to endangered North Atlantic right whales from vessel collisions, which are a primary cause of the species' decline and greatly contributing to the ongoing Unusual Mortality Event (2017-present). Following two decades of growth, the species has been in decline over the past decade with a population estimate of only 368 individuals as of 2019. Vessel strikes are one of the two primary causes of North Atlantic right whale mortality and serious injury across their range, and human-caused mortality to adult females in particular is limiting recovery of the species. Entanglement in fishing gear is the other primary cause of mortality and serious injury, which is being addressed by separate regulatory actions.
3.
Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Endangered and Threatened Species and Designation of Critical Habitat (0648-BJ44):
This action responds to section 2 of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (E.O. 13990) and the associated Fact Sheet (List of Agency Actions for Review). This is a joint rulemaking by NMFS and the FWS (the Services) to rescind the regulatory definition of the term “habitat.” This previously undefined term was defined by regulation for the first time in 2020 for the purpose of designating critical habitat under the ESA. Pursuant to Executive Order 13990, the Services also considered the alternatives of retaining the existing habitat definition or revising the habitat definition and will be considering any alternatives provided during the public comment period on the proposed rule.
4.
Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat (0648-BK47):
This action responds to section 2 of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (E.O. 13990) and the associated Fact Sheet (List of Agency Actions for Review). This is a joint rulemaking by the Services to revise joint regulations issued in 2019 implementing section 4 of the ESA. Specifically addressed in this action are joint regulations that address the classification of species as threatened or endangered and the criteria and process for designating critical habitat for listed species. Pursuant to Executive Order 13990, the Services reviewed the specific regulatory provisions that had been revised in the 2019 final rule. Following a review of the 2019 rule, the Services are proposing to revise a portion of these regulations but are also soliciting public comments on all aspects of the 2019 rule before issuing a final rule.
5.
Endangered and Threatened Wildlife and Plants; Revision of
Regulations for Interagency Cooperation (0648-BK48):
This action responds to section 2 of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (E.O. 13990) and the associated Fact Sheet (List of Agency Actions for Review). This is a joint rulemaking by the Services to revise joint regulations implementing section 7 of the ESA, which requires Federal agencies to consult with the Services whenever any action the agency undertakes, funds, or authorizes may affect endangered or threatened species or their critical habitat, to ensure that the action does not jeopardize listed species or adversely modify critical habitat. In 2019, the Services revised various aspects of the regulations governing the consultation process under ESA Section 7 including, significantly, how the Services define the “effects of the action,” which has importance for determining the scope of consultation. Pursuant to Executive Order 13990, the Services reviewed the specific regulatory provisions that had been revised in the 2019 final rule. Following this review of the 2019 rule, the Services are proposing to revise a portion of these regulations, including “effects of the action,” but are also soliciting public comments on all aspects of the 2019 rule before issuing a final rule. In addition to revising provisions from the 2019 rule, the Services are proposing to clarify the responsibilities of a Federal agency and the Services regarding the requirement to reinitiate consultation.
The United States Patent and Trademark Office
The USPTO's mission is to foster innovation, competitiveness, and economic growth, domestically and abroad, by delivering high quality and timely examination of patent and trademark applications, guiding domestic and international intellectual property policy, and delivering intellectual property information and education worldwide.
Major Programs and Activities
The USPTO is responsible for granting U.S. patents and registering trademarks. This system of secured property rights, which has its foundation in Article I, Section 8, Clause 8, of the Constitution (providing that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) has enabled American industry to flourish. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The continued demand for patents and trademarks underscores the importance to the U.S. economy of effective mechanisms to protect new ideas and investments in innovation, as well as the ingenuity of American inventors and entrepreneurs.
In addition to granting patents and trademarks, the USPTO advises the President of the United States, the Secretary of Commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes strong and effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners.
As part of its work, the USPTO administers regulations located at title 37 of the Code of Federal Regulations concerning its patent and trademark services and the other functions it performs.
The USPTO's Regulatory Plan Actions
1.
Final Rule: Changes to Implement Provisions of the Trademark Modernization Act of 2020 (0651-AD55):
The USPTO amends the rules of practice in trademark cases to implement provisions of the Trademark Modernization Act of 2020. This rule establishes ex parte expungement and reexamination proceedings for cancellation of a registration when the required use in commerce of the registered mark has not been made; provides for a new nonuse ground for cancellation before the Trademark Trial and Appeal Board; establishes flexible USPTO action response periods; and amends the existing letter-of-protest rule to indicate that letter-of-protest determinations are final and non-reviewable. The rule also sets fees for petitions requesting institution of ex parte expungement and reexamination proceedings, and for requests to extend USPTO action response deadlines.
The two new ex parte proceedings created by this rulemaking—one for expungement and one for reexamination—are intended to help ensure the accuracy of the trademark register by providing a new mechanism for removing a registered mark from the trademark register or cancelling the registration as to certain goods and/or services, when the registrant has not used the mark in commerce. The proposed changes will give U.S. businesses new tools to clear away unused registered trademarks from the federal trademark register and will give the USPTO the ability to move applications through the system more efficiently.
Bureau of Industry and Security
BIS advances U.S. national security, foreign policy, and economic objectives by maintaining and strengthening adaptable, efficient, and effective export control and treaty compliance systems as well as by administering programs to prioritize certain contracts to promote the national defense and to protect and enhance the defense industrial base.
Major Programs and Activities
BIS administers four sets of regulations. The Export Administration Regulations (EAR) regulate exports and reexports to protect national security, foreign policy, and short supply interests. The EAR includes the Commerce Control List (CCL), which describes commodities, software, and technology that are subject to licensing requirements for specific reasons for control. The EAR also regulates U.S. persons' participation in certain boycotts administered by foreign governments. The National Security Industrial Base Regulations provide for prioritization of certain contracts and allocations of resources to promote the national defense, require reporting of foreign government-imposed offsets in defense sales, provide for surveys to assess the capabilities of the industrial base to support the national defense, and address the effect of imports on the defense industrial base. The Chemical Weapons Convention Regulations implement declaration, reporting, and on-site inspection requirements in the private sector necessary to meet United States treaty obligations under the Chemical Weapons Convention treaty. The Additional Protocol Regulations implement similar requirements for certain civil nuclear and nuclear-related items with respect to an agreement between the United States and the International Atomic Energy Agency.
BIS also has an enforcement component with nine offices covering the United States, as well as BIS export control officers stationed at several U.S. embassies and consulates abroad. BIS works with other U.S. Government agencies to promote coordinated U.S. Government efforts in export controls and other programs. BIS participates in U.S. Government efforts to strengthen
multilateral export control regimes and promote effective export controls through cooperation with other governments.
In FY 2022, BIS plans to publish a number of proposed and final rules amending the EAR. These rules will cover a range of issues, including emerging and foundational technology, country specific policies, CCL revisions based on decisions by the four multilateral export control regimes (Australia Group, Missile Technology Control Regime, Nuclear Suppliers Group, and Wassenaar Arrangement), and implementation of any interagency agreed transfers from the United States Munitions List to the CCL.
BIS's Regulatory Plan Actions
1.
Authorization of Certain “Items” to Entities on the Entity List in the Context of Specific Standards Activities (0694-AI06):
BIS is amending the EAR to clarify its applicability to releases of technology for standards setting or development to support U.S. participation in standards efforts.
2.
Commerce Control List: Implementation of Controls on “Software” Designed for Certain Automated Nucleic Acid Assemblers and Synthesizers (0694-AI08):
BIS is publishing this final rule to amend the CCL by adding a new Export Control Classification Number (ECCN) 2D352 to control software that is designed for automated nucleic acid assemblers and synthesizers controlled under ECCN 2B352.j and capable of designing and building functional genetic elements from digital sequence data. These amendments to the CCL are based upon a finding, consistent with the emerging and foundational technologies interagency process set forth in section 1758 of the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4817), that such software is capable of being utilized in the production of pathogens and toxins and, consequently, the absence of export controls on such software could be exploited for biological weapons purposes.
3.
Information Security Controls: Cybersecurity Items (0694-AH56):
In 2013, the Wassenaar Arrangement (WA), a multilateral export control regime in which the United States participates, added cybersecurity items to the WA List, including a definition for “intrusion software.” In 2015, public comments on a BIS proposed implementation rule revealed serious issues concerning scope and implementation regarding these controls. Based on these comments, as well as substantial commentary from Congress, the private sector, academia, civil society, and others on the potential unintended consequences of the 2013 controls, the U.S. government returned to the WA to renegotiate the controls. This interim final rule outlines the progress the United States has made in this area, revises implementation, and requests from the public information about the impact of these revised controls on U.S. industry and the cybersecurity community. These items warrant controls because these tools could be used for surveillance, espionage, or other actions that disrupt, deny or degrade the network or devices on it.
4.
Imposition of Export Controls on Certain Brain-Computer Interface (BCI) Emerging Technology (0694-AI41):
Section 1758 of ECRA, as codified under 50 U.S.C. 4817, authorizes BIS to establish appropriate controls on the export, reexport or transfer (in-country) of emerging and foundational technologies. Pursuant to ECRA, BIS has identified Brain Computer Interface technology as part of a representative list of technology categories for which BIS will seek public comment to determine whether this is an emerging technology that is important to U.S. national security and for which effective controls can be implemented. In this Advance Notice of Proposed Rulemaking, BIS is seeking comments specifically concerning whether this technology could provide the United States, or any of its adversaries, with a qualitative military or intelligence advantage. In addition, BIS is seeking public comments on how to ensure that the scope of any controls that may be imposed on this technology in the future would be effective and appropriate with respect to their potential impact on legitimate commercial or scientific applications.
5.
Foundational Technologies: Proposed Controls (0694-AH80):
BIS is considering expanding controls on certain foundational technologies. Foundational technologies may be items that are currently subject to control for military end use or military end user reasons. Additionally, foundational technologies may be additional items, for which an export license is generally not required (except for certain countries), that also warrant review to determine if they are foundational technologies essential to the national security. For example, such controls may be reviewed if the items are being utilized or are required for innovation in developing conventional weapons or enabling foreign intelligence collection activities or weapons of mass destruction applications. In an effort to address this concern, this proposed rule would amend the CCL by adding controls on certain aircraft reciprocating or rotary engines and powdered metals and alloys. This rule requests public comments to ensure that the scope of these proposed controls will be effective and appropriate, including with respect to their potential impact on legitimate commercial or scientific applications.
6.
Removal of Certain General Approved Exclusions (GAEs) Under the Section 232 Steel and Aluminum Tariff Exclusions Process (0694-AH55):
On December 14, 2020, BIS published an interim final rule (the December 14 rule) that revised aspects of the process for requesting exclusions from the duties and quantitative limitations on imports of aluminum and steel discussed in three previous Commerce interim final rules implementing the exclusion process authorized by the President under section 232 of the Trade Expansion Act of 1962, as amended (232), as well as a May 26, 2020, notice of inquiry. The December 14 rule added 123 General Approved Exclusions (GAEs) to the regulations. The addition of GAEs was an important step in improving the efficiency and effectiveness of the 232 exclusions process for certain Harmonized Tariff Schedule of the United States (HTSUS) codes for steel and aluminum that had not received objections. Commerce determined it could authorize imports under GAEs for these specified HTSUS codes for all importers instead of requiring each importer to submit an exclusion request. Subsequently, based on Commerce's review of the public comments received in response to the December 14 rule and additional analysis conducted by Commerce of 232 exclusion request submissions, Commerce determined that a subset of the GAEs added in the December 14 rule did not meet the criteria for inclusion as a GAE and should therefore be removed. Commerce is removing these GAEs in this interim final rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs. Lastly, this interim final rule makes two conforming changes to the GAE list for a recent change to one HTSUS classification and adds a footnote to both GAE supplements to address future changes to the HTSUS.
DOC—BUREAU OF INDUSTRY AND SECURITY (BIS)
Prerule Stage
9. Request for Comments Concerning the Imposition of Export Controls on Certain Brain-Computer Interface (BCI) Emerging Technology
Priority:
Other Significant.
Legal Authority:
50 U.S.C. 4817(a)(2)(C)
CFR Citation:
None.
Legal Deadline:
None.
Abstract:
Section 1758 of the Export Control Reform Act of 2018 (ECRA), as codified under 50 U.S.C. 4817, authorizes BIS to establish appropriate controls on the export, reexport or transfer (in-country) of emerging and foundational technologies. Pursuant to ECRA, BIS has identified Brain Computer Interface (BCI) technology as part of a representative list of technology categories concerning which BIS, through an interagency process, seeks public comment to determine whether this technology represents an emerging technology that is important to U.S. national security and for which effective controls can be implemented. Specifically, BIS is seeking comments concerning whether this technology could provide the United States, or any of its adversaries, with a qualitative military or intelligence advantage. In addition, BIS is seeking public comments on how to ensure that the scope of any controls that may be imposed on this technology in the future would be effective and appropriate (with respect to their potential impact on legitimate commercial or scientific applications).
Statement of Need:
The Bureau of Industry and Security (BIS) is publishing this ANPRM to obtain public comments on the potential uses of Brain-Computer Interface (BCI) technology, which includes, inter alia, neural-controlled interfaces, mind-machine interfaces, direct neural interfaces, and brain-machine interfaces. On November 19, 2018, BIS published an ANPRM (83 FR 58201) that identified BCI technology as part of a representative list of technology categories concerning which BIS, through an interagency process, sought public comments to determine whether there are specific emerging technologies that are essential to U.S. national security and for which effective controls can be implemented.
Additional input from the public is needed to assist in the interagency process of evaluating BCI technology as a potential emerging technology and to determine if there are specific BCI technologies for which export controls would be appropriate. The public's responses to the questions posed in this ANPRM will be considered during the aforementioned interagency process to evaluate BCI technology as a potential emerging technology and to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications).
Summary of Legal Basis:
Section 1758(a) of the Export Control Reform Act (ECRA) of 2018 (50 U.S.C. 4817(a)) outlines an interagency process for identifying emerging and foundational technologies. BCI technology has been identified as a technology for evaluation as a potential emerging technology, consistent with the interagency process described in section 1758 of ECRA. Consequently, BIS is publishing this ANPRM to obtain feedback from the public and U.S. industry concerning whether such technology could provide the United States, or any of its adversaries, with a qualitative military or intelligence advantage.
Alternatives:
The Secretary of Commerce must establish appropriate controls on the export, reexport or transfer (in-country) of technology identified pursuant to the section 1758 process. In so doing, the Secretary must consider the potential end-uses and end-users of emerging and foundational technologies, and the countries to which exports from the United States are restricted (
e.g.,
embargoed countries). While the Secretary has discretion to set the level of export controls, at a minimum a license must be required for the export of such technologies to countries subject to a U.S. embargo, including those countries subject to an arms embargo.
If the interagency process results in a determination that certain BCI technology constitutes an emerging technology, for purposes of section 1758 of ECRA, then BIS is required, pursuant to ECRA to institute export controls on such technology. However, BIS does have some flexibility to ensure that the scope of any controls that may be imposed on this technology would be effective (in terms of protecting U.S. national security interests) and appropriate (with respect to minimizing their potential impact on legitimate commercial or scientific applications).
Anticipated Cost and Benefits:
This ANPRM is being published by BIS to assist in evaluating, not only whether certain BCI technology is an emerging technology, but also to obtain information from the public to assist in evaluating how the implementation of export controls on such technology would impact U.S. industry, in terms of both its economic and technological competitiveness. In short, this ANPRM is intended to assist, as part of the aforementioned interagency process, in evaluating the anticipated costs and benefits of imposing export controls on certain BCI technology.
Risks:
The risks of imposing export controls on certain BCI technology would be to hurt the economic and technological competitiveness of U.S. industry, which is one of the primary reasons that BIS is soliciting comments from the public in accordance with this ANPRM. There are also risks to U.S. national security and to U.S. industry should such technology fall into the hands of our adversaries.
Timetable:
Action
Date
FR Cite
ANPRM
10/26/21
86 FR 59070
ANPRM Comment Period End
12/10/21
NPRM
03/00/22
Regulatory Flexibility Analysis Required:
No.
Government Levels Affected:
None.
Agency Contact:
Willard Fisher, Export Administration Specialist, Department of Commerce, Bureau of Industry and Security, 14th Street and Pennsylvania Avenue NW, Washington, DC 20230,
Phone:
202 482-2440,
Fax:
202 482-3355,
Email: willard.fisher@bis.doc.gov.
RIN:
0694-AI41
DOC—BIS
Proposed Rule Stage
10. Foundational Technologies: Proposed Controls; Request for Comments
Priority:
Other Significant.
Legal Authority:
50 U.S.C. 4801 to 4852
CFR Citation:
15 CFR 742; 15 CFR 774.
Legal Deadline:
None.
Abstract:
The Bureau of Industry and Security (BIS), the Department of Commerce, maintains controls on the export, reexport, and transfer (in-country) of dual-use and less sensitive military items through the Export Administration Regulations (EAR), including the Commerce Control List (CCL). Foundational technologies may be items that are currently subject to control for military end use or military
end user reasons. Additionally, foundational technologies may be additional items, for which an export license is not required (except for certain countries) that also warrant review to determine if they are foundational technologies essential to the national security. For example, such controls may be reviewed if the items are being utilized or required for innovation in developing conventional weapons or enabling foreign intelligence collection activities or weapons of mass destruction applications. In an effort to address this concern, this rule proposes to amend the CCL with identified foundational technologies. This rule requests public comments to ensure that the scope of these proposed controls will be effective and appropriate, including with respect to their potential impact on legitimate commercial or scientific applications.
Statement of Need:
As part of the National Defense Authorization Act (NDAA) for Fiscal Year 2019 (Pub. L. 115-232), Congress enacted the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4817). Section 1758 of ECRA authorizes the Bureau of Industry and Security (BIS) to establish appropriate controls on the export, reexport, or transfer (in-country) of emerging and foundational technologies. With this proposed rule, BIS continues to identify technologies that may warrant more restrictive controls than they have at present and establishes a control framework applicable to certain unilaterally-controlled emerging and foundational technologies.
Summary of Legal Basis:
There are a variety of legal authorities under which BIS operates. However, ECRA (50 U.S.C. 4817) provides the most substantive legal basis for BIS's actions under this proposed rule.
Alternatives:
There are not alternatives to this rule. This rule serves as the first tranche of controls specifically outlining foundational technologies.
Anticipated Cost and Benefits:
The anticipated costs and benefits of this proposed rule are not applicable.
Risks:
There are no applicable risks to this proposed rule.
Timetable:
Action
Date
FR Cite
ANPRM
08/27/20
85 FR 52934
ANPRM Correction and Comment Extension
10/09/20
85 FR 64078
ANPRM Comment Period End
10/26/20
ANPRM Correction and Comment Extension Period End
11/09/20
NPRM
08/00/22
Regulatory Flexibility Analysis Required:
No.
Government Levels Affected:
None.
International Impacts:
This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
Agency Contact:
Logan D. Norton, Department of Commerce, Bureau of Industry and Security, 1401 Constitution Avenue, Washington, DC 20230,
Phone:
202 812-1762,
Email: logan.norton@bis.doc.gov.
RIN:
0694-AH80
DOC—BIS
Final Rule Stage
11. Removal of Certain General Approved Exclusions (GAEs) Under the Section 232 Steel and Aluminum Tariff Exclusions Process
Priority:
Other Significant.
Legal Authority:
19 U.S.C. 1862
CFR Citation:
15 CFR 705.
Legal Deadline:
None.
Abstract:
On December 14, 2020, the Department of Commerce published an interim final rule (December 14 rule) that revised aspects of the process for requesting exclusions from the duties and quantitative limitations on imports of aluminum and steel. The December 14 rule added 123 General Approved Exclusions (GAEs) to the regulations. The addition of GAEs was an important step in improving the efficiency and effectiveness of the 232 exclusions process for certain Harmonized Tariff Schedule of the United States (HTSUS) codes for steel and aluminum that had not received objections. Subsequently, based on Commerce's review of the public comments received in response to the December 14 rule and additional analysis conducted by Commerce of 232 submissions, Commerce determined that a subset of the GAEs added in the December 14 rule did not meet the criteria for inclusion as a GAE and should therefore be removed. Commerce is removing these GAEs in today's interim final rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs.
Statement of Need:
On December 14, 2020, the Department of Commerce published an interim final rule (the December 14 rule) that revised aspects of the process for requesting exclusions from the duties and quantitative limitations on imports of aluminum and steel discussed in three previous Department of Commerce (Commerce) interim final rules implementing the exclusion process authorized by the President under section 232 of the Trade Expansion Act of 1962, as amended (232), as well as a May 26, 2020 notice of inquiry. The December 14 rule included adding 123 General Approved Exclusions (GAEs) to the regulations. The addition of GAEs was an important step in improving the efficiency and effectiveness of the 232 exclusions process. Commerce selected certain steel and aluminum articles under select Harmonized Tariff Schedule of the United States (HTSUS) codes as GAEs on the basis that exclusion requests submitted for the specified HTSUS codes had not received objections from domestic industry in the 232 exclusions process.
Commerce is publishing this interim final rule to remove a subset of General Approved Exclusions (GAEs) added in the December 14 rule after public comments on the December 14 rule and subsequent Commerce analysis of data in the 232 Exclusions Portal identified these HTSUS codes as not meeting the criteria for inclusion as a GAE. These cases include HTSUS codes with exclusion requests that recently received objections and/or denials in the 232 Exclusions Portal. Commerce is removing these GAEs in this interim final rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs.
Summary of Legal Basis:
The legal basis of this rule is section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862) and Reorg. Plan No. 3 of 1979 (44 FR 69273, December 3, 1979). This rule is also implementing the directive included in Proclamations 9704 and 9705 of March 8, 2018. As explained in the reports submitted by the Secretary to the President, steel and aluminum are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security of the United States, and therefore the President is implementing these remedial actions (as described Proclamations 9704 and 9705 of March 8, 2018) to protect U.S. national security interests. That implementation includes the creation of an effective process by which affected domestic parties can obtain exclusion requests based upon specific national security
considerations. Commerce started this process with the publication of the March 19 rule and refined the process with the publication of the September 11, June 10, and December 14 rules and is continuing the process with the publication of today's interim final rule. The revisions to the exclusion request process are informed by the comments received in response to the December 14 rule and Commerce's experience with managing the 232 exclusions process.
Alternatives:
Alternatives to doing this rule would include not publishing the rule. The public has the ability to apply for exclusion requests, so instead of creating GAEs, the public could be told to rely on the existing exclusions process. However, numerous commenters on the 232 interim final rules that have been published have emphasized the need for making improvements in the efficiency, transparency, and fairness of the 232 exclusion process and had suggested the creation of a GAE type of approval as part of the 232 exclusions process would benefit the program. Commenters on the December 14 rule identified certain GAE eligible items that they believed did not meet the stated criteria for what should be eligible for be authorized under a GAE. Commerce after reviewing those comments and conducting its own additional analysis agrees that certain items identified under the current GAEs no longer reflect the GAE criteria and therefore should be removed, so the alternative of not doing a rule or the option of removing the GAE approvals completely are not viable options for achieving the intended policy objectives that Commerce is trying to fulfill with having a more effective exclusion process.
Anticipated Cost and Benefits:
For the anticipated costs, this rule is expected to increase the burden hours for one of the collections associated with this rule, OMB control number 0694-0139. This increase is expected because of the removal of certain GAEs for steel and GAEs for aluminum, which is expected to result in an increase of 1,100 exclusion request submissions per year. These removals are estimated to result in a twenty percent reduction in the burden and costs savings described in the December 14 rule. These GAE removals are expected to be an increase in 1,100 burden hours for a total cost increase of 162,800 dollars to the public. There is also expected to be an increase in 6,600 burden hours for a total cost increase of 257,000 dollars to the U.S. Government. As Commerce asserted in the December 14 rule that the steel and aluminum articles identified as being eligible for GAEs, including those being removed in today's rule, had not received any objections, the addition of those new GAEs was not estimated to result in a decrease in the number of objections, rebuttals, or surrebuttals received by BIS. As described elsewhere in this rule, the GAEs removed in today's interim final rule did receive objections and/or denials and therefore warrant removal at this time. Because the December 14 rule did not make any adjustments to the collections for objections, rebuttals, or surrebuttals, the removal of these GAEs is estimated to result in no change in the burden associated with the other three collections.
For the anticipated benefits, these changes will ensure the effectiveness of the GAEs under the 232 exclusions process. By ensuring that only those GAEs that meet the stated criteria for what should be considered a GAE, will help improve the effectiveness, fairness and transparency of the 232 exclusions process. Importers and other users of steel and aluminum in the U.S. and U.S. producers and steel and aluminum have comments in response to the various section 232 interim final rules published that creating an effective 232 exclusion process is key to reduce burdens on the public. The adoption of the GAEs was an important step in improving efficiency, but in order ensure U.S. national security interests are protected, only items that meet the GAE criteria should be eligible and any other item should be required to be included in the normal 232 exclusion process.
Risks:
If this interim final rule were to be delayed, companies in the United States would be unable to immediately benefit from the improvements made to the GAE process and could face significant economic hardship, which could potentially create a detrimental effect on the general U.S. economy and national security. Comments received on the December 14 rule that were critical of the GAEs were clear that the removal of GAEs that consisted of HTSUS codes that received objections and/or denials under the 232 process was needed. Commenters noted that failure to provide this additional improvement could allow the floodgates to open for imports of those articles
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