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    Subject Term: Litigation

    8 publications with a total of 29 open recommendations
    Director: Valerie Melvin
    Phone: (202) 512-6304

    2 open recommendations
    Recommendation: To provide greater transparency in the reporting of FOIA litigation costs, Congress could consider requiring Justice to provide a cost estimate for collecting and reporting information on costs incurred when defending lawsuits in which the plaintiffs prevailed.

    Agency: Congress
    Status: Open

    Comments: Congress has not yet considered if it plans to amend FOIA regarding the reporting of costs for defending lawsuits in which the plaintiffs prevailed.
    Recommendation: Congress could consider amending the act to require Justice to reflect in its Litigation and Compliance reports, changes in the award of attorneys' fees and costs resulting from the appeals process and settlement agreements between agencies and plaintiffs, if deemed to be cost-effective.

    Agency: Congress
    Status: Open

    Comments: Congress has not yet considered if it plans to amend FOIA to require Justice to make changes to its Litigation and Compliance reports.
    Director: Kimberly M. Gianopoulos
    Phone: (202) 512-8612

    3 open recommendations
    Recommendation: To better manage the AD/CV duty liquidation process, CBP should issue guidance directing the Antidumping and Countervailing Duty Centralization Team to (a) collect and analyze data on a regular basis to identify and address the causes of liquidations that occur contrary to the process or outside the 6-month time frame mandated by statute, (b) track progress on reducing such liquidations, and (c) report on any effects these liquidations may have on revenue.

    Agency: Department of Homeland Security: United States Customs and Border Protection
    Status: Open

    Comments: CBP concurred with this recommendation and said it would take steps to implement it. CBP has issued guidance requiring the collection, analysis, and reporting of AD/CV data to identify and address the causes of liquidations that occur contrary to the process or outside the 6-month time frame mandated by statute, as GAO recommended in July 2016. CBP is analyzing the results of its fiscal year 2017 self-inspection program to assess its progress on reducing such liquidations and report on the revenue effect. CBP expects to complete its analysis by Fall 2017. Systematically collecting and analyzing liquidation data on a regular basis to identify and address the causes of untimely liquidations and tracking and reporting on progress toward reducing such liquidations could help CBP reduce revenue loss.
    Recommendation: To improve risk management in the collection of AD/CV duties and to identify new or changing risks, CBP should regularly conduct a comprehensive risk analysis that assesses both the likelihood and the significance of risk factors related to AD/CV duty collection. For example, CBP could construct statistical models that explore the associations between potential risk factors and both the probability of nonpayment and the size of nonpayment when it occurs.

    Agency: Department of Homeland Security: United States Customs and Border Protection
    Status: Open

    Comments: CBP concurred with this recommendation and said it would take steps to implement it. As of September 2017, CBP had not regularly conducted a risk analysis that assesses both the likelihood and significance of risk factors related to AD/CV duty collection, as GAO recommended in July 2016. However, CBP was in the process of developing a model to enable it to conduct such a risk analysis on a regular basis. CBP expects to test the model by Fall 2017; however, CBP officials said that full implementation of the model will not take place until the end of fiscal year 2018 due to the complexity of the project. CBP officials noted that they are working to hire additional staff to dedicate to model development; acquire a dedicated server for processing data to regularly update the models; and identify other CBP programs that would benefit from risk models similar to the ones they are developing for AD/CV duties. Regularly conducting a comprehensive risk analysis of factors related to AD/CV duty non-collection could enhance CBP's capacity to collect additional revenue. For example, it could result in the identification of new factors generating a requirement for an importer to provide additional security in the form of bonds as part of an enhanced bonding requirement.
    Recommendation: To improve risk management in the collection of AD/CV duties, CBP should, consistent with U.S. law and international obligations, take steps to use its data and risk assessment strategically to mitigate AD/CV duty nonpayment, such as by using predictive risk analysis to identify entries that pose heightened risk and taking appropriate action to mitigate the risk.

    Agency: Department of Homeland Security: United States Customs and Border Protection
    Status: Open

    Comments: CBP concurred with this recommendation and said it would take steps to implement it. As of September 2017, CBP was in the process of developing a risk analysis model to use in mitigating AD/CV duty nonpayment, as GAO recommended in July 2016. The model will use predictive risk analysis to identify entries that pose a heightened risk of nonpayment. CBP has contacted the Customs Surety Association and the Commercial Customs Operations Advisory Committee to discuss bonding options to help mitigate the risk of nonpayment. Developing a risk analysis model to use in mitigating AD/CV duty nonpayment could enhance CBP's capacity to collect additional revenue. For example, it could be used to identify entries from importers requiring additional security in the form of bonds as part of an enhanced bonding requirement.
    Director: Frank Rusco
    Phone: (202) 512-3841

    7 open recommendations
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to develop a consistent definition of patent quality, and clearly articulate this definition in agency documents and other guidance.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will update relevant agency guidance, conduct training, and take other actions in response to this recommendation by March 2017.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to further develop measurable, quantifiable goals and performance indicators related to patent quality as part of the agency's strategic plan.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will update existing indicators and, as appropriate, develop new measures by October 2016.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to analyze the time examiners need to perform a thorough patent examination. This action could be taken in conjunction with the recommendation in our report on USPTO's prior art search capabilities (GAO-16-479).

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will complete an examination of expectancy by April 2017.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to analyze how current performance incentives affect the extent to which examiners perform thorough examinations of patent applications.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will complete an assessment of examination quality across current incentive award tiers by September 2017.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to establish a process to provide data on the results of the Patent Trial and Appeal Board (PTAB) proceedings to managers and staff in the USPTO's Technology Centers, and analyze PTAB data for trends in patent quality issues to identify whether additional training, guidance, or other actions are needed to address trends.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will establish a process to provide examiners with information on various PTAB proceedings by September 2016.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to evaluate the effects of compact prosecution and other agency application and examination policies on patent quality. In doing so, USPTO should determine if any changes are needed to ensure that the policies are not adversely affecting patent quality.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will complete an assessment of various policies on patent quality by September 2017.
    Recommendation: To help improve patent quality, the Secretary of Commerce should direct the Director of the USPTO to consider whether to require patent applicants to include claim clarity tools--such as a glossary of terms, a check box to signal functional claim language, or claim charts--in each patent application.

    Agency: Department of Commerce
    Status: Open

    Comments: According to the agency's action plan, USPTO will issue a request for comments on additional claim clarity tools by September 2017 and determine any new requirements by January 2018.
    Director: Valerie C. Melvin
    Phone: (202) 512-6304

    4 open recommendations
    Recommendation: To improve DOL's management of FOIA requests, the Secretary of Labor should direct the Chief FOIA Officer to establish a time frame for implementing, and take actions to implement, section 508 requirements in the department's FOIA system and online portal.

    Agency: Department of Labor
    Status: Open

    Comments: As of May 2017, the Department of Labor had provided a response regarding its actions to address our recommendation. We have not yet verified if the actions meet the intent of our recommendation. When we confirm what actions the agency has taken we will provide updated information.
    Recommendation: To improve DOL's management of FOIA requests, the Secretary of Labor should direct the Chief FOIA Officer to establish a time frame for implementing, and take actions to fully implement, recommended best practice capabilities for enhanced processing of requests in the department's FOIA system and online portal.

    Agency: Department of Labor
    Status: Open

    Comments: As of May 2017, the Department of Labor had provided a response regarding its actions to address our recommendation. We have not yet verified if the actions taken meet the intent of our recommendations. When we confirm what actions the agency has taken we will provide updated information.
    Recommendation: To improve DOL's management of FOIA requests, the Secretary of Labor should direct the Chief FOIA Officer to require components to document in the Secretary's Information Management System for FOIA the rationales for delays in responding to FOIA requests, and to notify requesters of the delayed responses when processing requests.

    Agency: Department of Labor
    Status: Open

    Comments: As of May 2017, the Department of Labor had provided a response regarding its actions to address our recommendation. We have not yet verified if the actions taken meet the intent of our recommendations. When we confirm what actions the agency has taken we will provide updated information.
    Recommendation: To improve DOL's management of FOIA requests, the Secretary of Labor should direct the Chief FOIA Officer to establish a time frame for consulting with the Department of Justice's Office of Information Policy on including language in DOL's response letters to administrative appeals notifying requesters of the National Archives and Records Administration's Office of Government Information Services' mediation services as an alternative to litigation, and then ensure that the department includes the language in the letters.

    Agency: Department of Labor
    Status: Open

    Comments: As of May 2017, the Department of Labor had provided a response regarding its actions to address our recommendation. We have not yet verified if the actions taken meet the intent of our recommendations. When we confirm what actions the agency has taken we will provide updated information.
    Director: Charles A. Jeszeck
    Phone: (202) 512-7215

    3 open recommendations
    Recommendation: To address the legal uncertainty stemming from ERISA preemption of state laws while maintaining the advantages of ERISA for both employers and workers, Congress should consider providing states limited flexibility to pursue efforts to increase coverage under workplace retirement savings programs. To do this, Congress could, for example, direct or authorize the Secretary of Labor, in consultation with the Secretary of the Treasury, to (1) promulgate regulations prescribing a limited safe harbor under which state workplace retirement savings programs with sufficient safeguards would not be preempted and would receive tax treatment comparable to that provided to private sector workplace retirement savings programs, or (2) create a pilot program under which DOL could select a limited number of states to establish workplace retirement savings programs subject to DOL and Treasury oversight. In either case, any such initiative should ensure that state programs include adequate participant protections and are subject to agency oversight, appropriate reporting requirements, and meaningful evaluation.

    Agency: Congress
    Status: Open

    Comments: No action taken to date.
    Recommendation: To facilitate state efforts to expand coverage in workplace retirement savings programs, the Secretary of Labor and Secretary of the Treasury should consider their authority and review and revise, if necessary, existing regulations and guidance causing uncertainty for state efforts. For example, the Secretary of Labor could direct the Employee Benefits Security Administration's (EBSA) Assistant Secretary to revise Interpretive Bulletin 99-1 to clarify whether states can offer payroll deduction Individual Retirement Accounts (IRAs) and, if so, whether features in relevant enacted state legislation--such as automatic enrollment and/or a requirement that employers offer a payroll deduction--would cause these programs to be treated as employee benefit plans.

    Agency: Department of Labor
    Status: Open

    Comments: DOL generally agreed with this recommendation. To address uncertainty facing state efforts, EBSA is initiating a regulatory agenda entitled ?Saving Arrangements Established by States for Non-Governmental Employees,? which will appear in the Fall 2015 Semi-Annual Regulatory Agenda. On November 18, 2015, DOL published a Notice of Proposed Rulemaking (NPRM) on state payroll deduction IRA programs. Under the proposed rule, employers complying with the state law requirements would not create a retirement plan subject to ERISA as long as the state and the employer follows certain rules. They also also published a companion Interpretive Bulletin on the same day that describes ways in which states can promote the creation of ERISA-covered plans, fully subject to ERISA?s rules and protections, without triggering ERISA preemption. The public comment period for the proposed rule closed on January 19, 2016. EBSA is evaluating the 67 public comments submitted (and posted on EBSA?s website) and working towards drafting and clearance of a final rule. EBSA has also been providing technical assistance to several states and other jurisdictions about the Interpretive Bulletin. The Administration?s 2017 Budget also included legislative proposals for piloting innovative, more portable approaches to provide retirement and other employment-based benefits.
    Recommendation: To facilitate state efforts to expand coverage in workplace retirement savings programs, the Secretary of Labor and Secretary of the Treasury should consider their authority and review and revise, if necessary, existing regulations and guidance causing uncertainty for state efforts. For example, the Secretary of Labor could direct the Employee Benefits Security Administration's (EBSA) Assistant Secretary to revise Interpretive Bulletin 99-1 to clarify whether states can offer payroll deduction Individual Retirement Accounts (IRAs) and, if so, whether features in relevant enacted state legislation--such as automatic enrollment and/or a requirement that employers offer a payroll deduction--would cause these programs to be treated as employee benefit plans.

    Agency: Department of the Treasury
    Status: Open

    Comments: The Department of the Treasury generally agreed with this recommendation and did not provide additional comments on actions to address it.
    Director: Mathew J. Scirè
    Phone: (202) 512-8678

    8 open recommendations
    Recommendation: To enhance the effectiveness of its preparations for conducting a retrospective review of its QM regulations, CFPB should complete its plan. The plan should identify what outcomes CFPB will examine to measure the effects of the regulations and the specific metrics, baselines, and analytical methods to be used. Furthermore, to account for and help mitigate the limitations of existing data and the uncertain availability of enhanced datasets, CFPB should include in its plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Consumer Financial Protection Bureau
    Status: Open

    Comments: In January 2017, CFPB staff noted that the Bureau produced a high-level research plan in November 2016 and organized a research team for the ATR-QM Assessment. CFPB staff stated that they are working to identify the outcomes CFPB will examine to measure the effects of the regulations, including the specific metrics, baselines, and analytical methods to be used. CFPB staff noted that they have also begun analyzing the data the Bureau has on-hand, planning for the collection of additional data, and drafting a Federal Register notice request for information regarding the plan.
    Recommendation: To enhance the effectiveness of its preparations for conducting a retrospective review of its QM regulations, HUD should develop a plan that identifies the metrics, baselines, and analytical methods to be used. Furthermore, to account for and help mitigate the limitations of existing data and the uncertain availability of enhanced datasets, HUD should include in its plan alternate metrics, baselines, and analytical methods that could be used data were to remain unavailable.

    Agency: Department of Housing and Urban Development
    Status: Open

    Comments: In February 2017, HUD noted that it does not currently collect data on the annual percentage rate (APR) for each loan that would allow for a perfect comparison to the average prime offer rate. According to HUD, its Office of Housing has on its long-term list of systems priorities to collect specific information from the Uniform Closing Data that could be used to conduct such a comparison. However, HUD stated that it has not received adequate funding to meet these systems enhancements. According to HUD, it is considering the feasibility and potential utility of alternative data sources or the use of a proxy in an appropriate methodology. For instance, whether it may be possible to approximate the APR based upon the note rate and information on closing costs that is collected in the current data system, or alternatively, whether the APR could be obtained or approximated through matching Home Mortgage Disclosure Act data for FHA loans.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Federal Housing Finance Agency
    Status: Open

    Comments: In January 2017, FHFA informed GAO that SEC had shared its draft plan with the other participating agencies and there was an interagency call to discuss the plan on December 20, 2016. FHFA confirmed that there was an interagency call on that date to discuss the QRM review. FHFA noted that it was developing its own plan, and anticipated that the plan would be completed by June 30, 2017. Depending on changes in the structure of the mortgage market, FHFA stated that it will further update the plan as the agency approaches the start of the official QRM definition review in 2019. As with the 2014 final rule, FHFA staff expected that FHFA's participation will focus on the analysis of Fannie Mae and Freddie Mac residential mortgage data.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Department of Housing and Urban Development
    Status: Open

    Comments: In February 2017, HUD stated that it has engaged in preliminary discussions both internally and with the other five partner agencies to the 2014 QRM Joint Regulation: OCC, the Federal Reserve Board, FDIC, FHFA and SEC. Based on GAO's recommendations, HUD stated that it has also conducted initial reviews of existing and potential methodologies and data sources that may inform the review. HUD also noted that as a fundamental matter, FHA insured mortgages are only securitized through the Government National Mortgage Association (GNMA). Both FHA and GNMA have extensive underlying requirements regarding both mortgage terms and conditions as well as requirements related to the securitization of those mortgages. According to HUD, its retrospective review of the QRM rule, in terms of any impact on FHA single family insurance programs, will take into account the existing underlying FHA and GNMA statutes and regulations that already govern those programs.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Department of the Treasury: Office of the Comptroller of the Currency
    Status: Open

    Comments: In its comment letter on the draft report, OCC indicated that it planned to take GAO's recommendation into account as it monitored mortgage market conditions and prepared for upcoming QRM reviews. OCC stated that it planned to periodically meet with the other agencies to discuss the implications of any trends it observes and coordinate on studies to better focus and support its evaluation of the review factors.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Federal Deposit Insurance Corporation
    Status: Open

    Comments: In February 2017, FDIC indicated that it developed a plan that outlines the baseline, data, metrics, and analytical methods that it plans to utilize in the QRM definition review. According to FDIC, the plan also outlines FDIC's commitment to working collaboratively with the other agencies. As a baseline, FDIC plans to use the data, metrics, and analytical methods used in the final rulemaking process as outlined in the Supplementary Information to the credit risk retention (CRR) regulation as well as data and analytical methods that the FDIC currently uses to monitor the mortgage and securitization markets and economy on an ongoing basis. FDIC stated that it continues to plan to coordinate with the other agencies on the QRM definition review by allocating responsibilities based on expertise, data, and other resources within each agency as the agencies did in the CRR rulemaking process.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: Federal Reserve System: Board of Governors
    Status: Open

    Comments: In January 2017, the Federal Reserve Board stated that it has an ongoing program to monitor the mortgage and securitization markets as part of its monetary policy, regulatory, and financial stability responsibilities. According to the Federal Reserve, Board staff are continuously researching new data sources, analytical methods, and metrics as part of that program. The Federal Reserve also noted that Board staff with responsibility for implementing this recommendation continue to meet with their counterparts at other agencies.
    Recommendation: To enhance the effectiveness of their preparations for conducting a retrospective review of the QRM regulations, the agencies responsible for the QRM regulations--Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Board of Governors of the Federal Reserve System, HUD, Office of the Comptroller of the Currency, and Securities and Exchange Commission--should develop a plan that identifies the metrics, baselines, and analytical methods to be used and specify the roles and responsibilities of each agency in the review process. Furthermore, to account for and help mitigate limitations of existing data and the uncertain availability of enhanced datasets, the six agencies should include in their plan alternate metrics, baselines, and analytical methods that could be used if data were to remain unavailable.

    Agency: United States Securities and Exchange Commission
    Status: Open

    Comments: In January 2017, SEC staff stated that they had developed a preliminary review plan for the QRM rule in December 2016. SEC staff noted that although the review plan describes several proposed analytical approaches, the precise analytical approach to review the mortgage market conditions and the definition of QRM will depend on future data availability, future mortgage market conditions, and the role of Fannie Mae, Freddie Mac, and other participants in those markets at that time. To prepare for this review, SEC staff noted that they intend to meet on a periodic basis with the staff of the other agencies to share the results of the analyses discussed above, understand the analyses being performed by the other agencies, and discuss what additional data or analyses may be helpful. As part of these discussions, SEC staff stated that the agencies will likely divide responsibilities for conducting the review according to agency expertise and resources, consistent with each agency's statutory authority and role.
    Director: Andrew Sherrill
    Phone: (202) 512-7215

    1 open recommendations
    Recommendation: Depending on the outcome of the litigation, the Secretary of Labor should take steps to ensure the agency will be positioned to conduct a meaningful retrospective review consistent with the Executive Order at an appropriate time. These steps should be taken in consultation with the Centers for Medicare & Medicaid Services, and could include, for example, identifying metrics that could be used to evaluate the rule, and implementing a plan to gather and analyze the necessary data.

    Agency: Department of Labor
    Status: Open

    Comments: The Department of Labor's Wage and Hour Division (WHD) agreed with this recommendation and reported that it is working to develop data collection plans and explore a potential evaluation that is focused on the Home Care Rule. As part of this effort, WHD noted that it will continue to work with HHS and other federal partners. In FY16, WHD reported that such an evaluation of how stakeholders and affected industries have responded to the rule would be beneficial. However, litigation has delayed implementation and enforcement of the rule significantly, and WHD believes an evaluation at this stage would be premature and would be unlikely to fully and accurately capture stakeholders' responses to the rule and the resulting impacts. Delaying the evaluation would allow WHD to monitor the results of its own investigations and the effects of ongoing compliance assistance, both of which would be extremely difficult to measure at this early stage. WHD will continue to monitor early implementation to determine the appropriate start for any evaluation.
    Director: Frank Rusco
    Phone: (202) 512-3841

    1 open recommendations
    Recommendation: To help achieve and sustain public acceptance for future spent nuclearfuel management efforts, the Secretary of the Department of Energy should develop and implement a coordinated outreach strategy for providing information to specific stakeholders and the general public on federal activities related to managing spent nuclear fuel.

    Agency: Department of Energy
    Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.