Federal Register Vol. 81, No.235,

On December 4, 2015, the President signed into law the Fixing America's Surface Transportation Act (“FAST Act” or “The Act”), Public Law 114-94. The Act contains several provisions designed to protect and enhance the Nation's electric power delivery infrastructure. Section 61003 of the Act adds a new section 215A, titled “Critical Electric Infrastructure Security,” to Part II of the Federal Power Act, codified at 16 U.S.C. 824o-1. New section 215A(a) defines, among other terms, a “grid security emergency.” New section 215A(b) authorizes the Secretary of Energy to order emergency measures after the President declares a grid security emergency. A grid security emergency could result from a physical attack, a cyber-attack using electronic communication or an electromagnetic pulse (EMP), or a geomagnetic storm event, damaging certain electricity infrastructure assets and impairing the reliability of the Nation's power grid. Emergency orders responding to grid security emergencies would aim to mitigate or eliminate threats to reliability as quickly and efficiently as possible. The statute authorizes the Secretary of Energy to issue orders for emergency measures as are necessary, in the Secretary's judgment, to protect or restore the reliability of critical electric infrastructure or defense critical electric infrastructure during the emergency. Critically, the Department's centralized direction following a declared grid security emergency will help the Department to coordinate resources efficiently to minimize the impact of the emergency.

The authority granted in section 215A of the Federal Power Act supplements the Secretary's existing authority, under section 202(c) of the Federal Power Act, to order temporary emergency measures if the Secretary finds “that an emergency exists by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes,” that the Secretary believes “will best meet the emergency and serve the public interest.” To that end, the Secretary may issue orders under section 202(c) requiring the “temporary connections of facilities[,] generation, delivery, interchange, or transmission of electric energy.”

The FAST Act also directs the Secretary, “after notice and opportunity for comment,” to “establish rules of procedure that ensure that such authority can be exercised expeditiously.” To ensure that stakeholders and the public understand how the Department would issue an order responding to a grid security emergency, the Department proposes in this notice of proposed rulemaking the procedures it would expect to follow in the event of such emergency. DOE proposes to add these procedures to the existing subpart W in 10 CFR part 205.

Both natural and artificial events can disrupt the Nation's power grid. Geomagnetic storm events are unavoidable natural phenomena, and an event of sufficient strength could compromise the grid. EMPs pose another significant threat. Cyber- and physical attacks on infrastructure could also damage or disrupt critical grid components. The Department is committed to minimizing any disruptions from an attack on, or natural damage to, the Nation's power grid. Responses to grid disruptions will need to be tailored to the particular circumstances, and the Department now has the authority to respond as necessary to mitigate the effects of a grid security emergency.

If the President should declare a grid security emergency, the Department intends to follow the procedures established in this rulemaking proceeding. The Secretary is authorized to issue emergency orders “[w]henever the President issues and provides to the Secretary [of Energy] a written directive or determination identifying a grid security emergency.” The purpose of an emergency order is to designate “emergency measures as are necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during such emergency.”

The proposed rule begins with definitions of key terms in § 205.380. Further explanations for certain definitions and terms appear below.

“Bulk-power system” encompasses the facilities used to transmit electricity and energy needed to maintain the reliability of that system of interconnected facilities—in essence, the electric power grid for which the President might declare a grid security emergency and authorize the Secretary to issue emergency orders to protect or restore its reliability. The term excludes facilities used in local electric distribution. This definition is drawn from the statutory definition applicable throughout section 215A of the Federal Power Act.

“Commission” refers to the Federal Energy Regulatory Commission, which is responsible for approving applicable reliability standards. This term does not apply here to State regulatory commissions or to the former Federal Power Commission.

“Electric Reliability Organization” refers to the organization, certified by the Commission under section 215(c) of the Federal Power Act, which establishes and enforces reliability standards with Commission oversight. As of this rulemaking, the Commission's designated Electric Reliability Organization is the North American Electric Reliability Corporation (NERC).

“Electricity Information Sharing and Analysis Center” (E-ISAC) refers to the organization, operated on behalf of the electricity subsector by the North American Electric Reliability Corporation, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. E-ISAC is one of the organizations with which the Secretary will consult, to the extent practicable, in issuing an emergency order.

The “Electricity Subsector Coordinating Council” (ESCC) refers to the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure. The ESCC is another of the organizations with which the Secretary will consult, to the extent practicable, in issuing an emergency order. DOE considers the “electricity subsector” to include commercial and industrial actors who generate and deliver electric power, along with the facilities those actors use to generate and deliver the power.

An “Electromagnetic pulse” is one (1) or more pulses of electromagnetic energy emitted by a device capable of disabling or disrupting operation of, or destroying, electronic devices or communications networks, including hardware, software, and data, by means of such a pulse. The pulse can be accidental, incidental, or malicious.

The “Emergency & Incident Management Council” (EIMC) is the organization, internal to the Department and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies. The EIMC plays a central role in Grid Security Emergency orders, as it will meet, if practicable, after the President declares the emergency to prepare recommendations to the Secretary.

“Geomagnetic storm” refers to a temporary disturbance of the Earth's magnetic field resulting from solar activity. These natural phenomena are sometimes powerful enough to disrupt the Bulk-power system. If the disruption is sufficiently severe, a Grid Security Emergency could result.

“Regional entity” refers to organizations responsible for enforcing reliability standards for the Bulk-power system in certain, defined regions. These organizations operate under NERC and Commission oversight.

As described in proposed § 205.381, orders issued under section 215A(b) of the Federal Power Act may apply to the pertinent Electric Reliability Organization (NERC, as of this rulemaking), regional entity, or “any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States.”

The procedures are designed to allow the Secretary to address a declared grid security emergency. The statute authorizes the Secretary to order response measures that the Secretary believes are necessary to protect or restore the reliability of certain infrastructure in a grid security emergency. Because the nature of a grid security emergency is uncertain, the procedures allow for flexibility in response measures and, as the statute requires, to “ensure that such authority can be exercised expeditiously.” While the procedures are expected to produce the most efficient and effective emergency response possible under the circumstances, the Secretary has final authority to issue appropriate grid security emergency orders.

In the event of a grid security emergency, DOE will immediately activate its unified command structure and coordinate outreach efforts. DOE expects that the EIMC will anchor the Department's proposed response via its recommendations to the Secretary. Based on the nature and timing of the emergency, however, the Secretary would maintain discretion, based on a judgment of the relevant circumstances, to issue an emergency order without EIMC input. To the extent practicable, DOE will promptly alert stakeholders of the grid security emergency through existing alert mechanisms, such as the NERC alert system and ESCC communication coordination processes.

Proposed § 205.382 outlines the EIMC procedures. When the Department is notified, in writing, that the President has declared a grid security emergency and has directed the Secretary to order emergency response measures, the EIMC will be activated. The EIMC will create ad hoc task groups, assign recommendation development tasks to these groups, and coordinate the Department's consultation efforts. The EIMC may take other actions but only as necessary and practicable to develop the Department's recommendations to the Secretary. After the EIMC makes its recommendations, the Secretary will issue the emergency order. Again, the Department would follow these procedures to the extent practicable, but subject to the Secretary's judgment of the urgency of the situation and the best approach under the circumstances.

Consistent with the Department's longstanding practice, all reasonable efforts will be made to consult with stakeholders prior to the issuance of an emergency order. The statute also requires the Secretary to consult with other governmental authorities and non-governmental entities before issuing emergency orders, “to the extent practicable in light of the nature of the grid security emergency and the urgency of the need for action.” The Department understands that electric reliability entities and private industry will likely be impacted by the emergency and have important situational awareness to assist the Department in identifying mitigation or protection measures. Proposed § 205.383 outlines how the Department will coordinate its communication with other entities. Within the Department, the Office of Electricity Delivery and Energy Reliability (OE) will be the lead program office supporting the Secretary in issuing grid security emergency orders. As set forth in this proposed rule, OE would be responsible for conducting the required consultations under the statute. Consultation would include the Department's effort to obtain information and recommended emergency measures from those government entities,1 electric reliability entities, and owners, users, or operators of critical electric infrastructure or of defense critical electric infrastructure—including private-sector entities—impacted by the emergency. Historically, the Department has collaborated with other Federal agencies in an energy emergency to obtain waivers or special permits to facilitate expedited restoration. Here, the Department also intends to work with other Federal agencies to obtain waivers or special permits necessary to comply with the Secretary's order.

After the Secretary issues an emergency order, the Department will communicate the order's content to the entities subject to the order, as noted in proposed § 205.384. The Department will also enlist the ESCC and E-ISAC to communicate the order's content to those affected. The Department will also use any other form of communication most appropriate under the circumstances. Optimal communication on grid security emergencies will be paramount during the emergency, and the Department will work to ensure that information is shared that will help it to respond most effectively. For that reason, according to proposed § 205.384 and consistent with obligations to protect classified information, the Secretary may declassify information eligible for that change in status to ensure maximum distribution of information critical to the emergency response.

This proposed rule is limited to the Department's procedures for issuing an emergency order in response to a grid security emergency. Should the Secretary issue such an order, the order itself would set out the requirements and procedures for impacted entities to seek clarification or reconsideration of that particular order. Proposed § 205.385 provides general requirements for such requests. In particular, DOE proposes that anyone subject to a particular order may submit a request for clarification or reconsideration in writing to the Secretary. The requests would be posted on the Department's Web site consistent with criteria established for treatment of critical electric infrastructure information. In acting on a request for clarification or reconsideration, the Secretary may grant or deny the request or may abrogate or modify the final order, in whole or in part, with or without further proceedings, as soon as practicable. Such a request would not stay an emergency order unless the Secretary so determined.

As warranted, and to the extent practicable and consistent with obligations to protect classified information, the Secretary may allow key personnel of ordered entities temporary access to classified information. Proposed § 205.386 sets out this approach.

Proposed § 205.387 describes termination of grid security emergency orders. An emergency order remains effective for up to fifteen (15) days and may be extended for subsequent periods of up to 15 days if the President issues another directive to the Secretary that the original emergency has not ended or that the emergency measures already ordered are still required. If warranted, the Secretary may also terminate an order before the 15 days have elapsed. The entity or entities subject to the emergency order may also request that the Secretary terminate an order if the entity or entities believes that the grid security emergency ceases to exist and that protection or restoration of the grid has been achieved.

The Department also plans to determine compliance with grid security emergency orders, as described in proposed § 205.388. At the time the Department issues an emergency order, or shortly after the issuance, the Department may require the ordered party to provide a detailed account of compliance actions. As noted in proposed § 205.389, enforcement provisions in Part III of the Federal Power Act also apply to orders issued under section 215A. See 42 U.S.C. 7151(b) & 7172(a)(2)(A). For appeal purposes, as noted in proposed § 205.390, the Federal Power Act includes the requirements for a rehearing request and the process for an appeal of a decision.

As indicated in proposed § 205.391, the Department will not adjudicate cost recovery under an emergency order, as that determination is reserved for the Commission, state regulators, or the United States Court of Federal Claims. Specifically, the FAST Act allows the Commission to “establish a mechanism” allowing an aggrieved party to recover costs, but only if it determines that such a party has “incurred substantial costs to comply with an order for emergency measures issued under [section 215A] and that such costs were prudently incurred and cannot reasonably be recovered through regulated rates or market prices for the electric energy or services sold by” the aggrieved party.

Finally, the FAST Act shields parties affected by emergency orders from liability for what would otherwise be violations of the Federal Power Act or the reliability standards, except in cases of gross negligence. New section 215A(f) of the Federal Power Act states that any action or omission taken to comply with an emergency order that causes noncompliance “with any rule, order, regulation, or provision” of the Federal Power Act, as well as any FERC-approved reliability standard, “shall not be considered a violation” of that legal requirement. The same subsection incorporates the liability protection for emergency orders issued under section 202(c) of the Federal Power Act. That protection, for actions or omissions resulting in noncompliance with “any Federal, State, or local environmental law or regulation,” not only frees the ordered party from violations of those laws or regulations, but also shields the ordered party from “any requirement, civil or criminal liability, or a citizen suit under such environmental law or regulation,” even if a court subsequently stays, modifies, or sets aside the order. Proposed § 205.392 describes all of these protections.

DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

Submitting comments via regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

This proposed rule has been determined to be a significant regulatory action under Executive Order No. 12,866, “Regulatory Planning and Review,” 58 FR 51,735 (Oct. 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

DOE has determined that this proposed rule is covered under the Categorical Exclusion found in the DOE's National Environmental Policy Act regulations at paragraph A6 Rulemakings, procedural of appendix A to subpart D, 10 CFR part 1021, which applies to Rulemakings that are strictly procedural, such as rulemaking (under 48 CFR part 9) establishing procedures for technical and pricing proposals and establishing contract clauses and contracting practices for the purchase of goods and services, and rulemaking (under 10 CFR part 600) establishing application and review procedures for, and administration, audit, and closeout of, grants and cooperative agreements. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order No. 13,272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53,461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE's procedures and policies are available on the Office of General Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.

DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule sets forth procedures that DOE expects to use to issue an order in the event of a declared grid security emergency. The procedures govern DOE activities in the issuance of an order and therefore impact DOE, a Federal agency, rather than any small entities.

DOE further expects that these orders would be issued rarely. In addition, the FAST Act authorizes DOE to issue orders only to specific entities—namely, the pertinent Electric Reliability Organization (NERC, as of this rulemaking), regional entity, or any owner, user or operator of critical energy infrastructure or defense critical energy infrastructure. DOE has determined that these entities most likely fall under NAICS code 221121, “Electric Bulk Power Transmission and Control.” To be considered a small entity, these businesses must have 500 employees or less. Due to the nature of the orders to protect or restore and/or infrastructure, DOE has determined that it is likely to consult with large businesses.

An entity subject to an order may request the clarification or rehearing of an order, or the termination of an order. DOE does not expect that these provisions, which would help an entity to understand an order or, in the case of a termination granted by the Secretary, end the applicability of an order, to impose a significant impact on any entity. DOE may also consult with any of these entities to understand the grid security emergency and obtain recommendations to address the emergency. DOE also does not expect these consultations to result in a significant impact on any entity because the interaction would not order the entity to perform any action, but would rather be an exchange of information to help DOE understand the emergency and consider measures to protect and/or restore infrastructure. In addition, it is likely that only entities with equities that could be impacted by potential orders would be consulted. In the event that an order is issued to address a grid security emergency, because the contents of any order would be highly dependent upon the nature of the grid security emergency, DOE again emphasizes that the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency.

On the basis of the foregoing, DOE certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

This proposed rule does not contain information collection requirements subject to approval by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the procedures implementing that Act at 5 CFR part 1320. A person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments. 2 U.S.C. 1534.

This proposed rule will establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. The proposed rule will not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The proposed rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order No. 13,132, “Federalism,” 64 FR 43,255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it will not preempt State law and will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed rule would establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. No further action is required by Executive Order No. 13,132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order No. 12,988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order No. 12,988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order No. 12,988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or whether it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order No. 12,988.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.

OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62,446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order No. 13,211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28,355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order No. 12,866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action will not have a significant adverse effect on the supply, distribution, or use of energy. The proposed rule would establish the procedures DOE expects to use issue an order in the event of a declared grid security emergency. In the event that an order is issued to address a grid security emergency, the order itself, rather than these procedures, would specify the requirements necessary to address the grid security emergency. In addition, the statute requires that the order must “protect or restore” critical electric infrastructure or defense critical electric infrastructure. Therefore, the rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

The Secretary of Energy has approved publication of this proposed rule.

For the reasons stated in the preamble, DOE proposes to amend part 205 of chapter II, subchapter A, of Title 10 of the Code of Federal Regulations, as set forth below:

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2015-0144, dated July 21, 2015, to correct an unsafe condition for Airbus Helicopters Model MBB-BK117 C-2 helicopters, up to serial number 9708. EASA advises that, during a flight test, the pilot could not fully engage a twist grip on a Model MBB-BK117 C-2 helicopter. According to EASA, further investigation found a transparent sleeve on the collective lever wiring harness damaged because of incorrect installation of the heat-shrinkable sleeve. This condition, if not detected and corrected, could result in chafing of the harness, leading to the malfunction of the affected systems, EASA advises. EASA consequently requires a one-time inspection of the heat-shrinkable and transparent sleeves installed on the collective lever wiring harness.

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015 (ASB), which specifies a visual inspection of the heat-shrinkable sleeve for correct position. If the sleeve's position is incorrect, the ASB specifies shortening the sleeve. If there is any damage, the ASB calls for replacing the damaged parts.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This proposed AD would require, within 100 hours time-in-service, visually inspecting the pilot collective wiring harness for correct position of the heat-shrinkable sleeve and the transparent sleeve. If the heat-shrinkable and the transparent sleeves are in their correct positions, this proposed AD would require re-installing the collective lever. If the heat-shrinkable sleeve is closer to or below the torque tube tangs, this proposed AD would require shortening the heat-shrinkable sleeve. If the transparent sleeve is damaged, this proposed AD would require replacing the heat-shrinkable sleeve, transparent sleeve, and identification sleeve. Lastly, this proposed AD would require replacing any damaged wires in the wiring harness.

The compliance time in the EASA AD is based on whether the helicopter has an externally mounted hoist or emergency flotation system. This proposed AD would require compliance within 100 hours time-in-service for all applicable helicopters.

We estimate that this proposed AD would affect 113 helicopters of U.S. Registry and that labor costs average $85 a work hour.

• Inspecting the pilot collective wiring harness for the correct position of the heat-shrinkable sleeve would require 1.5 work hours. No parts would be required for a total cost of $128 per helicopter and $14,464 for the U.S. fleet.

• Replacing or repairing the sleeves would require 5.5 work hours and parts would cost $10, for a total cost of $478 per helicopter.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this NPRM. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-FAA-2016-9167; Directorate Identifier 2016-NE-20-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

We propose to adopt an AD for certain GE GE90-76B, GE90-85B, GE90-90B, GE90-94B, GE90-110B1, and GE90-115B turbofan engines with a main heat exchanger, part number (P/N) 1838M88P11 or 1838M88P13.

This proposed AD is prompted by a report of an airplane fire caused by a failed main heat exchanger. The incident investigation determined the cause to be an internal main heat exchanger tube separation, which resulted in leakage of fuel into the oil system, causing oil sump flooding that overwhelmed the scavenge and venting system. This condition, if not corrected, could result in failure of a main heat exchanger, which could cause an engine fire. To correct this unsafe condition, we propose to require replacing the main heat exchanger with a part not affected by this proposed AD or with a part that is repaired in accordance with the manufacturer's service information.

We reviewed GE Service Bulletin (SB) GE90-100 SB 79-0034, Revision 03, dated August 5, 2016, and SB GE90 SB 79-0058, Revision 02, dated August 5, 2016. This service information describes procedures to replace and repair a main heat exchanger. These documents are distinct since they apply to different engine models.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require replacing the affected main heat exchangers with a part eligible for installation.

We estimate that this proposed AD affects 185 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Copies of this Federal Register notice: Electronic copies are available at: http://www.regulations.gov. This Federal Register notice, as well as news releases and other relevant information, also are available at OSHA's Web page at http://www.osha.gov.

References and Exhibits (optional): Documents referenced by OSHA in this request for information, other than OSHA standards and Federal Register notices, are in Docket No. OSHA-2016-0014 (Prevention of Workplace Violence in Healthcare). The docket is available at: http://www.regulations.gov, the Federal eRulemaking Portal. For additional information on submitting items to, or accessing items in, the docket, please refer to the Addresses section of this RFI. Most exhibits are available at http://www.regulations.gov; some exhibits (e.g., copyrighted material) are not available to download from that Web page. However, all materials in the dockets are available for inspection and copying at the OSHA Docket Office, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC.

OSHA is considering whether to commence rulemaking proceedings on a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients. Workplace violence affects a myriad of healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected include physicians, registered nurses, pharmacists, nurse practitioners, physicians' assistants, nurses' aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.

OSHA's analysis of available data suggest that workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. Table 1 compiles data from the Bureau of Labor Statistics' (BLS) Survey of Occupational Injuries and Illnesses (SOII). In 2014, workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall (BLS Table R8, 2015). Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. The overall rate for violence-related injuries in just the social assistance subsector was 9.8 per 10,000, and individual industries, such as vocational rehabilitation with rates of 20.8 per 10,000 full-time workers are higher. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients (BLS, 2015, Table R3, p. 40).

BLS relies on employers to report injury and illness data and employers do not always record or accurately record workplace injuries and illnesses (Ruser, 2008; Robinson, 2014; BLS, 2014). In addition, healthcare and social assistance employees may be reluctant to report incidents of workplace violence (see Section V.A.3.b below).

Surveys of healthcare and social assistance workers provide another source of data useful for describing the extent of the problem. In one survey, 21 percent of registered nurses and nursing students reported being physically assaulted in a 12-month period (ANA, 2014). The U.S. Department of Health and Human Services (HHS) National Electronic Injury Surveillance System-Work Supplement (NEISS-WORK) reported that, of the cases where healthcare workers sought treatment for workplace violence related injuries in 2011 in hospital emergency rooms, patients were perpetrators an estimated 63 percent of the time (US GAO, 2016). Other perpetrators include patients' families and visitors, and co-workers (Stokowski, 2010; BLS Data, 2013).

A survey of 175 licensed social workers and 98 agency directors in a western state found that 25 percent of social workers had been assaulted by a client, nearly 50 percent had witnessed violence in a workplace, and more than 75 percent were fearful of violent acts (Rey, 1996). A similar survey of a national sample of 633 workers randomly drawn from the National Association of Social Workers Membership Directory reported that 17.4 percent of the respondents reported being physically threatened, and 2.8 percent being assaulted. Verbal abuse was prevalent and was reported by 42.8 percent respondents (Jayaratne et al., 1996).

Though non-fatal injuries predominate by a large extent, homicides accounted for 14 fatalities in healthcare and social service settings that occurred in 2014, and 10 that occurred in 2013 (BLS SOII and CFOI Data, 2011-2014).1

This RFI is focused on workplace violence occurring in health care and social assistance for several reasons. While workplace violence occurs in other industries, health care services and social assistance services have a common set of risk factors related to the unique relationship between the care provider and the patient or client. The complex culture of healthcare and social assistance, in which the health care provider is typically cast as the patient's advocate, increases resistance to the notion that healthcare workers are at risk for patient-related violence (McPhaul and Lipscomb, 2004). In addition, the number of healthcare and social assistance workers is likely to grow as the sector is a large and growing component of the U.S. economy.

OSHA has a history of providing guidance to employees and employers in this sector since 1996 (see Sections II and V). In addition, a body of knowledge has emerged in recent years from research about the factors that increase the risk of violence and the interventions that mitigate or reduce the risk in health care and social assistance. As a result, workplace violence is recognized as an occupational hazard for healthcare and social assistance, which, like other hazards, can be avoided or minimized when employers take appropriate precautions to reduce risk factors that have been shown to increase the risk of violence. See Section V.A.2., Worksite analysis and hazard identification, for a discussion of risk factors.

Though OSHA has no intention of including violence that is solely verbal in a potential regulation, the Agency does ask a series of questions about threats that could reasonably be expected to result in violent acts. These threats could be verbal or written, or could be marked by body language.

In order to chart the best course going forward and inform OSHA's approach to this hazard, OSHA has posed a number of detailed questions for comment throughout the RFI. To make the best decisions about OSHA's next steps in this area, the questions posed are designed to better elucidate these general subjects:

• The scope of the problem in healthcare and social assistance—frequency of incidents of workplace violence, where those incidents most commonly occur, and who is most often the victim in those incidents;

• The common risk factors that could be addressed;

• Interventions and controls that data show are working already in the field;

• The efficacy, feasibility and cost of different options.

The remainder of the RFI is organized as follows. Section II provides background on the growing awareness of the problem of workplace violence in health care and social assistance, and steps taken to date by OSHA, states, and the private sector. Section III discusses and seeks information on definitional issues. Section IV provides an overview of current data on the problem of workplace violence in the health care and social assistance sectors, and seeks input on a potential scope for a standard. Using OSHA's workplace violence guidelines as a starting point, Section V discusses the elements of a workplace violence prevention program that might be included in a standard, and asks for public input on these elements. Finally, Section VI seeks input on costs and economic impacts, and Section VII contains the references relied on by OSHA in preparing this RFI.

Protecting healthcare and social assistance workers from workplace violence is not a new focus for OSHA. In 1996, OSHA published the first version of its “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.” The same year, NIOSH published and broadly disseminated its document describing violence as an occupational hazard in the healthcare workplace, as well as risk factors and prevention strategies for mitigating the hazard (NIOSH, 1996). In 2002, NIOSH published a report entitled “Violence: Occupational Hazards in Hospitals” (NIOSH, 2002). The current revision of OSHA's violence prevention guidelines (2015) is at: http://www.osha.gov/Publications/osha3148.pdf.

OSHA's Guidelines are based on industry best practices and feedback from stakeholders, and provides recommendations for policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social services settings. Information on five settings was included in the updated guidelines: Hospital settings, residential treatment settings, non-residential treatment/services settings, community care settings, and field work settings. In addition, the updated 2015 version covers a broader spectrum of workers in comparison with previously published guidelines because healthcare is increasingly being provided in other settings such as nursing homes, free-standing surgical and outpatient centers, emergency care clinics, patients' homes, and pre-hospitalization emergency care settings.

The Guidelines recommend a comprehensive violence prevention program that consists of five core elements or “building blocks”: (1) Management commitment and employee participation; (2) worksite analysis; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation. These elements are discussed further in Section V below. While these guidelines provide much detailed, research-based information on specific controls and strategies for various healthcare and social assistance settings to help employers and employees prevent violence, they are recommendations and therefore non-mandatory.

Lipscomb and colleagues (2006) report the results of a participatory intervention study that implemented and then evaluated violence prevention programs that were based on the 1996 OSHA Guidelines in three New York state mental health facilities. The New York State Office of Mental Health (OMH), working through its labor-management health and safety committee established a policy requiring all 26 in-patient OMH facilities to develop and implement a proactive violence-prevention program. Recognizing the opportunity for a “natural” experiment, the study investigators chose three “intervention” and “comparison” sites, with the intervention sites benefitting from consultation with the study team and with the project's New York State-based violence-prevention coordinator. The intervention had three main components: (1) Implementation of a facility-specific violence prevention program; (2) conducting a risk assessment; and (3) designing and implementing feasible recommendations evolving from the risk assessment. The OSHA elements of management commitment and employee involvement, worksite analysis, hazard control and prevention, and training were operationalized within the project. The authors stated that the guideline's emphasis on management commitment and employee involvement was critical to the successful implementation of the program. Program impact was evaluated through focus groups and surveys. A comparison of pre- and post-intervention survey data indicate an improvement in staff perception of the quality of the facility's violence-prevention program (i.e., OSHA elements) in both intervention and comparison facilities.

In 2015, OSHA also published a complementary Web page, “Caring for Our Caregivers: Strategies and Tools for Workplace Violence Prevention in Healthcare” containing resources and tools to help healthcare facilities develop and implement a workplace violence prevention program, located at: https://www.osha.gov/dsg/hospitals/workplace_violence.html. The focus of this guidance is primarily hospitals and behavioral health facilities, and the content was developed from examples shared with OSHA by healthcare facilities with various components of successful violence prevention programs.

Although OSHA has no standard specific to the prevention of workplace violence, the Agency currently enforces Section 5(a)(1) (General Duty Clause) of the OSH Act against employers that expose their workers to this recognized hazard. Section 5(a)(1) states that employers have a general duty to furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees (29 U.S.C. 654(a)(1)). Section 5(a)(1) does not specifically prescribe how employers are to eliminate or reduce their employees' exposure to workplace violence. A standard on workplace violence would help clarify employer obligations and the measures necessary to protect employees from such violence.

To prove a violation of the General Duty Clause, OSHA must provide evidence that: (1) the employer failed to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious injury; and (4) a feasible and useful method was available to correct the hazard.

Prior to 2011, federal OSHA rarely used the General Duty Clause to inspect and cite healthcare and social assistance facilities for the hazard of workplace violence, in part because no guidance existed on how to conduct such an inspection. In September 2011, OSHA took an important step toward beginning to address workplace violence in healthcare and other high-risk settings by publishing a compliance Directive CPL 02-01-052 (https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf), detailing potential hazards in those settings and providing OSHA compliance officers with enforcement guidance to respond to complaints regarding the hazard of workplace violence. The Directive provides guidance on how a workplace violence enforcement case should be developed and what steps Area Offices should take to assist employers in addressing this hazard. The Agency is currently in the process of updating and revising its Directive.

A relatively small percentage of the inspections related to workplace violence in health care facilities resulted in general duty clause citations. From 2011 through 2015, OSHA inspected 107 hospitals (NAICS code 622) and nursing and residential care facilities (NAICS code 623) and issued 17 general duty clause citations to healthcare employers for failing to address workplace violence (OSHA Enforcement Data).

As of August 2015, nine states had enacted laws that require employers who employ healthcare and/or social assistance workers to establish a plan or program to protect those workers from workplace violence: California, Connecticut, Illinois, Maine, Maryland, New Jersey, New York, Oregon, and Washington (US GAO, 2016). State laws differ widely in definitions of workplace violence, requirements and scopes of facilities covered. For example, Washington and New Jersey cover the healthcare sector broadly, while Maine covers only hospitals and Illinois covers only developmental disabilities and mental health centers. Eight state laws require worksite risk assessment to identify hazards that may lead to violent incidents; however, not all state regulations specify how to conduct a risk assessment. Only Maine does not have a requirement for a risk assessment. All the states but Maine also require violence prevention training, although requirements differ in frequency and format of training, as well as the occupations of the employees required to be trained. All nine states require healthcare employers to record incidents of violence against workers. Some laws apply specifically to healthcare settings (e.g., Washington Labor and Industries' RCW 49.19), while others apply more broadly to cover additional industries or sectors. New York is the only state that operates its own OSHA program that has a standard that specifically requires a violence prevention program; however, coverage is limited to public employees. California law requires hospitals to conduct security and safety assessments, and to use the assessment to develop and update a security plan (California Health and Safety Code Section 1257.7). Also, as of 1991, Cal/OSHA's Workplace Injury and Illness Prevention standard requires a program to address and prevent known occupational hazards, including violence.

Tragic events are often the impetus for legislation. Such was the case when a psychiatric technician was strangled on the Napa State Hospital grounds by a patient in November 2010. (http://articles.latimes.com/2010/nov/03/local/la-me-hospital-violence-20101103). In February 2014, two healthcare worker unions, the Service Employees International Union (SEIU) and SEIU Nurse Alliance of California, filed petitions requesting the California Occupational Safety and Health Standards Board to adopt a new standard that would provide more protections to healthcare workers, specifically against workplace violence.

In June 2014, California's Board requested the Division of Occupational Safety and Health to convene an advisory committee and develop a proposal for workplace violence protection standards. In September 2014, the governor signed Senate Bill (SB) 1299, requiring the Board to adopt standards developed by the Division that would require facilities to adopt a workplace violence prevention plan as part of their injury and illness prevention plan. On October 20, 2016, California announced the adoption of those standards, and became the first state to promulgate an occupational health and safety standard requiring healthcare facilities to take certain specific steps to establish, implement and maintain an effective workplace violence prevention plan. Implementation will begin in 2017.

Some studies in the published literature evaluated whether healthcare facilities located in states with state laws have higher quality violence prevention programs than in states with no requirements, as a measure of the value or efficacy of state laws (Peek-Asa et al., 2007; Peek-Asa et al., 2009, Casteel et al., 2009). Peek-Asa et al. (2007) compared workplace violence programs in high-risk emergency departments among a representative sample of hospitals in California (a state with a violence prevention law) and New Jersey (which at the time of the study did not have such a law). California had significantly higher scores for training, policies and procedures, but there was no difference in the scoring for security and environmental approaches. Program component scores were not highly correlated. For example, hospitals with a strong training program were not more likely to have strong policies and procedures. The authors concluded that a comprehensive approach that coordinates the components of training, policies, procedures, environmental approaches, and security is likely to be achieved only through multidisciplinary and representative input from the staff and management (Peek-Asa et al., 2007).

Two years later, the same authors (Peek-Asa et al., 2009) conducted studies that compared workplace violence programs in a representative sample of psychiatric units and facilities in California and New Jersey. The researchers found that a similar proportion of hospitals in both states had workplace violence prevention training programs. A higher proportion of hospitals in California had written workplace violence policies and a higher proportion of New Jersey hospitals had implemented environmental and security modifications to reduce violence.

One study examined the effects of a state law on workers' compensation costs, and supports the conclusion that Washington State's efforts to reduce workplace violence in the healthcare industry have led to lower injury rates and workers' compensation costs. From 1997 to 2007, the state's average annual rate of workers' compensation claims associated with workplace violence in the healthcare and social assistance industry was 75.5 per 10,000 full-time equivalent workers (FTEs). From 2007 to 2013, the rate had fallen to 54.5 claims per 10,000 FTEs, a decrease of 28 percent. This improvement coincides with Washington's 2009 rule that required hazard assessments, training, and incident tracking for workplace violence (Foley, and Rauser, 2012).

In response to a request from members of Congress, the GAO conducted an investigation of OSHA's efforts to protect healthcare workers from workplace violence in healthcare. The investigation focused on healthcare, and included residential care facilities and home health care services.

During its investigation, GAO identified nine states with workplace violence prevention requirements for healthcare employers, examined workplace violence incidents, conducted a literature review, and interviewed OSHA and state officials. The final report, published in April 2016, included a summary of interviews of healthcare workers, who described a range of violent encounters with patients. See the table below for details.

In its final report, the GAO recommended that OSHA provide additional information to assist inspectors in developing citations, develop a policy for following up on hazard alert letters concerning workplace violence hazards in healthcare facilities, and assess the results of its efforts to determine whether additional action, such as development of a standard, may be needed. OSHA agreed with the GAO's recommendations and stated that it would take action to address them. Since then, OSHA's Training Institute in the Directorate of Training and Education developed a course on Workplace Violence Investigations for its Compliance Safety and Health Officers (CSHOs) and other staff with responsibilities in this area. In June 2016, approximately 30 CSHOs, Area Directors, Acting Area Directors, and other OSHA staff, participated in the first offering of the 3-day course on workplace violence, which included exercises using actual scenarios encountered by investigators. The Agency's publication of this RFI is in part a response to the GAO's recommendation to consider issuance of a standard addressing workplace violence. OSHA will review the record developed as a result of the information received and decide on the appropriate course of action regarding a standard.

In July 2016, a coalition of unions representing healthcare workers, including SEIU, AFL-CIO, and the American Federation of Governmental Employees, petitioned the Agency for a Workplace Violence Prevention Standard. National Nurses United (NNU) filed a similar petition. While NNU petitioned the Agency for a standard covering its membership only (healthcare workers), the broader coalition of labor unions requested a standard covering all workers in healthcare and social assistance. By this time, the Agency had already made the public aware about the publication of an RFI by November 2016, via the Unified Regulatory Agenda.

In recent years, several nursing professional associations have published statements on workplace violence (ANA, 2015; APNA, 2008; ENA, 2010). In addition, the ANA has published a model state law, “The Violence Prevention in Health Care Facilities Act,” recommending that healthcare facilities establish violence prevention programs to protect healthcare workers from acts of violence (ANA, 2011).

Some organizations have recommended specific programmatic elements, policies, procedures and processes to reduce and prevent workplace violence. In 2008, APNA published recommendations for addressing workplace violence. In 2011, it published a report that included recommendations for adequate staffing, increased security, video monitoring, and safe areas for nurses (Cafaro, 2012; http://www.apna.org/i4a/pages/index.cfm?pageID=4912#sthash.2JKbjy3w.dpuf). The American Association of Occupational Health Nurses, Inc. has published strategies for preventing workplace violence. It also noted the problem of underreporting of workplace violence events, which it recommended should be addressed so that “the scope of non-fatal violence in the workplace” is adequately measured and in turn “informed targeted prevention strategies” are developed (AAOHN, 2015).

In 2013, Public Citizen published “Health Care Workers Unprotected; Insufficient Inspections and Standards Leave Safety Risks Unaddressed,” which recommended that OSHA promulgate a standard to address the hazardous situations of workplace violence. Based on their analysis of data from the Bureau of Labor Statistics, the U.S. Census Bureau, OSHA, the AFL-CIO, and The Kaiser Family Foundation, they recommended that such a standard should require employers to create a policy of zero tolerance for workplace violence, including verbal and nonverbal threats; require workplace policies that encourage employees to promptly report incidents and suggest ways to reduce or eliminate risks; provide protections to employees to deter employers from retaliating against those who report workplace-violence incidents; and require employers to develop a comprehensive plan for maintaining security in the workplace (Public Citizen, 2013).

The Society for Human Resource Management's (SHRM) Workplace Violence Policy provides guidance on prohibited conduct, reporting procedures, risk reduction measures, employees at risk, dangerous/emergency situations, and enforcement for human resource professionals.

The following questions are intended to solicit information on the topics covered in this section. In general, OSHA is interested in hearing about healthcare facilities' experiences with provisions of state laws that have been shown to be effective in some way. Wherever possible, please indicate the title of the person completing the question and the type and the number of employees at your facility. OSHA is also interested in hearing from employers and managers in public sector facilities in New York State about their experiences with the Public Employees Safety and Health workplace violence prevention regulations.

Question II.1: What state are you employed in or where is your facility located? If your state has a workplace violence law, what has been your experience complying with these requirements? Are there any specific provisions included in your workplace violence law that you think should or should not be included in an OSHA standard? If so, what provisions and why?

Question II.2: For employers and managers: If your state has a workplace violence prevention law, have you or are you conducting an evaluation of the effectiveness of its programs or policies? If you are conducting such an analysis, how are you doing it? Have you been able to demonstrate improved tracking of workplace violence incidents and/or a change in the frequency or severity of violent incidents? If you think it is effective, please explain why. If you think it is ineffective, please explain why.

Question II.3: If your state has workplace violence prevention laws, how many hours do you spend each year (month) complying with these laws?

Question II.4: Please specify the number or percentage of staff participating in workplace violence prevention activities required under your state laws.

Question II.5: Do you have experience implementing any of the workplace violence prevention practices recommended by the American Psychiatric Nurses Association (APNA), American Association of Occupational Health Nurses (AAOHN), or similar organizations? If so, please discuss the resources it took to implement the practice, and whether you think the practice was effective. Please provide any data you have to support your conclusions.

As discussed in the overview above, the data show that injuries and fatalities in the health care and social assistance sector due to workplace violence are substantially elevated compared to the private sector overall. This section addresses the question of how to define the universe of workplace violence that OSHA might cover in a standard. This involves at least two issues: (1) What events constitute “violence” (i.e., should physical assaults be covered only, or should threats be considered as well?); and (2) should there be consideration of the type of injury (physical, psychological) and a threshold for harm that could be sustained as a result of the activity.

The National Institute of Occupational Safety and Health (NIOSH) defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty” (https://www.cdc.gov/niosh/docs/2002-101/). Examples of violence include threats (expressions of intent to cause harm, including verbal threats, threatening body language, and written threats), physical assaults (attacks ranging from slapping and beating to rape, homicide, and the use of weapons such as firearms, bombs, or knives), and muggings (aggravated assaults, usually conducted by surprise and with intent to rob) (NIOSH at: http://www.cdc.gov/niosh/docs/2002-101/default.html). OSHA's Web page refers to “workplace violence” as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. Both the NIOSH definition and the general one on OSHA's Web site include harassment and intimidation; however, OSHA's focus has been solely on physical injuries resulting in serious harm. The effects of violence on individuals represent a range in intensity and include minor physical injuries; serious physical injuries; temporary and permanent physical disability; psychological trauma; and death. Healthcare and social assistance workers involved in workplace violence incidents can suffer physical injury, disability, and chronic pain; employees who experience violence also suffer psychological problems such as loss of sleep, nightmares, and flashbacks (Gerberich et al., 2004).

Further, workplace violence can be classified into the following four categories, based on the relationship between the perpetrator and the victim/worker: Type I (criminal intent; the perpetrator has no legitimate relationship to the business), Type II (customer/client/patient), Type III (worker-on-worker), and Type IV (personal relationship) (UIIPRC, 2001). Type II events occur most commonly in healthcare and social assistance and these events are the type addressed by this RFI. Type III (sometimes referred to as “lateral violence”) is also commonly reported in the literature, especially when taking verbal abuse into account.

OSHA intends to address only Type II, or customer/client/patient violence in this RFI. Type I, or criminal intent, perpetrated by criminals with no connection to the workplace other than to commit a crime, typically does not apply the healthcare environment. OSHA does not intend to seek information specific to Type I or Type III incidents, “lateral” or “worker-on-worker” violence. In addition, OSHA does not intend to cover Type IV incidents or violence that happen to be carried out in a healthcare workplace but are based on personal relationships. Although such incidents often garner media attention, they are not the typical foreseeable workplace violence incidents that are associated with predictable risk factors in the workplace that employers can reduce or eliminate. OSHA has determined that Type I, III and IV incidents are generally outside the scope of any potential rulemaking activity stemming from this RFI.

The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person providing the information and the type and number of employees of your healthcare and/or social assistance facility or facilities.

Question III.1: CDC/NIOSH defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty” (CDC/NIOSH, 2002). Is this the most appropriate definition for OSHA to use if the Agency proceeds with a regulation?

Question III. 2: Do employers encourage reporting and evaluation of verbal threats? If so, are verbal threats reported and evaluated? If evaluated, how do employers currently evaluate verbal threats (i.e., who conducts the evaluation, how long does such an evaluation take, what criteria are used to evaluate verbal threats, are such investigations/evaluations effective)?

Question III.3: Though OSHA has no intention of including violence that is solely verbal in a potential regulation, what approach might the Agency take regarding those threats, which may include verbal, threatening body language, and written, that could reasonably be expected to result in violent acts?

Question III.4: Employers covered by OSHA's recordkeeping regulation must record each fatality, injury or illness that is work-related, that is a new case and not a continuation of an old case, and meets one or more of the general recording criteria in section 1904.7 or the additional criteria for specific cases found in section 1904.8 through 1904.11. A case meets the general recording criteria in section 1904.7 if it results in death, loss of consciousness, days away from work or restricted work or job transfer, or medical treatment beyond first aid. What types of injuries have occurred from workplace violence incidents? Do these types of injuries typically meet the OSHA criteria for recording the injury on the 300 Log?

Question III.5: Currently, a mental illness sustained as a result of an assault in the workplace, e.g., Posttraumatic Stress Disorder (PTSD), is not required to be recorded on the OSHA 300 Log “unless the employee voluntarily provides the employer with an opinion from a physician or other licensed healthcare professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related (1904.5(b)(2)(ix)).” Although protecting the confidentiality of the victim is important, an unintended consequence of omitting these incidents from the 300 Log is that the extent of the problem is likely underestimated. In a workplace violence prevention standard, should this exclusion be maintained or be removed? Is there a way to capture the information about cases, while still protecting confidentiality?

Question III.6: Are you aware of cases of PTSD or psychological trauma related to workplace violence in your facility? If so, was it captured in the recordkeeping system and how? Please provide examples, omitting personal data and information.

Question III.7: Are there other indicators of the extent and severity of workplace violence in healthcare or social assistance that OSHA has not captured here? Please provide any additional data that you are aware of, or any indicators you have used in your workplace to address workplace violence.

The Health Care and Social Assistance sector is composed of a wide range of establishments providing varying levels of healthcare and social assistance services, from general medical-surgical hospitals to at-home patient care to treatment facilities for substance abuse disorders, and different types of establishments providing social assistance, such as child day care services, vocational rehabilitation and food to the needy. In 2015 the healthcare industry had a total of 1,432,801 establishments and employed 18,738,870 workers in both healthcare and non-healthcare occupations (BLS, Census of Employment and Wages, 2016 and Occupational Employment Statistics, 2015). The Health Care and Social Assistance sector provides a range of services employing a diverse group of occupations at places such as: Nursing homes, free-standing surgical and outpatient centers, emergency care clinics, patients' homes, and pre-hospitalization emergency care settings. The largest occupational group employed in the Health Care and Social Assistance industry are healthcare practitioners (defined as healthcare professionals, technicians, and healthcare support workers), which included 6,288,040 workers in 2015, an increase of 1.2 million workers over the past 10 years (BLS, Occupational Employment Statistics, 2016). Healthcare practitioners are employed across various industries, but the industry with the largest concentration of healthcare practitioners is General Medical and Surgical Hospitals, which employed 2,926,350 workers in 2015.

Across all industries there were 8.0 million Health Care Practitioners and Technical workers employed in 2015 and can be found in various parts of the private sector outside of the Health Care and Social Assistance sector, for example in Air Transportation, Accommodations, Recreation, and Retail Trade. Of the almost 8.0 million Healthcare Practitioners and Technical workers, 515,970 are employed at retail trade facilities, the majority are specifically at Health and Personal Care Stores.

For purposes of assessing workplace violence risk, OSHA has used the BLS category of Intentional Injury by Other Person. OSHA has not included here the BLS category of Injury by Person—Unintentional or Intent Unknown. That category may include some incidents classifiable as workplace violence, but also includes large numbers of injuries resulting from such causes like attempting to lift patients. Unintentional injuries resembling workplace violence may also be common in mental health services. Of the almost 16,000 cases of Intentional Injury by Other Persons in the private sector in 2014, 11,100 were in the Healthcare and Social Assistance sector (BLS Table R4, November 2015).

The rate of intentional injury in the Healthcare and Social Assistance sector as a whole was 8.2 per 10,000 full time workers, over four times the rate across all private industry, 1.7 per 10,000 full-time workers in 2014 (BLS Table R8, November 2015). Within the Healthcare and Social Assistance sector, the incident rates for Intentional Injury by Other Person(s) ranges from a low of 0.4 per 10,000 full-time workers in Offices of Physicians (lower than private industry as a whole) to a high of 109.5 per 10,000 full-time workers in Psychiatric and Substance Abuse Hospitals 2 (BLS Table R8, November 2015). Of the four major subsectors within Health Care and Social Assistance in 2014, the highest incident rate of Intentional Injury by Other Person(s) was 18.7 per 10,000 in Nursing and Residential Care Facilities. The incident rates for the next two highest subsectors, Hospitals, and Social Assistance were half that of Nursing and Residential Care Facilities, 8.9 and 9.8 respectively. The subsector of Nursing and Residential Care Facilities includes establishments providing services to a diverse population of patients, many of whom need a higher level of care at these facilities. In contrast, the services provided in the other areas of the Health Care and Social Assistance sector may typically involve more routine health care services requiring less physically demanding care from staff. This wide range reflects the diversity of workplace conditions and patient interactions faced by workers in the Health Care and Social Assistance economic sector.

The industries in the Social Assistance subsector provide a wide variety of services directly to clients, and include industries with incident rates of intentional injury that are higher than those in the Ambulatory Health Care sector. The highest incident rate within this sector for intentional injury by other person was in Vocational Rehabilitation Services with 20.8 per 10,000 full time workers in 2014. The next highest industry in this sector was Services for the Elderly and Disabled with an incident rate of 11 per 10,000 full time workers. This sector includes, among other industries, services for children and youth, the elderly, and persons with disabilities; community food and housing services; vocational rehabilitation; and day care centers. Consequently, the risk of workplace violence to healthcare workers differs depending on the nature of the setting and the level of interaction with patients.

The severity of workplace violence in the Health Care and Social Assistance sector is even greater in state government entities where the incident rate for intentional injury by other person(s) in 2014 was 79.3 per 10,000 full time workers. Across state government sectors the incident rate for intentional injury by other persons in the Health Care and Social Assistance sector is the highest even compared to the sector for Public Administration at 10.5 per 10,000 full time workers, which includes Police Protection and Correctional Institutions. State-run healthcare facilities often serve individuals with fewer available heath care options and populations with fewer preventive healthcare services. State- run healthcare and social assistance facilities may face unique challenges compared to the private sector.

Locally-run health care and social assistance facilities, on the other hand, appear to present risks that are comparable to private facilities, the incident rate of intentional injury by other persons in sector of Healthcare and Social Assistance was 13.1 per 10,000 full time workers. The overall incident rate for the Public Administration sector in local governments is not much lower at 11.1 per 10,000 full time workers.

Another way to consider the data is by occupation. Nursing-Psychiatric and Home Health Aides (which includes Psychiatric Aids and Nursing Assistants) had the highest rates of violence in 2014 across three of the four sectors. Out of the 4,690 injury cases in Nursing and Residential Care Facilities (based on data from BLS provided upon request), 2,640 of the cases of workplace violence were perpetrated against Nursing-Psychiatric and Home Health Aides in 2014 (BLS SOII 2014 Data, requested June 2016). Across all private industries, the highest rates of incidents for Intentional Injury by Other Person(s) were for Psychiatric Aides at 426.4 per 10,000 full time workers, followed by Psychiatric Technicians at 206.8 per 10,000 full time workers in 2014 (BLS Table R100, November 2015). These two occupations reflect the highest rates of intentional injury by other person(s) that occurs in the major sector of healthcare practitioners and technical occupations.

Violence in the workplace is a topic that has been studied heavily using different data sources such as workers' compensation data, and occupation specific surveys. The results from these studies highlight similar findings to that of BLS's SOII data by industry, both showing that workplace injury rates of workers in the healthcare industry rank among the highest across private sector industries. In one study, Washington State workers compensation data was evaluated for the period between 1997 and 2007 (Foley, and Rauser, 2012). The results showed that the industry sectors with the highest rates of workplace violence were Health Care and Social Assistance (75.5 claims per 10, 000 FTEs), Public Administration (29.9 per 10,000 FTEs), and Educational Services (15.0 claims per 10,000 FTEs). Within the Health Care and Social Assistance sector, the industry groups with the highest estimated claim rates were Psychiatric and Substance Abuse Hospitals 3 at 875 per 10,000 FTEs, and Residential Mental Retardation, Mental Health and Substance Abuse Facilities at 749 per 10,000 FTEs. The rates of these two Health Care and Social Assistance groups are 65 times and 56 times the overall claim rate of 13.4 per 10,000 FTEs for workplace violence in all industries. A study that surveyed staff in a psychiatric hospital (Phillips, 2016) found that 70 percent of staff reported being physically assaulted within the last year. Another study that surveyed over 300 staff in a psychiatric hospital found that ward staff, which had the highest levels of patient contact, were more likely than clinical care and supervisory workers to report being physically assaulted by patients (Kelly and Subica, 2015; as reported in US GAO, 2016). Data from HHS' NEISS-Work data set showed that in 2011 the estimated rate of nonfatal workplace violence injuries for workers in healthcare facilities was statistically greater than the estimated rate for all workers. The Department of Justice's National Crime Victimization Survey (NCVS) data set showed that from 2009 through 2013 healthcare workers experienced workplace violence at more than twice the estimated rate for all workers (after accounting for the sampling error). These results consistently point to the healthcare industry and occupations within the healthcare field as having the highest risks to workplace violence compared to other private sector industries.

The four subsectors that make up the Health Care and Social Assistance sector include a wide range of establishments providing varying types of services to the general public, and placing workers at elevated levels of exposure to workplace violence relative to other economic sectors. The Health Care and Social Assistance sector includes industries with the highest rates for Intentional Injury by Other Persons exceeding all other private sector industries.

The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person completing the question and the type and employee size of your healthcare and/or social assistance facility.

Question IV.1: Rates of workplace violence vary widely within the healthcare and social assistance sector, ranging from extremely high to below private industry averages. How would you suggest OSHA approach the issue of whom should be included in a possible standard? For example, should the criteria for consideration under the standard be certain occupations (e.g., nurses), regardless of where they work? Or is it more appropriate to include all healthcare and social assistance workers who work in certain types of facilities (e.g., in-patient hospitals and long-term care facilities)? Another approach could be to extend coverage to include all employees who provide direct patient care, without regard to occupation or type of facility. If OSHA were to take this approach, should home healthcare be covered?

Question IV.2: If OSHA issues a standard on workplace violence in healthcare, should it include all or portions of the Social Assistance subsector? Are the appropriate preventive measures in this subsector sufficiently similar to those appropriate to healthcare for a single standard addressing both to make sense?

Question IV.3: The only comparative quantitative data provided by BLS is for lost workday injuries. OSHA is particularly interested in data that could help to quantitatively estimate the extent of all kinds of workplace violence problems and not just those caused by lost workday injuries. For that reason, OSHA requests information and data on both workplace violence incidents that resulted in days away from work needed to recover from the injury as well as those that did not require days away from work, but may have required only first aid treatment.

Question IV.4: OSHA requests information on which occupations are at a higher risk of workplace violence at your facility and what about these occupations cause them to be at higher risk. Please provide the job titles and duties of these occupations. Please provide estimates on how many of your workers are providing direct patient care and the proportion of your workforce this represents.

Question IV.5: The GAO Report relied on BLS SOII data, HHS NEISS data and DOJ NCVS data. Are there any other data sets or data sources OSHA should obtain for better estimating the extent of workplace violence?

Question IV.6: The data provided by BLS are for relatively aggregated industries. Instance of high risk of workplace violence can be found aggregated with industries with low average risk, and low risk of workplace violence within industries with high risk. Please describe if your establishment's experience with workplace violence is consistent with the relative risks reported by BLS in the tables found in this section? If you are in an industry with high rates, are there places within your industry where establishments or kinds of establishments have lower rates than the industry as a whole? If you are in an industry with relatively low rates, are there work stations within establishments or within the industry that have higher rates?

Question IV.7: Are there special circumstances in your industry or establishment that OSHA should take into account when considering a need for a workplace violence prevention standard?

Question IV.8: Please comment if the workplace violence prevention efforts put in place at your establishments are specific to certain settings or activities within the facility, and how they are triggered.

Question IV.9: OSHA has focused on the Health Care and Social Assistance sectors in this RFI. However, workers who provide healthcare and social assistance are frequently found in other industries. Should a potential OSHA standard cover workers who provide healthcare or social assistance in whatever industries they work?

OSHA has recognized the unique challenges of workplace violence in healthcare and social assistance for decades. OSHA's “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” which was last updated in 2015 is based on industry best practices and feedback from stakeholders, provides recommendations for policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social assistance settings. The guidelines recommend a comprehensive violence prevention program that covers the following five core elements: (1) Management commitment and worker participation; (2) worksite analysis and hazard identification; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation. Below, OSHA uses this framework in discussing and seeking information on the elements that might be included in a workplace violence standard. In addition, because there are particular concerns with underreporting of workplace violence in the healthcare and social assistance sector, below OSHA also discusses and seeks information on effectiveness of its whistleblower protection requirements in these sectors.

OSHA's Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers highlight the benefits of commitment by management and establishment of a joint management-employee committee, whether the committee is focused on workplace violence prevention or worker safety more broadly. The structure of the management-employee teams will differ based on the facility's size and the availability of personnel to staff it.

OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with management commitment and employee participation. Specific questions regarding these topics are at the end of Section V.

OSHA's guidelines emphasize worksite analysis and hazard identification. A worksite analysis involves a mutual step-by-step assessment of the workplace to find existing or potential hazards that may lead to incidents of workplace violence.

Healthcare and social assistance workers face a number of risk factors that are known to contribute to violence in the workplace. Common risk factors (or factors that have been shown to increase the risk of harm if one is exposed to a hazard) for workplace violence generally fall into two groups: (1) Patient, client and setting-related and (2) organizational-related (OSHA, 2015a, p. 4-5). The patient/client and setting-related group includes: (a) Working directly with people who have a history of violence, especially if they are under the influence of drugs or alcohol or a diagnosis of dementia; (b) lifting, moving and transporting patients and clients; (c) working alone in a facility or in patients' homes; (d) poor environmental design of the workplace that may block employee vision or interfere with escape from a violent incident; poor lighting in hallways, corridors, rooms, parking lots and other exterior areas; (e) lack of means of emergency communication; (f) long waiting periods for service; or (g) working in neighborhoods with high crime rates.

Organizational risks (the second group) arise from workplace policies, or the lack thereof. Examples include a lack of facility policies and staff training for recognizing and managing escalating hostile and assaultive behaviors from patients, clients, visitors, or staff; working when understaffed, especially during mealtimes and visiting hours; inadequate security and mental health personnel on site; not permitting smoking; allowing unrestricted movement of the public in clinics and hospitals; allowing a perception that violence is tolerated and victims will not be able to report the incident to police and/or press charges; and an overemphasis on customer satisfaction over staff safety (OSHA, 2015a).

Studies show that staff working in some hospital units or areas are at greater risks than others. High-risk areas include emergency departments (EDs), admission areas, long-term care and geriatrics settings, behavioral health, waiting rooms, and obstetrics and pediatrics, among others (DeSanto et al., 2013).

Assault rates for nurses, physicians and other staff working in EDs have been shown to be among the highest (Crilly et al., 2004; Gerberich et al., 2005; Gates et al., 2006; Gacki-Smith et al., 2009). In high volume urban emergency departments and residential day facilities, staff are in frequent contact with patients or family members who may have a history of violence, and/or a history of substance abuse disorders. Also, an increasing number of patients are in possession of handguns and weapons (Stokowski, 2010).

Workers in the healthcare occupations of psychiatric aides, psychiatric technicians, and nursing assistants experienced higher rates of workplace violence compared to other healthcare occupations and workers overall (BLS Table R100, 2015; Pompeii et al., 2015). Some studies have found that nursing assistants in long-term care have the highest incidence of assaults among all workers in the U.S. (Gates et al., 2005).

Surveys of nurses have identified risk factors including patient mental health or behavioral issues, medication withdrawal, pain, history of a substance abuse disorder, and being unhappy with care (Pompeii et al., 2015).

OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with worksite analysis and hazard identification, including how they use risk factors. Specific questions regarding these topics are at the end of Section V.

Once workplace violence hazards are identified, controls can be designed and implemented to prevent and control them. OSHA's hierarchy of controls includes: elimination, substitution, engineering controls, administrative controls, and work practices, and personal protective equipment (PPE) in that order. Engineering controls for workplace violence prevention are permanent changes to the work environment. Administrative controls are policies and procedures that reduce or prevent exposure to risk factors. Administrative strategies include modification of job rules and procedures, training and education, scheduling, or modifying assigned duties.

Engineering controls attempt to remove the hazard from the workplace or create a barrier between the worker and the hazard. Examples of engineering controls include the installation of alarm systems, panic buttons, hand-held alarms, or noise devices, installation of door locks and increased lighting or use of closed-circuit video monitoring on a 24-hour basis (Haynes, 2013). Other examples include improvements to the layout of the admission area, nurses' stations and rooms. Where appropriate, some hospitals may have metal detectors installed to detect for guns, knives, box cutters, razors, and other weapons.

Effective interventions that have been described in the literature include K-9 security dog teams, metal detectors, and the installation of a security system, that includes metal detectors, cameras, and security personnel (Stirling et al., 2001) and increased lighting (Gerberich et al. 2005).

Administrative controls, sometimes referred to as management policies, include organizational factors and can have a major impact on day-to-day operations in healthcare and social assistance, for both staff and patients/residents. For example, staffing issues, such as mandatory overtime and inadequate staffing levels can lead to increased and unscheduled absences, high turnover, low morale and increased risk of violence for both healthcare and social assistance workers and their patients. Adequate numbers of well-trained staff can help ensure that situations with the potential for violence can be diffused before they escalate into full-blown violent incidents, resulting in fewer injuries. Adequate numbers of staff to address the needs of the patients can result in a higher level of safety and comfort for both patients and staff. Effective training can increase staff confidence and control in preventing, managing and de-escalating these incidents, resulting in a greater sense of safety for both staff and patients.

Employer policies often include security measures to prevent workplace violence, including policies for monitoring and maintaining premises security (e.g., access control systems, video monitoring security systems) and data security (e.g., measures to prevent unauthorized use of employer computer systems and other forms of electronic communication by a patient with a history of violence to obtain personal information about a staff member). Many organizations also have policies that limit or monitor access of nonemployees to the premises. Emergency departments (EDs), because they are typically open 24 hours a day, expose hospitals to the community at large and can pose unique safety and security concerns. If the hospital is located in a community or area with a high crime rate, the crime can spill into the ED.

Zero Tolerance policies are policy statements from employers/management that state that any violence to employees and patients/customers will not be tolerated. In general, zero tolerance policies require and encourage staff to report all assaults or threats to a supervisor or manager. Supervisors and managers keep a log of incidents, and all reports of workplace violence are investigated to help determine what actions to take to prevent future incidents. Some studies in the literature describe and discuss the effectiveness of zero-tolerance policies (Nachreiner et al., 2005; Lipscomb and London, 2015).

Policies that encourage employees to report incidents help ensure that hazards are addressed; however, the current evidence shows that many assaults go unreported (Snyder et al., 2007; Bensley et al., 1997; Gillespie et al., 2014; Kowalenko et al., 2013; Arnetz et al., 2015; Speroni et al., 2014; Pompeii et al., 2015).

Research has shown that injured healthcare and social assistance workers and their employers are reluctant to report violent incidents and resulting injuries out of fear of stigmatizing the patients or residents who are the perpetrators of the violence, particularly when they are mentally ill, developmentally disabled, or cognitively impaired elderly. There is also an attitude among many that violence toward those working with the public, especially with individuals with cognitive impairment, mental illness, or brain injury, is part of the job (Lipscomb and London, 2015; Speroni et al., 2014). Confusion on the part of nurses and other staff about what to report, and what legally constitutes “assault” and “abuse” as well as the lack of institutional support for reporting incidents can contribute to under-reporting (May and Grubbs, 2002).

In OSHA's hierarchy of controls, personal protective equipment is the least-preferred type of control because these methods rely on the compliance of all individuals, and often places a burden on the individual worker rather than on the organization as a whole. However, there may be circumstances where the use of personal protective equipment (PPE) is appropriate for preventing workplace violence. For example, the ANA identified the use of gloves, sleeves, and blocking mats as a barrier method to protect staff from bites and scratches when caring for individuals with certain developmental disabilities and where other types of controls are infeasible (Lipscomb and London, 2015).

In addition to controls that fall into the traditional OSHA hierarchical approach previously described here, OSHA is also very interested in hearing about strategies and innovations that have been developed from the clinical experience of health professionals, particularly if they have been shown to be effective. The Agency is interested in how existing operations tools, such as electronic infrastructure and work practices, can be modified to support violence prevention in specific healthcare and social assistance settings. In addition, the Agency seeks information on cross-disciplinary tools and strategies that merge techniques from different disciplines (such as threat assessment, education, and clinical practice) to improve workplace safety and health. Examples of innovative approaches include soliciting information from patients and their families about risk factors and effective solutions through informal surveys or focus groups. One behavioral health facility that hires and employs “milieu officers,” typically corrections officers with mental health training whose job is to be visible and accessible on the unit and maintain control over the unit environment as a whole, has reduced violent incidents on some patient units.

New Hampshire Hospital, a state-run behavioral health facility, serves as a teaching hospital through its affiliation with the Geisel School of Medicine at Dartmouth College. This connection allows New Hampshire Hospital to serve as a living laboratory for ongoing research to identify precursors to violence and test new practices. Physicians engage patients as partners in their research, which is part of the hospital's drive for continual improvement. This connection to academic studies also helps to raise awareness of other new research and encourage staff members to adopt the best available evidence-based approaches.

OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with hazard prevention and control. Specific questions regarding these topics are at the end of Section V.

OSHA's Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers highlight education and training as an essential element of a workplace violence prevention program. Safety and health training helps ensure that all staff members are aware of potential safety hazards and how to protect themselves, their coworkers and patients through established policies and procedures. The content and frequency of training can vary, as well as the staff eligible for training. In general, training covers policies and procedures specific to the facility and perhaps the unit, as well as de-escalation and self-defense techniques. De-escalation of aggressive behavior and managing aggressive behavior when it occurs are very important components of the training (Nonviolent Crisis Intervention Training, 2014).

Training provides opportunities to learn and practice strategies to improve both patient safety and worker safety. The nationwide movement toward reducing the use of restraints (physical and medication) and seclusion in behavioral health—which is mandated in some states—along with the movement toward “trauma-informed care,” means that workers are relying more on approaches that minimize physical contact with patients, intervening with verbal de-escalation strategies before an incident turns into a physical assault thereby reducing injuries. Trauma-informed care is a strengths-based approach that is grounded in an understanding of and responsiveness to the impact of trauma, that emphasizes physical, psychological, and emotional safety for both providers and survivors, and that creates opportunities for survivors to rebuild a sense of control and empowerment (SAMHSA). The results can be a “win-win” for patient and worker safety (OSHA, 2015b). Training ensures consistent dissemination of information about policies and procedures, as well as an opportunity to practice and develop confidence with newly-learned skills and techniques, such as de-escalation. In particular, when implementing a zero tolerance policy, training staff on what and when to report is essential to changing the expectation that violence will not be tolerated.

Staff training on policies and procedures is usually conducted at orientation and periodically (e.g., annually or semi-annually) afterward. A number of studies show that training can be effective in reducing workplace violence (Swain, 2014; Martin, 1995; Allen, 2013).

Because duties, work locations, and patient interactions vary by job, violence prevention training can be customized to address the needs of different groups of healthcare personnel, particularly: Nurses and other direct caregivers; emergency department (ED) staff; support staff (e.g., dietary, housekeeping, maintenance); security personnel; and supervisors and managers (Greene, 2008). The Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)) emphasizes that security personnel need specific training on the unique needs of providing security in the healthcare environment, including the psychological components of handling aggressive and abusive behavior, and ways to handle aggression and defuse hostile situations (The Joint Commission, 2009).

OSHA is interested in hearing from employers and individuals working in healthcare and social assistance about their experiences with the various types of training and their effectiveness. Specific questions regarding training are at the end of Section V.

OSHA's recordkeeping regulations require employers to record certain workplace injuries and illnesses. The OSHA 300 Log can be a valuable source of evaluation metrics data for establishing baseline injury and illness rates and benchmarks for success. Information from the OSHA 300 Log, 300A Annual Summary, and the 301 Incident Report can be used to identify tasks and jobs with higher risks of injury or illness, and to monitor trends. Under OSHA's recordkeeping regulation, an employer must record each fatality, injury, and illness that is work-related, a new case, and meets one or more of the general recording criteria in section 1904.7 or the application to specific cases of section 1904.8 through 1904.11. The general recording criteria in section 1904.7 is triggered by an injury or illness that results in death, days away from work, restricted work or transfer to another job, loss of consciousness, or medical treatment beyond first aid. For each such injury, the employer is required to record the worker's name; the date; a brief description of the injury or illness; and, when relevant, the number of days the worker was away from work, assigned to restricted duties, or transferred to another job as a result of the injury or illness. Employers with 10 or fewer employees at all times during the previous calendar year and employers in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records (29 CFR 1904.1, 1904.2). Accurate records of injuries, illnesses, incidents, assaults, hazards, corrective actions, patient histories, and training can help employers evaluate methods of hazard control, identify training needs, and develop solutions for an effective program.

All employers, including those who are partially exempt from keeping records, must report any work-related fatality to OSHA within 8 hours of learning of the incident, and must report all work-related inpatient hospitalizations, amputations, and losses of an eye to OSHA within 24 hours of learning of the incident (29 CFR 1904.39). These events can be reported to OSHA in person, by phone, or by using the reporting application on OSHA's public Web site at www.osha.gov/recordkeeping. See https://www.osha.gov/recordkeeping2014/.

Employers do not always record or accurately record workplace injuries and illnesses in general. Specifically, in a 2012 report OSHA found that for calendar years 2007 and 2008, approximately 20 percent of injury and illness cases reconstructed by inspectors during a review of employee records were either not recorded or incorrectly recorded by the employer (OSHA, 2012). BLS is working on improving reporting by conducting additional research on the extent to which cases are undercounted in the SOII and exploring whether computer-assisted coding can improve reporting (BLS, 2014). Further, as discussed above in Section V.A.3.b, there are a number of published studies that show that employees substantially underreport workplace violence cases.

OSHA is interested in hearing from employers and individuals in healthcare and social assistance facilities about their experiences with both recordkeeping to comply with OSHA requirements as well as reporting of incidents at the facility or unit level. Specific questions regarding recordkeeping are at the end of Section V.

Programs are evaluated to identify deficiencies and opportunities for improvement. Accurate records of injuries and illnesses can help employers gauge the effectiveness of intervention efforts. The evaluation of a comprehensive workplace violence prevention program typically includes, but is not limited to, measuring improvement based on lowering the frequency and severity of workplace violence incidents; keeping up-to-date records of administrative and work practice changes implemented to prevent workplace violence (to evaluate how well they work); surveying workers before and after making job or worksite changes or installing security measures or new systems to evaluate their effectiveness; tracking recommendations through to completion; keeping abreast of new strategies available to prevent and respond to violence as they develop; and establishing an ongoing relationship with local law enforcement and educating them about the nature and challenges of working with potentially violent patients. The quality and effectiveness of training is particularly important to assess.

OSHA is interested in hearing from employers and individuals in healthcare and social assistance facilities about their experiences with program evaluation. Specific questions regarding program evaluation are located in section V.3. below.

OSHA is interested in hearing from employers and individuals in facilities that provide healthcare and social assistance about their experiences with the various components of workplace violence prevention programs that are currently being implemented by their facilities. Wherever possible, please indicate the title of the person completing the question and the type and employee size of your facility. In particular, the Agency appreciates respondents addressing the following:

Question V.1: Does your facility have a workplace violence prevention program or policy? If so, what are the details of the program or policy? Please describe the requirements of your program, or submit a copy, if feasible. When and how did you implement the program or policy? How many hours did it take to develop the requirements? Did you consult your workers through union representatives?

Question V.2: How is your program or policy communicated to workers? (e.g., Web site, employee meetings, signage, etc.) How are employees involved in the design or implementation of the program or policy?

Question V.3: In your experience, what are the important factors to consider when implementing a workplace violence prevention program or policy?

Question V.4: At what level in your organization was the workplace violence prevention program or policy implemented? Who has responsibility for implementation? What are the qualifications of the person responsible for its implementation?

Question V.5: How well is your program or policy followed? Have you received sufficient support from management? Employees? The union, if there is one?

Question V.6: How did you select the approach to workplace violence prevention outlined in your facility program or policy (e.g., triggered by an incident, following existing guidelines, listening to staff needs, complying with state laws)?

Question V.7: Do you have a safety and health program in place in your facility? If so, what is the relationship between the workplace violence prevention program and the safety and health management system?

Question V.8: Does your facility subscribe to a management philosophy that encompasses quality measures, e.g., lean sigma, high reliability? If so, are metrics for worker safety included?

Question V.9: Does your facility have a safety and health committee? Does your facility also have a workplace violence committee? If so, what is the function of these committees? How are they held accountable? How is progress measured?

Question V.10: Does your facility have a workplace violence prevention committee that is separate from the general safety committee or part of it? If separate, how do the two committees communicate and share information? How many hours do they spend meeting or doing committee work? How many hours of employee time does this require per year?

Question V.11: If the facility does not have a committee, are there reasons for that?

Question V.12: What is the make-up of the committee? How are the committee members selected? What is the highest level of management that participates? Are worker/union representatives included in a committee? Is there a rotation for the committee members?

Question V.13: What does the decision making process look like? Do the committee members play an equal role in the decision making? Is there a meeting agenda? Does the committee keep minutes and records of decisions made?

Question V.14: How are the workplace violence prevention committee's decisions disseminated to the staff and management? Does the committee address employees' safety concerns in a timely manner?

Question V.15: If OSHA were to require management commitment, how should the Agency determine compliance?

Question V.16: If OSHA were to issue a standard that included a requirement for employee participation, how might compliance be determined?

Question V.17: Are workplace analysis and hazard identification performed regularly? If so, what is the frequency or triggers for these activities? Are there any assessment tools or overall approaches that you have found to be successful and would recommend? Please describe the types of successes or problems your facility encountered with reviewing records, administering employee surveys to identify violence-related risk factors, and conducting regular walkthrough assessments.

Question V.18: Who is involved in workplace analysis? How are the individuals selected and trained to conduct the workplace analysis and hazard identification? How long does it take to perform the workplace analysis?

Question V.19: What areas of the facility are covered during the routine workplace assessment? Please specify why these areas are included in the assessment and how many of these areas are part of the assessment.

Question V.20: What records do you find most useful for identifying trends and risk factors with regards to workplace violence? How many of these records are collected per year?

Question V.21: What screening tools do you use for the worksite analysis? Are these screening tools designed specifically to meet your facility's needs? Are questionnaires and surveys an effective way to collect information about the potential and existing workplace violence hazards? Why or why not?

Question V.22: Who provides post-assessment feedback? Is it shared with other employees and if so, how is it shared with the other employees?

Question V.23: Does your facility use patient threat assessment? If so, do you use an existing tool or did you develop your own? If you develop your own, what criteria do you use?

Question V.24: Does your facility conduct accident/incident investigations? If so, who conducts them? How are follow-ups conducted and changes implemented?

Question V.25: How much time is required to conduct your patient assessments? What is the occupational background of persons who do these assessments?

Question V.26: If OSHA were to implement a standard with a requirement for hazard identification and worksite analysis, how might compliance be determined?

Question V.27: What do you know or perceive to be risk factors for violence in the facilities you are familiar with?

Question V.28: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in an ED environment? How was effectiveness determined? If so, can you provide cost information?

Question V.29: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a behavioral health, psychiatric or forensic mental health setting? How was effectiveness determined? If so, can you provide cost information?

Question V.30: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a nursing home or long-term care environment? How was effectiveness determined? If so, can you provide cost information?

Question V.31: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a hospital environment? How was effectiveness determined? If so, can you provide cost information?

Question V.32: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence in a home health environment? How was effectiveness determined? If so, can you provide cost information?

Question V.33: Are you aware of any specific controls or interventions that have been found to be effective in reducing workplace violence of any other environments where healthcare and/or social assistance workers are employed? How was effectiveness determined? If so, can you provide cost information?

Question V.34: Are you aware of any existing or modified infrastructure and work practices, or cross-disciplinary tools and strategies that have been found to be effective in reducing violence?

Question V.35: Have you made modifications of your facility to reduce risks of workplace violence? If so, what were they and how effective have those modifications been? Please provide cost for each modification made. Please specify the type of impact the modification made and whether the modification resulted in a safer workplace.

Question V.36: Does your facility have controls for workplace violence prevention (security equipment, alarms, or other devices)? If so, what kind of equipment does your facility use to prevent workplace violence? Where is the equipment located? Are there any barriers that prevent using the equipment? What labor requirements or other operating costs does this equipment have (e.g., have you hired security guards to monitor video cameras)?

Question V.37: Who is usually involved in selecting the equipment? If a committee, please list the titles of the committee members. Is new equipment tested before purchase, and if so, by whom? Are there any pieces of equipment purchased that are rarely used? If so, why?

Question V.38: Is there a process for evaluating the effectiveness of controls once they are implemented? What are the evaluation criteria?

Question V.39: What best practices are in use in your facility for workplace violence prevention?

Question V.40: How do you assure that the program is followed and controls are used? What are the ramifications for not following the program or using the equipment? If OSHA were to issue a standard, how might compliance with hazard prevention and control be determined?

Question V.41: Do you have information on changes in work practices or administrative controls (other than engineering controls and devices) that have been shown to reduce or prevent workplace violence either in your facility or elsewhere?

Question V.42: Do you have a zero tolerance policy? If so please share it. Do you think it has been successful in reducing workplace violence incidents? Why or why not?

Question V.43: If you have a policy for reporting workplace violence incidents, what steps have you taken to assure that all incidents are reported? What requirements do you have to ensure that adequate information about the incident is shared with coworkers? Do you think these policies have been effective in improving the reporting and communication about workplace violence incidents? Why or why not?

Question V.44: What factors do you consider in staffing your security department? What are the responsibilities of your security staff?

Question V.45: Have you instituted policies or procedures to identify patients with a history of violence, either before they are admitted or upon admission? If so, what costs are associated with this? How is this information used and conveyed to staff? Whose responsibility is it and what is the process? Has it been effective?

Question V.46: What kind of training on workplace violence prevention is provided to the healthcare and/or social assistance workers at your facility? If this is copyrighted/branded training, please provide the name.

Question V.47: What is the scope and format of the training, and how often is workplace violence prevention training conducted?

Question V.48: What occupations (e.g., registered nurses, nursing assistants, etc.) attend the training sessions? Are the staff members required to attend the training sessions or is attendance voluntary? Are staff paid for the time they spend in training? Who administers the training sessions? Are they in-house training staff or a contractor? How is the effectiveness of the training measured? What is the duration of the training sessions or cost of the contractor?

Question V.49: Do all employees have education or training on hazard recognition and controls?

Question: V.50: Are contract and per diem employees trained?

Question V.51: Are patients educated on the workplace violence prevention program and, if so, how?

Question V.52: Does training cover workers' rights (including non-retaliation) and incident reporting procedures?

Question V.54: If OSHA were to require workplace violence prevention training, how might compliance be assessed?

Question V.55: Does your facility have an injury and illness recordkeeping policy and/or standard operating procedures? Please describe how it works. How are records maintained; online, paper, in person?

Question V.56: Who is responsible for injury and illness recordkeeping in your facility?

Question V.57: Does your facility use a workers' compensation form, the OSHA 301 or another form to collect detailed information on injury and illness cases?

Question V.58: Where are the OSHA 300 log(s) kept at your facility? Are they kept on each unit, each floor, or are they centrally located for the entire facility?

Question V.59: Would the OSHA 300 Log alone serve as a valuable or sufficient tool for evaluating workplace violence prevention programs? Why or why not?

Question V.60: Are you aware of any issues with reporting (either underreporting or overreporting) of OSHA recordables and/or “accidents” or other incidents related to workplace violence in your facility and if so, what types of issues? If you have addressed them, how did you address them?

Question V.61: Do you regularly evaluate your program? If so, how often? Is there an additional assessment after a violent event or a near miss? If so, how do you measure the success of your program? How many hours does the evaluation take to complete?

Question V.62: Who is involved in a program evaluation at your facility? Is this the same committee that conducted the workplace analysis and hazard identification?

Question V.63: If you have or are conducting an evaluation of the effectiveness of your workplace violence prevention program, have you been able to demonstrate improved tracking of workplace violence incidents and/or a reduction in the frequency or severity of violent incidents?

Question V.64: What are the most effective parts of your program? What elements of your program need improvement and why?

Question V.65: When conducting program evaluations, do you use the same tools and metrics you used for the initial worksite assessment? If not, please explain.

Question V.66: If OSHA were to develop a standard to prevent workplace violence and included a requirement for program or policy evaluation, how might compliance be determined?

Question V.67: Could you provide information characterizing the nature and extent of the difficulties in implementing your facility's program or policy?

Question V.68: What actions are taken based on the results of the program evaluation at your facility?

As part of the Agency's consideration of a possible workplace violence standard, OSHA is interested in the costs, economic impacts, and benefits of related practices. OSHA is also interested in the benefits of such practices in terms of reduced injuries, deaths, and compromised operations (i.e., emotional distress, staffing turnover, and unexpected reallocation of resources).

Workplace violence exacts a high cost today. It harms workers often both physically and emotionally, and employers also bear several costs. A single serious injury can lead to workers' compensation losses of thousands of dollars, along with thousands of dollars in additional costs for overtime, temporary staffing, or recruiting and training a replacement. Even if a worker does not have to miss work, violence can still lead to “hidden costs” such as higher turnover and deterioration of productivity and morale. In the study of Washington state's workers' compensation data (1997-2007), the average cost claim per time-lost was $32,963, with an annual average of at least 2,247 claims related to workplace violence in Washington State for the period from 1997-2007. Similar costs were cited by McGovern et al. (2000) who found costs per case for assaults was $31,643 for registered nurse and $17,585 for licensed practical nurses. These costs included medical expenses, lost wages, legal fees insurance administrative costs, lost fringe benefits, and household production costs.

In addition to the out-of-pocket costs by the employer and employee, healthcare workers who experience workplace violence have reported short term and long term emotional effects which can negatively impact productivity. It was found by Gates et al. (2003; 2006) that nursing assistants employed in long term care, who had been assaulted suffered a range of occupational stressors including job dissatisfaction, decreased safety, and fear of future assaults. Caldwell (1992) and Gerberich et al. (2004) found emergency department (ED) workers to have post-traumatic stress disorder or symptom of the disorder at rates between 12 percent to 20 percent; the 12-month prevalence rate for the general U.S. adult population is about 3.5 percent (http://www.nimh.nih.gov/health/statistics/prevalence/post-traumatic-stress-disorder-among-adults.shtml). The impact of PTSD caused by workplace violence on productivity was studied by Gates, Gillespie and Succop (2011), where they found those who suffered from PTSD symptoms or experienced emotional distress reported difficulty thinking, withdrawal from patients, absenteeism, and higher job turnover. The results also found that, although emergency department nurses with PTSD symptoms continued to work, they had trouble remaining cognitively focused, and had “difficulty managing higher level work demands that required attention to detail or communication skills.”

OSHA requests any workers' compensation data related to workplace violence. Any other information on your facility's experience would also be appreciated.

Several studies have evaluated the effectiveness of various engineering and administrative workplace violence controls in a variety of settings (e.g., hospitals, nursing homes). The implementation of a comprehensive workplace violence prevention program that includes administrative and engineering controls has been shown to lead to lower injury rates and workers' compensation costs (Foley and Rauser, 2012, updated data provided to OSHA by the authors in 2015).

The following questions are intended to solicit information on the topics covered in this section. Wherever possible, please indicate the title of the person providing the information and the type and number of employees at your healthcare and/or social assistance facility.

Question VI.1: Are there additional data (other than workers' compensation data) from published or unpublished sources that describe or inform about the incidence or prevalence of workplace violence in healthcare occupations or settings?

Question VI.2: As the Agency considers possible actions to address the prevention and control of workplace violence, what are the potential economic impacts associated with the promulgation of a standard specific to the risk of workplace violence? Describe these impacts in terms of benefits from the reduction of incidents; effects on revenue and profit; and any other relevant impact measure.

Question VI.3: If you have implemented a workplace violence prevention program or policy, what was the cost of implementing the program or policy, in terms of both time and expenditures for supplies and equipment? Please describe in detail the resource requirements and associated costs expended to initiate the program(s) and to conduct the program(s) annually. If you have any other estimates of the costs of preventing or mitigating workplace violence, please provide them. It would be helpful to OSHA to learn both overall totals and specific components of the program (e.g., cost of equipment, equipment installation, equipment maintenance, training programs, staff time, facility redesign).

Question VI.4: What are the ongoing operating and maintenance costs for the program?

Question VI.5: Has your program reduced incidents of workplace violence and by how much? Can you identify which elements of your program most reduced incidents? Which elements did not seem effective?

Question VI.6: Has your program reduced costs for your facility (e.g., reduced insurance premiums, workers' compensation costs, fewer lost workdays)? Please quantify these reductions, if applicable.

Question VI.7: Has your program reduced indirect costs for your facility (e.g., reductions in absenteeism and worker turnover; increases in reported productivity, satisfaction, and level of safety in the workplace)?

Question VI.8: If you are in a state with standards requiring programs and/or policies to reduce workplace violence, how did implementing the program and/or policy affect the facility's budget and finances?

Question VI.9: What changes, if any, in market conditions would reasonably be expected to result from issuing a standard on workplace violence prevention? Describe any changes in market structure or concentration, and any effects on services, that would reasonably be expected from issuing such a standard.

As part of the Agency's consideration of a workplace violence prevention standard, OSHA is concerned whether its actions will have a significant economic impact on a substantial number of small businesses. Injury and illness incident rates are known to vary by establishment size in the healthcare industry, where establishments between 50 and 999 employees had a rate of 5.4 per 10,000 full time workers, while establishments under 50 employees had a rate of 2.8 and lower in 2014 (BLS Table Q1, October 2015).

If the Agency pursues development of a standard that would have such impacts on small businesses, OSHA is required to develop a regulatory flexibility analysis and convene a Small Business Advocacy Review (SBAR) under the Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel prior to publishing a proposal. Regardless of the significance of the impacts, OSHA seeks ways of minimizing the burdens on small businesses consistent with OSHA's statutory and regulatory requirements and objectives (Regulatory Flexibility Act, 5 U.S.C. 601 et seq.).

Question VI.10: How many, and what type of small firms, or other small entities, have a workplace violence prevention training, or a program, and what percentage of their industry (NAICS code) do these entities comprise? Please specify the types of workplace violence risks you face.

Question VI.11: How, and to what extent, would small entities in your industry be affected by a potential OSHA standard to prevent workplace violence? Do special circumstances exist that make preventing workplace violence more difficult or more costly for small entities than for large entities? Describe these circumstances.

Question VI.12: How many, and in what type of small healthcare entities, is workplace violence a threat, and what percentage of their industry (NAICS code 622) do these entities comprise?

Question VI.13: How, and to what extent, would small entities in your industry be affected by an OSHA standard regulating workplace violence? Are there conditions that make controlling workplace violence more difficult for small entities than for large entities? Describe these circumstances.

Question VI.14: Are there alternative approaches OSHA could use to mitigate possible impacts on small entities?

Question VI.15: For very small entities, what types of workplace violence threats are faced by workers? Does your experience with workplace violence reflect the lower rates reported by BLS?

Question VI.16: For very small entities, what are the unique challenges establishments face in addressing workplace violence, including very small non-profit healthcare facilities and at small jurisdictions?

Preamble Outline I. Legal Authority II. Background III. Summary of Proposed Rule IV. Section-by-Section Analysis A. Purpose and Objectives B. Applicability C. Responsibilities V. Summary of Challenges VI. Discussion of Other Major Alternatives A. Status Quo VII. Costs and Benefits VIII. Administrative Requirements A. Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review” B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Environmental Justice E. Unfunded Mandates F. Federalism IX. References/Docket I. Legal Authority

This part is proposed under 10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.

Sections 330 and 1502(e) provide that, subject to certain exceptions set forth in the statutes, the Secretary of Defense shall hold harmless, defend, and indemnify in full certain persons and entities that acquire ownership or control of, in the case of section 330, any military installation closed pursuant to a base closure law or, in the case of section 1502(e), certain portions of the former Naval Ammunition Support Detachment on the island of Vieques, Puerto Rico (hereinafter “Detachment”), from and against any suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner predicated upon, the release or threatened release of any hazardous substance, pollutant or contaminant, or petroleum or petroleum derivative 1 as a result of DoD activities at any military installation (or portion thereof) that is closed pursuant to a base closure law or the Detachment. (Coverage of pollutants and contaminants was added to section 330 by an amendment contained in the National Defense Authorization Act for Fiscal Year 1994, Public Law 103-160, 1002.) It also provides that DoD has certain rights in defending third-party claims.

The authority to adjudicate requests for indemnification and process requests for defense under sections 330 or 1502(e) has been delegated from the Secretary of Defense to the DoD General Counsel and re-delegated by the General Counsel to DoDGC(EE&I). Requests for indemnification or defense or notice to DoD of a third-party claim must be sent to DoDGC(EE&I) to be considered.

The DoD recognizes that some real property transfer documents, such as deeds and agreements, entered into in past years provide for notification under sections 330 or 1502(e) being made to, e.g., the local BRAC program office. Until the promulgation of this rule in its final form, DoD has and will continue to honor such notifications made in conformance with those transfer documents. Effective 180 days after promulgation of this rule, while a requester may continue to provide notification in accordance with such transfer documents, a requester must also comply with the notice requirements of this rule in order to comply with the requirements of sections 330 or 1502(e), particularly with regard to when the statutes of limitation in sections 330(b)(1) and 1502(e)(2)(A) begin to run. Nothing in this rule should be construed as requiring amendment of any such transfer documents.

The United States Federal Circuit has interpreted the definition of a “claim for personal injury or property damages” under section 330 to include, under certain circumstances, notice from an enforcement agency to conduct a cleanup. Indian Harbor Insurance Co. v. United States, 704 F.3d 949 (Fed. Cir. 2013). Because such notices may constitute a claim under section 330, a requester should carefully evaluate whether failing to provide notice to the Secretary would prevent the Secretary from settling or defending against a claim.

The timely and proper filing of a request for indemnification or defense enables DoDGC(EE&I) to perform its adjudication function for requests, maintain oversight of the implementation of sections 330 and 1502(e), and secure the rights of requesters under sections 330 and 1502(e). Proper notice to DoD of a claim from a third-party is also essential to allow DoD to exercise its right to defend against such a claim pursuant to sections 330(c) or 1502(e).

Under sections 330(c)(2) and 1502(e)(3)(B), the requester must allow DoD to defend the claim in order to be afforded indemnification for that claim. This regulation makes clear that failure to notify DoD immediately of receipt of any claim, or of a release that may lead to a claim, could prevent DoD from settling or defending that claim, and on that basis, DoD may deny indemnification. Failure to provide necessary documents and access will also prevent DoD from exercising its right to settle and defend the claim and, on that basis, DoD may deny indemnification.

In the context of a claim from an enforcement agency or third party seeking to require a cleanup or response action, failure to notify DoD may prevent DoD from exercising its right to defend against the claim. If the requester undertakes a cleanup or response action itself prior to providing immediate notice to DoD, the requestor's actions may interfere with DoD's ability to defend against a claim, which might result in denial of indemnification.

This proposed rule does not affect claims that are made pursuant to other authorities such as under a real property covenant contained in a deed in accordance with section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

This proposal identifies the required process for submitting documentation necessary to support a request for indemnification or defense or to provide notice to DoD of a third-party claim under sections 330 or 1502(e). For a notice to DoD of a third-party claim, DoDGC(EE&I) must receive the specified paperwork at the specified address no less than 30 days after a requester receives a third-party claim or before any action is taken, or an agreement is entered into, related to a hazardous substance or a pollutant or contaminant, or petroleum or petroleum derivative covered by section 330 or a hazardous substance or a pollutant or contaminant covered by section 1502(e).

To ensure the proper implementation of sections 330 and 1502(e), requesters and DoD must communicate effectively and in a timely manner. This proposal will provide the necessary information for that interaction to take place.

This proposal applies to the DoD General Counsel's Office, to the Military Departments, and to any person or entity making a request for indemnification or defense, or providing notice to DoD, of a third-party claim pursuant to sections 330 or 1502(e).

This proposal defines the terms “commercial delivery service”, “Deputy General Counsel”, “received”, “request”, “requester”, “section 330”, “section 1502(e)”, and “third-party claim”.

This proposal advises that the responsibilities of the Secretary of Defense under sections 330 and 1502(e) have been delegated to the General Counsel of the DoD who has, in turn, re-delegated certain of those responsibilities, particularly with regard to adjudication of requests for indemnification, to DoDGC(EE&I). DoDGC(EE&I) exercises this responsibility through close communication with the military department that has property disposal responsibility for the closed installation subject of the request for indemnification or defense. Such communication includes obtaining review by, and the recommendations of, the military department on the merits of the request for indemnification or defense. Likewise, DoDGC(EE&I) communicates any notice of a third-party claim to the military department and works closely with the military department in determining what action, if any, the DoD will take in response to the notice. The proposal also contains responsibilities of requesters, delineated in the body of the rule.

This proposal explains the process to be used, timelines that apply, and documentation that must be received by DoDGC(EE&I) for a request for indemnification or defense. The mailing address and required method of delivery are specified. The proposal also requires a requester to provide DoD with a right of entry at reasonable times for purposes of inspecting the property and obtaining samples. The proposal also provides for reconsideration of a DoD determination.

This proposal explains the process to be used, timelines that apply, and documentation that must be received by DoDGC(EE&I) relating to a notice of a third-party claim. The mailing address and required method of delivery are specified. The proposal also requires a requester to provide DoD with a right of entry at reasonable times for purposes of inspecting the property and obtaining samples. The section specifies that a requester must notify DoD within 30 days of receiving the third-party claim or 30 days before taking an action in order to allow DoD to determine what action to take with regard to the claim.

Informing all affected persons and entities about this rule will require communication with relevant non-governmental organizations.

The current process is unclear, inefficient, and time-consuming, causes delay, and may be ineffective. This lack of clarity contributes to concern that indemnification is not being addressed adequately and creates the potential for impairment of DoD's ability to present an effective defense of claims under sections 330 or 1502(e). The DoD is committed to sound environmental stewardship in all of its activities while meeting the goal of encouraging the development of land for productive use.

Based on the relatively small number of claims per year, compliance costs under this regulation are expected to be minimal. In fact, this regulation will reduce compliance costs because it will streamline and clarify the process for the submission of information which would have to be submitted in any case in order to obtain a determination regarding indemnification or defense or provide notice to DoD of a third-party claim under sections 330 or 1502(e).

This proposal will clarify the process for requesters of indemnification or defense and promote efficient protection of the environment by enhancing communication between requesters and DoD. This enhanced and simplified communication process will result in fewer burdens for both requesters and DoD in the form of avoiding unnecessary, inappropriate, or duplicative paperwork. This proposal does not require any greater disclosure of information from a requester than sections 330 or 1502(e) already require. Enhancing DoDGC(EE&I)'s ability to adjudicate requests for indemnification or respond to requests for defense under sections 330 or 1502(e) will reduce the burden of information requests upon those entities requesting indemnification or defense, or providing notice to DoD, of a third-party claim under sections 330 or 1502(e). This proposal will promote protection of requesters' rights by reducing the possibility of a request for indemnification or defense being acted upon by the wrong agency or a statute of limitations running due to failure to provide timely notification to the proper agency.

Under E.O. 12866 and E.O. 13563, DoD must determine whether this regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and to the requirements of this E.O., which include assessing the costs and benefits anticipated as a result of the proposed regulatory action. E.O. 12866 defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or may 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; (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

This proposed rule will not have an adverse effect on the economy or cost the economy $100 million or more per year. Requests for indemnification are small in number and do not approach anywhere near $100 million per year, individually or collectively. c Although not economically significant, this rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by OMB under the requirements of these Executive Orders.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et seq., requires Federal agencies to consider “small entities” throughout the regulatory process. Section 603 of the Regulatory Flexibility Act requires an initial screening analysis performance to determine whether small entities will be adversely affected by the regulation. If affected small entities are identified, regulatory alternatives must be considered to mitigate the potential impacts. Small entities as described in the Regulatory Flexibility Act are only those “business, organizations and governmental jurisdictions subject to regulation.” It has been certified that this proposed rule will not add to the current burden for small entities to report their activities based on a request for indemnification or defense under sections 330 or 1502(e). This proposal will benefit small entities by streamlining communication to reduce the cost of making a request for indemnification or defense, or providing notice to DoD, of a third-party claim.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3501, authorizes the Director of OMB to review certain information collection requests by Federal agencies. The recordkeeping and reporting requirements of this proposed rule do not constitute a “collection of information” as defined in 44 U.S.C. 3502(3), the Paperwork Reduction Act of 1995.

Under E.O. 12898 (59 FR 7629 (February 11, 1994)), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Federal agencies are required to identify and address disproportionately high and adverse human health and environmental effects of Federal programs, policies, and activities on minority and low-income populations. Given the application of this proposed rule throughout the entire United States, DoD is soliciting comment and input from all public entities and government agencies, including members of the environmental justice community and members of the regulated community.

Sections 330 and 1502(e) are intended to reduce specified risks from development of former military land by aiding and legally protecting the entities that take title to land on closed military installations for development purposes. Because this rule will equally affect reporting associated with the development of land on a national basis, a disparate impact on minority and low-income population areas is not expected.

Title II of the Unfunded Mandates Report Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Indian tribal governments and the private sector. Under Section 202 of the UMRA, DoD generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Indian tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

The DoD has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Indian tribal governments, in the aggregate, or the private sector in any one year. Thus, this proposed rule is not subject to the requirements of Section 202 of the UMRA.

It has been determined that this rule does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

I. Background

In 1999, the Senate Interior Appropriations Subcommittee requested that DOI, the U.S. Department of Agriculture (USDA) Forest Service (FS), and the Smithsonian Institution prepare a report on fossil resource management on federal lands (see Sen. Rep. 105-227, at 60 (1998)). The request directed these entities to analyze (1) the need for a unified federal policy for the collection, storage, and preservation of fossils; (2) the need for standards that would maximize the availability of fossils for scientific study; and (3) the effectiveness of current methods for storing and preserving fossils collected from federal lands. During the course of preparing the report, the agencies held a public meeting to gather public input. The DOI report to Congress, “Assessment of Fossil Management of Federal and Indian Lands,” was published in May 2000.

After the report was released, the Paleontological Resources Preservation Act (PRPA) was introduced in the 107th Congress. PRPA was modeled after the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-470mm), and emphasized the recommendations and guiding principles in the May 2000 report. The legislation was reintroduced in subsequent Congresses through the 111th Congress when it was included as a subtitle in the Omnibus Public Land Management Act, which became law on March 30, 2009. Legislative history 1 demonstrates that PRPA, which is now codified at 16 U.S.C. 470aaa-aaa-11, was enacted to preserve paleontological resources for current and future generations because these resources are non-renewable and are an irreplaceable part of America's heritage. PRPA requires that implementation be coordinated between the Secretaries of the Interior and Agriculture (16 U.S.C. 470aaa-1).

PRPA requires DOI and USDA to issue regulations as appropriate to carry out the law. Accordingly, DOI and USDA formed an interagency coordination team in April 2009 to draft the proposed regulations. The interagency coordination team included paleontology and archaeology program leads and regulatory specialists from the Bureau of Land Management (BLM), the National Park Service (NPS), the Bureau of Reclamation (Reclamation), the U.S. Fish and Wildlife Service (FWS) (the bureaus), and the FS.

On May 23, 2013, the FS published a proposed rule that would implement PRPA with respect to National Forest System lands (78 FR 30810). On April 17, 2015, the FS published these regulations as final (80 FR 21588).

This proposed rule would address management of paleontological resources on federal lands under the jurisdiction of the Secretary of the Interior, and managed by BLM, Reclamation, NPS, and FWS. The proposed rule would amend title 43 of the Code of Federal Regulations (CFR) by adding a new part 49 entitled “Paleontological Resources Preservation.” In accordance with 16 U.S.C. 470aaa-1, the proposed rule would outline how the four bureaus would manage, protect, and preserve paleontological resources on federal land using scientific principles and expertise. Most of the proposed rule, specifically subparts A through H, would apply to all four bureaus. The only exception is subpart I, which would apply only to BLM and Reclamation, governing casual collecting (collecting common invertebrate and plant paleontological resources without a permit) on certain lands administered by those bureaus. PRPA does not allow casual collecting in areas administered by NPS or FWS, and therefore subpart I would not apply to these two bureaus. The following is a section-by-section analysis of subparts A through I.

Proposed § 49.1 would restate the purposes of PRPA and summarize the contents of the proposed rule.

Proposed § 49.5 would define certain terms used in the proposed rule. The bureaus believe that most of the terms are readily understood, but discuss the following in more detail below:

Associated records would mean original records or copies of those records, in the context of collections. If original records are not available for some reason, copies of those records are acceptable. Associated records would include primary, public, and administrative records.

Authorized officer would mean the bureau director or employees to whom the Secretary of the Interior has delegated authority to make a decision or to take action, or both, under PRPA. Bureaus may have multiple authorized officers. The authorized officer consults as appropriate with bureau technical specialists, outside experts, bureau partners, museum curators, or others in making decisions and taking action.

Collection would mean paleontological resources removed from geological context or taken from federal lands and any associated records, consistent with the definition of museum property in Part 411 of the Departmental Manual (411 DM). Because permits may be issued only to further paleontological knowledge, public education, or management of paleontological resources, any collections made under those permits should likewise further these goals. Such collections would be deposited in an approved repository. Paleontological resources that are determined by the authorized officer as not furthering or no longer furthering paleontological knowledge, public education, or management of paleontological resources (such as resources that lack provenience or are overly redundant) may, nevertheless, because they are still of paleontological interest and provide information about the history of life on earth, be assigned to project or working collections, including non-museum collections.

Curatorial services would mean managing and preserving a museum collection over the long term according to DOI (currently 411 DM) and bureau museum and archival standards and practices.

Nature would mean physical features, identifications, or attributes of the paleontological resource. Including this definition in the proposed regulations would clarify the type of information that PRPA exempts from disclosure.

Paleontological resources would mean any fossilized remains, traces, or imprints of organisms preserved in or on the Earth's crust, except for:

(1) Those that are found in an archaeological context and are an archaeological resource as defined in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or

(2) Cultural items, as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or

(3) Resources determined in writing by the authorized officer to lack paleontological interest or not provide information about history of life on earth, based on scientific and other management considerations.

Thus, under PRPA and the proposed regulation, fossils are “paleontological resources” unless they are found in an archaeological context and are archaeological resources, or are cultural items under the Native American Graves Protection and Repatriation Act, or are determined by an authorized officer to lack paleontological interest or not provide information about the history of life on earth.

An example of a fossil that is found in an archaeological context and is therefore an archaeological resource would be a fossil that was collected by prehistoric peoples and is now part of an archaeological site. In this case, the fossil has been removed from its original geological context and is now important primarily for its archaeological informational value. A fossil found in an archaeological context is not a paleontological resource under PRPA or the proposed rule, but may still have scientific value for paleontological investigations and be protected under other authorities. Fossils that are merely in geographical proximity to archaeological resources but are not necessarily in an archaeological context, are therefore not necessarily archaeological resources.

Fossils that the authorized officer determines to not have paleontological interest or not provide information about the history of life on earth, such as fossil fuel deposits or limestone units, would not be considered paleontological resources under PRPA or the proposed rule, although they would remain subject to other laws and regulations. For example, fossils on NPS-administered lands that are not considered paleontological resources would still be protected as natural and cultural resources under the NPS Organic Act of 1916, NPS regulations, and NPS policies. As another example, fossils on BLM-administered lands that are not considered paleontological resources would still be subject to consideration under the Federal Land Policy and Management Act of 1976 (FLPMA), thus allowing BLM to track and report scientific activities, such as research on non-vertebrate microfossils, without requiring that those fossils be managed as paleontological resources or otherwise be subject to PRPA.

Petrified wood is managed as a paleontological resource when on or from lands administered by NPS, Reclamation, and FWS. On lands administered by BLM, petrified wood (defined by the Petrified Wood Act of 1962, Pub. L. 87-713, 76 Stat. 652, Sept. 28, 1962 as agatized, opalized, petrified, or silicified wood, or any material formed by the replacement of wood by silica or other matter, and identified as a mineral material under the Materials Act of 1947) is subject to commercial sale at 43 CFR part 3600 and free use regulations at 43 CFR part 3622. Therefore, on BLM lands, petrified wood may be managed as a paleontological resource, but the savings provisions in PRPA (16 U.S.C. 470aaa-10) prevent the imposition of additional restrictions on the sale or free use of petrified wood. When it is not subject to sale or free use, petrified wood on BLM-administered lands may be managed as a paleontological resource and/or under the authority of FLPMA.

Geological units including but not limited to limestones, diatomites, chalk beds, and fossil soils (i.e., paleosols) would not be considered paleontological resources under the proposed rule. However, the occurrence of discrete paleontological resources within geological units would be considered paleontological resources and, therefore, subject to PRPA and the proposed rule. Determinations about whether a fossil is or is not a paleontological resource would be committed to the authorized officer's discretion, based on scientific or other management considerations. A determination that a fossil is or is not a paleontological resource may be reversed at a later time, at the authorized officer's discretion, based on scientific or other management considerations.

Fossils such as conodonts and nonvertebrate microfossils would be considered paleontological resources when they, as part of a scientific research design, provide critical information toward the understanding of geological units, biological evolution, climate change, and other scientific questions. However, in accordance with section 6311 of PRPA, the proposed rule would not require a permit for the collection of conodonts or nonvertebrate microfossils in association with authorized oil, gas, geothermal, or other minerals activities that are permitted under other authorities. Casual collection of conodonts or nonvertebrate microfossils may be permissible on certain BLM- or Reclamation-managed lands consistent with the limitations defined in subpart I of the proposed rule. Bureaus may individually determine that certain conodonts or nonvertebrate microfossils lack paleontological interest and therefore are not paleontological resources on all or on portions of land they administer.

When paleontological resources on certain BLM- and Reclamation-managed lands are common plant or invertebrate fossils, they may be casually collected in compliance with subpart I of the proposed rule. They are still paleontological resources (meaning that they have paleontological interest and provide information about the history of life on earth), but PRPA authorizes the limited collection of these resources on lands administered by BLM and Reclamation where such collection is consistent with the laws governing the management of those lands, PRPA, and subpart I of the proposed rule.

Paleontological site would mean a locality, location, or area where a paleontological resource is found; the site can be relatively small or large. The definition of paleontological site is never synonymous with “archaeological site” as used in 43 CFR part 7.

Working collection would mean paleontological resource collections that are not intended for long-term preservation and care as museum collections. Departmental policy on working collections is expanded in Section 1.7, 411 DM, Identifying and Managing Museum Property.

Proposed § 49.10 would state that the proposed rule preserves the authority of the Secretary of the Interior under this and other laws and regulations to manage, protect, and preserve paleontological resources on federal land under the jurisdiction of the Secretary. PRPA and the proposed rule complement the bureaus' other authorities for paleontological resource management. The proposed rule would be consistent with existing bureau practices and would clarify the responsibilities of the bureaus to preserve, protect, and manage paleontological resources.

Proposed § 49.15 would state that the proposed rule does not impose additional requirements on activities permitted under the general mining or mineral laws, does not apply to Indian land, and does not apply to land other than federal land as defined in the proposed rule. This is consistent with the savings provisions of the PRPA. This section means that the bureaus will not add requirements under PRPA and the proposed rule to mining- and mineral-related permits. For example, the bureaus may not cite PRPA or the proposed rule in the list of mitigation measures that is attached to an approved mining plan of operations. However, because PRPA and the proposed rule do not limit the applicability of other legal authorities such as the Mining in the Parks Act and FLPMA, the bureaus may continue to cite those other authorities as protection for paleontological resources when authorizing or conditioning land or resource uses under those authorities. This section would also clarify that, under PRPA, the word “reclamation” means reclamation in the context of mining and mineral activities and not the broader context of all federal reclamation activities.

Proposed § 49.20 would state that the proposed rule would not create a right or standing to file suit for persons who are not officers or employees of the United States acting in that capacity. It would repeat section 6311 of PRPA (16 U.S.C. 470aaa-10) for public notice and clarity.

Proposed § 49.25 would implement the provision in PRPA that exempts information about the nature and specific location of a paleontological resource from disclosure under the Freedom of Information Act and any other law unless the authorized officer determines that disclosure would: (1) Further the purposes of PRPA; (2) not create risk of harm to or theft or destruction of the resource or site containing the resource; and (3) be in accordance with other applicable laws. This proposed section would also require a written agreement between the bureau and the party seeking the disclosure, which would ensure that the recipient of the disclosure does not publicly distribute or otherwise release, disclose, or share the information. For example, a partner repository would not be permitted to post specific locality information on-line, but if authorized to do so in a written agreement could still share such information for educational or scientific uses that would not create harm or risk to the resource. The agreement to maintain confidentiality of released information would ensure that the release of confidential information in one situation would not trigger the requirement of the bureau to release that same information to other requestors.

Proposed § 49.30 would explain that the bureaus will conduct inventory, monitoring, and preservation activities based upon scientific and resource management principles and practices, and clarify that these activities are undertaken by each bureau internally or may be coordinated with other agencies, non-federal partners, scientists, and the general public where appropriate and practical. Such coordination might take place through mechanisms such as agreements, permits, grants, citizen science efforts, or other arrangements. For public notice and clarity, § 49.30 would repeat section 6302 of PRPA, 16 U.S.C. 470aaa-1.

Proposed § 49.35 would explain that the bureaus will establish a program to increase public awareness, coordinated with other agencies, non-federal partners, scientists, and the general public where appropriate and practical. National Fossil Day, an annual multi-agency and multi-partner event, is a successful example of how the bureaus are already working to increase public awareness. For public notice and clarity, § 49.35 would repeat section 6303 of PRPA, 16 U.S.C. 470aaa-2.

Proposed § 49.40(a) would state that the authorized officer may restrict access to or close areas to collection to protect resources or provide for public safety. For public notice and clarity, paragraph (a) would repeat section 6304(e) of PRPA, 16 U.S.C. 470aaa-3(e). Proposed § 49.40(b) would clarify that other authorities may also be used to restrict access to or close areas in order to preserve or protect paleontological resources or provide for public safety. This authority supplements the bureaus' existing authority and procedures for restricting access to areas or closing areas to collection (see BLM regulations at 43 CFR 8364.1; Reclamation regulations at 43 CFR 423.29; FWS regulations at 50 CFR 25.21; and NPS regulations at 36 CFR 1.5).

Since 1906, the bureaus have permitted the collection of paleontological resources under various legal and regulatory authorities. Permitting will continue under PRPA and the proposed regulations.

Proposed § 49.50 would clarify when a permit is required and who must have a permit. A permit would be required for collecting paleontological resources or disturbing paleontological sites except for casual collecting on certain lands managed by BLM or Reclamation where casual collecting is allowed. The conditions for casual collecting are defined in subpart I of this proposed rule. Proposed § 49.50(b) states a permit may be required by a bureau for paleontological investigative activities that do not involve collection or disturbance in order to track and report on scientific activities or for other purposes. Proposed § 49.50(c) states a permit would be required for federal employees to disturb paleontological sites or collect paleontological resources although bureaus may implement this requirement on a programmatic basis, consistent with their internal processes. The bureau personnel so authorized must meet the professional requirements defined in § 49.60 of the proposed rule, and have experience appropriate to the planned work. The approval must be issued by the bureau managing the land. All collected materials are the property of the Federal Government, and must be managed and curated consistent with the requirements of subpart C of the proposed rule.

Proposed § 49.55 would establish that applicants who meet the qualification requirements of proposed § 49.60, provide a complete application, and meet the permit issuance criteria may receive a permit. This proposed section would not affect valid permits issued before the effective date of the proposed rule.

Proposed § 49.60(a)(1)-(4) would describe qualifications needed for an applicant to receive a permit. PRPA requires the bureaus to ensure that proposed work under a permit will further paleontological knowledge or public education and that the applicant is qualified to carry out the permitted activity. In order to accomplish both requirements, the proposed regulations would require the applicant and others overseeing work under the permit to have experience and qualifications in paleontology appropriate to the tasks they are to perform. For the applicant, an advanced degree in paleontology or equivalent experience and prior field experience has been the baseline for this requirement for all of the bureaus for more than 20 years and is consistent with similar policy for archaeology permits that are authorized under the Archaeological Resources Protection Act of 1979. The authorized officer may grant a permit to an applicant who lacks an advanced degree or specialized experience if the authorized officer is satisfied that the applicant's education and experience are sufficient to carry out the work that is proposed. The authorized officer may grant the permit, grant the permit with limitations, or deny the permit based on the applicant's education, experience, and past performance, and qualifications of persons named in the application as overseeing work.

Proposed § 49.60(b) states that past performance will also be considered, and includes any aspect that could affect performance under the permit being applied for. This would include compliance with previous permits, relevant civil or criminal violations, or relevant indictments or charges.

In order to ensure consistency among bureaus, proposed § 49.65 lists the information that a permit applicant is required to provide before a bureau can issue a permit under this subpart. Proposed § 49.65(a) would require permit applicants to submit an application to the bureau that administers the federal land where the proposed activity would be conducted. For activities on lands administered by BLM, Reclamation, and FWS, permit applicants would use DI Form 9002 (Paleontological Resource Use Permit Application). For activities on lands administered by NPS, permit applicants would use NPS's Research Permit and Reporting System (RPRS). This paragraph would also clarify that it is the permit applicant's responsibility to determine which bureau has jurisdiction, use that bureau's permit application form and process, and respond to that bureau's requests for information in a timely manner.

Proposed § 49.65(b) would describe the information requirements that the permit application forms would include.

Proposed § 49.70(a) and (b) would identify how a bureau evaluates and decides on a permit application. Because permit approval would be partially based on whether the proposed repository for the collection under the permit would meet the standards of 411 DM, proposed § 49.70(c) would require the authorized officer to work with the permit applicant and proposed repository to decide whether to approve that repository for the collection. The phrase “the authorized officer may” means that the authorized officer has discretion to approve or deny a permit based on information provided by the applicant, past and present performance, management considerations, bureau policy, and other considerations.

Proposed § 49.75(a) would specify that a permit would include but not be limited to certain terms and conditions. Section 6304 of PRPA lists three required permit terms and conditions. The proposed rule would require additional terms and conditions in order to enhance consistency among bureaus as emphasized by section 6302(b) of PRPA. For approved activities on lands administered by BLM, Reclamation, and FWS, the authorized officer would issue the permit using DI Form 9003 (Paleontological Resource Use Permit). For approved activities on lands administered by NPS, the authorized officer would issue the permit under the NPS RPRS.

Proposed § 49.75(a)(3) would clarify that the permittee is responsible for ensuring that the resource site or recovered paleontological materials are not put at risk as a result of work that is done under the permit. For example, if fossils are exposed by collection or excavation, they must be protected from damage, theft, or other harm for the period they are exposed to risk. Additionally, the permit would not authorize permittees to modify the environment around an area of work. For example, permittees would not be allowed to cut trees, create roads, or grade parking areas.

Proposed § 49.75(a)(8) would require a permittee to report suspected resource damage or theft to the authorized officer after learning of such damage or theft. Such reporting should be done as soon as possible, but in all cases must be done within 48 hours. Based on the bureaus' experience, 48 hours is a reasonable timeframe for such reporting.

Proposed § 49.75(a)(9) would clarify that collections made under a permit must be deposited in the approved repository, and that the permittee must notify the bureau of the deposit. The notification of deposit is required because the bureau must know the nature, condition, and location of federally owned paleontological resources in order to meet PRPA's mandate to manage these resources using scientific principles and expertise, and to meet Departmental museum management requirements. Documentation of the transfer of paleontological resources from the care of the permittee to the care of the approved repository is necessary so that the bureau, the permittee, and the approved repository will each know which party is responsible for the care and management of the paleontological collection.

To avoid a situation where bureaus or repositories could have large collections of paleontological resources that are costly to maintain or no longer contribute to science, the proposed rule would allow the authorized officer to determine that specimens that are found to be redundant, lack adequate associated data, or otherwise are determined not to further paleontological knowledge, public education, or management of paleontological resources may be removed from museum collections and placed into working collections.

Proposed § 49.75(a)(10) would clarify that all paleontological resources collected under a permit remain federal property. The resources that are not collected, but instead are left in situ or otherwise are left in the field by the permittee, also remain federal property. Removal of any paleontological resources from federal land not in accordance with this subpart may constitute theft of federal property.

Proposed § 49.75(a)(12) would state that the permittee is responsible for the costs of carrying out the permitted activity, including curation costs, consistent with specific or programmatic direction from the authorized officer.

Proposed § 49.75(a)(13) would require a permittee to provide reports as required by the bureau in the permit. The permittee will ensure that reports are submitted in a timely fashion and contain the information necessary to ensure accountability for federal resources. For activities that were conducted on lands administered by BLM, Reclamation, or FWS, reports would be submitted using DI Form 9005 (Paleontological Permit Report Cover Sheet) or DI Form 9006 (Paleontology Consulting Report Summary Sheet). For activities that were conducted on lands administered by NPS, reports would be submitted under the NPS RPRS. Proposed § 49.75(a)(16) would state that a permittee may not transfer the permit to another person.

Proposed § 49.75(b) would authorize the bureau to hold a permittee responsible for complying with applicable permit terms and conditions after it has expired or been cancelled, suspended, or revoked. Like all terms and conditions, this requirement would be enforceable under the criminal and civil penalties provision of this part, and would enable bureaus to preserve paleontological resources and maintain accountability by requiring that affected resource sites be left in a good condition, collections be transferred to the approved repository in a timely manner, that associated records be produced, and that reports be submitted, regardless of the status of the permit.

Proposed § 49.75(c) would provide that the authorized officer may include in the permit additional terms and conditions necessary to carry out the purposes of this part.

Proposed § 49.75(d) would provide that for activities approved on lands administered by BLM or Reclamation, the authorized officer may provide a permittee with DI Form 9007 (Paleontology Work Notice to Proceed), which contains site-specific guidance and stipulations for the permittee. The Notice to Proceed is considered part of or an addendum to the permit. Proposed § 49.75(e) would provide that persons who do not comply with the terms of a permit issued under this part may be subject to civil or criminal penalties.

Proposed § 49.80 would identify when and how a permit may be modified, suspended, revoked, or cancelled. The authorized officer would notify a permittee of such actions verbally or in writing. Any verbal notification would be confirmed by a written order delivered as soon as practicable after issuance of the verbal order. The notification would be immediately effective upon the permittee's receipt of the verbal or written notification, whichever is received first.

Proposed § 49.80(a) would identify when a permit may be modified. Common permit modifications may include changing the duration of a permit, changing personnel that are named on a permit, changing the geographic area that is authorized under a permit, making minor modifications to the stratigraphic context or scope of work, or adding or altering supplemental terms and conditions to a permit. These modifications may be requested by the permittee or initiated by the bureau. The authorized officer may issue a new permit or require the permittee to submit a new application when a modification would substantially change the scope of the existing permit.

Proposed § 49.80(b) would identify when activities under a permit may be suspended. Common reasons for a suspension include the discovery of potential resource conflicts, failure of the permittee to follow terms and conditions, resource protection issues, or budget or staffing concerns. A suspension would last no longer than 45 days, and may be lifted by the authorized officer when the reasons for suspension no longer apply, or when conditions for lifting a suspension have been met. After 45 days, if the circumstances prompting the suspension have not been resolved, the suspension will end and the authorized officer may modify, revoke, or cancel the permit, as appropriate to the specific circumstance.

Proposed § 49.80(c) would identify when a permit may be revoked. A permit will be revoked when, for example, a permittee fails to follow the terms and conditions of a permit, is charged with a civil or criminal violation under PRPA or under other applicable laws, or is found ineligible to hold a paleontology permit.

Proposed § 49.80(d) would identify when a permit may be cancelled. Cancellation would differ from revocation in that it would terminate a permit for reasons that do not relate to improper or poor performance on the part of the permittee. Cancellation is not a negative action and should not be cause to deny a future permit to the applicant. Cancellation may occur when administrative or resource issues warrant, and may follow a 45-day suspension, or may occur without a suspension occurring. A permittee may request a permit to be cancelled for any reason, or the bureau may need to cancel the permit for administrative or management reasons. Although PRPA does not specifically reference permit cancellation, the proposed regulations include this option because permit cancellation is a form of permit modification (changing the end date of the permit) and is therefore within the scope of PRPA.

Proposed § 49.80(e) would specify that the authorized officer will notify a permittee of the modification, suspension, revocation, or cancellation either verbally or in writing. Proposed § 49.80(f) would specify that notifications of modification, suspension, revocation, or cancellation are effective upon the permittee's receipt of the written notification.

Authorized officers have discretion to make permit-related decisions based on information provided by the applicant, past and present performance, management considerations, bureau policy, and other considerations. Proposed § 49.85 would state that permit-related decisions may be appealed.

Proposed § 49.90 would specify the processes for appealing permit-related decisions. BLM and FWS each have applicable regulations, and NPS already has a process in place. Reclamation will develop an appeals process for permit decisions and will document the process in Reclamation's system of written directives. The appeals process may include a review by the applicable Reclamation Regional Director, followed by appeal to Reclamation's Commissioner, similar to the process in place for land use decisions found at 43 CFR part 429.

Proposed § 49.95 would describe the information collection status of this part.

The proposed requirements provided in subpart C are consistent with requirements provided for archaeological collections at 36 CFR part 79.

Proposed § 49.200 would clarify that collections made under a permit issued under this part must be deposited in a repository approved by the authorized officer. Collections made prior to the effective date of the proposed rule would be subject to the terms and conditions of the original collection permit or agreement, which is also consistent with guidance in current DOI museum policy.

Proposed § 49.205(a) would grant the authorized officer discretion to approve a repository for a collection based on several factors, including appropriate scope of collections, qualified curation staff, adequate public access, compliance with DOI museum collection standards, and consistency with bureau management goals. Approval of a repository is necessary for both federal and non-federal repositories.

Proposed § 49.205(b) would clarify that when the authorized officer approves a repository for the collection, that repository will be listed in the approved permit and will remain approved to curate the collection unless the authorized officer determines that any one of the considerations in paragraph (a) of this section is no longer met. In that case, the repository would be notified and would have a reasonable amount of time to:

(1) Correct the deficiency;

(2) Move the collection to another approved repository; or

(3) Take other actions the authorized officer requests.

In situations involving movement of the collection to another approved repository, the first repository would likely ship the collection to the second repository in accordance with the authorized officer's instructions. The bureau would then close the deposit agreement with the first repository and enter into a new agreement with the second repository.

Proposed § 49.210 would clarify the process for depositing paleontological collections at the approved repository. Under proposed § 49.210(a), the authorized officer would work with the permittee and approved repository, using scientific principles and expertise, to ensure that the collection is complete and that the content of the collection would further paleontological knowledge, public education, or management of paleontological resources. In addition, the authorized officer would review any existing agreement between the bureau and the approved repository to determine if that agreement adequately addresses requirements that are specific to the collection and either develop a new agreement, or amend an existing agreement, if an adequate agreement does not exist.

Under proposed § 49.210(b), the permittee or the repository would submit DI Form 9008 (Repository Receipt for Collections (Paleontology)) to the authorized officer. This form would include but not be limited to a certification by the permittee that the collection was deposited at the repository, and a certification by the approved repository's authorized official that the collection has been received.

For repository managers concerned that the curation requirements of PRPA and the proposed rule could lead to unrealistic or burdensome curation requirements, the proposed rule addresses these concerns in three ways. First, a repository may agree or decline to curate a collection of paleontological resources. Second, the authorized officer is ultimately responsible for determining the content of the collection, with input from the permittee and the repository, and ensuring that the collection meets bureau management goals. Third, the proposed rule specifies that the standard for collection under permit and deposit into an approved repository is that the collection furthers paleontological knowledge, public education, or management goals for paleontological resources. If a proposed collection would not meet this standard, then the collection should not be permitted. If the authorized officer determines that a collection formerly met this standard but no longer does, then part or all of the collection may be removed from the approved repository, transferred to a working collection, or managed in other ways consistent with DOI standards in 411 DM and bureau museum management procedures. Note that, in such a circumstance, that collection is still comprised of paleontological resources. If the specimens in a collection are determined by the authorized officer to no longer have paleontological interest or provide information about the history of life on earth, then they are not paleontological resources as defined in PRPA and the proposed rule. All of these aspects of the proposed rule should ameliorate the concerns of repository managers that the requirements in PRPA would be burdensome.

Proposed § 49.215 would specify the terms and conditions that must be included in an agreement between the bureau and the repository. The terms and conditions provided in this section are consistent with 411 DM. Several of these terms and conditions are addressed below for further clarification.

First, proposed § 49.215(a)(2) would clarify that the Federal Government retains ownership of all paleontological resources collected under a permit, regardless of where the resources reside, who discovered or collected them, or who assumes administrative responsibility for their care. Bureaus may transfer all or portions of collections of paleontological resources to other federal bureaus (including the Smithsonian) either by loan or by administrative transfer without changing the fact that they are owned by the Federal Government.

Proposed § 49.215(a)(6) requires that agreements describe any special procedures or restrictions for access to controlled property, consumptive use, reproduction, or curatorial services, including loans. These terms are all defined in 411 DM.

Proposed § 49.215(a)(11) would clarify that one of the terms and conditions is a statement that employees cannot take any action that results in collection encumbrance, seizure, theft, damage, or other issues, and closely follows 36 CFR part 79 and DOI policy in 411 DM. The prohibition against damaging a collection does not prevent consumptive use that is approved by the bureau in a permit, agreement, or other written documentation.

Proposed § 49.220 would provide standards for managing collections made under this part that are consistent with DOI policy for the management of museum collections found at 411 DM. Particular provisions of this proposed section are addressed below.

Proposed § 49.220(a)(1) would make collections and locality data available subject to the confidentiality provisions of the proposed rule and PRPA.

Proposed § 49.220(b) would authorize repositories to charge reasonable fees, consistent with applicable law, to cover their costs of making federal paleontological resources available to the public.

For public notice and clarity, proposed § 49.300 would restate the prohibitions contained in section 6306 of PRPA (16 U.S.C. 470aaa-5). Under PRPA and this section, a person may not:

(a) Excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resource located on federal land unless this activity is conducted in accordance with PRPA and this part. For example, this would prohibit moving or relocating a paleontological resource from its in situ geologic context without authorization under the proposed rule. Such authorization would be in the form of a permit or casual collection consistent with subpart I of this part.

(b) Exchange, transport, export, receive, or offer to exchange, transport, export, or receive any paleontological resource if the person knew or should have known such resource to have been excavated or removed from federal land in violation of any provision, rule, regulation, law, ordinance, or permit in effect under federal law, including PRPA and this part.

(c) Sell or purchase or offer to sell or purchase any paleontological resource if the person knew or should have known such resource to have been excavated, removed, sold, purchased, exchanged, transported, or received from federal land.

(d) Make or submit any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from federal land. This provision would apply when a person knew or should have known that information was false, or when there was intent to deceive, misrepresent, or mislead.

Proposed § 49.400 would describe what criminal penalties apply to persons who commit prohibited acts under this part. Bureaus may utilize other authorities to issue citations for criminal violations involving paleontological resources.

Proposed § 49.400(a) would state that criminal penalties would not apply with respect to paleontological resources in the lawful possession of a person on or before March 30, 2009, which is the date that PRPA was enacted.

Proposed § 49.400(b) would authorize penalties upon conviction for persons who knowingly violate or counsel, procure, solicit, or employ another person to violate subpart D of this proposed rule. If the value of the paleontological resources involved (which means the sum of the commercial and scientific value of the paleontological resources involved and the cost of response, restoration, and repair of the resources and sites involved) is more than $500, penalties would be assessed in accordance with Title 18 of the U.S. Code and/or may include imprisonment for up to 5 years. If the value of the paleontological resources involved is less than $500, penalties would be assessed in accordance with Title 18 of the U.S. Code and/or may include imprisonment for up to 2 years. A court may award restitution, which may also be called penalties or damages, to the bureau for injuries to paleontological resources, in lieu of or in addition to fines.

Proposed § 49.400(c) would state that the term “value of the paleontological resources involved” would be explained in subpart G of this proposed rule.

Proposed § 49.400(d) would state that in the case of a second or subsequent violation by the same person, the amount of the penalties assessed under this subpart may be doubled.

Proposed § 49.400(e) would authorize law enforcement officers to issue citations for minor violations under the bureaus' existing enforcement authorities, such as misdemeanor penalties, rather than relying solely on the criminal penalties provided by PRPA.

Proposed § 49.500 would state that the authorized officer may assess a civil penalty upon any person who violates the provisions of the proposed rule or a permit issued under the proposed rule, and that each violation would be considered a separate offense.

Proposed § 49.505 would state the authorized officer may serve a notice of violation in person, by certified mail, return receipt requested, or other verifiable delivery method upon a person that the authorized officer believes has committed a violation of the proposed rule.

Proposed § 49.510 would describe the contents of a notice of violation.

Proposed § 49.515 would state that a person who receives a notice of violation and proposed civil penalty has 30 days from the date of receipt in which to file a written objection with the authorized officer. The person must state the reasons for the objection, provide any supporting documentation, and sign the objection.

By written notice, the authorized officer would sustain or deny the objection based on the information in the objection and any information provided upon request. If the authorized officer concludes there was no violation, the objection would be sustained, the notice of violation revoked, and no civil penalty would be assessed. If the authorized officer finds that a violation occurred, the objection would be denied. If the authorized officer finds that a violation occurred but the proposed civil penalty was too high, the objection would be denied in part and sustained in part.

Proposed § 49.520 would state that if the person who was served with a notice of violation and proposed civil penalty does not file a timely objection, or files a timely objection which is denied, the authorized officer would issue a final assessment of civil penalty.

Proposed § 49.525 would explain the factors that the authorized officer will take into account when calculating a proposed and a final assessment of civil penalty. For a first violation, the authorized officer considers the factors listed in § 49.525(a) and (b) and assesses a penalty. For example, the penalty might be $1,000.

Under proposed § 49.525(c), penalties for subsequent violations may be doubled. Thus, if a person who has already been assessed a civil penalty for a particular violation commits another prohibited act, the authorized officer may double the penalty for that act. For example, if the penalty for the second prohibited act would be $1,200 under the factors listed in paragraphs (a) and (b) of this section, the authorized officer would have the discretion to double this penalty and assess the person $2,400. When doubling penalties for subsequent violations, the authorized officer must be mindful of § 49.525(d), which caps penalties at an amount equaling twice the cost of response, restoration, and repair plus twice the cost of scientific or fair market value of the resources (whichever is greater).

Proposed § 49.525(d)(2) authorizes civil penalties for damages to paleontological resources and paleontological sites. If other resources or sites are damaged, the bureaus can utilize their authorities under laws such as the Endangered Species Act, the Archaeological Resources Protection Act, the National Park System Resources Protection Act, and other statutes to pursue separate legal or administrative remedies.

Proposed § 49.525(e) would direct the authorized officer to use proposed subpart G of this proposed rule to determine scientific or commercial values and the cost of response, restoration, and repair.

Proposed § 49.525(f) would state that the final assessment may be equal to, less than, or more than the proposed civil penalty.

Proposed § 49.530 would state that the authorized officer would serve the final assessment of civil penalty by certified mail, return receipt requested, or another verifiable delivery method. The proposed section would also describe the required content of the final assessment.

Proposed § 49.535 would provide that a person who receives a final assessment of civil penalty must exercise one of two options within 30 days of the date the assessment is received: (1) Accept the assessment by filing a written notice with the authorized officer or paying the assessed penalty, or (2) file a request for hearing before an administrative law judge with the Departmental Case Hearings Division (DCHD), Office of Hearings and Appeals, DOI in accordance with § 49.535(b). The request for hearing will be dismissed if it is not timely filed with DCHD and may be dismissed if it does not contain all information described in proposed § 49.535(b).

If the person fails to file under either option within 30 days, the assessment will be deemed accepted. Acceptance of the assessment waives the right to hearing.

If a person files a request for a hearing with an administrative law judge, proposed § 49.540 would explain the procedures for that hearing.

Proposed § 49.545 would describe the contents of the administrative law judge's decision and would state that such decision would become effective 31 days from the date of the decision absent a timely appeal of the decision.

Proposed § 49.550 would provide the person who filed a request for the hearing with an administrative law judge, as well as the bureau, with the opportunity to appeal that judge's decision by submitting a written dated appeal of the decision to the DOI Office of Hearing and Appeals via certified mail, return receipt requested, or other verifiable delivery method, and would also describe the contents of the appeal documents and the mailing addresses where the appeal documents must be sent.

Proposed § 49.555 would state that the appeal to OHA is governed by 43 CFR part 4, subparts A and G, and other provisions of 43 CFR part 4, where applicable.

Proposed § 49.560 would explain decisions that are considered final administrative decisions. A person has 30 days from the date of those final decisions to fully pay the final assessment of civil penalty or agree to a payment schedule.

Proposed § 49.565 would explain that, within 30 days of the OHA decision, a person may file a petition for judicial review in the United States District Court for the District of Columbia or in the district where the violation occurred, and that the deadline for payment of the civil penalty will be stayed pending resolution of the judicial review.

Proposed § 49.570 would describe the consequences of failing to fully pay the final assessment of civil penalty by the required deadlines.

Proposed § 49.575 would state that civil penalties collected under this subpart are available without further appropriation to the bureau that administers the federal land or paleontological resources that were the subject of the violation, and may be used by the bureau for several purposes, including: Protection, restoration, or repair of the paleontological resources and sites that were the subject of the action, and protection, monitoring, and study of the resources and sites; and provision of educational materials to the public about paleontological resources, paleontological sites, or resource protection; or payment of rewards.

Proposed subpart G would provide direction on determining values and the cost of response, restoration, and repair under this part. The authorized officer may consult with subject matter experts, such as resource specialists, area specialists, and law enforcement specialists, in determining these values.

Proposed § 49.600 would describe scientific value. PRPA uses the term “paleontological value” in the section on prohibited acts and criminal penalties, and then switches to “scientific value” in the section on civil penalties. The bureaus agree that the two terms are synonymous and that for purposes of consistency and clarity only the term “scientific value” would be used in the proposed rule.

Proposed § 49.605 would describe commercial value. PRPA uses the term “commercial value” in the section on prohibited acts and criminal penalties, and then switches to “fair market value” in the section on civil penalties. The bureaus agree that the two terms are synonymous and for the purposes of consistency and clarity only the term “commercial value” would be used in the proposed rule.

Proposed § 49.610 would define the cost of response, restoration, and repair. In some cases, it may be appropriate for the estimated cost of response, restoration, and repair to be peer reviewed. The values and costs should be determined by paleontologists with appropriate expertise.

Proposed § 49.700 would explain when a violation will lead to the forfeiture of paleontological resources. When there are civil or criminal forfeitures, paleontological resources are either returned to, or remain in, the administrative authority of the Federal Government. Where appropriate, the bureau will initiate forfeiture under a cooperative agreement with agencies that have forfeiture regulations.

Proposed § 49.705 would describe the rewards that may be paid for assistance in enforcing the proposed rule. Proposed § 49.705(a) would establish that the bureau may pay a reward to the person or persons who assist the bureau by furnishing information that leads to a finding of a civil or criminal violation. Rewards will not be paid for the discovery or reporting of a paleontological resource (i.e., there is no bounty for discovering a fossil).

Proposed § 49.800 would explain that PRPA does not allow casual collecting in areas managed by NPS or FWS. In those areas, collecting any paleontological resource must be conducted in accordance with a permit issued by NPS or FWS under subpart B of this proposed rule.

Under proposed § 49.805(a), casual collecting would continue as currently authorized on lands administered by BLM, except that the PRPA terms “negligible disturbance” and “reasonable amount” defined under § 49.810 must be followed. Casual collecting will not be allowed on BLM lands that are or become closed to casual collecting, BLM-administered national monuments, BLM-administered national conservation areas, outstanding natural areas, forest reserves, or cooperative management and protection areas, except where the bureau has specifically determined that casual collection would not impair the intent of the preservation designation. Because BLM must “conserve, protect, and restore [these] nationally significant landscapes that have outstanding cultural, ecological, and scientific values for the benefit of current and future generations,” the bureau must ensure that these areas would not be negatively affected by casual collecting (establishment of the National Landscape Conservation System, 16 U.S.C. 7202). Closures or restrictions may be short term, long term, or permanent. The BLM is requesting public comment regarding the range of designations listed in § 49.805(a)(2) as prohibiting or restricting casual collection, including whether and why additional designations should be included or currently proposed designations excluded from the list.

Proposed § 49.805(b) would explain that casual collecting of common invertebrate or plant paleontological resources will be allowed on land administered by Reclamation only in locations where Reclamation has established a special use area for casual collecting using processes defined in Reclamation's regulation at 43 CFR part 423, Public Conduct on Bureau of Reclamation Facilities, Lands, and Waterbodies. This proposed paragraph would also state that casual collecting is prohibited on Reclamation project land that is administered by NPS or FWS.

Proposed § 49.805(c) would clearly place full responsibility on persons interested in casual collecting to ascertain which bureau manages the land where those persons would like to collect paleontological resources, whether the land is open to casual collecting, and what may be collected in an area, and to obtain information about the managing bureau's casual collecting procedures.

Proposed § 49.810(a) would restate the PRPA definition of casual collecting. Proposed § 49.810(a)(1) through (a)(5) would provide specific definitions for the terms used in the PRPA definition.

Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. Common invertebrate and common plant paleontological resources are invertebrate or plant fossils that have been established by the bureaus, based on available scientific information and current professional standards, as having ordinary occurrence and wide-spread distribution.

Although these particular resources may be common, they are still paleontological resources as defined in PRPA and the proposed rule. That is, they have paleontological interest and provide information about the history of life on earth.

Not all invertebrate or plant paleontological resources are common. If the resources are not common, they may only be collected under a permit. It may not always be possible for a collector to identify in the field whether a fossil is common. When in doubt, collectors should err on the side of caution and collect only the resources that they know are common. The bureaus may hold a trained amateur, avocational paleontologist, or professional to a higher standard of knowledge than the general public about whether or not a fossil is common.

If a knowledgeable collector makes an unanticipated discovery of an uncommon paleontological resource while casually collecting, that collector shall not collect that resource because he or she is not authorized to do so. Instead, the collector should alert the relevant bureau. If the collector wishes to pursue collection, he or she must obtain a permit to collect the uncommon resource. If the collector does collect the uncommon resource without a permit, that collector may be subject to penalties.

Proposed § 49.810(a)(2) would establish “reasonable amount” for casual collecting as 25 pounds per day per collector, not to exceed 100 pounds per year per collector. This proposed definition would also clarify that pooling of multiple daily amounts by one or more collectors to obtain pieces in excess of 25 pounds is not allowed. The bureaus determined that the 25 pounds per day per collector, and the 100 pounds per year per collector, are reasonable amounts based on BLM's long experience with the collecting of petrified wood and other fossils from BLM lands before PRPA was enacted. These amounts represent a balance between PRPA's mandate to allow casual collecting and other laws that require the bureaus to protect and manage other natural and cultural resources.

The proposed prevention of the pooling of multiple daily amounts would add clarification and be consistent with existing BLM regulations at 43 CFR 3622.4 governing the collecting of petrified wood.

The bureaus considered defining “reasonable amount” as equaling two quarts instead of 25 pounds, but decided that the use of a weight limit, rather than a size limit, is more consistent with existing collection standards that are already understood by the public and the bureaus.

Proposed § 49.810(a)(3) would clarify that “negligible disturbance” for casual collecting means little or no change to the surface of the land, and minimal or no effect to natural and cultural resources. This proposed definition would specify that in no circumstance may the surface disturbance exceed 1 square yard (3 feet by 3 feet) per individual collector; that in cases of multiple collectors each square yard of surface disturbance must be separated by at least 10 feet; and that all areas of surface disturbance must be backfilled with the material that was removed in order to render the disturbance substantially unnoticeable to the casual observer. The reason for using the “1 square yard” maximum is that this would be similar to longstanding BLM practice, and such consistency is encouraged by PRPA. In the context of compliance with the National Environmental Policy Act (NEPA) in the issuance of research permits for BLM, for instance, a proposal to engage in surface disturbance of anything larger than 1 square meter is not usually subject to categorical exclusion but is subject to further analysis under NEPA. The fossil-collecting community should, therefore, already be familiar with this type of threshold. For purposes of managing “negligible disturbance,” 1 square yard is considered to be approximately equal to 1 square meter.

The proposed definition would also specify that collecting areas need to be separated by at least 10 feet where there is surface disturbance. The separation would reduce cumulative effects to other resources. Where there is no surface disturbance, there is no need to separate collecting areas.

Proposed § 49.810(a)(4) would address the uses to which casually collected resources can be put. Casually collected resources may be used only for noncommercial personal use, which means a use other than purchase, sale, financial gain, or research. The restriction on any commercial use of casually collected resources is not new. For instance, rules of conduct applicable to BLM-managed public lands currently allow casual collecting of paleontological resources only for “noncommercial purposes” (43 CFR 8365.1-5(b)).

Proposed § 49.810(a)(5) would define the kinds of tools that may be used to casually collect these resources. These tools must be small, such as a geologic hammer, trowel, or sieve; they cannot use or be operated by a motor, engine, or other mechanized power source; and they must be light and small enough to be hand-carried by one person. A tool that exceeds this definition cannot be used to casually collect these resources.

Proposed § 49.810(b) would enable the authorized officer to establish limitations on casual collecting, in addition to the limitations already contained in the proposed rule. Examples of additional limitations include reducing the maximum weight for “reasonable amount,” decreasing the threshold for negligible disturbance, limiting depth of allowable disturbance, limiting specific tools that may be used, defining what is common in a specific area, establishing time or duration limits for collecting, establishing limits to avoid cumulative effects, and establishing parameters for safety.

Proposed § 49.810(c) would clarify that casual collecting is not allowed when any of the parameters that restrict casual collecting (reasonable amount, common invertebrate and plant paleontological resources, personal noncommercial use, negligible disturbance and non-powered hand tools) is exceeded or does not apply. Casual collecting is a limited exception to the overarching permit requirement of PRPA, and is allowed under the presumption that the “commonness” of these resources, in combination with limitations on amount, surface disturbance, tools, and eventual use of the collected resources, contributes to the underlying objective of protecting paleontological resources on federal lands. Proposed § 49.810(c) also clarifies that casual collecting in excess of the specified limitations is prohibited and subject to civil and criminal penalties.

PRPA requires the BLM to allow the casual collecting of common invertebrate and plant paleontological resources, which is consistent with existing BLM policy. However, this rule would amend the text at existing 43 CFR 8365.1-5 to conform to the language used by PRPA.

The authority citations for 43 CFR part 8360 and the list of authorities at § 8360.0-3 would each be amended to add PRPA (16 U.S.C. 470aaa et seq.). PRPA introduces the term “casual collecting” to define the noncommercial collection of invertebrate and plant fossils, which was previously authorized by the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.). PRPA and the proposed regulations at part 49 use the term “paleontological resources” instead of the term “fossils” to describe resources that are managed under PRPA.

The current § 8365.1-5 would be amended to conform to the terms introduced by PRPA. The specific changes are:

• § 8365.1-5(b)(2) would be amended to remove the phrase “common invertebrate and common plant fossils;”

• § 8365.1-5(b)(4) would be amended to remove “and” in order to maintain grammatical structure;

• § 8365.1-5(b)(5) would be amended to add “and” in order to maintain grammatical structure; and

• A proposed new § 8365.1-5(b)(6) would be added to include “common invertebrate and plant paleontological resources” on the list of things that may be collected from BLM public lands in reasonable amounts for noncommercial purposes. The paragraph also provides a reference to proposed part 49, which would authorize and provide rules for casual collecting.

PRPA states that a paleontological resource may not be collected from federal land without a permit issued under that authority. The proposed amendment at § 27.63 would add a paragraph that states that a permit is required in order to collect paleontological resources and would provide a reference to proposed part 49, which would authorize and provide rules for issuing permits under PPRA.

Proposed new § 27.63(c) would state that permits are required for paleontological studies on national wildlife refuges in accordance with the provisions at proposed 43 CFR part 49.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

This proposed rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on the cost-benefit and regulatory flexibility analyses found in the report titled “Proposed Paleontological Resources Preservation Regulations, 43 CFR part 49: Economic Analysis In Support Of E.O. 12866 and Regulatory Flexibility Act Compliance,” which can be viewed at www.blm.gov/paleontology by clicking on the link entitled “Proposed Paleontological Resources Preservation Regulations, 43 CFR part 49: Economic Analysis In Support Of E.O. 12866 and Regulatory Flexibility Act Compliance.”

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This proposed rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. This rule will not have a significant or unique effect on state, local, or tribal governments or the private sector. The rule addresses the management of paleontological resources from lands managed by BLM, Reclamation, FWS, and NPS, and imposes no requirements on other agencies or governments. A statement containing information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. This proposed rule is not a government action capable of interfering with constitutionally protected property rights. It would implement the new statutory authority for managing, preserving, and protecting paleontological resources on federal lands and is consistent with prior policies, procedures, and practices for the collection and curation of paleontological resources on federal land. Private property is not affected. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule addresses the management of paleontological resources on and from lands managed by the BLM, Reclamation, FWS, and NPS, and imposes no requirements on other agencies or governments. It does not have a substantial direct effect on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the levels of government. A federalism summary impact statement is not required.

This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

DOI strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under DOI's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation is not required. This proposed rule applies to lands managed by BLM, Reclamation, FWS, and NPS. It does not apply to and has no direct effect on tribal trust lands or lands subject to a restriction on alienation imposed by the United States.

DOI is sending a letter to notify the 566 federally recognized Indian tribes that the proposed rulemaking is being published in the Federal Register. DOI invites responses to the notification letter.

This proposed rule contains a collection of information that has been submitted to OMB for approval under the PRA (44 U.S.C. 3501 et seq.). DOI and its bureaus may not conduct or sponsor, and no one is required to respond to, a collection of information unless it displays a currently valid OMB control number.

OMB has reviewed and approved the information collection requirements associated with the NPS' application and reports for paleontological permits (OMB Control Number 1024-0236).

DOI proposes to collect the following information associated with paleontological permits for work on lands administered by the BLM, Reclamation, and FWS:

Permit application (§ 49.65). Permit applicants proposing to work in areas administered by BLM, Reclamation, or FWS must provide the information requested by DI Form 9002 (Paleontological Resource Use Permit Application). Such information includes:

(1) Applicant's name, affiliation, and contact information.

(2) Current resume for the applicant and all other persons who will oversee fieldwork and other work.

(3) Description, estimated start and end dates of proposed work, and maps and other location information.

(4) Purpose and methodology of proposed work, including a detailed scope of work or research plan for the proposed activity, logistical information, methods that will be employed to explore for or remove the paleontological resources, proposed content and nature of any collection to be made under the permit.

(5) Bonding information.

(6) Information about the proposed repository.

(7) Information on the applicant's past performance on previous permits.

Change of personnel (§ 49.75(a)(2)). Permittee must report changes in the persons who are conducting activities under the permit, and submit the credentials of any new persons to the authorized officer for approval.

Locality information (§ 49.75(a)(1) & (7)). Permittee will record locality information on DI Form 9004 (Paleontological Locality Form), or in another format approved by the bureau in the permit that captures the same information.

Resource damage or theft (§ 49.75(a)(8)). Permittee must report suspected resource damage or theft of paleontological or other resources to the authorized officer as soon as possible, but not to exceed 48 hours after learning of such damage or theft.

Repository receipt (§ 49.75(a)(9) & (10)). Permittee must deposit the collection in the approved repository and provide the bureau with DI Form 9008 (Repository Receipt for Collections (Paleontology)), which includes a certification by the permittee that the collection was transferred to the repository and a certification by the approved repository's authorized official that the collection was received.

List and description of paleontological resources (§ 49.75(a)(11)). If the permittee has not transferred the collection to the approved repository by the due date of the annual report or other schedule approved for the permit, the permittee must provide the authorized officer a complete list and description of all paleontological resources collected and the current location of the paleontological resources.

Reports (§ 49.75(a)(15)). Permittees conducting activities on lands administered by BLM, Reclamation, or FWS must submit reports to the bureaus using DI Form 9005 (Paleontological Permit Report Cover Sheet), or DI Form 9006 (Paleontology Consulting Report Summary Sheet).

Amendments to permits (§ 49.80(a)). Permittees may request a modification to a permit. Modification requests will include permittee name, permit number, and the reason(s) for the modification request.

Objecting to a Notice of Violation (§ 49.515(a) & (b)). When a person receives a notice of violation, the person has 30 days from the date the notice was received to object by submitting to the authorized officer documentation to support the position that the person did not commit a violation or that the proposed penalty should be reduced or eliminated.

Responding to a civil penalty (§ 49.535(a)). A person may request a hearing on the authorized officer's final assessment of a civil penalty by filing a request for hearing via certified mail (return receipt requested or other verifiable delivery method) to the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior, 351 S. West Temple, Room 6.300, Salt Lake City, Utah 84101. The request for hearing must include the following information:

(1) The reasons for challenging the final assessment;

(2) The relief sought and the basis for the relief;

(3) A copy of the original notice of civil violation and proposed civil penalty assessment;

(4) A copy of any objection and supporting documentation filed under § 49.515(a);

(5) A copy of the final assessment of civil penalty; and

(6) A certificate of service acknowledging service of the request for hearing with the accompanying documentation on the Office of the Solicitor.

OMB Control No.: 1093-NEW.

Title: Application and Reports for Paleontological Permits, 43 CFR part 49.

Form Number(s): DI Forms 9002, 9004, 9005, 9006, and 9008.

Description of Respondents: Individuals; organizations; businesses (museums and universities); state, tribal, or local governments that collect paleontological resources or disturb paleontological sites on DOI lands.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Estimated Nonhour Cost Burden: None.

Send comments specific to the information collection aspects of this proposed rule to the Desk Officer for the Department of the Interior with a copy to the Office of the Secretary Information Collection Clearance Officer, Department of the Interior. See the DATES and ADDRESSES sections for specific instructions.

This proposed rule is anticipated to be categorically excluded from National Environmental Policy Act analysis under DOI categorical exclusion, 43 CFR 46.210(i), which covers “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively, or case-by-case.”

The categorical exclusion is appropriate and applicable for the following reasons. Several of the provisions of this proposed rule are specifically administrative, financial, legal or procedural in nature, and therefore are subject to the first part of the categorical exclusion. For instance, the provisions for permit modification, suspension, revocation, or cancellation are all administrative or procedural in character, as are the rule's provisions establishing procedures to challenge any of these decisions. Similarly, the proposed rule sets forth specifics of the administration of civil and criminal penalties associated with violation of the provisions of the rule and of PRPA.

Both the establishment of the permit system, and future decisions to close lands to casual collecting (and, conversely, to open lands to casual collecting where that use is not already authorized) are subject to the second part of the categorical exclusion. Issuance of a permit (whether programmatic or individual in scope) for the collection of paleontological resources itself requires agency compliance with NEPA. Moreover, a permit must contain permit conditions, supported by appropriate NEPA analysis, that ensure the underlying project or action will continue to meet regulatory requirements throughout the entire duration of the permit. Likewise, any decision to close or open lands to casual collecting also requires agency compliance with NEPA and may contain conditions, supported by appropriate NEPA analysis, that ensure the appropriate management of these resources. Because the environmental effects of this proposed rule are too speculative to lend themselves to meaningful analysis, and the environmental consequences of any of these decisions will be analyzed in detail at the time the permit application or proposed opening or closing to casual collecting is evaluated and before a decision is made, the rule is subject to the second part of DOI categorical exclusion, 43 CFR 46.210(i).

Pursuant to 43 CFR 46.205(c), DOI has reviewed its reliance upon this categorical exclusion against the list of extraordinary circumstances, at 43 CFR 46.215, and has found that none applies to this rule. Therefore, neither an environmental assessment (EA) nor an environmental impact statement (EIS) is required for this rulemaking.

Even though neither an EA nor an EIS must be prepared for this rule, the BLM has elected to prepare an EA to inform decision makers regarding the possible effects of two specific provisions as applied to the public lands BLM manages, as allowed under DOI's regulations implementing NEPA, 43 CFR 46.300(b)(1). BLM-administered lands are open to casual collection of paleontological resources unless specifically closed by a site-specific decision. As such, casual collection has been and will continue to occur on certain public lands.

PRPA provides specific authority and limits under which this activity can take place. In particular, PRPA allows for “casual collecting,” which is defined as “the collecting of a reasonable amount of common invertebrates and plant paleontological resources for non-commercial personal use, either by surface collection or the use of non-powered hand tools resulting in only negligible disturbance to the Earth's surface and other resources” (Pub. L. 111-11, section 6301(1), 123 Stat. 1172), and specifies that the Secretary of the Interior is to determine how these terms are to be defined. The rule's proposed definitions for “negligible disturbance” and “reasonable amount” describe the conditions limiting any casual collection activities on certain public lands managed by the BLM. The BLM is preparing an EA for these proposed definitions, which will immediately apply to casual collection on BLM public lands when this rule is finalized. The EA is under development and may be found at www.blm.gov/paleontology. The BLM welcomes input from the public on the EA, which may be revised in response to public input as well as further agency review. It is expected that analysis will be qualitative and descriptive in character, and consist largely of presenting the possible negative consequences that might result from not defining these terms carefully, as well as describing the considerations that informed the proposed definitions and the alternatives considered.

This proposed rule is not a significant energy action under the definition in Executive Order 13211. DOI has determined that this proposed rule will not have substantial direct effects on energy supply, distribution, or use, including a shortfall in supply or price increase. The rule has no bearing on energy development and will have no effect on the volume or consumption of energy supplies. A Statement of Energy Effects is not required.

DOI is required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you believe the DOI has not met these requirements, send comments by one of the methods listed in the ADDRESSES section. To better help us to revise the rule, please make comments as specific as possible. For example, tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

This proposed rule reflects the efforts of staff in BLM, Reclamation, FWS, and NPS.

DOI, whenever practicable, affords the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section. All comments must be received by midnight of the close of the comment period. We will not accept bulk comments in any format (hard copy or electronic) submitted on behalf of others.

Before including your address, phone number, email address, or other personal identifying information in your comment, please know that we may make your entire comment—including your personal identifying information—publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For reasons stated in the preamble, the Department of the Interior proposes to amend title 43 of the CFR by adding part 49 and amending part 8360 and to amend part 27 of title 50, as set forth below: