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Office of Personnel Management.
Final rule; withdrawal.
The Office of Personnel Management (OPM) is withdrawing the final rule, titled Time-in-Grade Elimination, published in the
Effective August 11, 2009, the final rule published November 7, 2008, at 73 FR 66157, extended March 9, 2009, at 74 FR 9951, and further extended May 18, 2009, at 74 FR 23109, is withdrawn.
Ms. Janice Warren by telephone (202) 606–0960; by FAX (202) 606–2329; by TTY (202) 418–3134; or by e-mail
On November 7, 2008 the U.S. Office of Personnel Management (OPM) published in the
On March 9, 2009 the U.S. Office of Personnel Management (OPM) published a final rule in the
On May 11, 2009, OPM published in the
The following is a discussion of the comments OPM received during the two public comment periods raised in connection with the merits of the final rule published on November 7, 2008.
OPM received 43 comments on issues of law and policy raised by the final rule. These comments were provided by 37 individuals, three employee organizations, and three federal agencies.
OPM received 11 comments from individuals who generally supported retaining TIG rules.
We received 8 comments from individuals who generally supported elimination of TIG rules.
One individual supported TIG elimination on the basis that employees would still need one-year specialized experience in order to be promoted.
Two individuals commented that the time-in-grade regulation is a bad rule because it discriminates against highly-qualified, highly-capable and highly-productive candidates on the basis of an arbitrary time period.
Another individual, who generally supports TIG elimination, expressed concern over the possibility of abuse by hiring managers if the final rule were to go into effect. This person also questioned how TIG elimination would protect against grade-leaping by employees.
Another individual expressed similar concern. This person noted that although TIG elimination will provide some flexibility to agency managers, the commenter was concerned that elimination of this rule may encourage managers to abuse the system by promoting their favorite employees. This responder suggested the need for creation of a subjective factor to assist management with assessing performance and promotions.
One individual commented that TIG elimination will allow the Federal government to retain competent, capable and qualified employees. This individual also suggested that TIG removal will eliminate the possibilities of abuse and the `good old boy' promotions.
Another individual commented that the elimination of time-in-grade will allow status candidates the ability to apply for higher graded positions based on past experience.
One respondent believes that TIG rules should be eliminated in order for competent and dedicated workers to be promoted to positions with more responsibility than the positions these employees currently occupy.
Another commenter supported TIG elimination on the basis that qualified, productive individuals should not have to wait 52 weeks to be promoted.
One individual commented that the elimination of time-in-grade would be a win-win for the agencies.
Two employee organizations submitted similar comments expressing the following views: Successful performance in a position for one year is an extremely useful measure for determining whether to promote an individual. With respect to promotions, both managers and employees suffer from a process that is not transparent and objective and TIG elimination will only add to this lack of transparency. Both organizations questioned OPM's justification for abandoning a long-standing practice of the competitive service. TIG elimination strips managers of their defense against charges that unequal pay amounts are based on race, gender, age or some other non-merit factors. Lastly, both organizations expressed concern that TIG elimination may result in agencies appointing people, who qualify for higher grade levels (
Another employee organization commented that implementing the final rule (
One commenter believes that TIG ensures competence and saves the government money by preventing inexperienced employees the opportunity to receive undeserved promotions; and it is risk that needs not be taken.
One individual stated that TIG elimination would be a slap in the face to all long serving Federal employees who had been subject to these rules.
One individual commented that TIG elimination will increase the power of the self-interested manager to build an entourage rather than a competent workforce.
One individual commented that eliminating time-in-grade would cause a deficit in trained and knowledgeable managers and a short and long-term detrimental impact on agency's missions.
The same individual stated the one-year requirement is not long enough for an employee to gain the knowledge or technical skills needed for promotion and that, eliminating time-in-grade will open the flood gates to more unqualified employees being promoted.
The same person suggested TIG elimination may lead to the possibility of abuse and misuse and to experienced employees being overlooked for promotions (or even dismissed) because they lacked the wrong connections necessary to obtain a promotion.
Another individual supported TIG elimination only if OPM developed a watchdog element or a randomly select ad-hoc group which investigated promotions.
One respondent believes TIG elimination will have no net effect on an individual's chances for promotion as long as the requirement for one-year of specialized experience remains in tact. This individual questioned the logic in eliminating an objective measure (TIG) in favor of a subjective one (specialized experience).
One agency commented that OPM should give agencies advanced notice and adequate time to implement and modify merit promotion procedures so that agencies can notify employee unions as well as provide training before the implementation date.
The same agency and a another federal agency suggested that OPM clarify whether agencies will continue to have the option of imposing agency-specific TIG requirements after the November 7, 2008 final rule becomes effective (
One of these agencies also commented that OPM provide clear and timely policy guidance on transitioning this change.
Another agency suggested OPM provide guidance on a variety of topics in the event that TIG is eliminated. These topics include: How to credit experience, whether TIG removal applies to career ladder positions, whether employees in career ladder positions may skip grade levels, and whether there are any limitations on movement within career ladder positions.
Two employee organizations noted that seniority is a widely accepted explanation by the courts and other federal agencies to justify the difference in pay for equally qualified employees.
The same two entities suggested OPM consult with stakeholders and provide sufficient training and objective measures for a fair and transparent process before eliminating time-in-grade.
One individual submitted a statement describing his personal experience with time-in-grade requirements, but not commenting on the rule.
Another individual commending the administration for proposing to eliminate time-in-grade, however this comment was made in reference to a demonstration project authority which is not subject to time-in-grade restrictions.
OPM received comments from 154 individuals, 3 employee organizations, and 2 federal agencies on the merits of retaining, revoking, or amending the final rule.
OPM received 33 comments on retaining the time-in-grade regulation. These comments were provided by thirty two individuals and one national employee organization.
The national employee organization suggested that eliminating time-in-grade will cause low employee morale and lead to confusion. This entity commented that the time-in-grade regulation provides a tool for eligibility that eliminates capriciousness, favoritism, prejudice or bias.
Sixteen individuals commented generally that time-in-grade should be retained.
One individual suggested TIG elimination will stress agencies' budgets and place added burdens on supervisors to promote employees sooner than otherwise would be the case.
Seven individuals commented on the need for a mechanism to ensure fair recruitment and placement. These respondents indicated that TIG elimination would provide management with a tool to use favoritism to select or promote employees based on personal choices.
One individual commented that TIG elimination may result in increased litigation for the Equal Employment Opportunity Commission, federal agencies, and employee unions.
One individual commented the elimination of time-in-grade would put a huge burden on human resources, and that keeping time-in-grade restrictions would eliminate rapid advancements.
One individual suggested that elimination of time-in-grade will lead to disproportionate control on the part of employees regarding their opportunities for promotion.
One individual commented that elimination of time-in-grade would result in a popularity contest, and therefore abuse by management, to determine which employees receive promotions.
One individual commented that TIG elimination would cause continued recruitment of inexperienced people and provide management an opportunity to promote their favorite high performer.
One individual suggested that TIG elimination would lead to imbalances within an agency's workforce (due to increased promotions) and that TIG removal would only benefit newly hired employees.
One individual suggested that TIG elimination will lead to and justify abuses by management.
One individual commented that TIG elimination would erode Federal employee's faith in their human resources promotion policy.
OPM received 107 comments on the merits of revoking the time-in-grade regulation. These comments were provided by 106 individuals, and 1 federal agency.
Sixty-seven individuals commented generally that TIG should be revoked.
One agency commented that the elimination of time-in-grade will allow the federal government to compete with private industry, decrease stagnation of talent, enhance succession planning efforts, and free-up management to become mentors.
Four individuals commented that employees should be rewarded (promoted) based on performance, and that the passage of time has nothing to do with an individual's contribution to his or her agency.
Four individuals commented that time-in-grade is an arbitrary and outdated time period. These individuals also believed that favoritism in promotions currently exists and that TIG removal would give managers additional flexibility to promote their staff without any additional impropriety.
Five individuals commented that time-in-grade holds back young professionals, and causes qualified individuals to leave Federal service.
One individual questioned whether a 52-week period was necessary in order to determine an individual's readiness for promotion. This individual believed that because of TIG, agencies run the risk of losing good people.
Four individuals commented that TIG elimination (or modification) is needed to improve agency mission readiness and reduce overtime cost associated with maintaining a daily workforce.
Two individuals commented that time-in-grade is a form of discrimination.
Three individuals commented that TIG penalizes hard working employees who perform well in their jobs.
One individual commented that TIG elimination would remove protectionist language which favors entrenched federal employees.
One individual commented that the time-in-grade regulation serves as a recruitment disincentive which may cause Federal agencies to miss out on hiring skilled talent. This individual also stated that TIG creates unnecessary human capital cost.
One individual suggested that TIG punishes loyal Federal employees at the expense of recent hires from the private sector.
One individual commented that the elimination of time-in-grade would afford greater flexibility for the federal managers.
Another individual questioned the ethics of applying a TIG standard to hard working employees.
One individual stated that the current time-in-grade rules limit opportunities and incentives for internal employees, veterans, and applicants with educational qualifications.
Two individuals commented that the federal government needs to modernize the promotion processes in order to attract and retain talent; and that talented federal employees should be able to move up the grade scale at a quicker pace than the rules currently allow.
One individual believes that TIG elimination would contribute to a smarter more productive Federal workforce.
One individual believes the existence of TIG results in applicants having to accept lower-graded positions than those for which they are otherwise qualified.
One individual commented that TIG elimination would place all employees on a leveled playing field with respect to promotions.
Another individual suggested that TIG elimination would contribute to greater diversity among the Federal workforce.
Three individuals commented that TIG negatively impacts underpaid employees.
One person believes TIG rules encourage mediocrity among federal employees. This individual suggested that TIG provides a disincentive against hard work because the standards for promotion are the same for hard-working and non-hardworking employees.
One Individual commented that the TIG rules unfairly penalize employees with previous work experience who may otherwise be promoted on the basis of that experience in the absence of the 52-week requirement.
One person commented that TIG elimination makes good business sense and may support the notion that the best worker gets hired (promoted).
OPM received 9 comments on the merits of amending the time-in-grade regulation. These comments were provided by six individuals and two employee organizations.
One employee organization suggested OPM revise the time-in-grade regulation to allow for filling positions at the “target grade” for individuals that are fully qualified.
Another national employee organization suggested that OPM consider a TIG exclusion for positions directly tied to ensuring public safety.
One individual suggested that OPM develop a formula to ensure employees could get promoted after 52 weeks of Federal service.
One individual suggested OPM amend the TIG rules to allow for temporary promotion.
One individual suggested OPM conduct an overhaul of the TIG rules to better meet the needs of agencies and employee. This individual also believes the current system will induce increased numbers of federal government employees to migrate to jobs in private industry.
Two individuals suggested TIG needs to be re-evaluated and modified so that employees of the government will not be penalized for accepting lower graded positions.
One individual commented that OPM need to eliminate time-in-grade for GS–13, 14 and 15 grade levels.
Another individual suggested that OPM consider whether a 1-year TIG period provides enough time for managers to determine an employee's readiness for promotion.
OPM received 6 comments which were beyond the scope of the merits of TIG retention, revocation, or amendment. These comments were provided by five individuals and one federal agency.
The agency suggested that OPM provide agencies with advanced notification prior to implementing TIG elimination. This notification is necessary so that agencies will have adequate time to modify merit promotion procedures, notify employee unions, and provide training before the implementation date.
The same agency commented that OPM needs to clarify, if TIG is eliminated, whether an agency will still have the option to impose a TIG requirement at its discretion.
The same agency also commented that OPM provide clear and timely policy guidance on transitioning to TIG elimination.
Two individual commented that it is detrimental that the government promote internally.
One individual objected to extending and applying TIG requirements for employees covered under the National Security Personnel System.
One individual suggested OPM revise the qualification requirement for TIG.
One individual commented on the pay-for-performance system and the importance of funding and involving Federal supervisors.
OPM carefully considered the comments we received during each of these comment periods, which reflected a variety of views. As a result, we have decided to withdraw the elimination of time-in-grade regulation that was
This means that the TIG rules remain in effect.
Nuclear Regulatory Commission.
Direct final rule: Confirmation of effective date.
The Nuclear Regulatory Commission (NRC) is confirming the effective date of August 17, 2009, for the direct final rule that was published in the
Documents related to this rulemaking, including any comments received, may be examined at the NRC Public Document Room, Room O–1F23, 11555 Rockville Pike, Rockville, MD 20852.
Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415–6219,e-mail
On June 2, 2009 (74 FR 26285), the NRC published a direct final rule amending its regulations at 10 CFR 72.214 to include Amendment No. 6 to CoC Number 1014. Amendment No. 6 modifies the CoC to add instrument tube tie rods used for pressurized water reactor 15x15 and 17x17 fuel lattices, for both intact and damaged fuel assemblies, to the approved contents of the multipurpose canister (MPC)–24, MPC–24E, MPC–24EF, MPC–32, and MPC–32F models; and to correct legacy editorial issues in Appendices A and B Technical Specifications. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on August 17, 2009. The NRC did not receive any comments on the direct final rule. Therefore, this rule will become effective as scheduled.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Direct final rule: Confirmation of effective date.
The Nuclear Regulatory Commission (NRC) is confirming the effective date of August 24, 2009, for the direct final rule that was published in the
Documents related to this rulemaking, including any comments received, may be examined at the NRC Public Document Room, Room O–1F23, 11555 Rockville Pike, Rockville, MD 20852.
Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415–6219,e-mail
On June 10, 2009 (74 FR 27423), the NRC published a direct final rule amending its regulations at 10 CFR 72.214 to include Amendment No. 10 to CoC Number 1004. Amendment No. 10 modifies the CoC to add two new dry shielded canisters (DSCs) designated the NUHOMS® –61BTH DSC and the NUHOMS® –32PTH1 DSC, add an alternate high-seismic option of the horizontal storage module (HSM) for storing the 32PTH1 DSC, allow storage of Westinghouse 15x15 partial length shield assemblies in the NUHOMS® –24PTH DSC, allow storage of control components in the NUHOMS® –32PT DSC, and add a new Technical Specification, which applies to Independent Spent Fuel Storage Installation sites located in a coastal marine environment, that any load bearing carbon steel component which is part of the HSM must contain at least 0.20 percent copper as an alloy addition. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on August 24, 2009. The NRC did not receive any comments on the direct final rule. Therefore, this rule will become effective as scheduled.
For the Nuclear Regulatory Commission.
Farm Credit Administration.
Final rule; notice of effective date.
The Farm Credit Administration (FCA or Agency), through the FCA Board (Board), issued a final rule under parts 619, 620, and 621 on June 17, 2009, amending FCA's regulations related to disclosure and reporting practices of Farm Credit System institutions. In accordance with 12 U.S.C. 2252, the effective date of the final rule is 30 days from the date of publication in the
Thomas R. Risdal, Senior Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, Virginia 22102–5090, (703) 883–4498, TTY (703) 883–4434, or Robert Taylor, Attorney, Office of General Counsel, Farm Credit Administration, McLean, Virginia 22102–5090, (703) 883–4020, TTY (703) 883–4020.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Gulfstream Model G–IV, GIV–X, GV–SP series airplanes and Model GV airplanes. This AD requires, for certain airplanes, a one-time inspection for sealant applied to the exterior of the auxiliary power unit (APU) enclosure (firewall), and, for airplanes with the subject sealant and certain other airplanes, a revision of the airplane flight manual to prohibit operation of the APU during certain ground and flight operations. This AD results from notification from the airplane manufacturer that an improper, flammable sealant was used on the interior and exterior of the APU enclosure (firewall). We are issuing this AD to prevent this flammable sealant from igniting the exterior surfaces of the APU enclosure (firewall) under certain anomalous conditions such as an APU failure/APU compartment fire, which could result in propagation of an uncontained fire to other critical areas of the airplane.
This AD is effective August 26, 2009.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of August 26, 2009.
We must receive comments on this AD by October 13, 2009.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, Georgia 31402–2206; telephone 800–810–4853; fax 912–965–3520; e-mail
You may examine the AD docket on the Internet at
Sanford Proveaux, Aerospace Engineer, Propulsion and Services Branch, ACE–118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone (770) 703–6049; fax (770) 703–6097.
The manufacturer has notified us that an improper, flammable sealant (GMS 4107) was used on interior angles formed by sheet intersections and titanium sheet mating surfaces of the auxiliary power unit (APU) enclosure (firewall). This flammable sealant was also used to coat rivet heads on the interior and exterior surfaces of the APU enclosure (firewall). In some places the sealant was used by design, and in other places it was used in error. This sealant could ignite the exterior surfaces of the APU enclosure (firewall) under certain anomalous conditions such as an APU failure/APU compartment fire. This condition, if not corrected, could result in propagation of an uncontained fire to other critical areas of the airplane.
We reviewed the Gulfstream alert customer bulletins listed in the following table. The alert customer bulletins for Model G–IV series airplanes and Model GV airplanes describe procedures for a one-time inspection of the APU enclosure (firewall) for overcoat application of the flammable sealant on rivets or fillet seals on panel joints. For Model GIV–X and GV–SP series airplanes, and airplanes with flammable sealant found during the inspection, the alert customer bulletins describe revising the applicable airplane flight manual (AFM) and reporting compliance to Gulfstream.
We are issuing 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 these same type designs. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”
Although the Gulfstream alert customer bulletins specified in the table titled “Table 1—Applicable alert customer bulletins including airplane flight manual (AFM) supplements, and AFMs” of this AD specify to submit information to the manufacturer, this AD does not include such a requirement.
Although certain Gulfstream alert customer bulletins specified in the table titled “Table 1—Applicable alert customer bulletins including airplane flight manual (AFM) supplements, and AFMs” of this AD specify only to “inspect” for flammable sealant on the APU enclosure (firewall), we have determined that the procedures in those Gulfstream alert customer bulletins should be described as a “general visual inspection.” Note 1 has been included in this AD to define this type of inspection.
The Gulfstream alert customer bulletins specified in the table titled “Table 1—Applicable alert customer bulletins including airplane flight manual (AFM) supplements, and AFMs” of this AD include a statement in the Accomplishment Instructions to inform operators to contact Gulfstream “if technical assistance is required” in accomplishing the actions specified in the alert customer bulletins. We have included Note 2 in this AD to clarify that any deviation from the instructions provided in the applicable alert customer bulletin must be approved as an alternative method of compliance under the provisions of paragraph (l) of this AD.
We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.
The use of flammable sealant in the construction of the primary APU enclosure (firewall) compromises the integrity of the enclosure (firewall). If an APU fire occurs, the flammable sealant can ignite the exterior of the APU enclosure (firewall). This area is very confined and surrounded by primary airframe structure that carries the empennage loads. Primary flight controls for pitch and yaw are routed through the area adjacent to the APU enclosure (firewall). Because of our requirement to promote safe flight of civil aircraft and thus the critical need to assure the structural integrity and proper functioning of the APU enclosure (firewall), and the short compliance time involved with this action, this AD must be issued immediately.
Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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.
This AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
(3) 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.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) is effective August 26, 2009.
(b) None.
(c) This AD applies to the Gulfstream airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD, certificated in any category.
(1) Model G–IV series airplanes, having serial numbers (S/Ns) 1000 and subsequent.
(2) Model GIV–X series airplanes, having S/Ns 4001 through 4146 inclusive, and S/Ns 4148 through 4150 inclusive.
(3) Model GV airplanes, having S/Ns 501 and subsequent.
(4) Model GV–SP series airplanes, having S/Ns 5001 through 5204 inclusive, S/Ns 5206 through 5217 inclusive, and S/N 5219.
(d) Air Transport Association (ATA) of America Codes 53: Fuselage, and 49: Airborne Auxiliary Power.
(e) This AD results from notification from the airplane manufacturer that an improper, flammable sealant was used on the interior and exterior of the auxiliary power unit (APU) enclosure (firewall). The Federal Aviation Administration is issuing this AD to prevent this flammable sealant from igniting the exterior surfaces of the APU enclosure (firewall) under certain anomalous conditions such as an APU failure/APU compartment fire, which could result in propagation of an uncontained fire to other critical areas of the airplane.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) For Model G–IV series airplanes identified in paragraph (c)(1) of this AD, and Model GV airplanes identified in paragraph (c)(3) of this AD: Within 21 days after the effective date of this AD, except as provided by paragraph (k) of this AD, perform a general visual inspection of the exterior of the APU enclosure (firewall) to detect overcoat application of sealant on rivets or fillet seals on panel joints, in accordance with the Accomplishment Instructions of the applicable Gulfstream alert customer bulletin specified in Table 1 of this AD.
(1) If no exterior sealant is found applied during the inspection done in accordance with paragraph (g) of this AD: No further action is required by this paragraph.
(2) If exterior sealant is found applied during the inspection done in accordance with paragraph (g) of this AD: Do the actions specified in paragraph (h) of this AD.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
A statement in the Accomplishment Instructions of the applicable Gulfstream alert customer bulletins specified in Table 1 of this AD instructs operators to contact Gulfstream if technical assistance is needed in accomplishing the alert customer bulletin. However, any deviation from the instructions provided in the applicable alert customer bulletin must be approved as an alternative method of compliance under paragraph (l) of this AD.
(h) For Model GIV–X series airplanes identified in paragraph (c)(2) of this AD, Model GV–SP series airplanes identified in paragraph (c)(4) of this AD, and Model G–IV series airplanes and Model GV airplanes with flammable sealant on the exterior of the APU enclosure (firewall) identified during the inspection required by paragraph (g) of this AD: At the applicable time specified in paragraph (h)(1) or (h)(2) of this AD, revise the Limitations Section of the applicable Gulfstream AFM specified in Table 1 of this AD to include the information in the applicable Gulfstream AFM supplement specified in Table 1 of this AD. These AFM supplements introduce limitations on the use of the APU during certain ground and flight operations.
This AFM revision may be done by inserting a copy of the applicable AFM supplement into the applicable AFM specified in Table 1 of this AD. When the supplement has been included in the general revisions of the AFM, the general revisions may be inserted in the AFM, provided the relevant information in the general revision is identical to that in the applicable AFM supplement specified in Table 1 of this AD.
(1) For Model G–IV series airplanes and Model GV airplanes with flammable sealant on the exterior of the APU enclosure (firewall) identified during the inspection required by paragraph (g) of this AD: Prior to further flight following the inspection done in accordance with paragraph (g) of this AD.
(2) For Model GIV–X series airplanes identified in paragraph (c)(2) of this AD, and Model GV–SP series airplanes identified in paragraph (c)(4) of this AD: Within 21 days after the effective date of this AD.
(i) Inspecting for flammable sealant and revising the AFM before the effective date of this AD using the applicable alert customer bulletin and AFM supplement specified in Table 2 of this AD are acceptable for compliance with the corresponding actions specified in this AD.
(j) Although the Gulfstream alert customer bulletins specified in Table 1 of this AD specify to submit information to the manufacturer, this AD does not include this requirement.
(k) As of the effective date of this AD, no person may install an APU enclosure (firewall) that contains flammable sealant (GMS 4107) in the construction, on any airplane.
(l)(1) The Manager, Atlanta Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanford Proveaux, Aerospace Engineer, Propulsion and Services Branch, ACE–118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone (770) 703–6049; fax (770) 703–6097.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(m) You must use the service information contained in Table 3 of this AD to do the actions required by this AD, as applicable, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, Georgia 31402–2206; telephone 800–810–4853; fax 912–965–3520; e-mail
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action will establish Class E airspace at Plentywood, MT. Controlled airspace is necessary to accommodate aircraft using a new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedure (SIAP) at Plentywood Sher-Wood Airport, Plentywood, MT. This will improve the safety of Instrument Flight Rules (IFR) aircraft executing the new RNAV GPS SIAP at Plentywood Sher-Wood Airport, Plentywood, MT.
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue, SW., Renton, WA 98057; telephone (425) 203–4537.
On May 28, 2009, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9S signed October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Plentywood, MT. Controlled airspace is necessary to accommodate IFR aircraft executing a new RNAV (GPS) approach procedure at Plentywood Sher-Wood Airport, Plentywood, MT.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Plentywood Sher-Wood Airport, Plentywood, MT.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Plentywood Sher-Wood Airport; and that airspace extending upward from 1,200 feet above the surface of the earth bounded by a line beginning at lat. 49°00′00″ N., long. 105°02′00″ W.; to lat. 49°00′00″ N., long. 104°02′00″ W.; to lat. 48°32′35″ N., long. 104°02′00″ W.; to lat. 48°27′00″ N., long. 104°11′12″ W.; to lat. 48°40′00″ N., long. 105°02′00″ W.; thence to the point of origin.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects errors in the legal descriptions of several Area Navigation Routes listed in a final rule published in the
Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591;
On July 6, 2009, a final rule for Airspace Docket No. 08–AAL–24, FAA Docket No. FAA–2008–0926 was published in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action removes very high frequency omnidirectional range (VOR) Federal airway V–329, which extends between Montgomery, AL and the vicinity of Crestview, FL. The route is being removed at the request of the U.S. Army because the Andalusia, AL, VOR, which forms a segment of the airway, is being decommissioned due to unreliability and coverage limitations. This action will not adversely impact National Airspace System (NAS) Operations.
Paul Gallant, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267–8783.
On April 6, 2009, the FAA published in the
With the exception of editorial changes, this amendment is the same as that proposed in the NPRM.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revoking VOR Federal airway V–329. The FAA is taking this action because the Andalusia VOR, which is owned and operated by the U.S. Army, is being decommissioned due to recurring outages, maintenance issues, and coverage limitations. Decommissioning of the Andalusia VOR renders V–329 unusable. As an alternative, V–115, which lies to the west of the V–329, extends between the Crestview, FL, and the Montgomery, AL, VORTAC.
VOR Federal airways are published in paragraph 6010 of FAA Order 7400.9S signed October 3, 2008 and effective October 31, 2008, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document will be subsequently deleted from the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends a portion of the en route structure to enhance the safe and efficient use of the NAS in the Southeast United States.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a and 311b. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p.389.
Securities and Exchange Commission.
Final rule.
The Commission is amending its rules to delegate authority to the Director of the Division of Enforcement to issue formal orders of investigation. These orders designate the enforcement staff authorized to issue subpoenas in connection with investigations under the federal securities laws. This action is intended to expedite the investigative process by removing the need for enforcement staff to seek Commission approval prior to performing routine functions. The Commission is adopting this delegation for a one-year period, and at the end of the period will evaluate whether to extend the delegation (though any formal orders issued during this period will remain in effect).
Kenneth H. Hall, 202–551–4936, Office of Chief Counsel, Division of Enforcement, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–6553.
The Commission is authorized to conduct investigations of possible violations of the federal securities laws, which provide that “any member of the Commission or any officer designated by it is empowered to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, or other records which the Commission deems relevant or material to the inquiry.” Section 21(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78u(b).
In any case the Division Director deems appropriate, the recommendation that a formal order be issued may be submitted to the Commission for review.
The Commission finds, in accordance with the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(A)), that this amendment relates solely to agency organization, procedure, or practice. Accordingly, the provisions of the APA regarding notice of the proposed rulemaking and opportunities for public participation, 5 U.S.C. 553, are not applicable. For the same reason, and because this amendment does not substantively affect the rights or obligations of non-agency parties, the provisions of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(3)(C), are not applicable. Additionally, the provisions of the Regulatory Flexibility Act, which apply only when notice and comment are required by the APA or other law, 5 U.S.C. 603, are not applicable. Section 23(a)(2) of the Securities Exchange Act, 15 U.S.C. 78w, requires the Commission, in adopting rules under that Act, to consider the anticompetitive effects of any rules it adopts. Because the amendment imposes no new burdens on parties in investigations, the Commission does not believe it will have any impact on competition. Finally, this amendment does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1980, as
Administrative practice and procedure, Authority delegations (Government agencies).
15 U.S.C. 77o, 77s, 77sss, 78d, 78d–1, 78d–2, 78w, 78
(a) * * *
(13) For the period from August 11, 2009 through August 11, 2010, to order the making of private investigations pursuant to section 19(b) of the Securities Act of 1933 (15 U.S.C. 77s(b)), section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a–41(b) and section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–9(b)). Orders issued pursuant to this delegation during this period will continue to have effect after August 11, 2010.
By the Commission.
In Title 21 of the Code of Federal Regulations, parts 1 to 99, revised as of Apr. 1, 2009, on page 66, § 2.125(e)(2)(v) is reinstated as follows:
(e) * * *
(2) * * *
(v) Epinephrine.
Minerals Management Service (MMS), Interior.
Final rule.
This final rule will revise the production measurement regulations to establish meter proving, meter verification/calibration, and well test requirements after hurricanes and other events beyond the control of the lessee. This rulemaking will eliminate some reporting burden on industry, and it will eliminate the need for MMS to grant waivers to the reporting requirements in certain situations. The final rule will also add new definitions providing clarity in the training regulations, which should lead to improved training of Outer Continental Shelf workers.
Richard Ensele, Regulations and Standards Branch, at (703) 787–1583.
On September 17, 2008, MMS published a Notice of Proposed Rulemaking in the
We considered all of the comments we received on the proposed rule. Following is a discussion of the relevant comments MMS received:
We received suggestions from two entities regarding the proposed revisions to subpart L. The NOIA and OOC appreciate that the proposed rule will eliminate requirements for having to obtain certain waivers following force majeure events and suggested that similar revisions be made to the testing requirements in subpart H, Oil and Gas Production Safety Systems. Since we did not propose this change to subpart H, we cannot incorporate it into this final rulemaking. We will consider this suggestion in a future rulemaking.
The OOC provided additional suggestions. The OOC suggested that language be added to each of the following four paragraphs:
1. In § 250.1202(d)(3) add “and monthly thereafter but do not exceed 42 days between meter factor determinations.” The OOC states this would make clear that this is not a make up proving, and the time starts over with the proving after returning to service.
2. In § 250.1202(k)(3) revise the ending to read “* * * within 15 days after being returned to service and monthly thereafter.” The OOC states that this should be added for clarity.
3. In § 250.1202(k)(4) revise the ending to read “* * * within 15 days after being returned to service and quarterly thereafter.” The OOC states that this should be added for clarity.
4. In § 250.1204(b)(1) revise the ending to read “* * * within 15 days after being returned to service and bimonthly (or other frequency approved by the Regional Supervisor) thereafter.” The OOC states that this should be added for clarity.
We agree with these suggestions, and will incorporate them in the final rule. Since § 250.1203(c)(1) was similarly worded, we incorporated OOC's language in the regulatory text there also.
The OOC also suggested that the force majeure waiver should be applied to the testing requirements for the master meter in § 250.1202(e)(3). We did not make this revision because we do not believe it is appropriate for a master
In addition to the changes we made in response to the NOIA and OOC's comments, in § 250.1203(c)(1), we have changed the terms “calibrate,” “calibrations,” and “calibrated” to “verify/calibrate,” “verification/calibration,” and “verified/calibrated” to be consistent with the revision of the definition promulgated on April 15, 2008 (73 FR 20171). We also added the word “operating” before “allocation meters” in § 250.1202(k)(3) and (k)(4) because it appears in the existing regulation but was inadvertently omitted from the proposed rule and added it before “meters” in (c)(1) for consistency. In addition, we added the phrase “the previous month” in § 250.1202(k)(3) and (4) after “per meter” in each subparagraph. This clarifies that the daily average (the volume measured by the particular meter for the month divided by the number of days in that month) is based on the previous month. In § 250.1204(b)(1), we changed the 2-month time period to 60 days. In the existing regulation, 2 months is defined parenthetically as 60 days. We also changed the word “service” to “production” to more accurately describe the function of wells.
We received comments and suggestions from four entities regarding the revisions to subpart O. The training company agreed with the proposed revisions. The OOC submitted the following general comment regarding the proposed rule:
OOC is of the opinion that the vast majority of the OCS workforce is well trained and capable of performing their specific jobs. The fact that MMS interviews, in MMS's opinion, indicated a poorer understanding of MMS regulations and the training requirements does not directly relate to the offshore workers ability to perform specific jobs on a complex. Likewise, INCs issued during audits have primarily been associated with training requirements for contractors being spelled out, recordkeeping and documentation. OOC is not aware of any INCs or incidents offshore that have been the result of lack of training. MMS testing of a very small sample of 3 employees in well control and 3 in production safety systems two years ago is also not an indicator of lack of understanding of MMS requirements given the large number of offshore workers (30,000 or more in any given day). It is OOC's opinion that the preamble discussion associated with this Subpart O revision does not accurately portray the current capability of the offshore workforce. A large portion of MMS complaints are in the area of field personnel not knowing in detail all of the training program requirements and timing that were drafted by office personnel to meet compliance needs. It would seem that it should be more important for the field personnel to know what to do and why they are doing it than to know that they have to be re-trained XX number of months apart.
Since publishing the proposed rule on September 17, 2008, MMS has developed and implemented a subpart O pilot testing program, in accordance with the current subpart O regulations (30 CFR 250.1507(c)). As part of this pilot test program, MMS developed a series of five written production tests designed to evaluate both lessee and contract personnel involved with Outer Continental Shelf (OCS) production safety operations. These tests were developed to evaluate an employee's understanding of not only basic production safety devices, such as surface and subsurface safety equipment, but additional areas of production operations, including separation, dehydration, compression, sweetening, and metering.
In recent years, MMS has been concerned that the majority of in-house and third-party-led production training schools focus their efforts primarily on surface and subsurface safety equipment testing and installation and reporting requirements, and not on other equally important aspects of offshore oil and gas production operations, including, but not limited to, separation, dehydration, compression, sweetening, and metering activities. The pilot testing program was designed in part to evaluate these other components of production operations.
From the period of November 1, 2008, through January 31, 2009, MMS conducted 31 written production tests on the OCS in both the Gulf of Mexico and Pacific Regions. Though all personnel passed these tests in accordance with MMS grading policies (
1. Equipment test intervals for temperature safety highs (TSH) on compressors and fired components;
2. Equipment test intervals for burner safety lows (BSL) and tubing plugs;
3. Wellhead components, including casing valves and casing heads;
4. Pressure relief valve settings on oil and gas separators; and
5. Lease automatic custody transfer (LACT) units.
The MMS believes that the original test results presented in the proposed rule and the results of the additional testing mentioned above indicate a lack of understanding of the regulations covering production and drilling operations safety by offshore workers. The results also indicate a lack of understanding of the training regulations by industry. Therefore, we believe the minor changes to the training regulations in this final rule are necessary to emphasize the importance of knowledge of MMS regulations and the importance of periodic training and assessment of training needs for lessees, operators, and contract personnel.
The proposed revisions consisted of adding two new definitions (contractor and periodic) to subpart O, and revising one existing definition (production safety). The following is the definition of
The OOC suggested that a more concise definition be used as follows:
The OOC stated that this definition is consistent with the definition of employee in subpart O. It also delineates between those contractors performing well control or production safety operations (required to have training by subpart O) and those contractors not performing well control or production safety operations, such as providers of domestic services, painters, inspectors, etc., and others the lessee may utilize in conducting day-to-day operations. We agree with this suggestion. Additionally, the existing regulations also use the term contract personnel, so we have added that to the definition of contractor. The revised definition is as follows:
Following is the definition of
The OOC noted that the second sentence is not a definition, but is a reminder of requirements found elsewhere in subpart O. We agree with OOC that the second sentence is not a definition, but the reason for proposing this definition was to remind the lessees of those requirements for periodic training and periodic assessment of training needs. Some lessees were not conducting the periodic training and assessment requirements. We will leave the reminder in the definition.
The following is the definition of
Two commenters suggested that this definition would be difficult to apply and cause uncertainty. One of them suggested using the definition of production safety in MMS Notice to Lessees and Operators (NTL) No. 2008–N03,
We agree that the proposed definition could cause uncertainty, and we also believe that the definition in the NTL can be improved for use in this final rule. Therefore, we have revised the proposed definition of
One of the energy companies asked if it is our intent to include safety related to hazard communications, hearing conservation, water survival, etc., in this rulemaking. This definition excludes hazard communication, hearing conservation, water survival, and other similar types of safety. Most of those topics may be covered in a future rulemaking dealing with safety and environmental management issues. (
This final rule is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under E.O. 12866.
(1) This final rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. The revisions to the production measurement regulations will only have a small positive effect on industry in the event of a hurricane or other incident beyond the control of the lessee that results in a facility being off production for an extended period of time. The revisions to the training regulations will cause some lessees and operators to revise their training programs. We estimate that 50 of the 130 lessees and/or operators have already modified their training plans, and will not be affected by the revisions to subpart O. The remaining 80 lessees and/or operators will have to modify their training plans. Of the 80 lessees and/or operators, MMS estimates that 56 are small businesses, and that 24 are large companies. The majority of small operators have an off-the-shelf type training plan. The MMS estimates that a modification to this type of plan would cost about $500. The large companies would most likely revise their training plans in-house at a slightly lower cost than revising an off-the-shelf plan. For the purpose of estimating the total cost to industry, MMS will use the higher estimate. The total cost for revising training plans to industry would be $500 multiplied by 80 lessees/operators, which would equal $40,000. The cost to retrain the employees from the 80 companies would be about $200 per person. This is based on the price of a typical 3-day production operations safety course costing $600 per person (
(2) This final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. No other agencies regulate oil and gas operations on the OCS.
(3) This final rule will not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This final rule will not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
The Department of the Interior certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The production measurement changes in this final rule will affect lessees and operators of leases in the OCS. This includes about 130 active Federal oil and gas lessees. Small lessees that operate under this rule fall under the Small Business Administration's (SBA) North American Industry Classification System (NAICS) codes 211111, Crude Petroleum and Natural Gas Extraction, and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies are considered small. This final rule, therefore, will affect a substantial number of small entities.
The changes to subpart L will not have a significant economic effect on a substantial number of small entities because the effects would only occur if a facility is rendered out-of-service because of a hurricane or other event out of the control of the lessee. The overall effects will be very minor but positive, since the final rule temporarily relieves the lessee of specific reporting requirements related to metering and well tests.
The revised and new definitions in the training regulations in subpart O will cause some lessees and operators to revise their training plans. The MMS estimates that 80 operators will have to modify their training plans due to the changes to the definition of production operations. Of the 80 operators, MMS estimates that 56 are small businesses. This is a substantial number of small operators. The majority of small operators have off-the-shelf type training plans. The MMS estimates that a modification to this type of plan will cost about $500. The total cost to the small operators will be $500 multiplied by 56 operators, which equals $28,000. The cost to retrain the employees from the 56 companies will be about $200 per person. This is based on the price of a typical 3-day production operations safety course costing $600 per person. Adding 1 day to the course will be necessary to cover the operations mentioned in the revised definition of production operations. The MMS estimates that four employees per company will need the additional day of training, so the additional cost will be $200, multiplied by four employees per company, multiplied by 56 companies, which will equal $44,800. The total cost to small businesses due to the changes in the subpart O regulations will be $28,000 plus $44,800, which equals $72,800. Therefore, this final rule will not have a significant economic effect on a substantial number of small entities.
Comments from the public are important to us. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1–888–734–3247. You may comment to the Small Business Administration without fear of retaliation. Allegations of discrimination/retaliation filed with the Small Business Administration will be investigated for appropriate action.
This final rule is not a major rule under (5 U.S.C. 801
a. Will not have an annual effect on the economy of $100 million or more. The effects of the subpart L changes are minor, but positive, and will only occur if there were a hurricane or other event beyond the lessee's control that will cause the temporary shut-in of a facility. The effects on small business of the subpart O changes are approximately $72,800. See the analysis of these costs in the previous section of this preamble entitled “Regulatory Flexibility Act”.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. As stated above, any effects due to the subpart L revisions will be positive for the industry and the Federal Government. The effects due to the revisions to subpart O will be minor.
c. Will 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. The effects due to this final rule will be a result of temporary relief from reporting requirements and minor changes to training requirements, so there will be no adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The requirements will apply to all entities operating on the OCS.
This final rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The final rule will not have a significant or unique effect on State, local or Tribal governments or the private sector. This final rule only applies to oil and gas operations on the OCS. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in E.O. 12630, the final rule will not have significant takings implications. The final rule is not a governmental action capable of interference with constitutionally protected property rights. A Takings Implication Assessment is not required.
Under the criteria in E.O. 13132, this final rule will not have federalism implications. This final rule will not substantially and directly affect the relationship between the Federal and State governments. This final rule applies only to oil and gas operations on the OCS. To the extent that State and local governments have a role in OCS activities, this final rule will not affect that role. A Federalism Assessment is not required.
This final rule complies with the requirements of E.O. 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
Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in E.O. 13175, we have evaluated this final rule and determined that it has no substantial effects on Federally recognized Indian Tribes. There are no Indian or Tribal lands in the OCS.
This rulemaking contains a new information collection requirement; therefore, a submission to OMB under the PRA (44 U.S.C. 3501
The title of the collection of information for the rule is “30 CFR Part 250, Subpart O, Technical Changes to Production Measurement and Training Requirements.”
Respondents include Federal OCS oil and gas lessees and/or operators. Responses to this collection are mandatory, and the frequency of reporting once. The information collection does not include questions of a sensitive nature. The MMS will protect information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.”
The collection of information required by the current 30 CFR part 250, subpart L regulations, Oil and Gas Production Measurement, Surface Commingling, and Security, is approved under OMB Control Number 1010–0051, expiration 7/31/10 (8,533 hours). The regulation will not impose any new information collection burdens for this subpart. However, it does reduce the number of general departure requests for
The rulemaking for 30 CFR part 250, subpart O, Well Control and Production Safety Training, will require some lessees and/or operators to modify their current training programs due to the changes to the definitions in subpart O. We estimate that this would be a one-time new paperwork burden on 24 operators who will modify their programs in-house (6 hours per modification) for a total of 144 burden hours. Those operators who purchase their off-the-shelf training programs will incur costs to modify the programs. This is considered a regulatory cost of doing business and is not a paperwork burden. Existing paperwork requirements for current subpart O are approved under 1010–0128, expiration 8/31/09 (under renewal, 2,106 hours).
The comments received in response to the proposed rule did not address the information collection; therefore, there were no changes in the one new information collection requirement from the proposed rule to the final rule.
An agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. The public may comment, at any time, on the accuracy of the information collection burden in this rule and may submit any comments to the Department of the Interior; Minerals Management Service; Attention: Regulations and Standards Branch; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170–4817.
This final rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because this rule is covered by a categorical exclusion. Specifically, this rule qualifies as a regulation of an administrative or procedural nature.
In developing this final rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106–554, app. C § 515, 114 Stat. 2763, 2763A–153–154).
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
Administrative practice and procedure, Continental shelf, Oil and gas exploration, Public lands—mineral resources, Reporting and recordkeeping requirements.
31 U.S.C. 9701, 43 U.S.C. 1334.
(d) * * *
(3) Prove each operating royalty meter to determine the meter factor monthly, but the time between meter factor determinations must not exceed 42 days. When a force majeure event precludes the required monthly meter proving, meters must be proved within 15 days after being returned to service. The meters must be proved monthly thereafter, but the time between meter factor determinations must not exceed 42 days;
(k) * * *
(3) Prove operating allocation meters monthly if they measure 50 or more barrels per day per meter the previous month. When a force majeure event precludes the required monthly meter proving, meters must be proved within 15 days after being returned to service. The meters must be proved monthly thereafter; or
(4) Prove operating allocation meters quarterly if they measure less than 50 barrels per day per meter the previous month. When a force majeure event precludes the required quarterly meter proving, meters must be proved within 15 days after being returned to service. The meters must be proved quarterly thereafter;
(c) * * *
(1) Verify/calibrate operating meters monthly, but do not exceed 42 days between verifications/calibrations. When a force majeure event precludes the required monthly meter verification/calibration, meters must be verified/calibrated within 15 days after being returned to service. The meters must be verified/calibrated monthly thereafter, but do not exceed 42 days between meter verifications/calibrations;
(b) * * *
(1) Conduct a well test at least once every 60 days unless the Regional Supervisor approves a different frequency. When a force majeure event precludes the required well test within the prescribed 60 day period (or other frequency approved by the Regional Supervisor), wells must be tested within 15 days after being returned to production. Thereafter, well tests must be conducted at least once every 60 days (or other frequency approved by the Regional Supervisor);
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to revise a portion of its Phase 2 implementation rule for the 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard) for which the Agency had sought a voluntary remand from the U.S. Circuit Court of Appeals for the District of Columbia Circuit. The Court granted EPA's request by remanding and vacating that portion of the rule. Specifically, this rule addresses an interpretation that allowed certain credits toward reasonable further progress (RFP) for the 8-hour standard from emissions reductions outside the nonattainment area.
This rule is effective on October 13, 2009.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2008–0419. All documents in the docket are listed in
For further information on the this final rule contact: Ms. Denise Gerth, Office of Air Quality Planning and Standards, (C539–01), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541–5550 or by e-mail at
Entities potentially affected directly by this action include state, local, and tribal governments. Entities potentially affected indirectly by this rule include owners and operators of sources of emissions [volatile organic compounds (VOCs) and nitrogen oxides (NO
A copy of this document and other related information is available from the docket EPA–HQ–OAR–2008–0419.
The information presented in this notice is organized as follows:
On July 21, 2008 (73 FR 42294), EPA published a proposed rule to revise its regulatory interpretation of the Phase 2 implementation rule for the 8-hour ozone NAAQS to address the U.S. Circuit Court of Appeals for the District of Columbia Circuit's vacatur and remand of that portion of the interpretation of the Phase 2 implementation rule for which EPA had asked for a voluntary remand. The proposal addressed a provision that allowed credit toward RFP for the 8-hour NAAQS from emission reductions outside the nonattainment area. Readers should refer to the proposed rule for additional background on this action, including the final Phase 2 ozone implementation rule and the Court's vacatur and remand of the provision allowing credit for emissions reductions outside a nonattainment area for the purposes of RFP for the 8-hour NAAQS.
In the Phase 2 Rule to implement the 8-hour ozone NAAQS, EPA set forth an interpretation that stated that credits could be taken for emissions reductions from a source outside the nonattainment
The Natural Resources Defense Council (NRDC) filed a petition for review of the Phase 2 Rule including the implementation of the statutory provisions regarding RFP. After briefing had concluded in this case, EPA published its final rule implementing the NAAQS for fine particulate matter (the “PM
EPA received seven comments on this proposed rule. A few commenters supported the proposal while others opposed the action we proposed. The commenters addressed the following topics: requested clarification on how the rule affects general conformity and whether the transportation conformity determinations are only required within the nonattainment areas; stated that nonattainment areas should be expanded to include areas that contribute to nonattainment as required under section 107(d) of the Clean Air Act (CAA) rather than allowing areas to take credit outside of their nonattainment for RFP reductions; requested assurance that the rules do not allow substitution of NO
Following its stated objective in the request for a voluntary remand, EPA re-evaluted its interpretation of the RFP provision and is taking final action to revise the earlier interpretation as proposed on July 21, 2008 (73 FR 42294) which is consistent with the provisions in the PM
In cases where the state justifies consideration of emissions of one or both of the ozone precursors (i.e.,VOC and NO
In addition, we interpret this final rule to restrict the use of emission reductions for RFP credit to areas within the state, except in the case of multi-state nonattainment areas, and only then would allow RFP reductions from outside the state to be credited from outside the nonattainment area if the states involved develop and submit a coordinated RFP plan. EPA expects states with multi-state nonattainment areas to consult with other involved states, to formulate a list of the measures that they will adopt and the measures
As the Agency explained in the final preamble to the Phase 2 rule, the CAA does not specify a distance that is “nearby” or a specific level of emissions that is deemed to “contribute to” nonattainment (70 FR at 71648). EPA also did not establish a hard-and-fast set of rules to determine which areas are “nearby” or “contribute to” nonattainment. Instead, in guidance EPA listed a broad set of factors for states and EPA to consider in determining the boundaries of each nonattainment area. As for the comment that EPA is circumventing the statutory designations provisions by not subjecting the outside areas to all the requirements for nonattainment areas, EPA believes that since these areas are not necessarily “nearby” for designations purposes, it is not appropriate to subject these areas to all of the requirements for nonattainment areas. In this rule EPA is allowing emissions reductions outside a nonattainment area that benefits the nonattainment area to be considered for credit in emission reductions for ROP purposes. Whether an area is “nearby” for purposes of designations is an issue that would be considered on a case-by-case basis when the area is initially designated nonattainment.
The commenter also noted that this principle is also reflected in the December 1997 guidance memorandum that addressed taking credit outside nonattainment areas for purposes of RFP.
Secondly, EPA disagrees with the assertion in the comment that the proposed rule is unlawful and arbitrary and that EPA is without authority to allow RFP credit for emission reductions from outside the nonattainment area. The CAA does not expressly prohibit credits for emission reductions outside the area. In fact, the Fifth Circuit, which examined the same language at issue here, found the language “ambiguous” reasoning:
On the one hand, the meaning of “in the area” could be limited to emissions within the nonattainment area. On the other hand, the CAA does not expressly state that emissions outside the nonattainment area are prohibited, rather the Act only states that emissions from sources “in the area” must be included. We therefore find the CAA ambiguous on this point.
Second, the court found that in the specific case under review there was no data to support the presumption that the “outside” reductions selected in that case “can affect emissions reductions in the * * * area.” Id. In contrast, in its regulatory interpretation, EPA is explicitly requiring that such data be demonstrated in all cases prior to accepting credits from outside a nonattainment area. 70 FR at 71,647/3.
As clarified in a response below, in evaluating RFP submittals, EPA would consider whether the reductions from outside the nonattainment area could reasonably be expected to yield comparable air quality benefits as would be obtained if the same quantity of reductions were to occur inside the nonattainment area.
As for the commenter's assertion that VOC and NO
In setting forth a requirement for the ozone transport region in section 184 of the CAA, Congress realized that controlling ozone would require emission reductions from not just nonattainment areas, but all areas that were shown to contribute to ozone concentrations, including areas outside nonattainment areas. The work done under the Ozone Transport Assessment Group (OTAG) led to the NO
A state's ozone attainment demonstration performed with photochemical grid modeling will invariably take account of emission reductions not only from within the nonattainment area, but also from outside the nonattainment area. Generally, a state will be unable to demonstrate attainment for many areas unless there are emission reductions from attainment and nonattainment areas outside the area for which the state is performing the attainment demonstration. An extreme hypothetical example of this situation would be a nonattainment area that is mostly rural with few emissions of its own, but which is ineligible for rural transport area treatment and that is affected by significant transport from upwind areas. For its attainment demonstration, it must rely totally on emission reductions from upwind areas and may not be able to demonstrate RFP from emission reductions totally within the nonattainment area.
Additionally, air quality modeling to make a determination of equivalent ozone reductions would be very difficult. Ozone reductions from a particular strategy of emission reductions vary based on a number of factors such as wind, climate, type of emission source, location of sources, and height of emissions release above the ground. Therefore, the location and spatial extent of ozone reductions may be highly variable on a day-to-day basis. In many cases, emission reductions from farther away from a receptor location could be more beneficial in reducing ozone than emission reductions from a nearer location in the nonattainment area. The fact that the NO
Section 182(c)(2)(C) does require that NO
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.
This action does not impose any new information collection burden. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations of the Phase 2 Rule published on November 29, 2005 under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any regulation subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards. (
After considering the economic impact of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule will not directly impose any requirements on small entities. Rather this final rule interprets the RFP requirements under the SIP for states to submit RFP plans in order to attain the ozone NAAQS.
This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local, and tribal governments or the private sector. Therefore, this action is not subject to the requirements of section 202 and 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The CAA imposes the obligation for states to submit SIPs, including RFP, to implement the Ozone NAAQS. In this final rule, EPA is merely providing an interpretation of those requirements. However, even if this interpretation did establish an independent requirement for states to submit SIPs, it is questionable whether such a requirement would constitute a federal mandate in any case. The obligation for a state to submit a SIP that arises out of section 110 and section 172 (part D) of the CAA is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 21(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as falling within the exception for a condition of federal assistance under section 21(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
The EPA has determined that this rule contains merely an interpretation of regulatory requirements and no regulatory requirements that may significantly or uniquely affect small governments, including tribal governments because these regulations affect federal agencies only.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have Federalism implications.” Policies that have “Federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”
This final action does not have federalism implications. It will 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, as specified in Executive Order 13132. This rule addresses the Court's vacatur and remand of a portion of the Phase 2 implementation rule for the 8-hour standard, namely an interpretation that allowed credit toward RFP for the 8-hour standard from emission reductions outside the nonattainment area. In addressing the vacatur and remand, this rule merely explains the requirements for RFP and does not impose any additional requirements. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13121 and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicited comments on the proposed rule from state and local officials.
This final rule does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have a substantial direct effect on one or more Indian tribes, since no tribe has to develop a SIP under this final rule. Furthermore, this final rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship of the federal government and Tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.
This final action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because EPA does not have reason to believe the environmental health or safety risk addressed by the 8-hour ozone RFP Regulations present a disproportionate risk to children. This final action addresses whether a SIP will adequately and timely achieve reasonable further progress to attain and maintain the NAAQS and meet the obligations of the CAA. The NAAQS are promulgated to protect the health and welfare of sensitive population, including children. However, EPA solicited comments on whether this action would result in an adverse environmental effect that would have a disproportionate effect on children.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final action will address the Court's vacatur and remand of a portion of the Phase 2 implementation rule for the 8-hour standard, namely an interpretation that allowed credit toward RFP for the 8-hour standard from emission reductions outside the nonattainment area. This final action merely explains the requirements for RFP and does not impose any additional requirements.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, judicial review of today's final action is available by filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by October 13, 2009. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307(b)(2) of the Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Transportation, Volatile organic compounds.
42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7511–7511f; 42 U.S.C. 7601(a)(1).
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The revision amends the 8-hour ozone maintenance plan for the Scranton/Wilkes-Barre Area 8-Hour Ozone Maintenance Area (the Area). This revision amends the maintenance plan's 2009 and 2018 motor vehicle emissions budgets (MVEBs) by unequally dividing the existing approved MVEBs which covers the entire maintenance area into three sub-regional MVEBs, one set of MVEBs for each county comprising the area. The revised plan continues to demonstrate maintenance of the 8-hour national ambient air quality standard (NAAQS) for ozone. EPA is approving this SIP revision to the Pennsylvania maintenance plan for the Scranton/Wilkes-Barre Area in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on October 13, 2009 without further notice, unless EPA receives adverse written comment by September 10, 2009. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2009–0311 by one of the following methods:
A.
B.
C.
D.
Martin Kotsch, (215) 814–3335, or by e-mail at
Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA.
On November 11, 2007 (72 FR 64948) EPA redesignated the Scranton/Wilkes-Barre area of Pennsylvania to attainment for the 8-hour ozone NAAQS. For this area, the redesignation included approval of an 8-hour ozone maintenance plan, which identifies on-road MVEBs for Volatile Organic Compounds (VOCs) and Nitrous Oxides (NO
On April 21, 2008, the State of Pennsylvania submitted to EPA a formal revision to its State Implementation
The following table lists the previously approved MVEBs and the proposed reallocation of the MVEBs into sub-regional budgets for the Scranton/Wilkes-Barre area.
EPA is approving the 2009 and 2018 MVEBs for VOCs and NO
EPA is approving Pennsylvania's April 21, 2008 SIP revision submittal which amends the 8-hour ozone maintenance plans for the Scranton/Wilkes Barre area. This revision unequally divides the previously approved 2009 and 2018 MVEBs to create sub-regional MVEBs for the two counties comprising the area. EPA is approving this SIP revision because the April 21, 2008 submittal continues to demonstrate maintenance of the 8-hour ozone NAAQS with the aggregated sub-regional MVEBs. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment, since no significant adverse comments were received on the SIP revision at the State level. However, in the Proposed Rules section of today's
If EPA receives adverse comment, EPA will publish a timely withdrawal in the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
This action to approve the Scranton/Wilkes-Barre revised maintenance plan may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
(1) * * *
Environmental Protection Agency.
Direct final Notice of Deletion of the Delilah Road Landfill, Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 2 is publishing a direct final Notice of Deletion of the Delilah Road Landfill, Superfund Site (Site), located in
This direct final deletion is effective October 13, 2009 unless EPA receives significant adverse comments by September 10, 2009. If significant adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–2005–0011, by one of the following methods:
•
•
•
•
•
Tanya Mitchell, Remedial Project Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 19th Floor, New York, New York 10007–1866, (212) 637–4362,
EPA Region 2 is publishing this direct final Notice of Deletion of the Delilah Road Landfill, from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.
Because EPA considers this action to be noncontroversial and routine, this action will be effective October 13, 2009 unless EPA receives adverse comments by September 10, 2009. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Delilah Road Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
The following procedures apply to deletion of the Site:
(1) EPA consulted with the state of New Jersey prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the
(2) EPA has provided the state 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the New Jersey Department of Environmental Protection, has concurred on the deletion of the Site from the NPL.
(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper,
(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
(5) If significant adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The Delilah Road Landfill Site is located southwest of Delilah Road in Egg Harbor Township, Atlantic County, New Jersey, and is designated as Block 901, part of Lot 1 and all of Lots 2 and 52 on the Municipal Tax Map of Egg Harbor Township. This area is immediately northeast of the intersection of the Garden State Parkway and the Atlantic City Expressway (Exit 38 of the Garden State Parkway). The surrounding area is a suburb of Atlantic City, comprised of residential areas, small businesses, and warehouses. The regional topography is generally flat. The Site consists of approximately 52 acres of land at an average elevation of 50 feet above mean sea level.
The Atlantic City Reservoir is about a mile and a half north of the Site. The closest surface water is Jarrets Run, located 1,000 feet to the north of the landfill. This small and often dry creek runs into Absecon Creek, which flows into Absecon Bay. The New Jersey Water Company's public water supply wells are located to the northwest, northeast, southeast and southwest of the landfill and less than a mile away from the Site.
The Site was originally used for sand and gravel excavation. It was later converted into a solid waste disposal area. In 1972, NJDEP issued a Certificate of Registration for the operation of a sanitary landfill. At present, no future reuse/development is known. Deed restrictions at the Site stipulate no residential development is permitted.
Landfill operations ceased in 1980, when fill material reached the final design elevation. NJDEP records suggest that the landfill was not operated properly and not closed correctly. Several violations of NJDEP regulations were reported by NJDEP inspectors during the years of landfill operations and after operations ceased. These included emissions of foul odors, windblown paper and other material, and other operational and closure inadequacies. A 1982 preliminary assessment report prepared by EPA indicated that the landfill may have a potential impact on groundwater.
On October 4, 1984, the Delilah Road Landfill Site was placed on the National Priorities List (NPL) of Superfund sites (49 FR 40320). In June of 1985, Camp Dresser and McKee initiated a remedial investigation and feasibility study (RI/FS) to investigate the nature and extent of hazardous substances present at the Site. The RI/FS activities were conducted under state authority in accordance with New Jersey Regulations for Oversight of Contaminated Sites, N.J.A.C 7:26C. A field investigation of the Site was initiated in February 1986 to evaluate remedial alternatives to mitigate public health and environmental impacts associated with the landfill.
The Phase I RI/FS activities and the Phase II RI/FS activities conducted in 1986 and 1988 did not identify the presence of any organic compounds in the soil samples from under the fill material in the landfill which needed to be addressed. Metals were found at levels typical of background concentration of natural soils. Groundwater monitoring data for wells located upgradient, downgradient and side gradient to the landfill indicated the presence of several metals (chromium, lead, nickel, mercury, aluminum and zinc) in concentrations that exceeded the New Jersey Ground Water Quality Standards. The metal concentrations were consistent with background levels and no site related contamination was found in groundwater that warranted action. The RI/FS concluded that no response action was required under CERCLA. New Jersey, in accordance with New Jersey Regulations for Oversight of Contaminated Sites, N.J.A.C 7:26C, selected a remedy that would provide proper closure of the landfill and require closure monitoring and controls be enforced by the responsible parties.
On September 28, 1990, NJDEP issued a ROD in accordance with New Jersey Regulations for Oversight of Contaminated Sites, N.J.A.C 7:26C, which presented the selected remedy for the Site that included: Placement of an impermeable layer cap on the landfill; installation of a surface water control system; installation of a landfill gas collection and treatment system based on design studies to confirm the need for this system; implementation of an air and groundwater monitoring program; fencing of the Site; and establishment of an appropriate deed restriction. Since the RI/FS determined that response under CERCLA was not required, the EPA did not concur on the remedy.
In March 1993, the Delilah Road Potentially Responsible Party (PRP) group implemented a groundwater investigation at the Site in order to
NJDEP issued an ESD in September 1998 which substituted the soil cap for the impermeable cap. Under the modified remedy, the landfill soil cap would consist of 18 inches of soil cover over approximately 47 acres. The modified remedy includes all of the other elements of the selected ROD including: Fencing of the Site and establishment of appropriate deed restrictions; a groundwater quality monitoring program; installation of a surface water runoff control system; and installation of a landfill gas collection and treatment system subject to design studies confirming the need for such a system.
The PRP Group, composed of American Cyanamid Company (now Wyeth Holdings Corporation), Lenox Incorporated, and Atlantic City Electric Company, prepared a Remedial Action Work Plan Outline (RAWPO) which described the remedial design (RD) and RA activities needed to complete the project. The RAWPO was approved by NJDEP in accordance with New Jersey Regulations for Oversight of Contaminated Sites, N.J.A.C 7:26C and was included in the ACO, executed by the PRP Group and NJDEP, and became effective October 12, 1994.
In accordance with the RAWPO and the ACO, a Phase I RAWP was prepared and submitted to NJDEP to present the Site investigation activities proposed to support the design of the soil cap at the Site. A revised RAWP was approved by NJDEP February 1999. The Site investigation activities included: Delineation of the lateral extent of the landfill waste; determination of the existing cover depth within the landfill; and monitoring along the landfill perimeter for landfill gas. The lateral extent of the landfill waste was found to be limited to Block 901 Lots 2 and 52, and a small area of Lot 1. The extent of the existing soil cover within the interior of the landfill ranged from a few inches to 1.5 feet, and lateral migration of the landfill gas was detected in only one localized area beneath E. Atlantic Avenue.
The results of the Phase I investigation provided the basis for the soil cap design. The landfill waste delineation determined the necessary extent of the soil cap to be constructed, the landfill cover thickness information supported the soil cap grading requirements, and the landfill gas monitoring verified that a passive gas migration control/venting system would be necessary in a localized area of the landfill adjacent to E. Atlantic Avenue. NJDEP approved the June 16, 1999 Phase I Remedial Action Report (RAR) August 1999.
The PRP Group's consultant engineer, Environmental Resources Management (ERM), prepared remedial design plans and specifications, which NJDEP approved May 30, 2001 in the Phase II RAWP. ERM also served as the construction quality assurance (CQA) consultant to the PRP Group. On November 1, 2001, the PRP Group selected Envirocon, Inc. as the RA contractor for the construction of the soil cap. The contractor started construction in December of 2001.
The Phase II remedial actions included: Modification of existing groundwater monitoring well risers located within the areal extent of the cap system; regrading of the Site to achieve designed subgrade elevations; construction of an 18-inch soil cap over the subgrade, which included the placement of 12 inches of general fill (cover soil) and 6 inches of topsoil; hydroseeding of disturbed areas; installation of slope bench drains, downslope drains, and construction of three percolation basins; construction of a passive trench gas migration control/venting system parallel with and adjacent to East Atlantic Avenue; installation of a site security fence around the Site perimeter; and, construction of access roads.
EPA accompanied NJDEP during a pre-final Site inspection held on June 26, 2002. Minimal deficiencies were found and few punch list items were identified. Activities at the Site were found to be completed and in accordance
There were no cleanup goals required under CERCLA. The construction was performed under NJDEP oversight. NJDEP has determined that the RA was constructed consistent with the ROD as amended by the ESD and the Phase II RAWP and issued a No Further Action (NFA) determination on August 18, 2006.
Community involvement relative to the landfill remedial action was solicited throughout the RI/FS and RD/RA process. The RI and FS Reports (prepared by Camp Dresser & McKee Inc.), which include the proposed remedial action alternative for the Site, were released to the public August 25, 1989. These documents were made available to the public at two information repositories: The Egg Harbor Township Municipal Building, Bargaintown, New Jersey and the Atlantic County Library, Bargaintown, New Jersey. Additional documentation regarding the remedy selection was made available within the administrative record for the remedy, which was placed in the NJDEP Division of Hazardous Site Mitigation, Bureau of Community Relations, in Trenton, New Jersey. The notice of availability for these documents was sent to residents, state, county, and local officials, and was published in local newspapers. In addition, a public meeting was held on August 18, 1989. At this meeting, representatives from NJDEP and EPA answered questions concerning the contamination and conditions at the Site and the remedial alternatives under consideration.
Community concerns regarding the landfill have remained at a moderate to low level throughout the remedial action activities. The major concern had been contamination of residential and business water supply wells. However, this concern was mitigated by the installation of a public water supply system proximate to the Site for area wide contamination of groundwater.
One of the three criteria for site deletion is that “the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.” The contribution to that risk from exposure to soil was estimated to be 7 × 10
The EPA, with concurrence of the State of New Jersey through the New Jersey Department of Environmental Protection, has determined that all appropriate response actions under CERCLA, have been completed. Therefore, EPA is deleting the Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Communications Commission.
Final rule.
In this document, we amend our Schedule of Regulatory Fees to collect $341,875,000 in regulatory fees for Fiscal Year (FY) 2009, pursuant to section 9 of the Communications Act of 1934, as amended (the Act). These fees are mandated by Congress and are collected to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities.
Effective September 10, 2009.
Daniel Daly, Office of Managing Director at (202) 418–1832, or Roland Helvajian, Office of Managing Director at (202) 418–0444.
1. In this Report and Order we conclude the Assessment and Collection of Regulatory Fees for Fiscal Year (FY) 2009 proceeding
2. On May 14, 2009, we released a Notice of Proposed Rulemaking and Order (
3. We note at the outset that in the context of their comments on the FY 2009 regulatory fee proceeding, commenters
4. In our FY 2009 regulatory fee assessment, we will use the same section 9 regulatory fee assessment methodology adopted for FY 2008. Each fiscal year, the Commission proportionally allocates the total amount that must be collected via section 9 regulatory fees. The results of our FY 2009 regulatory fee assessment methodology (including a comparison to the prior year's results) are contained in Appendix B. To collect the $341,875,000 required by Congress, we adjust the FY 2008 amount upward by approximately 9.6 percent and allocate this amount across the various fee categories. Consistent with past practice, we then divide the FY 2009 amount by the number of payment units in each fee category to determine the unit fee.
5. In calculating the FY 2009 regulatory fees listed in Appendix C, we further adjusted the FY 2008 list of payment units (see Appendix D) based upon licensee databases and industry and trade group projections. In some instances, Commission licensee databases were used; in other instances, actual prior year payment records and/or industry and trade association projections were used in determining the payment unit counts.
6. As in previous years, we consider additional factors in determining regulatory fees for AM and FM radio stations. We did not receive any comments on the use of these factors. These factors are facility attributes and the population served by the radio station. The calculation of the population served is determined by coupling current U.S. Census Bureau data with technical and engineering data, as detailed in Appendix E. Consequently, the population served, as well as the class and type of service (AM or FM), will continue to determine the regulatory fee amount to be paid.
7. In a
8. By way of brief background, in the proposed fee rates for submarine cable systems in the
9. After the adoption of the
10. In our
11. After the adoption of the
12. In our
13. In our
14. Commercial Mobile Radio Service (CMRS) Messaging Service, which replaced the CMRS One-Way Paging fee category in 1997, includes all narrowband services.
15. One commenter, AAPC, addressed this issue.
16. As part of our comprehensive effort to review our regulatory fees process for possible ways to make the process more equitable, we sought comment in our
17. The commenters present a number of competing arguments on whether carriers should be assessed regulatory fees for their terrestrial non-common carrier circuits. In the
18. In our
19. In our
20. For the reasons discussed in the
21. There are many benefits to licensees for using the Commission's electronic filing and payment system: (1) Expeditious submission of payment; (2) no postage or courier costs (when paid through Fee Filer); (3) fewer errors caused by illegible handwriting or payments submitted without an FRN number or the appropriate data attributes (
22. We realize that not all licensees are able to pay their regulatory fees using Fee Filer. In some instances, the regulatory fee payment may be greater than $99,999, in which case, the use of a credit card will be limited by restrictions placed on it by the U.S. Treasury. For those licensees who choose to pay by check or money order or pay via wire transfer, a voucher Form 159–E will be needed before mailing the check to the Commission's lockbox bank, or in the case of a wire transfer, faxing the Form 159–E to the lockbox bank. For those licensees choosing to make a payment using their bank account (also known as an Automated Clearing House (“ACH”) payment), the submission of Form 159–E to the lockbox bank will not be necessary. In such situations, regardless of whether a payment is made online or submitted with a check or money order along with a Form 159–E, the Commission's requirement now is to begin the process of paying regulatory fees by starting with Fee Filer. The primary difference is that by starting the payment process using Fee Filer, even if the payment is then mailed to the Commission's lockbox bank, a voucher Form 159–E will be generated that will have important electronic attributes associated with this regulatory fee payment.
23. The mandatory use of Fee Filer to begin the regulatory fee payment process is an important step forward in providing our licensees with a paperless, electronic environment to use when conducting business with the Commission. This practice of using Fee Filer will not only enable the Commission to process regulatory fee payments more efficiently and accurately, it will also benefit licensees by reducing the administrative burden of filing and paying annual regulatory fees. Because no comments or reply comments were submitted to the contrary regarding this issue, we will institute a mandatory use of Fee Filer to begin the process of filing to pay annual regulatory fees. Beginning in the FY 2009 regulatory fee cycle, only Form 159–E documents generated from Fee Filer will be permitted when sending in a regulatory fee payment to U.S. Bank.
24. In prior years, the Commission mailed pre-bills via surface mail to licensees in select regulatory fee categories: Interstate telecommunications service providers (ITSPs), Geostationary (GSO) and Non-Geostationary (NGSO) satellite space station licensees,
25. The ACA contends that because there are many small cable operators and independent earth station licensees, the Commission should provide notice to each licensee via e-mail when the pre-bill information for CARS and Earth Stations is available for viewing in Fee Filer.
26. The Commission does not maintain a systematic listing of e-mail addresses for individual CARS and Earth Station licensees, and so, attempting to use such a listing to contact small cable operators and independent earth station licensees may not prove useful. However, because all pre-bills will be loaded into Fee Filer, once Fee Filer becomes operational, this will be the signal by which licensees can view their pre-bill information online. As we have for many years, the Commission will post a Public Notice online announcing the date Fee Filer will become operational, and once this Notice is published, licensees will know that they can view their pre-bill information in Fee Filer. Having provided this Notice to licensees and having urged licensees to use Fee Filer for several years, the Commission will not provide a 180-day grace period for regulatory fee payments as ACA suggests.
27. In its comments, AT&T suggests that the Commission notify licensees of their obligation to pay submarine cable system regulatory fees. AT&T contends that because there is a new regulatory fee methodology for submarine cable fees, and there can be multiple license holders for each submarine cable system, the Commission should try to contact the license holders of submarine cable systems to inform them of their obligation to pay submarine cable regulatory fees.
28. Included below are procedural items as well as our current payment and collection methods that we have revised over the past several years to expedite the processing of regulatory fee payments. We include these payments and collection procedures here as a useful way to remind regulatory fee payers and the public about these aspects of the annual regulatory fee collection process. For FY 2009, we have not changed our procedures with the exception of Pre-Bills, which as discussed above the Commission will no longer be sending out via surface mail. We also discuss at the outset a procedural matter about waivers raised by a commenter.
29. In its comments, the Named State Broadcasters Associations (State Associations) suggested that the Commission's standard for deciding whether to grant a waiver for financial hardship should be revised to allow greater flexibility.
30. We decline to adopt the State Associations' proposals. In establishing the regulatory fee program, the Commission recognized that in certain instances payment of a regulatory fee may impose an undue financial hardship upon a licensee. The Commission therefore decided to grant waivers or reductions of its regulatory fees in those instances where a “petitioner presents a compelling case of financial hardship.”
31. Each year we post public notices and fact sheets pertaining to regulatory fees on our web site. These documents contain information about the payment due date and the regulatory fee payment procedures. We will continue to post
32. Beginning in FY 2003, we sent fee assessment notifications via surface mail to media services entities on a per-facility basis.
33. Although the Commission will continue to mail media assessment notifications, licensees (including media services) will be required to use Fee Filer as the first step to paying their regulatory fee obligations. The notification assessments are primarily intended to provide licensees with media data attributes and should not be considered a substitute to using Fee Filer as the first step in filing and paying regulatory fees. As explained previously in paragraphs 19 through 23, licensees must first log onto the Commission's Fee Filer system to begin the process of filing and paying their regulatory fees, but once in Fee Filer, licensees may pay by check or money order, credit card, wire transfer, or by ACH. To pay by check, money order, or wire transfer, licensees must log onto Fee Filer and generate a Form 159–E before mailing in their payment along with Form 159–E.
34. As we have done in prior years, we will continue to mail an assessment letter to CMRS providers using data from the Numbering Resource Utilization Forecast (NRUF) report that is based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”).
35. We will also continue our procedure of giving entities an opportunity to revise their subscriber counts by sending an initial and a final assessment letter. If the carrier does not agree with the number of subscribers listed on the initial assessment letter, the carrier can correct its subscriber count on the letter and return it by the date specified in the assessment letter or by contacting the Commission and stating a reason for the change (
36. Because some carriers do not file the NRUF report, they may not receive a letter of assessment. In these instances, the carriers should compute their fee payment using the standard methodology
37. We will continue to permit cable television operators to base their regulatory fee payment on their company's aggregate year-end subscriber count, rather than requiring them to sub-report subscriber counts on a per community unit identifier (CUID) basis.
38. In FY 2006, we streamlined the CMRS payment process by eliminating the requirement for CMRS providers to identify their individual calls signs when making their regulatory fee payment, requiring instead for CMRS providers to pay their regulatory fees only at the aggregate subscriber level without having to identify their various call signs.
39. In FY 2007, we adopted a proposal to round lines 14 (total subject revenues) and 16 (total regulatory fee owed) on FCC Form 159–W to the nearest dollar. This revision enabled the Commission to process the ITSP regulatory fee payments more quickly because rounding was performed in a consistent manner and eliminated processing issues that occurred in prior years. In FY 2009, we will continue rounding lines 14 and 16 when calculating the FY 2009 ITSP fee obligation, but as indicated earlier, we will not be mailing out Form 159–W via surface mail.
40. All lock box payments to the Commission for FY 2009 will be processed by U.S. Bank, St. Louis, Missouri, and payable to the FCC. For all regulatory fees, the address is: Federal Communications Commission, Regulatory Fees, P.O. Box 979084, St. Louis, MO 63197–9000.
41. The receiving bank for all wire payments is the Federal Reserve Bank, New York, New York (TREAS NYC). When making a wire transfer, regulatees must fax a copy of their Fee Filer generated Form 159–E to U.S. Bank, St. Louis, Missouri at (314) 418–4232 at least one hour before initiating the wire transfer (but on the same business day), so as to not delay crediting their account. Wire transfers initiated after 6:00 p.m. (EDT) will be credited the next business day. Complete instructions for making wire payments are posted at
42. Regulatees whose total FY 2009 regulatory fee liability, including all categories of fees for which payment is due, is less than $10 are exempted from payment of FY 2009 regulatory fees.
43. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
•
•
•
• The first eleven regulatory fee categories in our Schedule of Regulatory Fees (
•
•
44. Regulatory fee payments must be received and stamped at the lockbox bank by the last day of the regulatory fee filing window to be considered timely. Section 9(c) of the Act requires us to impose an additional charge as a penalty for late payment of any regulatory fee.
45. We will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made.
46. As required by the Regulatory Flexibility Act of 1980 (RFA),
47. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.
48. This Report and Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA.
49. Accordingly,
50.
51.
52.
Administrative practice and procedure.
15 U.S.C. 79
(a) The following schedule applies for the listed services:
(b) (1)
(2) The fee amount, per active 64 KB circuit or equivalent will be determined for each fiscal year. Payment, if mailed, shall be sent to: FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000.
(c)
The following appendixes will not appear in the Code of Federal Regulations.
In order to calculate individual service fees for FY 2009, we adjusted FY 2008 payment units for each service to more accurately reflect expected FY 2009 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireline Competition Bureau's
We tried to obtain verification for these estimates from multiple sources and, in all cases, we compared FY 2009 estimates with actual FY 2008 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated exactly. These include an unknown number of waivers and/or exemptions that may occur in FY 2009 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2009 payment units are based on FY 2008 actual payment units, it does not necessarily mean that our FY 2009 projection is exactly the same number as FY 2008. We have either rounded the FY 2009 number or adjusted it slightly to account for these variables.
For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phasing, spacing and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (RMS) figure milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or modified standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in 73.150 and 73.152 of the Commission's rules.
The greater of the horizontal or vertical effective radiated power (ERP) (kW) and respective height above average terrain (HAAT) (m) combination was used. Where the antenna height above mean sea level (HAMSL) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50–50) propagation curves specified in 47 CFR 73.313 of the Commission's rules to predict the distance to the principal community (70 dBu (decibel above 1 microVolt per meter) or 3.17 mV/m) contour for each of the 360 radials.
1. As required by the Regulatory Flexibility Act (RFA),
2. This rulemaking proceeding was initiated for the Commission to amend its Schedule of Regulatory Fees in the amount of $341,875,000, which is the amount that Congress has required the Commission to recover. The Commission seeks to collect the necessary amount through its revised Schedule of Regulatory Fees in the most efficient manner possible and without undue public burden.
3. No parties have raised issues in response to the IRFA.
4. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
5. Small Businesses. Nationwide, there are a total of approximately 27.2 million small businesses, according to the SBA.
6. Small Organizations. Nationwide, there are approximately 1.6 million small organizations.
7. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”
8. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (
9. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
10. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
11. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
12. Toll Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
13. Payphone Service Providers (PSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA
14. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
15. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
16. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
17. 800 and 800-Like Service Subscribers.
18. Satellite Telecommunications and All Other Telecommunications. These two economic census categories address the satellite industry. The first category has a small business size standard of $15 million or less in average annual receipts, under SBA rules.
19. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
20. The second category of All Other Telecommunications comprises,
21. Wireless Telecommunications Carriers (except Satellite). This category includes cellular, PCS, and certain SMR. Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category.
22. Internet Service Providers. The 2007 Economic Census places these providers, which includes voice over Internet protocol (VoIP) providers, in the category of All Other Telecommunications.
23. Common Carrier Paging. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite) firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.”
24. In addition, in the
25. Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent
26. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years.
27. 1670–1675 MHz Services. An auction for one license in the 1670–1675 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity.
28. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size
29. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years.
30. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses.
31. Narrowband Personal Communications Services. The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less.
32. Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits.
33. The Commission recently reexamined its rules governing the 700 MHz band in the
34. Upper 700 MHz Band Licenses. In the
35. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments.
36. Specialized Mobile Radio. The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years.
37. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard.
38. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1500 or fewer employees.
39. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to Wireless Telecommunications Carriers (except Satellite).
40. 220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, the Commission adopted a small business size standard for defining “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments.
41. Private Land Mobile Radio (PLMR). PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, Wireless Telecommunications Carriers (except Satellite). This definition provides that a small entity is any such entity employing no more than 1,500 persons.
42. The Commission's 1994 Annual Report on PLMRs
43. Fixed Microwave Services. Fixed microwave services include common carrier,
44. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years.
45. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications.
46. 218–219 MHz Service. The first auction of 218–219 MHz (previously referred to as the Interactive and Video Data Service or IVDS) spectrum resulted in 178 entities winning licenses for 594 Metropolitan Statistical Areas (MSAs).
47. Location and Monitoring Service (LMS). Multilateration LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million.
48. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service.
49. Air-Ground Radiotelephone Service.
50. Aviation and Marine Radio Services. There are approximately 26,162 aviation, 34,555 marine (ship), and 3,296 marine (coast) licensees.
51. Offshore Radiotelephone Service. This service operates on several ultra high frequencies (UHF) television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico.
52. Multiple Address Systems (MAS). Entities using MAS spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, the Commission defines “small entity” for MAS licenses as an entity that has average gross revenues of less than $15 million in the three previous calendar years.
53. With respect to the second category, which consists of entities that use, or seek to use, MAS spectrum to accommodate internal communications needs, we note that MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the small business size standard developed by the SBA would be more appropriate. The applicable size standard in this instance appears to be that of Wireless Telecommunications Carriers (except Satellite). This definition provides that a small entity is any such entity employing no more than 1,500 persons.
54. 1.4 GHz Band Licensees. The Commission conducted an auction of 64 1.4 GHz band licenses, beginning on February 7, 2007,
55. Incumbent 24 GHz Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of Wireless Telecommunications Carriers (except Satellite). This category provides that such a company is small if it employs no more than 1,500 persons.
56. Future 24 GHz Licensees. With respect to new applicants in the 24 GHz band, we have defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $15 million.
57. Broadband Radio Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).
58. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities.
59. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.”
60. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
61. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 380.
62. In addition, there are also 2,295 low power television stations (LPTV).
63. Radio Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.”
64. We note, however, that in assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
65. Auxiliary, Special Broadcast and Other Program Distribution Services. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. The applicable definitions of small entities are those, noted previously, under the SBA rules applicable to radio broadcasting stations and television broadcasting stations.
66. The Commission estimates that there are approximately 5,618 FM translators and boosters.
67. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”
68. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide.
69. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”
70. Open Video Systems. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.
71. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. This cable service is defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”
72. Multichannel Video Distribution and Data Service. MVDDS is a terrestrial fixed microwave service operating in the 12.2–12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years.
73. Amateur Radio Service. These licensees are held by individuals in a noncommercial capacity; these licensees are not small entities.
74. Aviation and Marine Services. Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except Satellite), which is 1,500 or fewer employees.
75. Personal Radio Services. Personal radio services provide short-range, low power radio for personal communications, radio signaling, and business communications not provided for in other services. The Personal Radio Services include spectrum licensed under Part 95 of our rules.
76. Public Safety Radio Services. Public Safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services.
77. With certain exceptions, the Commission's Schedule of Regulatory Fees applies to all Commission licensees and regulatees. Most licensees will be required to count the number of licenses or call signs authorized, complete and submit an FCC Form 159 Remittance Advice, and pay a regulatory fee based on the number of licenses or call signs.
78. As discussed previously in the accompanying Order at paragraphs 19 through 23, the Commission has concluded that beginning in the FY 2009 regulatory fee cycle, licensees filing their annual regulatory fee payments must begin the process by entering the Commission's Fee Filer system with a valid FRN and password. In some instances, it will be necessary to use a specific FRN and password that is linked to a particular regulatory fee bill. Going forward, the submission of hardcopy Form 159 documents will not be permitted for making a regulatory fee payment. By requiring licensees to use Fee Filer to begin the regulatory fee payment process, errors resulting from illegible handwriting on hardcopy Form 159's will be reduced, and we will create an electronic record of licensee payment attributes that are more easily traced than those payments that are simply mailed in with a hardcopy Form 159.
79. Licensees and regulatees are advised that failure to submit the required regulatory fee in a timely manner will subject the licensee or regulatee to a late payment penalty of 25 percent in addition to the required fee.
80. The Commission's rules currently provide for relief in exceptional circumstances. Persons or entities may request a waiver, reduction or deferment of payment of the regulatory fee.
81. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
82. Several categories of licensees and regulatees are exempt from payment of regulatory fees. Also, waiver procedures provide regulatees, including small entity regulatees, relief in exceptional circumstances. We note that small entities should be assisted by our implementation of the Fee Filer program, and that we have continued our practice of exempting fees whose total sum owed is less than $10.00.
83. The Commission will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
Our annual regulatory fee assessment for submarine cable operators is based on the total capacity for the submarine cable system. For this reason, we require submarine cable operators to advise us of the appropriate category for determining regulatory fees. Please indicate below the correct category and return this letter to us by February 15, 20___.
Thank you for your assistance in this matter.
I _____ certify under penalty of perjury that the foregoing and supporting information is true and correct to the best of my knowledge, information and belief.
Bureau of Industry and Security, Commerce.
Proposed rule.
This proposed rule would update and clarify export and reexport license requirements on striking weapons, restraint devices, shotguns and parts, optical sighting devices, and electric shock devices. It would also add equipment designed for executions to the Commerce Control List. This proposed rule would make no changes to the longstanding policy of denial of applications to export or reexport specially designed implements of torture. The proposed rule would provide additional illustrative examples of such items and would adopt a definition of torture used in a U.S. statute that implements the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. BIS is publishing this rule as part of an ongoing review of crime control license requirements and policy.
Comments concerning this rule must be received by BIS no later than September 25, 2009.
Comments on this rule may be submitted to the Federal eRulemaking Portal at
Chantal Lakatos, Office of Non-proliferation and Treaty Compliance, Bureau of Industry and Security, telephone: 202–482–1739; fax: 202–482–4145; e-mail:
The Export Administration Regulations (15 CFR parts 730–774) impose license requirements for certain exports from the United States and reexports from other countries for, among other reasons, “crime control.” The crime control license requirements are intended for the “support of U.S. foreign policy to promote human rights throughout the world” (15 CFR 742.7(a)). This rule is part of an effort by BIS to review and, where appropriate, revise the crime control license requirements in the Export Administration Regulations. In connection with this effort, BIS published a notice of inquiry seeking public comments on whether the scope of items and destinations that are subject to crime control license requirements should be changed (73 FR 14769, March 19, 2008). After reviewing the public comments on that notice and conducting its own policy deliberations, BIS plans to proceed with this review in stages.
In the first stage, BIS is publishing this proposed rule, which addresses relatively simple extensions, modifications or removals of items currently on the Commerce Control List or additions to that list of items that have a clearly identified crime control or law enforcement nexus.
In one or more subsequent stages, BIS intends to address more complex Commerce Control List matters such as whether, and, if so, the extent to which biometric measuring devices, integrated data systems, simulators, and communications equipment should be listed on the Commerce Control List; the degree to which software and technology related to commodities on the Commerce Control List should be listed and how such software and technology should be described; and general policy issues such as whether the range of destinations to which crime control license requirements apply should be modified.
• The rule would add the phrase “Law enforcement” to the heading.
• The rule would add “multipoint restraint devices including restraint chairs” to the illustrative list of restraint devices because use of these devices has increased in recent years and because they have potential for use in human rights abuse.
• The rule would also revise the related controls paragraph of this ECCN to note (a) that finger cuffs and shock sleeves are classified under ECCN 0A983—Specially designed implements of torture, (b) that law enforcement restraint devices that administer an electric shock are controlled under ECCN 0A985, and (c) that electronic devices that monitor and report a person's location to enforce restrictions on movement for law enforcement or penal reasons are controlled under ECCN 3A981.
• This rule would add a note stating that this ECCN does not apply to medical devices that are equipped to restrain patient movement during medical procedures, devices that confine memory-impaired patients to appropriate medical facilities, or safety equipment such as safety belts or child automobile safety seats.
BIS believes that the proposed revised language would clarify the scope of ECCN 0A982 and is not a substantive change.
The heading of ECCN 0A983 would be revised to add the word “including” immediately following the phrase “specially designed implements of torture” to make clear that the items listed are examples of specially designed implements of torture rather than an exclusive list of such implements. The heading would also be revised to add fingercuffs, spiked batons and shock sleeves to the ECCN as additional examples of specially designed implements of torture. A new note would state that “torture” in this ECCN has the same meaning as set forth in 18 U.S.C. 2340(1), which is the definition employed by the United States criminal statute that implements the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. BIS believes that these changes would more clearly distinguish specially designed implements of torture from crime control and detection items.
BIS is seeking public comments on this rule and will consider all comments received on or before September 25, 2009 in developing any final rule. Comments received after that date will be considered if feasible, but their consideration cannot be assured. All public comments on this rule must be in writing (including electronic postings on
1. This rule is a significant rule for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as this term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Exports, Terrorism.
Exports, Reporting and recordkeeping requirements.
Accordingly, BIS proposes to amend the Export Administration Regulations (15 CFR parts 730–774) as follows:
1. The authority citation for part 742 is revised to read as follows:
50 U.S.C. app. 2401
2. In § 742.7, revise the heading, redesignate existing paragraph (a)(5) as paragraph (a)(6), add a new paragraph (a)(5) and revise paragraph (d) to read as follows:
(a) * * *
(5) Items designed for the execution of human beings as identified in ECCN 0A981 require a license to all destinations including Canada.
(d)
3. In § 742.11, revise the heading and paragraph (d) to read as follows:
(d)
4. The authority citation for part 774 continues to read as follows:
50 U.S.C. app. 2401
5. In Supplement No. 1 to part 774, Category 0, revise the heading of Export Control Classification (ECCN) 0A978 to read as follows:
6. In Supplement No. 1 to part 774, Category 0, add a new ECCN 0A981 immediately following ECCN 0A980 and immediately preceding ECCN 0A982 to read as follows:
Control(s): CC applies to entire entry. A license is required for all destinations regardless of end-use. Accordingly, a column specific to this control does not appear on the Commerce Country Chart. (See § 742.7 of the EAR for additional information.)
LVS: N/A.
GBS: N/A.
CIV: N/A.
b. Electric chairs for the purpose of executing human beings.
c. Air tight vaults designed for the execution of human beings by the administration of a lethal gas or substance.
d. Automatic drug injection systems designed for the execution of human beings by administration of a lethal substance.
7. In Supplement No. 1 to part 774, Category 0, ECCN 0A982, revise the
Note to ECCN 0A982. This ECCN applies to restraint devices used in law enforcement activities. It does not apply to medical devices that are equipped to restrain patient movement during medical procedures. It does not apply to devices that confine memory impaired patients to appropriate medical facilities. It does not apply to safety equipment such as safety belts or child automobile safety seats.
8. In Supplement No. 1 to part 774, Category 0, ECCN 0A983, revise the heading, and add a note at the end of ECCN 0A983 to read as follows:
Note to ECCN 0A983. In this ECCN, “torture” has the meaning set forth in Section 2340(1) of Title 18, United States Code.
9. In Supplement No. 1 to part 774, Category 0, ECCN 0A984, revise the heading and the license requirements section of ECCN 0A984 to read as follows:
10. In Supplement No. 1 to part 774, Category 0, ECCN 0A985, revise the heading and the “Related Controls” paragraph of the “List of Items Controlled” section to read as follows:
11. In Supplement No. 1 to part 774, Category 0, ECCN 0A987, revise the heading and the “Items” paragraph of the “List of Items Controlled” section to read as follows:
b. Holographic sights.
c. Reflex or “red dot” sights.
d. Reticle sights.
e. Other sighting devices that contain optical elements.
f. Laser pointing devices designed for use on firearms.
g. Lenses, other optical elements and adjustment mechanisms for articles in paragraphs a, b, c, d or e.
12. In Supplement No. 1 to part 774, Category 0, ECCN 0E984, revise the license requirements section of ECCN 0E984 to read as follows:
13. In Supplement No. 1 to part 774, Category 3 add a note to the end of ECCN 3A981 to read as follows:
Note to ECCN 3A981. In this ECCN, electronic monitoring restraint devices are devices used to record or report the location of confined persons for law enforcement or penal reasons. The term does not include devices that confine memory impaired patients to appropriate medical facilities.
Federal Trade Commission (FTC or Commission)
Re-opening the record for submission of public comments.
The FTC re-opens the time period for filing public comments in response to its Advance Notice of Proposed Rulemaking and Request for Public Comments for sixty (60) days.
Written comments must be received on or before October 13, 2009.
Interested parties are invited to submit written comments. Comments should refer to “Prenotification Negative Option Rule Review, Matter No. P064202” to facilitate the organization of comments. Please note that your comment – including your name and your state – will be placed on the public record of this proceeding, including on the publicly accessible FTC website, at (
Because comments will be made public, they should not include any sensitive personal information, such as an individual’s Social Security Number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential treatment is requested must be filed in paper form and clearly labeled “Confidential.”
Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (
A comment filed in paper form should include the “Prenotification Negative Option Rule Review, Matter No. P064202” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room H–135 (Annex Q), 600 Pennsylvania Avenue, N.W., Washington, DC. 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.
The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (
Robin Rosen Spector, (202) 326–3740 or Matthew Wilshire, (202) 326–2976, Attorneys, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC. 20580.
On May 14, 2009, the Commission published an Advance Notice of Proposed Rulemaking (“Notice”) seeking comment on the overall costs, benefits, necessity, and regulatory and economic impact of the FTC’s Trade Regulation Rule concerning “Use of Prenotification Negative Option Plans”
Three parties filed requests for an extension of the comment period in this matter in mid-July. The Commonwealth of Pennsylvania, Office of Attorney General, Bureau of Consumer Protection, “along with several other states including without limitation, Vermont, Florida, Iowa and Colorado” (collectively “states”) requested a 30-day extension. The Broward County
These entities explain that extension of the comment period will allow them to provide more comprehensive comments. Specifically, the states explain that they are compiling data responsive to some of the Notice’s specific questions and that the data they collect may be relevant to the Commission’s decision on whether to expand the Negative Option Rule to cover additional types of negative option offers. Similarly, Broward County explains that it has received numerous complaints concerning trial conversion negative option offers that it believes demonstrate that an expansion of the Rule’s coverage is warranted. Finally, the AALL explains that it represents “more than 5000 law librarians who are institutional consumers of enormous amounts of legal and other published material,” and as such, are parties to many types of negative option plans. AALL states that it is requesting information from its membership regarding the Rule and an extension of the comment period would provide it with additional time to collect this data.
All of this data would assist the Commission in evaluating the Rule’s effectiveness and determining whether there is reason to believe that unfair or deceptive acts or practices in non-Rule covered negative option marketing are “prevalent.” Moreover, the requested short extension of the comment period will not substantially delay the rulemaking process. The Commission is mindful of the need to deal with this matter expeditiously; however, it also recognizes that its Notice requests comments on complex issues and believes that extending the comment period to facilitate the creation of a more complete record outweighs any harm that might result from any delay. The requests for an extension of the comment period were filed close to the comment deadline; therefore, there was insufficient time to extend the comment period. Accordingly, the Commission has decided to re-open the comment period for sixty (60) days, until October 13, 2009, to allow for additional comment.
By direction of the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania for the purpose of amending the 8-hour ozone maintenance plan for the Scranton/Wilkes-Barre 8-Hour Ozone Maintenance Area. This revision amends the maintenance plan's 2009 and 2018 motor vehicle emissions budgets (MVEBs) by unequally dividing the overall MVEBs into three sub-regional MVEBs for each county comprising the area. In the Final Rules section of this
Comments must be received in writing by September 10, 2009.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2009–0311 by one of the following methods:
A.
B.
C.
D.
Martin Kotsch, (215) 814–3335, or by e-mail at
For further information, please see the information provided in the direct final action, with the same title, that is located in the Rules and Regulations section of this
Environmental Protection Agency (EPA).
Proposed rule; extensions of comment periods.
The EPA is announcing extensions of the comment periods until August 31, 2009 for three actions proposed on July 10 and July 14, 2009. These proposed actions concern approval of California's Reformulated Gasoline and Diesel Fuels programs (74 FR 33196 (July 10, 2009), correction 74 FR 35838 (July 21, 2009)); limited approval and limited disapproval of San Joaquin Valley Air Pollution Control District's (SJVAPCD) Rule 4570 “Confined Animal Facilities” (74 FR 33948 (July 14, 2009); and partial approval and partial disapproval of the 1-Hour Ozone Extreme Area Plan for the San Joaquin Valley (74 FR 33933 (July 14, 2009).
Comments must be received on these proposals by August 31, 2009.
Submit comments, separately for each proposed action and identified by the correct docket number, by one of the following methods:
1.
2.
3.
On July 10 and 14, EPA proposed the following revisions to the California State Implementation Plan (SIP).
The proposed actions each provided a 30-day public comment period. In response to a request submitted by e-mail on July 10, 2009, from Brent Newell, Center for Race, Poverty, and the Environment on behalf of the Association of Irritated Residents and the Natural Resources Defense Council, EPA is extending the comment periods on all three proposals until August 31, 2009.
Environmental Protection Agency.
Notice of intent to delete the Delilah Road Landfill Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 2 is issuing a Notice of Intent to Delete the Delilah Road Landfill Superfund Site (Site) located in Egg Harbor Township, New Jersey, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of New Jersey, through the New Jersey Department of Environmental Protection, have determined that all appropriate response actions under CERCLA, have been completed. However, this deletion does not preclude future actions under Superfund.
Comments must be received by September 10, 2009.
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–2005–0011, by one of the following methods:
•
•
•
•
•
All documents in the docket are listed in the
Tanya Mitchell, Remedial Project Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 19th Floor, New York, New York 10007–1866, (212) 637–4362, e-mail:
In the “Rules and Regulations” Section of today's
For additional information, see the direct final Notice of Deletion which is located in the
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Emergency Management Agency, DHS.
Notice of proposed rulemaking.
This proposed rule implements aspects of the Disaster Mitigation Act of 2000 by reducing the Federal cost share of FEMA Public Assistance to public and certain private nonprofit facilities repetitively damaged in the preceding 10 years by the same type of event and for which required hazard mitigation has not been
Submit comments on or before October 13, 2009.
You may submit comments, identified by Docket ID FEMA–2008–0006, by one of the following methods:
Tod Wells, Acting Director, Public Assistance Division, Federal Emergency Management Agency, 500 C Street, SW., Room 414, Washington, DC 20472–3100, (phone) 202–646–3936; (facsimile) 202–646–3304; or (e-mail)
Each year, disasters strike the United States, including natural events such as hurricanes, tornadoes, storms, earthquakes, volcanic eruptions, landslides, snowstorms, and droughts and events that occur from various other causes such as fires, floods, and explosions. When a disaster occurs and a locality has responded to the best of its ability and is, or will be, overwhelmed by the magnitude of the damage, the community turns to the State for help. If it is evident that the situation is or will be beyond the combined capabilities of the local and State resources, the Governor may request that the President declare that an emergency or major disaster exists in the State, under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
If an emergency or major disaster is declared, the Federal Emergency Management Agency (FEMA) may award Public Assistance grants to assist State, Tribal, and local governments and certain private nonprofit entities (applicants), as defined in subpart H of 44 CFR part 206, with the response to and recovery from disasters. Specifically, the Public Assistance Program provides assistance for debris removal, emergency protective measures and permanent restoration of infrastructure. To obtain these Public Assistance grants for damaged facilities, the applicants must identify disaster-related damage which is documented on a Project Worksheet (PW), referenced at 44 CFR 206.201(i).
The PW is the basis for Public Assistance grants and FEMA uses the PW to document eligible costs. Federal funding is subject to the cost share provisions established in the Stafford Act (42 U.S.C. 5172(b)), and FEMA-State Agreement (44 CFR 206.47(a)). Typically, the Federal cost share is 75 percent of the eligible costs identified on the PW.
In 2000, the President signed into law the Disaster Mitigation Act of 2000 (DMA 2000), Public Law 106–390, 42 U.S.C. 5121 note. Subsection 205(b) of DMA 2000 amended section 406 of the Stafford Act by adding a new paragraph (b)(2) (42 U.S.C. 5172(b)(2)) which states:
The President shall promulgate regulations to reduce the Federal share of assistance under this section to not less than 25 percent in the case of the repair, restoration, reconstruction, or replacement of any eligible public facility or private nonprofit facility following an event associated with a major disaster—(A) that has been damaged, on more than one occasion within the preceding 10-year period, by the same type of event; and (B) the owner of which has failed to implement appropriate mitigation measures to address the hazard that caused the damage to the facility.
In accordance with the amendment to section 406 of the Stafford Act, this proposed rule would reduce the Federal cost share to 25 percent of eligible costs if the applicant has not taken appropriate mitigation measures on a repetitively damaged facility. FEMA identified a number of key issues in drafting this proposed rule. These include: (A) Defining a “facility” as it relates to the new statutory provision; (B) determining when the requirements of the new provision will become effective; (C) determining what qualifies as “more than one occasion;” (D) defining the “same type of event;” (E) determining the amount of the cost share reduction; (F) defining an “appropriate mitigation measure;” and the process for identifying such mitigation measures; and (G) establishing a system to identify repetitively damaged facilities. FEMA discusses each of these issues individually below. FEMA invites comment on each of these issues as well as any other issues the public may find relevant.
FEMA proposes to use the existing definition of a “facility” in 44 CFR 206.201(c). The existing definition states: “Facility means any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. Land used for agricultural purposes is not a facility.” Using the existing definition of “facility” in 44 CFR 206.201(c) will eliminate any potential confusion caused by a separate definition for the application of this rule and ensure programmatic consistency.
FEMA would begin the process of counting events for eligible damaged facilities only after it issues an effective rule. While one might argue that FEMA should have begun tracking such events upon the enactment of the DMA 2000, FEMA proposes not to begin that process until it issues an effective rule, in order to give applicants ample time to implement appropriate mitigation
FEMA would reduce the Federal cost share upon the third occurrence of damage to an eligible facility. In drafting the proposed rule, FEMA contemplated reducing the Federal cost share upon the second damaging event. However, the Stafford Act states that the reduction in benefits can only occur to a facility “that has been damaged, on more than one occasion.” A facility that is damaged on “more than one occasion” has suffered damage at least twice. Therefore, the benefit reduction would have to occur on or after the third occasion. Consistent with the statutory language, FEMA would reduce Federal assistance upon the third occurrence of the “same type of event.”
Another issue that FEMA addressed is the definition of the “same type of event” that will trigger the cost share reduction mandates. FEMA considered how precisely the term “event” should be defined. The proposed rule defines “same type of event” as one that is the same major disaster type (e.g., hurricane, tornado, flood, or earthquake). FEMA documents the major disaster type on every PW. By defining “same type of event” by major disaster type, FEMA can easily track and ensure consistent application of the proposed rule. For example, if a facility was damaged by a hurricane three times in a 10-year period, the facility would be considered a repetitively damaged facility. However, to trigger the cost share reduction under this rule, the applicant must have been required, and failed to take, “appropriate mitigation measures,” which are discussed below. “Appropriate mitigation measures” would address the type of damage that the facility sustained.
The new cost share reduction provision of the Stafford Act does not contain a damage threshold amount below which this provision does not apply. However, in situations where eligible facilities sustain less than $1,000 in damages during a major disaster, the damage is not eligible for FEMA assistance. See 44 CFR 206.202(d)(2). Therefore, FEMA would not consider the event that resulted in damage in an amount less than $1,000 as an “event” for the purposes of implementation of the new statutory provision. Similarly, under the proposed rule if an eligible applicant elects to pay 100 percent of the costs to repair a particular facility and those costs would otherwise have been eligible for FEMA assistance, FEMA would not count the disaster as an “event” with regard to that particular facility.
This proposed rule also describes how FEMA proposes to calculate the cost share reduction. FEMA must define how it will “reduce the Federal share of assistance under this section to not less than 25 percent” of eligible costs for facilities that have been damaged repetitively and whose owners have not implemented appropriate hazard mitigation measures. Rather than imposing a cost share reduction on a gradual basis, the proposed rule imposes a cost share reduction to 25 percent of eligible costs immediately upon the occurrence of the third event.
FEMA drafted the proposed rule to effect a direct reduction in cost share from no less than 75 percent to 25 percent; i.e., FEMA would not make any variable cost share between 75 and 25 percent. FEMA reasoned that this is consistent with the Congressional desire that this type of concern be addressed aggressively and independent of FEMA's other hazard mitigation authorities. FEMA concluded that a “sliding” scale would subject FEMA to routine cost share negotiations and appeals whenever a facility met the repetitive loss criteria, and that the development of lengthy criteria to detail exactly how and when the sliding reduction would occur, as well as a resulting complex rule that would be difficult to implement consistently, would place undue administrative burdens on disaster assistance applicants and on FEMA. FEMA also considered a stepped cost share reduction, e.g., 75 percent ➾50 percent ➾25 percent, but concluded that this option would not result in mitigation against future losses as quickly as going directly to a 25 percent reduction immediately upon the third event. FEMA notes that Congress set 25 percent as the most stringent reduction and thus FEMA concludes that going directly to that percentage reduction is the most effective means to meet the objective of the statute, absent use of a sliding scale or stepped cost share reduction. Therefore, this proposed rule implements the 25 percent reduction immediately upon the third event.
In drafting this proposed rule, FEMA also considered the definition of the statutory language “appropriate mitigation measures” for the purpose of implementing the amendment to section 406 of the Stafford Act, (42 U.S.C. 5172(b)(2)). Sections 203, 322, 404, and 406 of the Stafford Act and their implementing regulations such as 44 CFR 201.2, 206.2, 206.111, 206.117, and 206.431 currently reference “hazard mitigation measures,” “eligible hazard mitigation measures,” “hazard mitigation measures that are cost effective,” and “hazard mitigation criteria required by the President.” However, the new provision of the Stafford Act, 42 U.S.C. 5172(b)(2), contains the first reference within the Stafford Act to “appropriate mitigation measures” and there is no legislative history that clarifies the meaning of this new statutory language.
In the proposed rule FEMA has defined “appropriate mitigation measures” using the same definition as “hazard mitigation” which is defined in 44 CFR 206.2(a)(14). Section 206.2(a)(14) defines “hazard mitigation” as: “Any cost effective measure which will reduce the potential for damage to a facility from a disaster event.” FEMA's policy to determine cost-effectiveness under the Public Assistance program includes mitigation measures that amount up to 15 percent of the total eligible cost of the eligible repair work on a particular project, certain mitigation measures that FEMA has pre-determined cost-effective, and an acceptable benefit/cost analysis methodology. See FEMA Public Assistance Guide FEMA 322 (June 2007), Disaster Assistance Policy 9526.1, “Hazard Mitigation Funding Under Section 406 (Stafford Act)” (available at:
The applicant would have to perform the appropriate mitigation measure on the damaged component of the facility. The appropriate mitigation should be for the type of damage sustained (wind,
FEMA examined several options for determining appropriate mitigation measures for a facility. FEMA considered linking an “appropriate mitigation measure” to compliance with current, local building codes applicable to certain hazards, such as earthquakes. However, such a definition would not be adequate for all hazards, such as floods, affecting all disaster-prone communities in the United States.
FEMA also considered defining “appropriate mitigation measures” in terms of probabilities,
Under section 322 of the Stafford Act and 44 CFR 201.4 and 201.7, a State or Indian Tribal government acting as a Grantee must have, at a minimum, a FEMA approved Standard State or Tribal Mitigation Plan in effect to receive certain types of non-emergency assistance under the Stafford Act. Under section 322 of the Stafford Act and 44 CFR 201.4, a local or Indian Tribal government must have an approved local or Indian Tribal plan in effect to receive assistance under the Hazard Mitigation Grant Program (HMGP). Since FEMA believes that it is important for its hazard mitigation programs to complement one another, FEMA proposes to require that any appropriate mitigation measure for an eligible facility be consistent with the State Mitigation Plan or Tribal Mitigation Plan, if the Indian Tribal government is the Grantee, as described at 44 CFR 201.4 through 44 CFR 201.6.
State Mitigation Plans provide general mitigation planning guidelines for mitigation measures throughout the State, while Local and/or Indian Tribal Mitigation Plans provide more specific criterion for appropriate mitigation measures for a facility. FEMA was concerned that, in the absence of a Local and/or Indian Tribal Mitigation Plan for a designated area, the State Mitigation Plan would not provide sufficient guidance regarding appropriate mitigation measures for a facility. FEMA considered requiring revision to, or creation of, a Local and/or Indian Tribal Mitigation Plan should a specific appropriate mitigation measure not be specified for a facility; however, the time required to do so could cause unacceptable delays in providing appropriate mitigation to the facility. Further, State Mitigation Plans as described under 44 CFR 201.4 already require the State to coordinate mitigation measures with Local or Tribal Mitigation Plans, where they exist.
To implement the proposed requirements in this rulemaking, FEMA needs to collect repetitive loss information. FEMA would track the history of the provision of disaster assistance following Presidentially-declared major disasters by applicant and facility through the use of its National Emergency Management Information System (NEMIS)/Emergency Management Mission Integrated Environment (EMMIE) computer program and database in which all PW's are stored. FEMA would use the latitude and longitude documented on the PW and entered into NEMIS/EMMIE for the damaged facility to track repetitively damaged facilities. Tracking and recording this information in NEMIS/EMMIE would assist FEMA in correctly and consistently interpreting the requirements in this proposed rule, and if the Federal cost share is reduced it would serve as essential documentation for resolving appeals that may follow.
The National Environmental Policy Act of 1969 (NEPA), Public Law 91–190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
Pursuant to 44 CFR 10.8(c)(2), action taken or assistance provided under sections 402, 403, 407, or 502 of the Stafford Act and action taken or assistance provided under section 406 of the Stafford Act that has the effect of restoring facilities substantially as they existed before a major disaster or emergency are statutorily excluded from NEPA and the preparation of environmental impact statements and environmental assessments by section 316 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as amended, 42 U.S.C. 5159. Also, 44 CFR 10.8(d)(2)(xix) excludes hazard mitigation activities under the Stafford Act, and 44 CFR 10.8(d)(2)(ii) excludes the preparation, revision and adoption of regulations from the preparation of an EA or EIS where the rule relates to actions that qualify for categorical exclusions, FEMA has determined that this proposed rule is categorically excluded from the preparation of an EA or an EIS. Further, the changes proposed by this rule are administrative changes to the Public Assistance program that would have no effect on the environment.
As required by the Paperwork Reduction Act of 1995 (PRA) Public Law 104–33 (44 U.S.C. 3501
In order to accurately record damaged facilities and, therefore, track repetitively damaged facilities, FEMA would use the latitude and longitude for the damaged facility. FEMA already collects the latitude and longitude of facilities on the PW and enters the latitude and longitude into NEMIS/EMMIE. The PW instructions currently require the latitude and longitude for all damaged facilities. The PW instructions fall under OMB Collection No. 1660–0017 “Project Worksheets and Continuation Forms” which expires December 31, 2011. There would be no additional burden to the approved collection as a result of the changes proposed in this rule.
FEMA has prepared and reviewed this rule under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, a significant regulatory action is subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order 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 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 a 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 the Executive Order.
This proposed rule does not meet the criteria under paragraph 2, 3, or 4 of the provision of the Executive Order. In addition, FEMA determined that it is not likely to have a significant economic impact of $100 million or more per year (under paragraph 1 of this provision). This proposed rule has not been reviewed by OMB.
As authorized by DMA 2000, this proposed rule would reduce the Federal cost share to 25 percent for eligible Public Assistance cost to repair, restore, reconstruct or replace an eligible public facility or private nonprofit facility that has been damaged twice within the preceding 10 years by the same type of event and the owner of the facility has not implemented appropriate mitigation measures before the third event of the same type. The proposed rule would not affect the Public Assistance eligibility requirements. Further, the proposed rule would only affect public facilities and eligible private nonprofit facilities. It would not affect grants made under the Individual Assistance program.
The statutory mandate imposed upon FEMA required the agency to reduce the Federal share to “not less than 25 percent” of eligible costs, and did not specifically mandate that FEMA establish the 25 percent rate chosen in this rule. Rather than imposing a cost share reduction on a gradual basis, the proposed rule imposes a cost share reduction to 25 percent of eligible costs immediately upon the occurrence of the third event. Developing objective criteria for an incremental cost share reduction from 75 percent to 25 percent (perhaps with a median reduction at 50 percent) would likely result in a complex rule that FEMA could not implement consistently without placing additional administrative burdens on disaster assistance applicants, as well as an undue burden on FEMA to develop and administer such a rule. Therefore, this proposed rule would implement the full 25 percent reduction immediately upon the third event.
FEMA cannot predict with certainty the future number of major disasters that will affect the nation in a given year or the number of facilities that will be repetitively damaged from those disasters. However, between January 1, 1998, and January 1, 2008, there was an average of 54 major disaster declarations made per year. Out of the approximately 88,060 Public Assistance applicants in the past 10 years, FEMA identified 1,756 of those applicants that suffered similar damage within the same damage category at least twice in that time period. These applicants would have, if this proposed rule had been in effect, undertaken mitigation efforts or risk a reduced cost share percentage should a disaster of the same type damage their facility a third time within 10 years of the first of those two disasters. This figure only amounts to 2 percent of all Public Assistance applicants. The total eligible cost for these 1,756 Public Assistance applicants was $1.32 billion (in 2008 dollars)
Under section 406 of the Stafford Act, 42 U.S.C. 5172(b)(1), the Federal share could not be less than 75 percent of eligible costs. Under the terms of this proposed rule which would implement the new paragraph 42 U.S.C. 5172(b)(2), if applicants failed to implement appropriate mitigation measures for these repetitively damaged facilities, the percentage of the Federal share would be reduced to 25 percent. Taking a conservative estimate and assuming that all 1,756 applicants failed to implement appropriate mitigation measures, the cost implication would be as follows: 75 percent of the eligible costs of $132 million is $99 million and 25 percent of $132 million is $33 million, so the potential reduction in Federal assistance would be approximately $66 million annually based on an analysis of the period January 1, 1998 through January 1, 2008.
Under the proposed rule, to be eligible for the full Federal cost share an applicant must implement required hazard mitigation measures prior to the third event of the same type. The required hazard mitigation will vary from facility to facility. However, typical mitigation measures include, but are not limited to, the relocation out of hazardous locations, slope stabilization, protection from high winds (shutters, hurricane clips, anchors), flood proofing of buildings (elevation, use of flood-resistant materials), flood protection of bridges and culverts (use clear spans instead of multiple spans, riprap), protecting against seismic changes (bracing, anchoring), and the protection of utilities (anchoring, use of disaster-resistant materials, elevation). In general, appropriate mitigation measures should be cost-effective.
The cost to mitigate these facilities may be eligible for the HMGP, so States, local and/or Tribal governments and some private nonprofit entities may be able to seek Federal funds to offset the cost of mitigation efforts. Although this proposed regulation would not affect the HMGP, additional information regarding the program may be found in FEMA's regulations in 44 CFR parts 78, 201, and 206 and at
This proposed rule could potentially have an impact of approximately $66 million per year. As a benefit, this reduced Federal cost share would provide an incentive to mitigate repetitive damage. Mitigation focuses on breaking the cycle of disaster damage, reconstruction, and repeated damage. Mitigation efforts provide value to the
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States and, to the extent practicable, must consult with State and local officials before implementing any such action.
FEMA has reviewed the proposed rule under Executive Order 13132 and has concluded that the proposed rule, which implements statutory requirements, does not have federalism implications as defined by Executive Order 13132. FEMA has determined that the rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion. This rulemaking amends a voluntary grant program that may be used by State, local and Tribal governments and eligible private nonprofit organizations to receive Federal grants to assist in the recovery from disasters. States are not required to seek grant funding, and this rulemaking does not limit their policymaking discretion. In addition, FEMA actively encourages and solicits comments on this proposed rule from interested parties.
Under Executive Order 12898, as amended “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, Feb. 16, 1994), FEMA has undertaken to incorporate environmental justice into its policies and programs. Executive Order 12898 requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in, denying persons the benefit of, or subjecting persons to discrimination because of their race, color, or national origin or income level.
The purpose of this rule is to reduce the Federal cost share for repetitively damaged facilities where the owner of the facility has not implemented appropriate mitigation measures. This reduced Federal cost share would provide an incentive to mitigate future damage. Mitigation focuses on breaking the cycle of repeated disaster damage. Mitigation efforts provide value to the American people by creating safer communities and reducing loss of life and property, enables communities to recover more rapidly from disasters, and lessens the financial impact of disasters on individuals, the United States Department of the Treasury, State, local and Tribal communities.
No action that FEMA can anticipate under the proposed rule will have a disproportionately high and adverse human health or environmental effect on any segment of the population. In accordance with Congressional mandates, the proposed rule implements the Federal cost share reduction for repetitively damaged facilities. Accordingly, the requirements of Executive Order 12898 do not apply to this proposed rule.
FEMA has reviewed this proposed rule under Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, Nov. 9, 2000). Under Executive Order 13175, FEMA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute. In reviewing the proposed rule, FEMA finds that because Indian Tribal governments are potentially eligible applicants under the Public Assistance program, the proposed rule does have “tribal implications” as defined in the Executive Order. The implications of the proposed rule, however, will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The proposed rule does not impose substantial direct compliance costs on Indian Tribal governments nor does it preempt tribal law, impair treaty rights nor limit the self-governing powers of Indian Tribal governments.
Furthermore, this regulatory change is required by statute. This proposed regulation would implement an amendment to 42 U.S.C. 5172(b), which mandates a reduction in the percentage of Federal funding provided after a public or private nonprofit facility has been damaged more than once within the preceding 10 years by the same type of event and the owner of the facility has not implemented appropriate mitigation measures before the third event of the same type.
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121, 110 Stat. 847, 858–9 (March 29, 1996) (5 U.S.C. 601 note)), agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). The RFA applies to any proposed rulemaking subject to notice and comment under section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). The RFA requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules.
FEMA used 2000 U.S. Census Bureau data to identify actual Public Assistance applicants that under the RFA could be considered small entities. FEMA identified 920 Public Assistance applicants with populations of 50,000 or less that suffered similar damage within the same damage category twice over the past 10 years. Therefore, these 920 Public Assistance applicants could be considered small entities under the RFA and could potentially meet the definition of repetitively damaged facilities if their facility is damaged a third time within that 10-year period. Out of the 920 Public Assistance applicants that are considered small entities, 914 are small governmental jurisdictions and 6 are private nonprofit (PNP) organizations. These 920 small entities amount to approximately 52 percent of the total 1,756 applicants that suffered similar damage at least twice over the past 10 years.
Assuming that all 920 Public Assistance applicants failed to implement required hazard mitigation and suffered damage a third time, so that they meet the definition of a repetitively damaged facility, this would only amount to one percent of all Public Assistance applicants. The total eligible cost was $429.32 million (in 2008
Under the terms of this proposed rule, if applicants failed to implement required hazard mitigation for these repetitively damaged facilities, FEMA would reduce the percentage of the Federal cost share to 25 percent. Under section 406 of the Stafford Act, 42 U.S.C. 5172(b)(1), the Federal share could not be less than 75 percent of eligible costs. Since 75 percent of $42.93 million is $32.20 million and 25 percent of $42.93 million is $10.73 million, the potential reduction would be $21.47 million in Federal assistance each year. As a result, the average impact to these 920 applicants is $23,337 per year (= 21,470,000/920).
FEMA measured the annual impact of this rule on each of these 914 small governmental jurisdictions
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, 109 Stat. 48 (March 22, 1995) (2 U.S.C. 1501
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.
FEMA has reviewed this rule under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” (53 FR 8859, Mar. 18, 1988) as supplemented by Executive Order 13406, “Protecting the Property Rights of the American People” (71 FR 36973, June 28, 2006). This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630.
FEMA will send this rule to Congress and to the Government Accountability Office under the Congressional Review of Agency Rulemaking Act (Congressional Review Act), Public Law 104–121, 110 Stat. 873 (March 29, 1996) (5 U.S.C. 804) before it is effective. This proposed rule is not a “major rule” within the meaning of the Congressional Review Act. This rulemaking would not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, nor would it have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises.
Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs—housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs—housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Emergency Management Agency proposes to amend 44 CFR part 206 as follows:
1. The authority citation of Part 206 is revised to read as follows:
42 U.S.C. 5121 through 5207; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; 6 U.S.C. 101; EO 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
In § 206.226, add a new paragraph (l) to read as follows:
(l)
(1) “Appropriate mitigation measures” has the same meaning as “hazard mitigation” which is defined in § 206.2(a)(14). The appropriate mitigation measures for the facility must be consistent with the mitigation strategy identified in the State Mitigation Plan described in § 201.4 of this chapter, or the Tribal Mitigation Plan, if the Indian Tribal government is the Grantee as described in § 201.7 of this chapter.
(2) The 25 percent Federal cost share will not be applied to a facility that is damaged before the deadline to complete approved mitigation work in accordance with § 206.204(c) and (d).
(3) “Same type of event” means the same major disaster type, including but not limited to hurricane, tornado, flood, or earthquake.
(4) Damage to an eligible facility will not be counted as a repetitive damage “event” for that particular facility if the eligible applicant elects to pay 100 percent of the costs to repair the facility, or the facility sustains less than $1,000 in damage from the disaster event.
(5) Events will be counted toward repetitive status after [DATE 30 DAYS AFTER DATE OF PUBLICATION OF
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Advanced Notice of Proposed Rulemaking; notice of public meeting.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) are hosting a public meeting to continue a dialogue with industry and Government agencies about ways to develop greater assurance around information technology (IT) products acquired by the Government. The public meeting will include dialogues on the impact of counterfeit IT products on matters of performance and security; contractor liability and consequential damages; the competition aspects of procuring IT products from the original manufacturer or authorized distributors; viable means of representing authenticity of IT products; and contractor supply chain risk management requirements as an evaluation factor in the procurement of IT products.
August 13, 2009, 9 a.m. to 2 p.m. EST.
See
Mr. Ernest Woodson, Procurement Analyst, at (202) 501–3775 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAR case 2008–019.
The meeting will be held at the General Services Administration (GSA), 1800 F Street, NW, Washington, DC 20405. The meeting will be held in the GSA Auditorium.
Interested parties are encouraged to arrive at least 30 minutes early to accommodate security procedures.
If you wish to make a presentation on any of the topics, please contact and submit a copy of your presentation prior to the meeting, to the General Services Administration, Contract Policy Division (VPC), 1800 F Street, NW, Room 4040, Attn: Ernest Woodson, Washington, DC 20405. Telephone: 202–501–3775.
Submit electronic materials via e-mail to
On December 11, 2008, the Councils conducted a public meeting (see
While comments received will be considered in the preparation of a proposed rule, the public meeting contemplated by this notice and those conducted June 23, July 15 and 22, 2009 (see
The public meeting is intended to provide for an exchange of information and ideas that may be used to assist in developing greater assurance around information technology products acquired by the Government. While the focus of this notice is IT products, public meeting comments/presentations are invited on (1) whether the measures proposed herein should be expanded to include other items sold to the Government, such as Electrical, Electronic, and Electromechanical parts; (2) whether the rule should apply when IT is a component of a system or assembled product; and (3) whether vendors, distributors, and manufacturers of IT products and other items sold to the Government should be prequalified based on specific standards of testing, quality, traceability, integrity, and etc., before they are allowed to sell to the Government.
The Councils are particularly interested in hearing how industry participants can maintain the integrity of the supply chain while providing Government customers with a variety of cost effective and reliable sources. Previous meetings initiated discussion of how various trade associations and other representative groups could propose to police member organizations or provide some auditable certification or declaration program that provides Government customers with uniform, reasonable assurance that purchased products and subcomponents are not counterfeit.
Government procurement.
Fish and Wildlife Service, Interior.
Notice of 90–day petition finding and initiation of a status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the Jemez Mountains salamander (
We made the finding announced in this document on August 11, 2009. To allow us adequate time to conduct this review, we request that we receive information on or before October 13, 2009.
You may submit information by one of the following methods:
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R2–ES–2009–0041; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
We will post all information received on
Wally “J” Murphy, Field Supervisor, New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM 87113, by telephone (505–346–2525) or by facsimile (505–346–2542). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the status of the Jemez Mountains salamander. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the salamander. We are seeking information regarding:
(1) The historical and current status and distribution of the Jemez Mountains salamander, its biology and ecology, and ongoing conservation measures for the species and its habitat;
(2) The species' population size and population trend;
(3) Its taxonomy; and
(4) Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence and threats to the species or its habitat.
In this finding, we have identified gaps in the information provided in the petition to help to focus the public on areas where we would like relevant data submitted. If we determine that listing the Jemez Mountains salamander is warranted, we intend to propose critical habitat to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, with regard to areas within the geographical range currently occupied by the salamander, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, and whether any of these features may require special management considerations or protection. In addition, we request data and information regarding whether there are areas outside the geographical area occupied by the species that are essential to the conservation of the species. Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of the Act.
We will base our 12–month finding on a review of the best scientific and commercial information available, including all information received during this public comment period. Please note that submissions merely stating support for or opposition to the action under consideration, without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” Based on the status review, we will issue a 12–month finding on the petition, as provided in section 4(b)(3)(B) of the Act.
You may submit your information concerning this finding by one of the methods listed in the
If you submit information via
Information and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the
Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90–day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that the petition presented substantial information, we are required to promptly commence a review of the status of the species.
On October 15, 2008, we received a petition dated October 9, 2008, from WildEarth Guardians requesting that the Jemez Mountains salamander be listed as threatened or endangered under the Act, and critical habitat be designated. The petition clearly identified itself as such, and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). In a November 26, 2008, letter to the petitioner, we responded that we had reviewed the petition and determined that an emergency listing was not necessary. We also stated that, to the maximum extent practicable, we would address their petition within 90 days.
We initially considered the Jemez Mountains salamander for listing under the Act in the early 1980s (GAO August 1993, p. 30). In December 1982, we published a notice of review classifying the salamander as a Category 2 species (47 FR 58454, December 30, 1982). Category 2 status included those taxa for which information in the Service's possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. On February 21, 1990, we received a petition to list the salamander as threatened. Subsequently, we published a positive 90–day finding, indicating that the petition contained sufficient information to suggest that listing may be warranted (55 FR 38342, September 18, 1990). In the candidate notice of review (CNOR) published on November 21, 1991, we announced the salamander as a Category 1 species with a “declining” status (56 FR 58814). Category 1 status included those species for which the Service had on file substantial information regarding the species' biological vulnerability and threat(s) to support proposals to list them as endangered or threatened species. The “declining” status indicated decreasing numbers and/or increasing threats.
On May 30, 1991, the Service, the USDA Forest Service (Forest Service), and the New Mexico Department of Game and Fish (NMDGF) signed a Memorandum of Agreement (MOA) outlining actions to be taken to protect the salamander and its habitat on Forest Service lands, including the formation of a team of agency biologists to immediately implement the MOA and to develop a management plan for the species. The management plan was to be incorporated into the Santa Fe National Forest Plan. On April 3, 1992, we published a 12–month finding that listing the salamander was not warranted because of the conservation measures and commitments within the MOA (59 FR 11469). In the November 15, 1994, CNOR, we included the salamander as a Category 2 species, with a trend status of “improving” (59 FR 58982). A status of “improving” indicated those species known to be increasing in numbers and/or whose threats to their continued existence were lessening in the wild.
In the CNOR published on February 28, 1996, we announced a revised list of animal and plant taxa that were regarded as candidates for possible addition to the Lists of Endangered and Threatened Wildlife and Plants (61 FR 7596). The revised candidate list included only former Category 1 species. All former Category 2 species were dropped from the list in order to reduce confusion about the conservation status of these species, and to clarify that the Service no longer regarded these species as candidates for listing. Because the salamander was a Category 2 species, it was no longer recognized as a candidate species as of the February 28, 1996, CNOR.
In January 2000, the New Mexico Endemic Salamander Team (NMEST), a group of interagency biologists representing NMDGF, the Service, the U.S. Geological Survey, and the Forest Service, finalized a Cooperative Management Plan for the salamander on lands administered by the Forest Service (Management Plan), and the agencies signed an updated Conservation Agreement that superseded the MOA. The stated purpose of the Conservation Agreement and the Management Plan was to provide for the long-term conservation of salamanders by reducing or removing threats to the species and by proactively managing their habitat (NMEST 2000 Conservation Agreement, p. 1).
In a Decision Notice and Finding of No Significant Impact for the Forest Plan Amendment for Managing Special Status Species Habitat, signed on December 8, 2004, the Management Plan was incorporated into the Santa Fe National Forest Plan.
The Jemez Mountains salamander is a member of the family of lungless salamanders (Plethodontidae), the largest family of salamanders. The salamander is uniformly dark brown above, with occasional fine gold/brassy stippling dorsally (on the back and sides) and is sooty gray ventrally (underside). The body form is slender and elongate. The salamander possesses foot webbing and a reduced fifth toe. The salamander was originally reported as
Two species of plethodontid salamanders occur in New Mexico: The Jemez Mountains salamander and the Sacramento Mountains salamander (
The Jemez Mountains salamander is strictly terrestrial, does not possess lungs, and does not require standing surface water for any life stage. Respiration occurs through the skin and requires a moist microclimate for gas exchange. Reproduction in the wild remains unobserved, but it is presumed that the salamander lays eggs in spaces underground. Fully-formed salamanders hatch from the eggs. Based on examination of 57 female salamanders, Williams (1978, p. 475) concluded that females likely lay 7 or 8 eggs every other year, either in mid-August or, more likely, the spring after mating occurs in late July and August. Sexual maturity is reached at 3 to 4 years in females and 3 years in males (Degenhardt
The salamander occurs in the Jemez Mountains in northern New Mexico in Los Alamos, Rio Arriba, and Sandoval Counties. The species predominantly occurs in mixed-conifer forest at an elevation between 2,200 and 2,900 meters (7,220 and 9,510 feet), consisting mainly of Douglas fir (
A feeding habits study for the Jemez Mountains salamander was conducted by NMDGF in 1992. Salamander prey items were diverse in size and type; however, there were three categories of prey that were recognized as more important than the remaining groups: ants, mites, and beetles (Cummer 2005, p. 43). Cummer (2005, pp. 45–50) stated that prey specialization on any particular species of invertebrate was unlikely in the salamander; however, she did observe that selection of food appeared to not be random.
Although the petitioner believes that the number of salamanders likely exceeds 10,000, we are not aware of any current information from which a population estimate can be made. The petitioner's population estimate was derived from survey efforts conducted from 1967 through 2003; however, the petitioner acknowledges, and we agree, that these surveys are potentially unreliable because salamander observations are dependent on multiple factors, such as environmental conditions (e.g., temperature or moisture), detection probabilities, and time when the observations were made. Because of these variables, it is difficult to determine population size or trends. Based upon the information presented in the petition and in our files, we believe that a comprehensive assessment of all of the survey and population information is needed.
Section 4 of the Act (16 U.S.C. 1533), and implementing regulations at 50 CFR 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
In making this 90–day finding, we evaluated whether information regarding threats to the salamander, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petitioner asserts that the Jemez Mountains salamander or its habitat is threatened by the following conditions or actions: habitat loss and fragmentation, climate change, stand-replacing fires, fire suppression and rehabilitation, salvage logging, slash removal, forest thinning treatment projects, use and construction of roads and dams, chemical use, trail construction, and mining. We will address climate change and chemical use under Factor E.
The petitioner contends that the main threat and cause of Jemez Mountains salamander habitat loss is extensive, stand-replacing fires (severe fires in which most mature trees are destroyed). The petitioner reports on land area burned during the Dome (1996), Cerro Grande (2000), and BMG/Lakes (2002) wildfires. Information in our files indicates that these stand-replacing fires overlapped with salamander habitat; however the petition did not contain, nor we do have, a complete analysis of the extent or degree of salamander habitat that burned. The NMEST (2000, p. 9) stated that, “the greatest threat to this species is thought to be the potential for extensive stand-replacing fires.” The petitioner contends that there were negative effects to the salamander and its habitat from the Cerro Grande Fire, such as removal of canopy cover and increased soil temperatures (WildEarth Guardians 2008, pp. 23–24). Cummer and Painter (2007, p. 26) reported significant changes in microhabitat temperatures following the Cerro Grande Fire. The petitioner asserts that impacts on the salamander and its habitat from other stand-replacing wildfires (e.g. Dome Fire, BMG/Lakes Fires) was likely the same as effects from the Cerro Grande fire. We agree; however, we are not aware of an analysis that estimates the amount of salamander habitat affected by other wildfires. Finally, our files indicate that future stand-replacing wildfires in salamander habitat remain a threat.
The petitioner also claims that the effects of fire suppression and rehabilitation activities following wildfire threaten the Jemez Mountains salamander. For example, the petitioner indicates that, during the Cerro Grande Fire, suppression activities included the construction of 26 kilometers (km) (16 miles (mi)) of hand line (hand-dug trenches 1.5 to 3 meters (m) (5 to 10 feet (ft)) wide from which all combustible material was removed), 63 km (39 mi) of bulldozer line (larger fire breaks with vegetation removed by bulldozing), and safety zones; release of 514,000 liters (135,800 gallons) of fire retardant; and 53 km (32 mi) of road improvement resulting in vegetation removal within 30 m (100 ft) of either side of the roads (WildEarth Guardians 2008, p. 26). However, while information in our files
The petitioner describes how historical grazing and fire suppression have contributed to changes in forest structure and composition in the Jemez Mountains. Scientific literature (e.g., Allen 1989; Touchan
The petitioner believes that salvage logging after wildfire and associated thinning with removal of snags and slash in Jemez Mountains salamander habitat has had negative impacts to salamanders and their habitat. Logging can interrupt the development of salamander habitat by removing the requisite habitat components of canopy cover and dead and downed logs, while increasing temperature, erosion, runoff, and soil compaction (NMEST 2000, p. 5). Additionally, if these activities occur when salamanders are surface active, salvage logging could result in direct injury or mortality to individuals. The petitioner identifies that salvage logging and forest thinning have been proposed within salamander habitat, but we have no estimate on the amount of salamander habitat that has been impacted by these activities. Nevertheless, we found substantial information indicating that the Forest Service has conducted, and will likely continue to conduct, salvage logging in salamander habitat.
The petitioner asserts that habitat alteration due to road and trail building in salamander habitat has deleterious effects to the Jemez Mountains salamander and its habitat. The petitioner believes that construction of roads and trails fragments habitat, and high vehicular traffic or heavy equipment could cause excessive vibration resulting in settling of the subsurface rock and elimination of the underground spaces, presumed necessary as subterranean habitat. The petitioner provides information on the length of roads that were re-opened during and subsequent to wildfire. These roads likely affected the salamander and its habitat through vegetation removal, soil compaction, and the elimination of subsurface spaces. Roads are known to fragment terrestrial salamander habitat and act as partial barriers to movement (deMaynadier and Hunter 2000, p. 56; Marsh
The petitioner asserts that the improvement and realignment of New Mexico State Highway 126 (also called Forest Highway 12) has threatened, and will continue to threaten, the Jemez Mountains salamander. Information concerning the project provided by the petitioner was found to be reliable. For example, our files indicate that portions of the Highway 126 project resulted in the removal of salamander habitat as well as the destruction of individual salamanders and fragmentation of a relatively isolated population of salamanders.
The petitioner also notes that construction and maintenance of log skidder trails, while not likely to be as destructive as road construction and maintenance, still has similar effects on the Jemez Mountains salamander. The petitioner believes that trail construction and salvage logging operations are a threat to the salamander. The petitioner correctly indicates that approximately 4 km (2.5 mi) of trail were constructed by bulldozer in occupied salamander habitat.
The petitioner asserts that one of the common techniques used to survey for the presence or absence of the salamander destroys habitat because it involves destructive sampling by rearranging cover objects such as rocks and logs as well as tearing apart decayed logs. We have no information regarding the effects to salamander habitat from survey techniques (NMEST 2000, pp. 27–36); however, we will examine this claim more closely in our status review, and we request any additional information the public may have on this potential threat.
The petitioner asserts that the construction of dams and mining modify Jemez Mountains salamander habitat. Information in our files supports the claim that dams or water retention structures may have been constructed in salamander habitat. Specifically, the petitioner contends that an extension of the El Cajete Mine in the Jemez Mountains affects the salamander. Our files indicate that the Forest Service determined that the mine would not impact the salamander because the project was not located on northerly or moist slopes greater than 35 to 40 percent that support mature or old growth mixed conifer (Forest Service 1995a, pp. 12–13; Forest Service 1995b, p. 2). At the time of the project, steep slopes (greater than 30 percent) were thought to be a critical element of salamander habitat (Ramotnik 1988, p. 50). However, salamanders have been documented in areas of no significant slope (less than 5 percent) (NMDGF 2000, p. 8), and steep slopes are no longer considered a requirement of occupied habitat. Based on this more recent information, this project may have affected the salamander and its habitat, and there is potential for future mining activities to affect the salamander and its habitat. We find that the petition and information in our files indicate that construction of dams and future mining activities may result in adverse modifications to salamander habitat.
The petitioner provides substantial and reliable information that the salamander and its habitat may be threatened from stand-replacing fires; salvage logging; fire suppression; construction, maintenance, and use of roads and trails; construction of dams; and mining activities. The information presented in the petition is supported by information in our files, and presents substantial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of the habitat or range of the salamander.
The petitioner asserts that the salamander is threatened by loss of individuals through collection of specimens and surveying. The petition cites a report by the NMEST (2000) that summarizes the history of collection of the species. According to the petition, 977 Jemez Mountains salamanders were collected for scientific purposes from 1910 to 1999. The petitioner cites the report (NMEST 2000) in concluding that such collecting has likely reduced populations in localized areas. The petitioner also cites the report (NMEST
We find that the petition presents substantial information indicating that the petitioned action may be warranted due to overutilization for scientific purposes.
The petitioner states that disease is affecting the salamander. Information in our files indicates that the amphibian pathogenic fungus,
The petitioner provides no information addressing predation. Cummer (2005, p. 30) speculated that predation could increase subsequent to stand-replacing wildfire because of lack of sufficient cover objects while salamanders are surface active; however, we are not aware of any information to support this.
Because of the presence of Bd in the Jemez Mountains salamander's range and the deleterious effect of
The petitioner asserts that the salamander is threatened by inadequacy of existing regulatory mechanisms. The petitioner states that the regulatory mechanisms in place—the 2000 Conservation Agreement, the Management Plan, the Forest Plan and its amendments, and State law—are ineffective and unenforceable. The Management Plan was prepared by NMEST biologists “to provide guidance for the conservation and management of sufficient habitat to maintain viable populations of the species” (NMEST 2000, p. i.). Known and potential threats to the species were identified and detailed; management areas based on habitat zones were identified; potential management actions in salamander habitat and their potential impacts were identified; and guidelines were set forth pertaining to certain management actions relative to habitat categories (NMEST 2000, pp. 4–22). The intent of the Conservation Agreement, the Management Plan, and amendment of the Forest Plan was to protect the Jemez Mountains salamander and its habitat on lands administered by the Forest Service. However, the petitioner identifies multiple projects, both on and off Forest Service lands, that were counter to guidelines set forth in the Management Plan and recommendations by the NMEST (WildEarth Guardians 2008, pp. 28–54).
The petitioner provides examples of projects that they claim demonstrate the inadequacy of existing regulatory mechanisms and ongoing threats to the Jemez Mountains salamander and its habitat. Examples provided by the petitioner include actions following the 1996 Dome Fire, the 2000 Cerro Grande Fire, and the 2003 BMG/Lakes Fires; actions relative to the Valles II project (forest thinning and fuel reduction activities in areas adjacent to residential development); the Highway 126 project; dams at Los Alamos National Laboratory; and the El Cajete mine extension (WildEarth Guardians 2008, pp. 28–54). Our files support the claim that the Cooperative Agreement, Management Plan, and Federal or State laws have been ineffective at preventing actions that may threaten the salamander and its habitat.
The petitioner acknowledges that because the Jemez Mountains salamander was uplisted in New Mexico in 2005 from State threatened to endangered (NMDGF 2005, p. 2), it gained the protection of the Wildlife Conservation Act. The Wildlife Conservation Act prohibits direct take of the species except under issuance of a scientific collecting permit. However, this law only conveys protection from collection or intentional harm; no New Mexico State statutes address habitat protection, indirect effects, or other threats to the species identified by the State as endangered. NMDGF has the authority to consider and recommend actions to mitigate potential adverse effects to the salamander during its review of development proposals. The petitioner pointed out that the New Mexico State Game Commission, a part of the NMDGF, received financial reimbursement and provided easements for construction of the Highway 126 project (New Mexico Game Commission, 2006, p. 13). We could not find that any measures were incorporated to limit impacts to the salamander or its habitat (New Mexico Game Commission, 2006, pp. 12–13). Information in our files indicates that the Highway 126 project directly impacted salamanders and destroyed habitat.
Additionally, the petitioner asserts that threats to the species are not addressed on lands where the salamander occurs outside of the Santa Fe National Forest. Populations of salamanders have been observed on Tribal lands, Los Alamos National Laboratory lands, the Valles Caldera National Preserve, and private lands. Information in our files demonstrates that outside of State protection from collection and intentional harm, there are no State or Federal regulations providing specific protections for the salamander or its habitat beyond those populations within the Santa Fe National Forest.
The information provided by the petitioner was found reliable and was corroborated by information in our files. Consequently, we find that the petition contains substantial information that listing the salamander due to the inadequacy of existing regulatory mechanisms may be warranted.
The petitioner asserts that fire suppression, chemical use, and climate change threaten the salamander. Fire suppression is addressed under Factor A. Chemical use in salamander habitat includes fire suppression retardant and insecticides to prevent tree loss. Although information in our files indicates that fire retardant has been used in salamander habitat, it is unknown how much salamander habitat has been affected. Prior to 2006 (71 FR 42798, July 28, 2006) fire retardant used by the Forest Service contained sodium ferrocyanide, which is highly toxic to fish and amphibians (Pilliod
The petitioner asserts that climate change is likely an increasing threat to the salamander due to overall habitat drying and the species' requirement of moist microhabitats. In addition, the petitioner states that warmer springs and summers, earlier snowmelt, and increased forest fire severity, frequency, and duration will likely impact the salamander. The petitioner provides citations on climate change (Wildearth Guardians 2008, p. 55) and references Enquist and Gori (2008) to provide information regarding climate change in the Jemez Mountains. Enquist and Gori (2008, p. iii) report the Jemez Mountains as one of three areas in New Mexico that may be most vulnerable to climate change, in part, due to warmer-drier conditions or greater vulnerability in temperature and precipitation. The petitioner contends that the identified threats are exacerbated by the salamander's restricted distribution.
In general, the information currently available on the effects of climate change does not make sufficiently precise estimates of the location and magnitude of the effects in order to predict impacts to specific wildlife. However, given a specific prediction in scientific literature of warmer and drier conditions for the Jemez Mountains, and that such change would likely have a negative impact on the salamander, which requires moist microclimates, we find that the petitioned action may be warranted due to climate change.
Regarding the potential threat of chemical use, even though fire retardants and insecticides are currently being used, we did not find any substantial information that chemical use is actually affecting the salamander. We will investigate this potential threat further in our status review, and request any additional information the public may have on this potential threat.
We reviewed the petition and readily available supporting information and find that the petition presents substantial information for this factor under the threat of climate change, but not under the threat of chemical use.
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the
Our process for making this 90–day finding under section 4(b)(3)(A) of the Act is limited to a determination of whether the information in the petition presents “substantial scientific and commercial information,” which is interpreted in our regulations as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). We have reviewed the petition and the literature cited in the petition, and evaluated the information to determine whether the sources cited support the petitioned actions. We also reviewed reliable information that was readily available in our files to clarify and verify information in the petition. Based on our evaluation of the information provided in the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the Jemez Mountains salamander may be warranted. The petitioner presents substantial information indicating that the salamander may be threatened by Factor A (the present or threatened destruction, modification, or curtailment of its habitat or range), Factor C (disease), Factor D (inadequacy of existing regulatory mechanisms), and Factor E (other natural or manmade factors affecting its continued existence) throughout the entire range of the Jemez Mountains salamander. The petitioner does not present substantial information that Factor B (overutilization for commercial, recreational, scientific, or educational purposes) is currently, or in the future may be, considered a threat to the salamander.
Based on this review and evaluation, we find that the petition has presented substantial scientific or commercial information that listing the salamander throughout all or a portion of its range may be warranted due to current and future threats under Factors A, C, D, and E. Therefore, we are initiating a status review to determine whether listing the Jemez Mountains salamander under the Act is warranted. We will issue a 12–month finding as to whether any of the petitioned actions are warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding the salamander.
The “substantial information” standard for a 90–day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12–month finding to determine whether a petitioned action is warranted. A 90–day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination of whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, as part of the 12–month finding on a petition, which is conducted following a positive 90–day finding. Because the Act's standards for 90–day and 12–month findings are different, as described above, a positive 90–day finding does not mean that the 12–month finding also will be positive.
We encourage interested parties to continue gathering data that will assist with the conservation and monitoring of the salamander. The petitioner requests that critical habitat be designated for this species. If we determine in our 12–month finding that listing the salamander is warranted, we will address the designation of critical habitat at the time of the proposed rulemaking.
A complete list of all references cited in this finding is available upon request from the New Mexico Ecological
The primary authors of this rule are the staff members of the New Mexico Ecological Services Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule.
The U.S. Fish and Wildlife Service (hereinafter, Service or we) proposes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2009–10 migratory bird hunting season.
We will accept all comments on the proposed regulations that are postmarked or received in our office by August 21, 2009.
You may submit comments on the proposals by one of the following methods:
•
•
We will not accept e-mail or faxes. We will post all comments on
Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358–1714.
In the April 10, 2009,
We developed the guidelines for establishing special migratory bird hunting regulations for Indian Tribes in response to Tribal requests for recognition of their reserved hunting rights and, for some Tribes, recognition of their authority to regulate hunting by both Tribal and nontribal hunters on their reservations. The guidelines include possibilities for:
(1) On-reservation hunting by both Tribal and nontribal hunters, with hunting by nontribal hunters on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);
(2) On-reservation hunting by Tribal members only, outside of the usual Federal frameworks for season dates and length, and for daily bag and possession limits; and
(3) Off-reservation hunting by Tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.
In all cases, the regulations established under the guidelines must be consistent with the March 10 to September 1 closed season mandated by the 1916 Convention between the United States and Great Britain (for Canada) for the Protection of Migratory Birds (Treaty). The guidelines apply to those Tribes having recognized reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and on ceded lands. They also apply to establishing migratory bird hunting regulations for nontribal hunters on all lands within the exterior boundaries of reservations where Tribes have full wildlife management authority over such hunting or where the Tribes and affected States otherwise have reached agreement over hunting by nontribal hunters on lands owned by non-Indians within the reservation.
Tribes usually have the authority to regulate migratory bird hunting by nonmembers on Indian-owned reservation lands, subject to Service approval. The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing hunting by non-Indians on these lands. In such cases, we encourage the Tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a Tribe and State with the aim of facilitating an accord. We also will consult jointly with Tribal and State officials in the affected States where Tribes wish to establish special hunting regulations for Tribal members on ceded lands. Because of past questions regarding interpretation of what events trigger the consultation process, as well as who initiates it, we provide the following clarification. We routinely provide copies of
Our guidelines provide for the continued harvest of waterfowl and other migratory game birds by Tribal members on reservations where such harvest has been a customary practice. We do not oppose this harvest, provided it does not take place during the closed season defined by the Treaty, and does not adversely affect the status of the migratory bird resource. Before developing the guidelines, we reviewed available information on the current status of migratory bird populations, reviewed the current status of migratory bird hunting on Federal Indian reservations, and evaluated the potential impact of such guidelines on migratory birds. We concluded that the impact of migratory bird harvest by Tribal members hunting on their reservations is minimal.
One area of interest in Indian migratory bird hunting regulations relates to hunting seasons for nontribal hunters on dates that are within Federal frameworks, but which are different from those established by the State(s)
We believe the guidelines provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian Tribes while ensuring that the migratory bird resource receives necessary protection. The conservation of this important international resource is paramount. The guidelines should not be viewed as inflexible. In this regard, we note that they have been employed successfully since 1985. We believe they have been tested adequately and, therefore, we made them final beginning with the 1988–89 hunting season. We should stress here, however, that use of the guidelines is not mandatory and no action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.
Participants at the June 24–25, 2009, meetings reviewed information on the current status of migratory shore and upland game birds and developed 2009–10 migratory game bird regulation recommendations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the U.S. Virgin Islands; special September waterfowl seasons in designated States; special sea duck seasons in the Atlantic Flyway; and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl. Participants at the previously announced July 29–30, 2009, meetings reviewed information on the current status of waterfowl and developed recommendations for the 2009–10 regulations pertaining to regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In accordance with Department of the Interior policy, these meetings were open to public observation and you may submit comments to the Service as discussed in the Public Comments section below.
The following paragraphs provide preliminary information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds excerpted from various reports. For more detailed information on methodologies and results, you may obtain complete copies of the various reports at the address indicated under
Federal, provincial, and State agencies conduct surveys each spring to estimate the size of breeding populations and to evaluate the conditions of the habitats. These surveys are conducted using fixed-wing aircraft, helicopters, and ground crews and encompass principal breeding areas of North America, covering an area over 2.0 million square miles. The traditional survey area comprises Alaska, Canada, and the northcentral United States, and includes approximately 1.3 million square miles. The eastern survey area includes parts of Ontario, Quebec, Labrador, Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, New York, and Maine, an area of approximately 0.7 million square miles.
Overall, habitat conditions were characterized as near normal for most of the traditional survey area during the 2009 Waterfowl Breeding Population and Habitat Survey, with greatly improved wetlands conditions in portions of the prairies. Adequate moisture and good habitat conditions characterized much of the eastern survey area. The northernmost survey areas in both the traditional and eastern survey areas experienced an extremely late spring.
Major improvements in wetlands conditions occurred across much of the traditional survey area in 2009. The prairie pothole region of southern Manitoba, most of the Dakotas and eastern Montana benefitted primarily from above average fall and winter precipitation. These areas were classified as good to excellent, with mostly fair habitat conditions confined to west-central Montana and southeastern South Dakota. Above average precipitation improved wetlands conditions in the southern grasslands of Saskatchewan but the habitats along the Alberta and Saskatchewan border are suffering under drought conditions.
The parklands continued to receive below normal precipitation in 2009. Fortunately, habitat conditions remain classified as fair to good because of the holdover water that resulted during the extremely wet year in 2007.
In the boreal forest, spring breakup was extremely late over most of the survey area in 2009. Most large lakes remained frozen into early June. Many smaller wetland habitats, such as beaver ponds, were open during the survey and those in northern Alberta and into the Northwest Territories were rated as good. Habitat conditions were drier across northern Saskatchewan and Manitoba but improved nearer to Hudson Bay. The majority of Alaska was rated as good.
From Maine through most of the Maritimes, an above average snowfall was experienced and average spring temperatures were recorded, resulting in fully charged wetlands with little flooding, which is in contrast to flooding in 2008. Despite below average snowfall and winter temperatures for Newfoundland and Labrador, habitat conditions are rated as fair to excellent, with poorer conditions found at higher elevation habitat. Through New York and much of Quebec and Ontario, generally good to excellent waterfowl habitat exists but a series of major storms during mid-May in southwest Ontario could hamper production because of flooding. The Nickel and Clay belts of east-central Ontario and points farther west were supporting good habitat at the time of the survey following average winter and spring precipitation. Good habitat conditions remained moving farther north but deteriorated approaching the James and Hudson Bay lowlands due to deep snows and a very late spring, while lowland habitats on the Quebec side were much drier than normal.
The estimate of blue-winged teal numbers from the Traditional Survey Area is 7.4 million. This represents an
Compared to increases recorded in the 1970s, annual indices to abundance of the Mid-Continent Population (MCP) of sandhill cranes have been relatively stable since the early 1980s. The Central Platte River Valley, Nebraska, spring index for 2009, uncorrected for visibility bias, was 460,000 sandhill cranes. The photo-corrected, 3-year average for 2006–08 was 382,271, which is within the established population-objective range of 349,000–472,000 cranes.
All Central Flyway States, except Nebraska, allowed crane hunting in portions of their States during 2008–09. An estimated 10,293 hunters participated in these seasons, which was similar to the number that participated in the previous season. Hunters harvested a record-high 22,989 MCP cranes in the U.S. portion of the Central Flyway during the 2008–09 seasons, which was 24 percent higher than the estimated harvest for the previous year. The retrieved harvest of MCP cranes in hunt areas outside of the Central Flyway (Arizona, Pacific Flyway portion of New Mexico, Alaska, Canada, and Mexico combined) was 15,024 during 2008–09. The preliminary estimate for the North American MCP sport harvest, including crippling losses, was 42,536 birds, which was a record high and is 7 percent higher than the previous year's estimate. The long-term (1982–2004) trends for the MCP indicate that harvest has been increasing at a higher rate than population growth.
The fall 2008 pre-migration survey for the Rocky Mountain Population (RMP) resulted in a count of 21,156 cranes. The 3-year average for 2005, 2007, and 2008 (no survey was conducted in 2006) was 21,614 sandhill cranes, which is above the established population objective of 17,000–21,000 for the RMP. Hunting seasons during 2008–09 in portions of Arizona, Idaho, Montana, New Mexico, Utah, and Wyoming resulted in a record-high harvest of 936 RMP cranes, a 14 percent increase from the harvest of 820 in 2007–08. The Lower Colorado River Valley Population (LCRVP) survey results indicate an increase from 1,900 birds in 1998 to 2,401 birds in 2009. The 3-year average of 2,981 LCRVP cranes is based on counts from 2006, 2007 and 2009 (survey was not complete in 2008) and is above the population objective of 2,500.
Singing-ground and Wing-collection Surveys were conducted to assess the population status of the American woodcock (
Wing-collection Survey data indicate that the 2008 recruitment index for the U.S. portion of the Eastern Region (1.8 immatures per adult female) was 11 percent higher than the 2007 index, and 8 percent higher than the long-term average. The recruitment index for the U.S. portion of the Central Region (1.6 immatures per adult female) was 6 percent higher than the 2007 index and 1 percent below the long-term average.
Information on the abundance and harvest of band-tailed pigeons is collected annually in the western United States and British Columbia. Annual counts of Interior band-tailed pigeons seen and heard per route have not changed significantly since implementation of the Breeding Bird Survey (BBS) in 1966; however, they decreased significantly over the last 10 years. The 2008 harvest was estimated to be 4,700 birds. For Pacific Coast band-tailed pigeons, annual BBS counts of birds seen and heard per route have not changed significantly since 1966, but they have increased significantly over the last 10 years. According to the Pacific Coast Mineral Site Survey, annual counts of Pacific Coast band-tailed pigeons seen at each mineral site have increased significantly since the survey was experimentally implemented in 2001, but counts over the last 5 years appear stable. The 2008 estimate of harvest was 30,200 birds.
The status report summarizes information on the abundance and harvest of mourning doves collected annually in the United States. The focus is on results from the Mourning Dove Call-count Survey, but also includes results from the BBS and Migratory Bird Harvest Information Program. According to the Call-count survey, over the most recent 10 years (2000–09), there was no significant trend in doves heard for either the Eastern or Western Management Units while the Central Unit declined significantly. Over the 44-year period (1966–2009), there was no significant change in doves heard for the Eastern Unit while the Central and Western Units declined significantly. Based on the mean number of doves seen per route, however, there was no significant change for any of the three Management Units during the recent 10-year period. Over 44 years, there was no change in doves seen for the Eastern and Central Units while the Western Unit declined significantly. The preliminary 2008 harvest estimate for the United States was 17,402,400 doves. A banding program is underway to obtain current information in order to develop mourning dove population models for each Management Unit to provide guidance for improving our decision-making process with respect to harvest management.
The two key States with a white-winged dove population are Arizona and Texas. California and New Mexico have much smaller populations.
The Arizona Game and Fish Department (AGFD) has monitored white-winged dove populations by means of a call-count survey to provide an annual index to population size. It runs concurrently with the Service's Mourning Dove Call-count Survey. The index peaked at 52.3 mean number doves heard per route in 1968, but fell precipitously in the late 1970s. The index has stabilized to around 25 doves per route in the last few years; in 2009, the mean number of doves heard per route was 27.9. AGFD also monitors harvest. Harvest during the 15-day season (September 1–15) peaked in the late 1960s at approximately 740,000 birds (1968 AGFD estimate) and has since stabilized at around 100,000 birds; the preliminary 2008 Migratory Bird Harvest Information Program (HIP) estimate of harvest was 95,300 birds. In 2007, AGFD redesigned their dove harvest survey to sample only from hunters registered under HIP so that results from the AGFD survey would be comparable to those from HIP. The preliminary 2008 Arizona harvest estimate was 79,488.
In Texas, white-winged doves continue to expand their breeding range. Nesting by whitewings has been recorded in most counties, except for the northeastern part of the State. Nesting is essentially confined to urban areas, but appears to be expanding to exurban areas. Concomitant with this range expansion has been a continuing increase in whitewing abundance. A new DISTANCE sampling protocol was
The Texas Parks and Wildlife Department is working to improve management of white-winged doves in Texas in the following ways: (1) Expanding current surveys of spring populations to encompass areas throughout the State that now have breeding populations; (2) Completing the Tamaulipas-Texas White-winged Dove Strategic Plan so that there are consistent and comparable harvest management strategies, surveys, research, and data collection across the breeding range of the species; (3) Expanding operational banding in 2009 that was begun in 2007 to derive estimates of survival and harvest rates; (4) Implementing a wing-collection survey for recruitment rates in lieu of the feeding flight and production surveys; (5) Estimating probability of detection for more accurate estimates of breeding populations within urban environments; and (6) Evaluating and estimating reproductive success in urban areas to better estimate population increases.
In California, BBS data (although imprecise due to a small sample size) indicate that there has been a significant increase in the population between 1968 and 2008. According to HIP surveys, the preliminary harvest estimate for 2008 was 83,300. In New Mexico, BBS data (very imprecise due to a small sample size) also showed a significant increase over the long term. In 2008, the estimated harvest was 49,100.
White-tipped doves are believed to be maintaining a relatively stable population in the Lower Rio Grande Valley (LRGV) of Texas. DISTANCE sampling procedures in the LRGV include whitetips. However, until the sampling frame includes rural Rio Grande corridor habitats, not many whitetips will be reported. Sampling frame issues are expected to be resolved by next year. However, annual white-tipped dove harvest during the special season is only averaging 3,000–4,000 birds.
For the 2009–10 hunting season, we received requests from 29 Tribes and Indian organizations. We actively solicit regulatory proposals from other Tribal groups that are interested in working cooperatively for the benefit of waterfowl and other migratory game birds. We encourage Tribes to work with us to develop agreements for management of migratory bird resources on Tribal lands.
It should be noted that this proposed rule includes generalized regulations for both early- and late-season hunting. A final rule will be published in a late-August 2009
In this current rulemaking, because of the compressed timeframe for establishing regulations for Indian Tribes and because final framework dates and other specific information are not available, the regulations for many Tribal hunting seasons are described in relation to the season dates, season length, and limits that will be permitted when final Federal frameworks are announced for early- and late-season regulations. For example, daily bag and possession limits for ducks on some areas are shown as the same as permitted in Pacific Flyway States under final Federal frameworks, and limits for geese will be shown as the same permitted by the State(s) in which the Tribal hunting area is located.
The proposed frameworks for early-season regulations were published in the
The Colorado River Indian Reservation is located in Arizona and California. The Tribes own almost all lands on the reservation, and have full wildlife management authority.
In their 2009–10 proposal, the Colorado River Indian Tribes requested split dove seasons. They propose that their early season begin September 1 and end September 15, 2009. Daily bag limits would be 10 mourning or white-winged doves in the aggregate. The late season for doves is proposed to open November 14, 2009, and close December 28, 2009. The daily bag limit would be 10 mourning doves. The possession limit would be twice the daily bag limit after the first day of the season. Shooting hours would be from one-half hour before sunrise to noon in the early season and until sunset in the late season. Other special
The Tribes also propose duck hunting seasons. The season would open October 10, 2009, and run until January 24, 2010. The Tribes propose the same season dates for mergansers, coots, and common moorhens. The daily bag limit for ducks, including mergansers, would be seven, except that the daily bag limits could contain no more than two hen mallards, two redheads, two Mexican ducks, two goldeneye, three scaup, one pintail, and two cinnamon teal. The season on canvasback is closed. The possession limit would be twice the daily bag limit after the first day of the season. The daily bag and possession limit for coots and common moorhens would be 25, singly or in the aggregate.
For geese, the Colorado River Indian Tribes propose a season of October 17, 2009, through January 24, 2010. The daily bag limit for geese would be three light geese and three dark geese. The possession limit would be six light geese and six dark geese after opening day.
In 1996, the Tribes conducted a detailed assessment of dove hunting. Results showed approximately 16,100 mourning doves and 13,600 white-winged doves were harvested by approximately 2,660 hunters who averaged 1.45 hunter-days. Field observations and permit sales indicate that fewer than 200 hunters participate in waterfowl seasons. Under the proposed regulations described here and, based upon past seasons, we and the Tribes estimate harvest will be similar.
Hunters must have a valid Colorado River Indian Reservation hunting permit and a Federal Migratory Bird Stamp in their possession while hunting. Other special
We propose to approve the Colorado River Indian Tribes regulations for the 2009–10 hunting season, given the seasons dates fall within final flyway frameworks (applies to nontribal hunters only).
For the past several years, the Confederated Salish and Kootenai Tribes and the State of Montana have entered into cooperative agreements for the regulation of hunting on the Flathead Indian Reservation. The State and the Tribes are currently operating under a cooperative agreement signed in 1990 that addresses fishing and hunting management and regulation issues of mutual concern. This agreement enables all hunters to utilize waterfowl hunting opportunities on the reservation.
As in the past, Tribal regulations for nontribal hunters would be at least as restrictive as those established for the Pacific Flyway portion of Montana. Goose season dates would also be at least as restrictive as those established for the Pacific Flyway portion of Montana. Shooting hours for waterfowl hunting on the Flathead Reservation are sunrise to sunset. Steel shot or other Federally approved nontoxic shots are the only legal shotgun loads on the reservation for waterfowl or other game birds.
For Tribal members, the Tribe proposes outside frameworks for ducks and geese of September 1, 2009, through March 9, 2010. Daily bag and possession limits were not proposed for Tribal members.
The requested season dates and bag limits are similar to past regulations. Harvest levels are not expected to change significantly. Standardized check station data from the 1993–94 and 1994–95 hunting seasons indicated no significant changes in harvest levels and that the large majority of the harvest is by nontribal hunters.
We propose to approve the Tribes' request for special migratory bird regulations for the 2009–10 hunting season.
Since 1996, the Service and the Fond du Lac Band of Lake Superior Chippewa Indians have cooperated to establish special migratory bird hunting regulations for Tribal members. The Fond du Lac's May 19, 2009, proposal covers land set apart for the band under the Treaties of 1837 and 1854 in northeast and east-central Minnesota.
The band's proposal for 2009–10 is essentially the same as that approved last year except the Tribe has separate regulations for the 1854 and 1837 ceded territories and reservation lands. The proposed 2009–10 waterfowl hunting season regulations for Fond du Lac are as follows:
The following general conditions apply:
1. While hunting waterfowl, a Tribal member must carry on his/her person a valid Ceded Territory License.
2. Shooting hours for migratory birds are one-half hour before sunrise to one-half hour after sunset.
3. Except as otherwise noted, Tribal members will be required to comply with Tribal codes that will be no less restrictive than the provisions of Chapter 10 of the Model Off-Reservation Code. Except as modified by the Service rules adopted in response to this proposal, these amended regulations parallel Federal requirements in 50 CFR part 20 as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting.
4. Band members in each zone will comply with State regulations providing for closed and restricted waterfowl hunting areas.
5. There are no possession limits on any species, unless otherwise noted
The band anticipates harvest will be fewer than 500 ducks and geese.
We propose to approve the request for special migratory bird hunting regulations for the Fond du Lac Band of Lake Superior Chippewa Indians.
In the 1995–96 migratory bird seasons, the Grand Traverse Band of Ottawa and Chippewa Indians and the Service first cooperated to establish special regulations for waterfowl. The Grand Traverse Band is a self-governing, Federally recognized Tribe located on the west arm of Grand Traverse Bay in Leelanau County, Michigan. The Grand Traverse Band is a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986–87 hunting season.
For the 2009–10 season, the Tribe requests that the Tribal member duck season run from September 20, 2009, through January 18, 2010. A daily bag limit of 15 would include no more than 3 pintail, 2 canvasback, 1 hooded merganser, 3 black ducks, 5 wood ducks, 3 redheads, and 7 mallards (only 3 of which may be hens).
For Canada and snow geese, the Tribe proposes a September 1 through November 30, 2009, and a January 1 through February 8, 2010, season. For white-fronted geese and brant, the Tribe proposes a September 20 through November 30, 2009, season. The daily bag limit for Canada and snow geese would be 10 and the daily bag limit for white-fronted geese and including brant would be 5 birds. We further note that based on available data (of major goose migration routes), it is unlikely that any Canada geese from the Southern James Bay Population will be harvested by the Tribe.
For woodcock, the Tribe proposes a September 1 through November 14, 2009, season. The daily bag limit will not exceed five birds. For mourning doves, snipe, and rails, the Tribe proposes a September 1 through November 14, 2009, season. The daily bag limit would be 10 per species.
All other Federal regulations contained in 50 CFR part 20 would apply. The Tribe proposes to monitor harvest closely through game bag checks, patrols, and mail surveys. Harvest surveys from the 2006–07 hunting season indicated that approximately 15 Tribal hunters harvested an estimated 112 ducks and 50 Canada geese.
We propose to approve the Grand Traverse Band of Ottawa and Chippewa Indians requested 2009–10 special migratory bird hunting regulations.
Since 1985, various bands of the Lake Superior Tribe of Chippewa Indians have exercised judicially recognized off-reservation hunting rights for migratory birds in Wisconsin. The specific regulations were established by the Service in consultation with the Wisconsin Department of Natural Resources and the Great Lakes Indian Fish and Wildlife Commission (GLIFWC, which represents the various bands). Beginning in 1986, a Tribal season on ceded lands in the western portion of the State's Upper Peninsula was developed in coordination with the Michigan Department of Natural Resources, and we have approved special regulations for Tribal members in both Michigan and Wisconsin since the 1986–87 hunting season. In 1987, the GLIFWC requested, and we approved, special regulations to permit Tribal members to hunt on ceded lands in Minnesota, as well as in Michigan and Wisconsin. The States of Michigan and Wisconsin originally concurred with the regulations, although Wisconsin has raised concerns in the past and Michigan now annually raises objections. Minnesota did not concur with the original regulations, stressing that the State would not recognize Chippewa Indian hunting rights in Minnesota's treaty area until a court with jurisdiction over the State acknowledges and defines the extent of these rights. We acknowledge all of the States' concerns, but point out that the U.S. Government has recognized the Indian hunting rights decided in the
Consequently, in view of the above, we have approved special regulations since the 1987–88 hunting season on ceded lands in all three States. In fact, this recognition of the principle of reserved treaty rights for band members to hunt and fish was pivotal in our decision to approve a special 1991–92 season for the 1836 ceded area in Michigan.
For 2009, the GLIFWC proposed off-reservation special migratory bird hunting regulations on behalf of the member Tribes of the Voigt Intertribal Task Force of the GLIFWC (for the 1837 and 1842 Treaty areas) and the Bay Mills Indian Community (for the 1836 Treaty area). Member Tribes of the Task Force are: The Bad River Band of the Lake Superior Tribe of Chippewa Indians, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Red Cliff Band of Lake Superior Chippewa Indians, the St. Croix Chippewa Indians of Wisconsin, the Sokaogon Chippewa Community (Mole Lake Band), all in Wisconsin; the Mille Lacs Band of Chippewa Indians in Minnesota; the Lac Vieux Desert Band of Chippewa Indians and the Keweenaw Bay Indian Community in Michigan.
The GLIFWC 2009 proposal is generally similar to last year's regulations, except that it includes minor season date adjustment to the woodcock season to keep the opening day after Labor Day.
GLIFWC is still completing a waterfowl harvest survey for the 2008 season; however, the Tribe expects harvest would likely remain below 5,000 ducks and 1,000 geese, which is similar to anticipated levels in previous years.
Recent GLIFWC harvest surveys (1996–98, 2001, and 2004) indicate that Tribal off-reservation waterfowl harvest has averaged less than 1,000 ducks and 120 geese annually. In the latest survey year (2004), an estimated 53 hunters took an estimated 421 trips and harvested 645 ducks (1.5 ducks per trip) and 84 geese (0.2 geese per trip). Further, in the last 5 years of harvest surveys, only 1 hunter reported harvesting 20 ducks in a single day. Analysis of hunter survey data over the period in question (1996–2004) indicates a general downward trend in both harvest and hunter participation.
The proposed 2009–10 waterfowl hunting season regulations for GLIFWC are as follows:
A. All Tribal members will be required to obtain a valid Tribal waterfowl hunting permit.
B. Except as otherwise noted, Tribal members will be required to comply with Tribal codes that will be no less restrictive than the model ceded territory conservation codes approved by Federal courts in the
C. Particular regulations of note include:
1. Nontoxic shot will be required for all off-reservation waterfowl hunting by Tribal members.
2. Tribal members in each zone will comply with Tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.
3. Possession limits for each species are double the daily bag limit, except on the opening day of the season, when the possession limit equals the daily bag limit, unless otherwise noted above. Possession limits are applicable only to transportation and do not include birds that are cleaned, dressed, and at a member's primary residence. For purposes of enforcing bag and possession limits, all migratory birds in the possession and custody of Tribal members on ceded lands will be considered to have been taken on those lands unless tagged by a Tribal or State conservation warden as taken on reservation lands. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.
4. The baiting restrictions included in the respective sections 10.05(2)(h) of the model ceded territory conservation codes will be amended to include language which parallels that in place for nontribal members as published at 64 FR 29799, June 3, 1999.
5. The shell limit restrictions included in the respective sections 10.05(2)(b) of the model ceded territory conservation codes will be removed.
6. Hunting hours shall be from a half hour before sunrise to 15 minutes after sunset.
D. Michigan—Duck Blinds and Decoys. Tribal members hunting in Michigan will comply with Tribal codes that contain provisions parallel to Michigan law regarding duck blinds and decoys.
We propose to approve the GLIFWC regulations for the 2009–10 hunting season.
The Jicarilla Apache Tribe has had special migratory bird hunting regulations for Tribal members and nonmembers since the 1986–87 hunting season. The Tribe owns all lands on the reservation and has recognized full wildlife management authority. In general, the proposed seasons would be more conservative than allowed by the Federal frameworks of last season and by States in the Pacific Flyway.
The Tribe proposed a 2009–10 waterfowl and Canada goose season beginning October 10, 2009, and a closing date of November 30, 2009. Daily bag and possession limits for waterfowl would be the same as Pacific Flyway States. The Tribe proposes a daily bag limit for Canada geese of two. Other regulations specific to the Pacific Flyway guidelines for New Mexico would be in effect.
During the Jicarilla Game and Fish Department's 2008–09 season, estimated duck harvest was 548, which is within the historical harvest range. The species composition in the past has included mainly mallards, gadwall, wigeon, and teal. Northern pintail comprised 2 percent of the total harvest in 2008. The estimated harvest of geese was 12 birds.
The proposed regulations are essentially the same as were established last year. The Tribe anticipates the maximum 2009–10 waterfowl harvest would be around 550–600 ducks and 25–30 geese.
We propose to approve the Tribe's requested 2009–10 hunting seasons.
The Kalispel Reservation was established by Executive Order in 1914, and currently comprises approximately 4,600 acres. The Tribe owns all Reservation land and has full management authority. The Kalispel Tribe has a fully developed wildlife program with hunting and fishing codes. The Tribe enjoys excellent wildlife management relations with the State. The Tribe and the State have an operational Memorandum of Understanding with emphasis on fisheries but also for wildlife.
The nontribal member seasons described below pertain to a 176-acre waterfowl management unit and 800
For the 2009–10 migratory bird hunting seasons, the Kalispel Tribe proposed Tribal and nontribal member waterfowl seasons. The Tribe requests that both duck and goose seasons open at the earliest possible date and close on the latest date under Federal frameworks.
For nontribal hunters on reservation, the Tribe requests the seasons open at the earliest possible date and remain open, for the maximum amount of open days. Specifically, the Tribe requests that the season for ducks begin September 18, 2009, and end January 31, 2010. In that period, nontribal hunters would be allowed to hunt approximately 101 days. Hunters should obtain further information on specific hunt days from the Kalispel Tribe.
The Tribe also requests the season for geese run from September 1 to September 13, 2009, and from October 2, 2009, to January 31, 2010. Total number of days should not exceed 107. Nontribal hunters should obtain further information on specific hunt days from the Tribe. Daily bag and possession limits would be the same as those for the State of Washington.
The Tribe reports a 2007–08 nontribal harvest of 55 ducks. Under the proposal, the Tribe expects harvest to be similar to last year and less than 100 geese and 200 ducks.
All other State and Federal regulations contained in 50 CFR part 20, such as use of nontoxic shot and possession of a signed migratory bird hunting stamp, would be required.
For Tribal members on Kalispel-ceded lands, the Kalispel propose season dates consistent with Federal flyway frameworks. Specifically, the Tribe requests outside frameworks for ducks of October 1, 2009, through January 31, 2010, and geese of September 1, 2009, through January 31, 2010. The Tribe requests that both duck and goose seasons open at the earliest possible date and close on the latest date under Federal frameworks. During that period, the Tribe proposes that the season run continuously. Daily bag and possession limits would be concurrent with the Federal rule.
The Tribe reports that there was no Tribal harvest. Under the proposal, the Tribe expects harvest to be less than 200 birds for the season with less than 100 geese. Tribal members would be required to possess a signed Federal migratory bird stamp and a Tribal ceded lands permit.
We propose to approve the regulations requested by the Kalispel Tribe, provided that the nontribal seasons conform to Treaty limitations and final Federal frameworks for the Pacific Flyway.
The Klamath Tribe currently has no reservation, per se. However, the Klamath Tribe has reserved hunting, fishing, and gathering rights within its former reservation boundary. This area of former reservation, granted to the Klamaths by the Treaty of 1864, is over 1 million acres. Tribal natural resource management authority is derived from the Treaty of 1864, and carried out cooperatively under the judicially enforced Consent Decree of 1981. The parties to this Consent Decree are the Federal Government, the State of Oregon, and the Klamaths. The Klamath Indian Game Commission sets the seasons. The Tribal biological staff and Tribal Regulatory Enforcement Officers monitor Tribal harvest by frequent bag checks and hunter interviews.
For the 2009–10 season, the Tribe requests proposed season dates of October 1, 2009, through January 31, 2010. Daily bag limits would be 9 for ducks, 9 for geese, and 25 for coot, with possession limits twice the daily bag limit. Shooting hours would be one-half hour before sunrise to one-half hour after sunset. Steel shot is required.
Based on the number of birds produced in the Klamath Basin, this year's harvest would be similar to last year's. Information on Tribal harvest suggests that more than 70 percent of the annual goose harvest is local birds produced in the Klamath Basin.
We propose to approve the Klamath Tribe's requested 2009–10 special migratory bird hunting regulations.
The Leech Lake Band of Ojibwe is a Federally recognized Tribe located in Cass Lake, Minnesota. The reservation employs conservation officers to enforce conservation regulations. The Service and the Tribe have cooperatively established migratory bird hunting regulations since 2000.
For the 2009–10 season, the Tribe requests a duck season starting on September 19 and ending December 31, 2009, and a goose season to run from September 1 through December 31, 2009. Daily bag limits for both ducks and geese would be 10. Possession limits would be twice the daily bag limit. Shooting hours are one-half hour before sunrise to one-half hour after sunset.
The annual harvest by Tribal members on the Leech Lake Reservation is estimated at 500–1,000 birds.
We propose to approve the Leech Lake Band of Ojibwe's special migratory bird hunting season.
The Little River Band of Ottawa Indians is a self-governing, Federally recognized Tribe located in Manistee, Michigan, and a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986–87 hunting season. Ceded lands are located in Lake, Mason, Manistee, and Wexford Counties. The Band proposes the following regulations to govern the hunting of migratory birds by Tribal members within the 1836 Ceded Territory as well as on the Band's Reservation.
For the 2009–10 season, we assume the Little River Band of Ottawa Indians would propose a duck and merganser season from September 15, 2009, through January 20, 2010. A daily bag limit of 12 ducks would include no more than 2 pintail, 2 canvasback, 3 black duck, 3 wood ducks, 3 redheads, 6 mallards (only 2 of which may be a hen), and 1 hooded merganser. Possession limits would be twice the daily bag limit.
For white-fronted geese, snow geese, and brant, the Tribe usually proposes a September 20 through November 30, 2009, season. Daily bag limits would be five geese.
For Canada geese only, the Tribe usually proposes a September 1, 2009, through February 8, 2010, season with a daily bag limit of five Canada geese. The possession limit would be twice the daily bag limit.
For snipe, woodcock, rails, and mourning doves, the Tribe usually proposes a September 1 to November 14, 2009, season. The daily bag limit would be 10 common snipe, 5 woodcock, 10 rails, and 10 mourning doves. Possession limits for all species would be twice the daily bag limit.
The Tribe monitored harvest through mail surveys. General Conditions were as follows:
A. All Tribal members will be required to obtain a valid Tribal resource card and 2009–10 hunting license.
B. Except as modified by the Service rules adopted in response to this proposal, these amended regulations parallel all Federal regulations contained in 50 CFR part 20.
C. Particular regulations of note include:
(1) Nontoxic shot will be required for all waterfowl hunting by Tribal members.
(2) Tribal members in each zone will comply with Tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.
D. Tribal members hunting in Michigan will comply with Tribal codes that contain provisions parallel to Michigan law regarding duck blinds and decoys.
We plan to approve Little River Band of Ottawa Indians' special migratory bird hunting seasons upon receipt of their proposal based on the provisions described above.
The Little Traverse Bay Bands of Odawa Indians is a self-governing, Federally recognized Tribe located in Petoskey, Michigan, and a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986–87 hunting season.
For the 2009–10 season, the Little Traverse Bay Bands of Odawa Indians propose regulations similar to those of other Tribes in the 1836 treaty area. The Tribal member duck, merganser, coot, and gallinule season would run from September 15, 2009, through December 31, 2009. A daily bag limit of 20 would include no more than 5 pintail, 5 canvasback, 5 hooded merganser, 5 black ducks, 5 wood ducks, and 5 redheads.
For Canada geese, the Tribe proposes a September 1, 2009, through February 8, 2010, season. The daily bag limit for Canada geese would be 20 birds. We further note that based on available data (of major goose migration routes), it is unlikely that any Canada geese from the Southern James Bay Population would be harvested by the Tribe. Possession limits are twice the daily bag limit.
For woodcock, the Tribe proposes a September 1, 2009, to December 1, 2009, season. The daily bag limit will not exceed 10 birds. For snipe the Tribe proposes a September 1 to December 31, 2009, season. The daily bag limit will not exceed 16 birds per species. For mourning doves, the Tribe proposes a September 1 to November 9, 2009, season. The daily bag limit will not exceed 15 birds per species. For Virginia and sora rail, the Tribe proposes a September 1 to December 31, 2009, season. The daily bag limit will not exceed 20 birds per species. For coots and gallinules, the Tribe proposes a September 1 to December 31, 2009, season. The daily bag limit will not exceed 20 birds per species. The possession limit will not exceed two days' bag limit for all birds.
All other Federal regulations contained in 50 CFR part 20 would apply.
The Tribe proposes to monitor harvest closely through game bag checks, patrols, and mail surveys. In particular, the Tribe proposes monitoring the harvest of Southern James Bay Canada geese to assess any impacts of Tribal hunting on the population.
We propose to approve the Little Traverse Bay Bands of Odawa Indians' requested 2009–10 special migratory bird hunting regulations.
The Lower Brule Sioux Tribe first established Tribal migratory bird hunting regulations for the Lower Brule Reservation in 1994. The Lower Brule Reservation is about 214,000 acres in size and is located on and adjacent to the Missouri River, south of Pierre. Land ownership on the reservation is mixed, and until recently, the Lower Brule Tribe had full management authority over fish and wildlife via an MOA with the State of South Dakota. The MOA provided the Tribe jurisdiction over fish and wildlife on reservation lands, including deeded and Corps of Engineers-taken lands. For the 2009–10 season, the two parties have come to an agreement that provides the public a clear understanding of the Lower Brule Sioux Wildlife Department license requirements and hunting season regulations. The Lower Brule Reservation waterfowl season is open to Tribal and nontribal hunters.
For the 2009–10 migratory bird hunting season, the Lower Brule Sioux Tribe proposes a nontribal member duck, merganser, and coot season length of 97 days, or the maximum number of days allowed by Federal frameworks in the High Plains Management Unit for this season. The Tribe proposes a season from October 10, 2009, through January 14, 2010. The daily bag limit would be five birds, including no more than five mallards (only one of which may be a hen), one pintail, two redheads, one canvasback, two wood ducks, two scaup, and one mottled duck. The daily bag limit for mergansers would be five, only one of which could be a hooded merganser. The daily bag limit for coots would be 15. Possession limits would be twice the daily bag limits.
The Tribe's proposed nontribal member Canada goose season would run from October 24, 2009, through February 7, 2010 (107-day season length), with a daily bag limit of three Canada geese. The Tribe's proposed nontribal member white-fronted goose season would run from October 10, 2009, through December 20, 2009, with a daily bag limit of two white-fronted geese. The Tribe's proposed nontribal member light goose season would run from October 10, 2009, through January 10, 2010, and February 26 through March 10, 2010. The light goose daily bag limit would be 20. Possession limits would be twice the daily bag limits.
For Tribal members, the Lower Brule Sioux Tribe proposes a duck, merganser, and coot season from September 19, 2009, through March 10, 2010. The daily bag limit would be five birds, including no more than five mallards (only one of which may be a hen), one pintail, two redheads, one canvasback, two wood ducks, two scaup, and one mottled duck. The daily bag limit for mergansers would be five, only two of which could be hooded mergansers. The daily bag limit for coots would be 15. Possession limits would be twice the daily bag limits.
The Tribe's proposed Canada goose season for Tribal members would run from October 10, 2009, through March 10, 2010, with a daily bag limit of three Canada geese. The Tribe's proposed white-fronted goose Tribal season would run from October 3, 2009, through March 10, 2010, with a daily bag limit of two white-fronted geese. The Tribe's proposed light goose Tribal season would run from October 10, 2009, through March 10, 2010. The light goose daily bag limit would be 20. Possession limits would be twice the daily bag limits.
In the 2007–08 season, hunters harvested an estimated 810 geese and 550 ducks. In the 2007–08 season, duck harvest species composition was primarily mallard (88 percent), gadwall (5 percent), green-winged teal (3 percent), blue-winged teal (1 percent), and wigeon (2 percent).
Goose harvest species composition in 2007–08 at Mni Sho Sho was approximately 96 percent Canada geese,
The Tribe anticipates a duck harvest similar to those of the previous 3 years and a goose harvest below the target harvest level of 3,000 to 4,000 geese. All basic Federal regulations contained in 50 CFR part 20, including the use of non-toxic shot, Migratory Waterfowl Hunting and Conservation Stamps,
We plan to approve the Tribe's requested regulations for the Lower Brule Reservation given the seasons dates fall within final Federal flyway frameworks (applies to nontribal hunters only).
Since 1996, the Service and the Point No Point Treaty Tribes, of which Lower Elwha was one, have cooperated to establish special regulations for migratory bird hunting. The Tribes are now acting independently and the Lower Elwha Klallam Tribe would like to establish migratory bird hunting regulations for Tribal members for the 2009–10 season. The Tribe has a reservation on the Olympic Peninsula in Washington State and is a successor to the signatories of the Treaty of Point No Point of 1855.
For the 2009–10 season, the Lower Elwha Klallam Tribe requests a duck and coot season from September 19, 2009, to December 31, 2009. The daily bag limit will be seven ducks including no more than two hen mallards, one pintail, one canvasback, and two redheads. The daily bag and possession limit on harlequin duck will be one per season. The coot daily bag limit will be 25. The possession limit will be twice the daily bag limit, except as noted above.
For geese, the Tribe requests a season from September 19, 2009, to December 31, 2009. The daily bag limit will be four, including no more than four light geese. The season on Aleutian Canada geese will be closed.
For brant, the Tribe proposes a season from November 1, 2009, to February 15, 2010, with a daily bag limit of two. The possession limit will be twice the daily bag limit.
For mourning doves, band-tailed pigeon, and snipe, the Tribe requests a season from September 19, 2009, to December 31, 2009, with a daily bag limit of 10, 2, and 8, respectively. The possession limit will be twice the daily bag limit.
All Tribal hunters authorized to hunt migratory birds are required to obtain a Tribal hunting permit from the Lower Elwha Klallam Tribe pursuant to Tribal law. Hunting hours would be from one-half hour before sunrise to sunset. Only steel, tungsten-iron, tungsten-polymer, tungsten-matrix, and tin shot are allowed for hunting waterfowl. It is unlawful to use or possess lead shot while hunting waterfowl.
The Tribe typically anticipates harvest to be fewer than 20 birds. Tribal reservation police and Tribal Fisheries enforcement officers have the authority to enforce these migratory bird hunting regulations.
The Service proposes to approve the request for special migratory bird hunting regulations for the Lower Elwha Klallam Tribe.
The Makah Indian Tribe and the Service have been cooperating to establish special regulations for migratory game birds on the Makah Reservation and traditional hunting land off the Makah Reservation since the 2001–02 hunting season. Lands off the Makah Reservation are those contained within the boundaries of the State of Washington Game Management Units 601–603 and 607.
The Makah Indian Tribe usually proposes a duck and coot hunting season from September 27, 2009, to January 25, 2010. The daily bag limit is seven ducks, including no more than one canvasback, one pintail, three scaup, and one redhead. The daily bag limit for coots is 25. The Tribe has a year-round closure on wood ducks and harlequin ducks. Shooting hours for all species of waterfowl are one-half hour before sunrise to sunset.
For geese, the Tribe usually proposes the season open on September 27, 2009, and close January 25, 2010. The daily bag limit for geese is four and one brant. The Tribe notes that there is a year-round closure on Aleutian and Dusky Canada geese.
For band-tailed pigeons, the Tribe usually proposes the season open September 20, 2009, and close October 31, 2009. The daily bag limit for band-tailed pigeons is two.
The Tribe usually anticipates that harvest under this regulation will be relatively low since there are no known dedicated waterfowl hunters and any harvest of waterfowl or band-tailed pigeons is usually incidental to hunting for other species, such as deer, elk, and bear. The Tribe expects fewer than 50 ducks and 10 geese to be harvested during the 2009–10 migratory bird hunting season.
All other Federal regulations contained in 50 CFR part 20 would apply. The following restrictions are also usually proposed by the Tribe:
(1) As per Makah Ordinance 44, only shotguns may be used to hunt any species of waterfowl. Additionally, shotguns must not be discharged within 0.25 miles of an occupied area;
(2) Hunters must be eligible, enrolled Makah Tribal members and must carry their Indian Treaty Fishing and Hunting Identification Card while hunting. No tags or permits are required to hunt waterfowl;
(3) The Cape Flattery area is open to waterfowl hunting, except in designated wilderness areas, or within 1 mile of Cape Flattery Trail, or in any area that is closed to hunting by another ordinance or regulation;
(4) The use of live decoys and/or baiting to pursue any species of waterfowl is prohibited;
(5) Steel or bismuth shot only for waterfowl is allowed; the use of lead shot is prohibited; and
(6) The use of dogs is permitted to hunt waterfowl.
We plan to approve the Makah Indian Tribe's requested 2009–10 special migratory bird hunting regulations, upon receipt of their proposal based on the provisions described above.
We are establishing uniform migratory bird hunting regulations for Tribal members on behalf of the Point No Point Treaty Council Tribes, consisting of the Port Gamble S'Klallam and Jamestown S'Klallam Tribes. The two Tribes have reservations and ceded areas in northwestern Washington State and are the successors to the signatories of the Treaty of Point No Point of 1855. These proposed regulations will apply to Tribal members both on and off reservations within the Point No Point Treaty Areas.
For the 2009–10 season, the Point No Point Treaty Council requests special migratory bird hunting regulations for the 2009–10 hunting season for a duck and coot hunting season from September 1, 2009, to March 10, 2010. The daily bag limit is seven ducks, including no more than two hen mallards, one canvasback, one pintail, two redhead, and four scoters. The daily bag limit for coots is 25. The daily bag
For geese, the Tribe proposes the season open on September 15, 2009, and close March 10, 2010. The daily bag limit for geese is four, not to include more than 3 light geese. The Tribe notes that there is a year-round closure on Aleutian and Cackling Canada geese. For brant, the Tribe proposes the season open on November 1, 2009, and close March 10, 2010. The daily bag limit for brant is two.
For band-tailed pigeons, the Tribe proposes the season open September 1, 2009, and close March 10, 2010. The daily bag limit for band-tailed pigeons is two. For mourning dove, the Tribe proposes the season open September 1, 2009, and close January 31, 2010. The daily bag limit for mourning dove is 10.
The Tribe anticipates a total harvest of fewer than 200 birds for the 2009–10 season. The Tribal Fish and Wildlife enforcement officers have the authority to enforce these Tribal regulations.
We propose to approve the Point No Point Treaty Council Tribes special migratory bird seasons.
Since 1991–92, the Oneida Tribe of Indians of Wisconsin and the Service have cooperated to establish uniform regulations for migratory bird hunting by Tribal and nontribal hunters within the original Oneida Reservation boundaries. Since 1985, the Oneida Tribe's Conservation Department has enforced the Tribe's hunting regulations within those original reservation limits. The Oneida Tribe also has a good working relationship with the State of Wisconsin and the majority of the seasons and limits are the same for the Tribe and Wisconsin.
In a May 28, 2009, letter, the Tribe proposed special migratory bird hunting regulations. For ducks, the Tribe described the general outside dates as being September 19 through December 6, 2009, with a closed segment of November 21 to 29, 2009. The Tribe proposes a daily bag limit of six birds, which could include no more than six mallards (three hen mallards), six wood duck, one redhead, two pintail, and one hooded merganser.
For geese, the Tribe requests a season between September 1 and December 31, 2009, with a daily bag limit of three Canada geese. Hunters will be issued three Tribal tags for geese in order to monitor goose harvest. An additional three tags will be issued each time birds are registered. The Tribe will close the season November 21 to 29, 2009. If a quota of 300 geese is attained before the season concludes, the Tribe will recommend closing the season early.
For woodcock, the Tribe proposes a season between September 5 and November 8, 2009, with a daily bag and possession limit of 5 and 10, respectively.
For mourning dove, the Tribe proposes a season between September 1 and November 8, 2009, with a daily bag and possession limit of 10 and 20, respectively.
The Tribe proposes shooting hours be one-half hour before sunrise to one-half hour after sunset. Nontribal hunters hunting on the Reservation or on lands under the jurisdiction of the Tribe must comply with all State of Wisconsin regulations, including shooting hours of one-half hour before sunrise to sunset, season dates, and daily bag limits. Tribal members and nontribal hunters hunting on the Reservation or on lands under the jurisdiction of the Tribe must observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, with the following exceptions: Oneida members would be exempt from the purchase of the Migratory Waterfowl Hunting and Conservation Stamp (Duck Stamp); and shotgun capacity is not limited to three shells. Tribal member shooting hours will be from one-half hour before sunset to one-half hour after sunset.
The Service proposes to approve the request for special migratory bird hunting regulations for the Oneida Tribe of Indians of Wisconsin.
The Sault Ste. Marie Tribe of Chippewa Indians is a Federally recognized self-governing Indian Tribe, distributed throughout the eastern Upper Peninsula and northern Lower Peninsula of Michigan. The Tribe has retained the right to hunt, fish, trap, and gather on the lands ceded in Treaty of Washington (1836).
In a May 29, 2009, letter, the Tribe proposed special migratory bird hunting regulations. For ducks, mergansers, and common snipe, the Tribe proposes outside dates as September 15 through December 31, 2009. The Tribe proposes a daily bag limit of 20 ducks, which could include no more than 10 mallards (5 hen mallards), 5 wood duck, 5 black duck, and 5 canvasback. The merganser daily bag limit is 10 in the aggregate and common snipe of 16.
For geese, coot, gallinule, sora and Virginia rail, the Tribe requests a season from September 1 to December 31, 2009. The daily bag limit for geese is 20, in the aggregate. The daily bag limit for coot, gallinule, sora and Virginia rail is 20 in the aggregate.
For woodcock, the Tribe proposes a season between September 2 and December 1, 2009, with a daily bag and possession limit of 10 and 20, respectively.
For mourning dove, the Tribe proposes a season between September 1 and November 14, 2009, with a daily bag and possession limit of 10 and 20, respectively.
All Sault Tribe members exercising hunting treaty rights within the 1836 Ceded Territory are required to submit annual harvest reports including date of harvest, number and species harvested, and location of harvest. Hunting hours would be from one-half hour before sunrise to 15 minutes after sunset. Only non-toxic shot are allowed for hunting waterfowl.
The Service proposes to approve the request for special migratory bird hunting regulations for the Sault Ste. Marie Tribe of Chippewa Indians.
Almost all of the Fort Hall Indian Reservation is Tribally owned. The Tribes claim full wildlife management authority throughout the reservation, but the Idaho Fish and Game Department has disputed Tribal jurisdiction, especially for hunting by nontribal members on reservation lands owned by non-Indians. As a compromise, since 1985, we have established the same waterfowl hunting regulations on the reservation and in a surrounding off-reservation State zone. The regulations were requested by the Tribes and provided for different season dates than in the remainder of the State. We agreed to the season dates because they would provide additional protection to mallards and pintails. The State of Idaho concurred with the zoning arrangement. We have no objection to the State's use of this zone again in the 2009–10 hunting season, provided the duck and goose hunting season dates are the same as on the reservation.
In a proposal for the 2009–10 hunting season, the Shoshone-Bannock Tribes requested a continuous duck (including mergansers) season, with the maximum number of days and the same daily bag and possession limits permitted for Pacific Flyway States under the final Federal frameworks. The Tribes propose that, if the same number of hunting days is permitted as last year, the season
The Tribes also requested a continuous goose season with the maximum number of days and the same daily bag and possession limits permitted in Idaho under Federal frameworks. The Tribes propose that, if the same number of hunting days is permitted as in previous years, the season would have an opening date of October 3, 2009, and a closing date of January 17, 2010. The Tribes anticipate harvest will be between 4,000 and 6,000 geese.
The Tribe requests a common snipe season with the maximum number of days and the same daily bag and possession limits permitted in Idaho under Federal frameworks. The Tribes propose that, if the same number of hunting days is permitted as in previous years, the season would have an opening date of October 3, 2009, and a closing date of January 17, 2010.
Nontribal hunters must comply with all basic Federal migratory bird hunting regulations in 50 CFR part 20 pertaining to shooting hours, use of steel shot, and manner of taking. Special regulations established by the Shoshone-Bannock Tribes also apply on the reservation.
We note that the requested regulations are nearly identical to those of last year and propose they be approved for the 2009–10 hunting season given the seasons dates fall within the final Federal flyway frameworks (applies to nontribal hunters only).
Since 1996, the Service and the Point No Point Treaty Tribes, of which the Skokomish Tribe was one, have cooperated to establish special regulations for migratory bird hunting. The Tribes have been acting independently since 2005, and the Skokomish Tribe would like to establish migratory bird hunting regulations for Tribal members for the 2009–10 season. The Tribe has a reservation on the Olympic Peninsula in Washington State and is a successor to the signatories of the Treaty of Point No Point of 1855.
The Skokomish Tribe requests a duck and coot season from September 16, 2009, to February 28, 2010. The daily bag limit is seven ducks, including no more than two hen mallards, one pintail, one canvasback, and two redheads. The daily bag and possession limit on harlequin duck is one per season. The coot daily bag limit is 25. The possession limit is twice the daily bag limit except as noted above.
For geese, the Tribe requests a season from September 16, 2009, to February 28, 2010. The daily bag limit is four, including no more than three light geese. The season on Aleutian Canada geese is closed. For brant, the Tribe proposes a season from November 1, 2009, to February 15, 2010, with a daily bag limit of two. The possession limit is twice the daily bag limit.
For mourning doves, band-tailed pigeon, and snipe, the Tribe requests a season from September 16, 2009, to February 28, 2010, with a daily bag limit of 10, 2, and 8, respectively. The possession limit is twice the daily bag limit.
All Tribal hunters authorized to hunt migratory birds are required to obtain a Tribal hunting permit from the Skokomish Tribe pursuant to Tribal law. Hunting hours would be from one-half hour before sunrise to sunset. Only steel, tungsten-iron, tungsten-polymer, tungsten-matrix, and tin shot are allowed for hunting waterfowl. It is unlawful to use or possess lead shot while hunting waterfowl.
The Tribe anticipates harvest to be fewer than 150 birds. The Skokomish Public Safety Office enforcement officers have the authority to enforce these migratory bird hunting regulations.
We propose to approve the Skokomish Tribe's requested migratory bird hunting season.
The Spokane Tribe of Indians wishes to establish waterfowl seasons on their respective reservation for its membership to access to an additional resource. An established waterfowl season on the reservation will allow access to a resource for members to continue practicing a subsistence lifestyle.
The Spokane Indian Reservation is located in northeastern Washington State. The reservation comprises approximately 157,000 acres. The boundaries of the Reservation are the Columbia River to the west, the Spokane River to the south (now Lake Roosevelt), Tshimikn Creek to the east, and the 48th Parallel as the north boundary. Tribal membership comprises approximately 2,300 enrolled Spokane Tribal Members. Prior to 1939, the Spokane Tribe was primarily a salmon people; upon completion of Grand Coulee Dam creating Lake Roosevelt, the development of hydroelectricity without passage ultimately removed salmon access from historical fishing areas for the Spokane Tribe for the past 70 years.
These proposed regulations would allow Tribal Members, spouses of a Spokane Tribal Member and first-generation descendants of a Spokane Tribal Member with a Tribal permit and Federal Waterfowl stamps an opportunity to utilize the reservation and ceded lands. It will also benefit Tribal membership through access to this resource throughout Spokane Tribal ceded lands in eastern Washington. By Spokane Tribal Referendum, spouses of Spokane Tribal Members and children of Spokane Tribal Members not enrolled are allowed to harvest game animals within the Spokane Indian Reservation with the issuance of hunting permits.
For the 2009–10 season, the Tribe requests to establish duck seasons that would run from September 1, 2009, through January 31, 2010. The Tribe is requesting the daily bag limit for ducks to be consistent with the State of Washington. The possession limit is twice the daily bag limit.
The Tribe proposes a season on geese starting September 1, 2009, and ending on January 31, 2010. The Tribe is requesting the daily bag limit for geese to be consistent with the State of Washington. The possession limit is twice the daily bag limit.
Based on the quantity of requests the Spokane Tribe of Indians has received, the Tribe anticipates harvest levels for the 2009–10 season for both ducks and geese to be below 300 total birds with goose harvest at less than 100. Hunter success will be monitored through mandatory harvest reports returned within 30 days of the season closure.
We propose to approve the Spokane Tribe's requested 2009–10 special migratory bird hunting regulations.
The Squaxin Island Tribe of Washington and the Service have cooperated since 1995 to establish special Tribal migratory bird hunting regulations. These special regulations apply to Tribal members on the Squaxin Island Reservation, located in western Washington near Olympia, and all lands within the traditional hunting grounds of the Squaxin Island Tribe.
For the 2009–10 season, the Tribe requests to establish duck and coot seasons that would run from September 1, 2009, through January 15, 2010. The daily bag limit for ducks is five per day and could include only one canvasback. The season on harlequin ducks is
The Tribe proposes a season on geese starting September 15, 2009, and ending on January 15, 2010. The daily bag limit for geese is four, including no more than two snow geese. The season on Aleutian and Cackling Canada geese is closed. For brant, the Tribe proposes the season start on September 1, 2009, and end on December 31, 2009. The daily bag limit for brant is two. The possession limit is twice the daily bag limit.
We propose to approve the Squaxin Island Tribe's requested 2009–10 special migratory bird hunting regulations.
The Stillaguamish Tribe of Indians and the Service have cooperated to establish special regulations for migratory game birds since 2001. The Tribe is proposing regulations to hunt all open and unclaimed lands under the Treaty of Point Elliott of January 22, 1855, including their main hunting grounds around Camano Island, Skagit Flats, and Port Susan to the border of the Tulalip Tribes Reservation. Ceded lands are located in Whatcom, Skagit, Snohomish, and Kings Counties, and a portion of Pierce County, Washington. The Stillaguamish Tribe of Indians is a Federally recognized Tribe and reserves the Treaty Right to hunt (
The Tribe proposes that duck (including mergansers) and goose seasons run from October 1, 2009, to February 15, 2010. The daily bag limit on ducks (including sea ducks and mergansers) is 10 and must include no more than 7 mallards (only 3 of which can be hens), 3 pintail, 3 redhead, 3 scaup, and 3 canvasback. For geese, the daily bag limit is six. Possession limits are totals of these two daily bag limits.
The Tribe proposes that coot, brant, and snipe seasons run from October 1, 2009, to January 31, 2010. The daily bag limit for coot is 25. The daily bag limit on brant is three. The daily bag limit for snipe is 10. Possession limits are twice the daily bag limit.
Harvest is regulated by a punch card system. Tribal members hunting on lands under this proposal will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, which will be enforced by the Stillaguamish Tribal Law Enforcement. Tribal members are required to use steel shot or a nontoxic shot as required by Federal regulations.
The Tribe anticipates a total harvest of 200 ducks, 100 geese, 50 mergansers, 100 coots, and 100 snipe. Anticipated harvest needs include subsistence and ceremonial needs. Certain species may be closed to hunting for conservation purposes, and consideration for the needs of certain species will be addressed.
The Service proposes to approve the request for special migratory bird hunting regulations for the Stillaguamish Tribe of Indians.
In 1996, the Service and the Swinomish Indian Tribal Community began cooperating to establish special regulations for migratory bird hunting. The Swinomish Indian Tribal Community is a Federally recognized Indian Tribe consisting of the Suiattle, Skagit, and Kikialos. The Swinomish Reservation was established by the Treaty of Point Elliott of January 22, 1855, and lies in the Puget Sound area north of Seattle, Washington.
For the 2009–10 season, the Tribe usually requests to establish a migratory bird hunting season on all areas that are open and unclaimed and consistent with the meaning of the treaty. The Tribe usually requests to establish duck, merganser, Canada goose, brant, and coot seasons opening on the earliest possible date allowed by the final Federal frameworks for the Pacific Flyway and closing 30 days after the State of Washington closes its season. The Swinomish Tribe requests an additional three birds of each species over that allowed by the State for daily bag and possession limits.
The Community normally anticipates that the regulations will result in the harvest of approximately 300 ducks, 50 Canada geese, 75 mergansers, 100 brant, and 50 coot. The Swinomish utilize a report card and permit system to monitor harvest and will implement steps to limit harvest where conservation is needed. All Tribal regulations will be enforced by Tribal fish and game officers.
On reservation, the Tribal Community usually proposes a hunting season for the abovementioned species beginning on the earliest possible opening date and closing March 9, 2010. The Swinomish manage harvest by a report card and permit system, and we anticipate harvest will be similar to that expected off reservation.
We believe the estimated harvest by the Swinomish will be minimal and will not adversely affect migratory bird populations. Upon receipt of the 2009–10 Swinomish hunting proposal, we propose to approve the Tribe's requested 2009–10 special migratory bird hunting regulations.
The Tulalip Tribes are the successors in interest to the Tribes and bands signatory to the Treaty of Point Elliott of January 22, 1855. The Tulalip Tribes' government is located on the Tulalip Indian Reservation just north of the City of Everett in Snohomish County, Washington. The Tribes or individual Tribal members own all of the land on the reservation, and they have full wildlife management authority. All lands within the boundaries of the Tulalip Tribes Reservation are closed to nonmember hunting unless opened by Tulalip Tribal regulations.
For the 2009–10 season, the Tribe proposes Tribal and nontribal hunting regulations for the 2009–10 season. Migratory waterfowl hunting by Tulalip Tribal members is authorized by Tulalip Tribal Ordinance No. 67. For ducks, mergansers, coot, and snipe, the proposed season for Tribal members would be from September 15, 2009, through February 28, 2010. In the case of nontribal hunters hunting on the reservation, the season would be the latest closing date and the longest period of time allowed under the final Pacific Flyway Federal frameworks. Daily bag and possession limits for Tulalip Tribal members would be 7 and 14 ducks, respectively, except that for blue-winged teal, canvasback, harlequin, pintail, and wood duck, the bag and possession limits would be the same as those established in accordance with final Federal frameworks. For nontribal hunters, bag and possession limits would be the same as those permitted under final Federal frameworks. For coot, daily bag and possession limits are 25 and 50, respectively, and for snipe 8 and 18, respectively. Nontribal hunters should check with the Tulalip Tribal authorities regarding additional conservation measures that may apply to specific species managed within the region. Ceremonial hunting may be authorized by the Department of Natural Resources at any time upon application of a qualified Tribal member. Such a hunt must have a bag limit designed to
For geese, Tribal members propose a season from September 15, 2009, through February 28, 2010. Nontribal hunters would be allowed the longest season and the latest closing date permitted by the Pacific Flyway Federal frameworks. For Tribal hunters, the goose daily bag and possession limits would be 7 and 14, respectively, except that the bag limits for brant, cackling Canada geese, and dusky Canada geese would be those established in accordance with final Federal frameworks. For nontribal hunters hunting on reservation lands, the daily bag and possession limits would be those established in accordance with final Federal frameworks for the Pacific Flyway. The Tulalip Tribes also set a maximum annual bag limit for those Tribal members who engage in subsistence hunting of 365 ducks and 365 geese.
All hunters on Tulalip Tribal lands are required to adhere to shooting hour regulations set at one-half hour before sunrise to sunset, special Tribal permit requirements, and a number of other Tribal regulations enforced by the Tribe. Each nontribal hunter 16 years of age and older hunting pursuant to Tulalip Tribes' Ordinance No. 67 must possess a valid Federal Migratory Bird Hunting and Conservation Stamp and a valid State of Washington Migratory Waterfowl Stamp. Each hunter must validate stamps by signing across the face.
Although the season length requested by the Tulalip Tribes appears to be quite liberal, harvest information indicates a total take by Tribal and nontribal hunters under 1,000 ducks and 500 geese annually.
We propose approval of the Tulalip Tribe's request to have a special season.
The Upper Skagit Indian Tribe and the Service have cooperated to establish special regulations for migratory game birds since 2001. The Tribe has jurisdiction over lands within Skagit, Island, and Whatcom Counties, Washington. The Tribe issues Tribal hunters a harvest report card that will be shared with the State of Washington.
For the 2009–10 season, the Tribe requests a duck season starting October 1, 2009, and ending February 28, 2010. The Tribe proposes a daily bag limit of 15 with a possession limit of 20. The Tribe requests a coot season starting October 15, 2009, and ending February 15, 2010. The coot daily bag limit is 20 with a possession limit of 30.
The Tribe proposes a goose season from October 15, 2009, to February 28, 2010, with a daily bag limit of seven geese and five brant. The possession limit for geese and brant are 10 and 7, respectively.
The Tribe proposes a mourning dove season between September 1 to December 31, 2009, with a daily bag limit of 12 and possession limit of 15.
The anticipated migratory bird harvest under this proposal would be 100 ducks, 5 geese, 2 brant, and 10 coots. Tribal members must have the Tribal identification and Tribal harvest report card on their person to hunt. Tribal members hunting on the Reservation will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, except shooting hours would be 15 minutes before official sunrise to 15 minutes after official sunset.
The Service proposes to approve the request for special migratory bird hunting regulations for the Upper Skagit Indian Tribe.
The Wampanoag Tribe of Gay Head is a Federally recognized Tribe located on the island of Martha's Vineyard in Massachusetts. The Tribe has approximately 560 acres of land, which it manages for wildlife through its natural resources department. The Tribe also enforces its own wildlife laws and regulations through the natural resources department.
For the 2009–10 season, the Tribe proposes a duck season of October 29, 2009, through February 25, 2010. The Tribe proposes a daily bag limit of six birds, which could include no more than two hen mallards, six drake mallards, two black ducks, two mottled ducks, one fulvous whistling duck, four mergansers, three scaup, one hooded merganser, two wood ducks, one canvasback, two redheads, one pintail, and four of all other species not listed. The season for harlequins would be closed. The Tribe proposes a teal (green-winged and blue) season of October 13, 2009, through January 26, 2010. A daily bag limit of six teal would be in addition to the daily bag limit for ducks.
For sea ducks, the Tribe proposes a season between October 12, 2009, and February 28, 2010, with a daily bag limit of seven, which could include no more than one hen eider and four of any one species unless otherwise noted above.
For Canada geese, the Tribe requests a season between September 14 to September 28, 2009, and October 29, 2009, through February 25, 2010, with a daily bag limit of 5 Canada geese during the first period, 3 Canada geese during the second period. For snow geese, the Tribe requests a season between September 8 to September 22, 2009, and October 29, 2009, to February 25, 2010, with a daily bag limit of 15 snow geese.
For woodcock, the Tribe proposes a season between October 13 and November 28, 2009, with a daily bag limit of three.
Prior to 2009, the Tribe had 22 registered Tribal hunters, and estimates harvest to be no more than 15 geese, 25 mallards, 25 teal, 50 black ducks, and 50 of all other species combined. Tribal members hunting on the Reservation will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20. The Tribe requires hunters to register with the Harvest Information Program.
The Service proposes to approve the request for special migratory bird hunting regulations for the Wampanoag Tribe of Gay Head.
The White Earth Band of Ojibwe is a Federally recognized Tribe located in northwest Minnesota and encompasses all of Mahnomen County and parts of Becker and Clearwater Counties. The reservation employs conservation officers to enforce migratory bird regulations. The Tribe and the Service first cooperated to establish special Tribal regulations in 1999.
For the 2009–10 migratory bird hunting season, the White Earth Band of Ojibwe usually requests a duck and merganser season to start September 20 and end December 19, 2009. For ducks, they usually request a daily bag limit of 10, including no more than 2 mallards and 1 canvasback. The merganser daily bag limit would be five with no more than two hooded mergansers. For geese, the Tribe usually proposes an early season from September 1 through September 26, 2009, and a late season from September 27, 2009, through December 19, 2009. The early season daily bag limit is eight geese and the late season daily bag limit is five geese.
For coots, dove, rail, woodcock, and snipe, the Tribe usually proposes a September 1 through November 30, 2009, season with daily bag limits of 20 coots, 25 doves, 25 rails, 10 woodcock, and 10 snipe. Shooting hours are one-half hour before sunrise to one-half hour after sunset. Nontoxic shot is required.
Based on past harvest surveys, the Tribe anticipates harvest of 1,000 to
We propose to approve the White Earth Band of Ojibwe's request to have a special season upon receipt of the 2009–10 proposal.
The White Mountain Apache Tribe owns all reservation lands, and the Tribe has recognized full wildlife management authority. The White Mountain Apache Tribe has requested regulations that are essentially unchanged from those agreed to since the 1997–98 hunting year.
The hunting zone for waterfowl is restricted and is described as: The length of the Black River west of the Bonito Creek and Black River confluence and the entire length of the Salt River forming the southern boundary of the reservation; the White River, extending from the Canyon Day Stockman Station to the Salt River; and all stock ponds located within Wildlife Management Units 4, 5, 6, and 7. Tanks located below the Mogollon Rim, within Wildlife Management Units 2 and 3, will be open to waterfowl hunting during the 2009–10 season. The length of the Black River east of the Black River/Bonito Creek confluence is closed to waterfowl hunting. All other waters of the reservation would be closed to waterfowl hunting for the 2009–10 season.
For nontribal and Tribal hunters, the Tribe proposes a continuous duck, coot, merganser, gallinule, and moorhen hunting season, with an opening date of October 10, 2009, and a closing date of January 31, 2010. The Tribe proposes a separate scaup season, with an opening date of October 10, 2009, and a closing date of December 6, 2009. The Tribe proposes a daily duck (including mergansers) bag limit of seven, which may include no more than two redheads, one pintail, and seven mallards (including no more than two hen mallards). The season on canvasback is closed. The daily bag limit for coots, gallinules, and moorhens would be 25, singly or in the aggregate. For geese, the Tribe is proposing a season from October 10, 2009, through January 31, 2010. Hunting would be limited to Canada geese, and the daily bag limit would be three.
Season dates for band-tailed pigeons and mourning doves would run concurrently from September 1 through September 15, 2009, in Wildlife Management Unit 10 and all areas south of Y–70 and Y–10 in Wildlife Management Unit 7, only. Proposed daily bag limits for band-tailed pigeons and mourning doves would be 3 and 10, respectively.
Possession limits for the above species are twice the daily bag limits. Shooting hours would be from one-half hour before sunrise to sunset. There would be no open season for sandhill cranes, rails, and snipe on the White Mountain Apache lands under this proposal. A number of special regulations apply to Tribal and nontribal hunters, which may be obtained from the White Mountain Apache Tribe Game and Fish Department.
We propose to approve the regulations requested by the Tribe for the 2009–10 season.
The Yankton Sioux Tribe has yet to submit a waterfowl hunting proposal for the 2009–10 season. The Yankton Sioux Tribal waterfowl hunting season usually would be open to both Tribal members and nontribal hunters. The waterfowl hunting regulations would apply to Tribal and trust lands within the external boundaries of the reservation.
For ducks (including mergansers) and coots, the Yankton Sioux Tribe usually proposes a season starting October 9, 2009, and running for the maximum amount of days allowed under the final Federal frameworks. Daily bag and possession limits would be 6 ducks, which may include no more than 5 mallards (no more than 2 hens), 1 canvasback (when open), 2 redheads, 3 scaup, 1 pintail, or 2 wood ducks. The bag limit for mergansers is 5, which would include no more than 1 hooded merganser. The coot daily bag limit is 15.
For geese, the Tribe usually requests a dark goose (Canada geese, brant, white-fronts) season starting October 29, 2009, and closing January 31, 2010. The daily bag limit would be three geese (including no more than one white-fronted goose or brant). Possession limits would be twice the daily bag limit. For white geese, the proposed hunting season would start October 29, 2009, and run for the maximum amount of days allowed under the final Federal frameworks for the State of South Dakota. Daily bag and possession limits would equal the maximum allowed under Federal frameworks.
All hunters would have to be in possession of a valid Tribal license while hunting on Yankton Sioux trust lands. Tribal and nontribal hunters must comply with all basic Federal migratory bird hunting regulations in 50 CFR part 20 pertaining to shooting hours and the manner of taking. Special regulations established by the Yankton Sioux Tribe also apply on the reservation.
During the 2005–06 hunting season, the Tribe reported that 90 nontribal hunters took 400 Canada geese, 75 light geese, and 90 ducks. Forty-five Tribal members harvested fewer than 50 geese and 50 ducks.
We plan to approve the Yankton Sioux 2009–10 hunting seasons upon receipt of their proposal based on the provisions described above.
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88–14),” filed with the Environmental Protection Agency on June 9, 1988. We published a notice of availability in the
In a notice published in the September 8, 2005,
Prior to issuance of the 2009–10 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531–1543; hereinafter, the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitat, and is consistent with conservation programs for those species. Consultations under section 7 of the Act may cause us to change proposals in this and future supplemental rulemaking documents.
The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. A regulatory cost-benefit analysis has been prepared and is available at
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
We are required by Executive Orders 12866 and 12988 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 clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more.
We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally-recognized Indian Tribes and have determined that there are no effects on Indian trust resources. However, in the April 10
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Indian Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
Based on the results of migratory game bird studies, and having due consideration for any data or views submitted by interested parties, this proposed rulemaking may result in the adoption of special hunting regulations for migratory birds beginning as early as September 1, 2009, on certain Federal Indian reservations, off-reservation trust lands, and ceded lands. Taking into account both reserved hunting rights and the degree to which Tribes have full wildlife management authority, the regulations only for Tribal members or for both Tribal and nontribal hunters may differ from those established by States in which the reservations, off-reservation trust lands, and ceded lands are located. The regulations will specify open seasons, shooting hours, and bag and possession limits for rails, coot, gallinules, woodcock, common snipe, band-tailed pigeons, mourning doves, white-winged doves, ducks, mergansers, and geese.
The rules that eventually will be promulgated for the 2009–10 hunting season are authorized under the Migratory Bird Treaty Act (MBTA) of July 3, 1918 (40 Stat. 755; 16 U.S.C. 703
Recovery Accountability and Transparency Board.
Notice of new Privacy Act systems of records.
The Recovery Accountability and Transparency Board (Board) proposes two new systems of records subject to the Privacy Act of 1974, as amended (Privacy Act or the Act), entitled “FederalReporting.gov Section 1512 Data System” (1512 Data System) and “FederalReporting.gov Recipient Registration System” (FRRS). The 1512 Data System will contain information on recipients of funding from the American Recovery and Reinvestment Act, Public Law 111–5 (Recovery Act). Under section 1512 of the Recovery Act, as well as implementing guidance promulgated by the Office of Management and Budget (OMB), recipients are required to report certain data elements relating to their receipt of funds. The 1512 Data System will include data collected from recipients reporting data pursuant to the Recovery Act, and that data will then flow to and be posted publicly on the Web site Recovery.gov, which was also established by the Recovery Act. The FRRS will contain information on individuals who have registered and established accounts to access FederalReporting.gov, the Board's Web-based inbound reporting system. The information maintained by the FRRS includes the first name, last name, phone number, extension, agency code (for individuals associated with a Federal agency), and DUNS number. This information is used to retrieve additional recipient organizational information from the Central Contractor Registry (CCR), Federal Procurement Data System (FPDS), and Dun and Bradstreet database systems. This information will be used to protect and manage access to the individual's account on FederalReporting.gov. In this notice, the Board provides the required information on the systems of records.
Comments may be submitted:
All comments on the proposed new systems of records should be clearly identified as such.
Jennifer Dure, General Counsel, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006, (202) 254–7900.
Title 5 U.S.C. 552a(e)(4) and (11) provide that the public be given a 30-day period in which to comment on any new routine use of a system of records. OMB, which has oversight responsibilities under the Act, requires a 40-day period in which to conclude its review of the new systems. Therefore, please submit any comments by September 21, 2009.
In accordance with 5 U.S.C. 552a(r), the Board has provided a report to OMB and the Congress on the proposed systems of records.
FederalReporting.gov Section 1512 Data System (1512 Data System).
None.
The principal management entity for the system is the Recovery Accountability and Transparency Board, located at 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006. The physical location for the system will be the CGI Phoenix Data Center, located at 10007 South 51st Street, Phoenix, AZ 85044. The system will be operated at this facility.
This system contains records that all recipients of Recovery funds, as defined by section 1512(b)(1) of the Recovery Act, are required to report. This system includes information on individuals who are sole proprietors.
This system contains records described in OMB's June 22, 2009, Implementing Guidance for the Reports on Use of Funds Pursuant to the American Recovery and Reinvestment Act of 2009. The record description in this document includes data on prime recipients, subrecipients, and vendors receiving funding under the Recovery Act. The system will also store other system-generated data such as the recipient's report submission date and time and other identifiers for internal tracking.
The Recovery Act was enacted on February 17, 2009, in order to make supplemental appropriations for job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.
FederalReporting.gov is the Board's inbound Recovery reporting solution. Recipients of Recovery funds are required to disclose certain information, which must then be posted on the public-facing Web site, Recovery.gov. The purpose of collecting this information is to provide the public with information as to how the government spends money, and also to assist with the prevention of fraud, waste, and mismanagement of Recovery funds.
1512 Data System records will be used to collect information about recipients' use of Recovery funds, as well as to populate the public-facing Web site Recovery.gov. The records may
The Board may disclose information contained in a record in this system of records under the routine uses listed in this notice without the consent of the recipient if the disclosure is compatible with the purposes for which the record was collected.
The general routine uses for the Board's 1512 Data System records are listed as follows:
A. As set forth above, and pursuant to the Recovery Act, 1512 Data System records will be used to collect information about recipients' use of Recovery funds, as well as to populate the public-facing Web site Recovery.gov, where disclosure of the specified data elements will be made to the public.
B. Information may be disclosed to the appropriate Federal, State, local, or Tribal agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, if the information is relevant to a violation or potential violation of civil or criminal law or regulation within the jurisdiction of the receiving entity.
C. Disclosure may be made to a Federal, State, local, or Tribal or other public authority of the fact that this system of records contains information relevant to the retention of an employee, the retention of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit. That entity, authority or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses.
D. Information may be disclosed to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual.
E. Information may be disclosed to the Department of Justice (DOJ), or in a proceeding before a court, adjudicative body, or other administrative body before which the Board is authorized to appear, when:
1. The Board, or any component thereof; or
2. Any employee of the Board in his or her official capacity; or
3. Any employee of the Board in his or her individual capacity where the DOJ or the Board has agreed to represent the employee; or
4. The United States, if the Board determines that litigation is likely to affect the Board or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the DOJ or the Board is deemed by the Board to be relevant and necessary to the litigation, provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
F. Information may be disclosed to the National Archives and Records Administration in records management inspections.
G. Information may be disclosed to contractors, grantees, consultants, or volunteers performing or working on a contract, service, grant, cooperative agreement, job, or other activity for the Board and who have a need to have access to the information in the performance of their duties or activities for the Board.
The 1512 Data System records will be stored in digital format on a digital storage device. Long-term 1512 Data System records will be stored on magnetic tape format. All record storage procedures are in accordance with current applicable regulations.
Records are retrievable by database management systems software designed to retrieve recipient reporting elements based upon role-based user access privileges.
The Board has minimized the risk of unauthorized access to the system by establishing a secure environment for exchanging electronic information. Physical access uses a defense in-depth approach restricting access at each layer closest to where the actual system resides. The entire complex is patrolled by security during non-business hours. Physical access to the data system housed within the facility is controlled by a computerized badge-reading system. Multiple levels of security are maintained via dual factor authentication for access using biometrics. The computer system offers a high degree of resistance to tampering and circumvention. This system limits data access to Board and contract staff on a need-to-know basis, and controls individuals' ability to access and alter records within the system. All users of the system of records are given a unique user identification (ID) with personal identifiers. All interactions between the system and the authorized individual users are recorded.
The Board will retain and dispose of these records in accordance with National Archives and Records Administration General Records Schedule 20, Item 1.c. This schedule provides disposal authorization for electronic files and hard copy printouts created to monitor system usage, including but not limited to log-in files, audit trail files, system usage files, and cost-back files used to access charges for system use. Records will be deleted or destroyed when the Board determines they are no longer needed for administrative, legal, audit, or other program purposes.
Michael Wood, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006.
Any individual who wants to know whether this system of records contains a record about him or her, who wants access to his or her record, or who wants to contest the contents of a record should make a written request to the system manager.
A request for record access shall follow the directions described under Notification Procedure and will be addressed to the system manager at the address listed above.
If you wish to contest a record in the system of records, contact the system manager and identify the record to be changed, identify the corrective action sought, and provide a written justification.
Information is obtained from individuals who have had or seek to have their identity authenticated except that a password and a username are explicitly self-assigned by the user registering to gain access to the 1512 Data System.
FederalReporting.gov Recipient Registration System (FRRS).
None.
The principal management entity for the FRRS system is the Recovery Accountability and Transparency Board, located at 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006. The physical location for the system will be the CGI Phoenix Data Center, located at 10007 South 51st Street, Phoenix, AZ 85044. The system will be operated at this facility.
This system contains records on all individuals that have either attempted to register or have registered to obtain an account to use FederalReporting.gov to report recipient data elements related to Recovery funds.
This system contains records including individual's name, self-assigned user name and security question, work address and related contact information (
The Recovery Act was enacted on February 17, 2009, in order to make supplemental appropriations for job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.
FederalReporting.gov is the Board's inbound Recovery reporting solution. Recipients of Recovery funds are required to disclose certain information, which must then be posted on the public-facing Web site, Recovery.gov. The purpose of collecting this information is to provide the public with information as to how the government spends money, and also to assist with the prevention of fraud, waste, and mismanagement of Recovery funds. FRRS was developed to protect the Board and FederalReporting.gov users from individuals seeking to gain unauthorized access to user accounts on FederalReporting.gov. FederalReporting.gov is the sole source for reporting Recovery Act information.
The information contained in records maintained in the FRRS is used for the purposes of verifying the identity of the individual, allowing individual users to establish an account on FederalReporting.gov, providing individual users access to their FederalReporting.gov account for reporting data, allowing individual users to customize, update or terminate their account with FederalReporting.gov, renewing or revoking an individual user's account on FederalReporting.gov, supporting the FederalReporting.gov help desk functions, investigating possible fraud and verifying compliance with program regulations, and initiating legal action against an individual involved in program fraud, abuse, or noncompliance. The information is also used to provide authenticated protected access to FederalReporting.gov, thereby protecting FederalReporting.gov and FederalReporting.gov users from potential harm caused by individuals with malicious intentions gaining unauthorized access to the system.
FRRS records will be used to facilitate registering FederalReporting.gov system users, issuing a username and password, and subsequently, verifying an individual's identity as he/she seeks to gain routine access to his/her account. In some cases, the organizational point of contact has the ability to deny access or reporting privileges for the organization, based on the registration information provided by the user. The system has secondary uses that include: using the established username to facilitate tracking service calls or e-mails from the user in the event that there is a change in registration status or a problem the user has with FederalReporting.gov; facilitating the retrieval of user actions (
The Board may disclose information contained in a record in this system of records under the routine uses listed in this notice without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected.
The general routine uses for the Board's FRRS are listed as follows:
A. Information may be disclosed to the appropriate Federal, State, local, or Tribal agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, if the information is relevant to a violation or potential violation of civil or criminal law or regulation within the jurisdiction of the receiving entity.
B. Disclosure may be made to a Federal, State, local, or Tribal or other public authority of the fact that this system of records contains information relevant to the retention of an employee, the retention of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit. That entity, authority or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses.
C. Information may be disclosed to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual.
D. Information may be disclosed to the Department of Justice (DOJ), or in a proceeding before a court, adjudicative body, or other administrative body before which the Board is authorized to appear, when:
1. The Board, or any component thereof; or
2. Any employee of the Board in his or her official capacity; or
3. Any employee of the Board in his or her individual capacity where the DOJ or the Board has agreed to represent the employee; or
4. The United States, if the Board determines that litigation is likely to affect the Board or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the DOJ or the Board is deemed by the Board to be relevant and necessary to the litigation, provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
E. Information may be disclosed to the National Archives and Records
F. Information may be disclosed to contractors, grantees, consultants, or volunteers performing or working on a contract, service, grant, cooperative agreement, job, or other activity for the Board and who have a need to have access to the information in the performance of their duties or activities for the Board.
The FRRS records will be stored in digital format on a digital storage device. Long-term FRRS Data System records will be stored on magnetic tape format. All record storage procedures are in accordance with current applicable regulations.
Records are retrievable by database management systems software designed to retrieve FRRS elements based upon role-based user access privileges. Records are retrievable by the FRRS user name.
The Board has minimized the risk of unauthorized access to the system by establishing a secure environment for exchanging electronic information. Physical access uses a defense in-depth approach restricting access at each layer closest to where the actual system resides. The entire complex is patrolled by security during non-business hours. Physical access to the data system housed within the facility is controlled by a computerized badge reading system. Multiple levels of security are maintained via dual factor authentication for access using biometrics. The computer system offers a high degree of resistance to tampering and circumvention. This system limits data access to Board and contract staff on a need-to-know basis, and controls individuals' ability to access and alter records within the system. All users of the system of records are given a unique user identification (ID) with personal identifiers. All interactions between the system and the authorized individual users are recorded.
The Board will retain and dispose of these records in accordance with National Archives and Records Administration General Records Schedule 20, Item 1.c. This schedule provides disposal authorization for electronic files and hard copy printouts created to monitor system usage, including but not limited to log-in files, audit trail files, system usage files, and cost-back files used to access charges for system use. Records will be deleted or destroyed when the Board determines they are no longer needed for administrative, legal, audit, or other program purposes.
Michael Wood, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006.
Any individual who wants to know whether this system of records contains a record about him or her, who wants access to his or her record, or who wants to contest the contents of a record should make a written request to the system manager.
A request for record access shall follow the directions described under Notification Procedure and will be addressed to the system manager at the address listed above.
If you wish to contest a record in the system of records, contact the system manager and identify the record to be changed, identify the corrective action sought, and provide a written justification.
Information is obtained from individuals who have had or seek to have their identity authenticated except that a password and a username are explicitly self-assigned by the user registering to gain access to FederalReporting.gov.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the importation of live swine, pork and pork products, and swine semen from the European Union.
We will consider all comments that we receive on or before October 13, 2009.
You may submit comments by either of the following methods:
•
•
For information on regulations for the importation of live swine, pork and pork products, and swine semen from the European Union, contact Dr. James Davis, Senior Staff Veterinarian, Technical Trade Services—Animals, National Center for Import and Export, VS, APHIS, 4700 River Road, Unit 39, Riverdale, MD 20737; (301) 734–0694. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
Under 9 CFR 94.24 and 98.38, breeding swine, pork and pork products, and swine semen from a defined region of the European Union (“the APHIS-defined EU CSF region”) must be accompanied by certificates stating that certain requirements related to origin, movement, testing, and other matters specified in the regulations have been met.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for tuberculosis testing of imported cattle.
We will consider all comments that we receive on or before October 13, 2009.
You may submit comments by either of the following methods:
•
•
For information regarding regulations for tuberculosis testing of imported cattle, contact Dr. Betzaida Lopez, Staff Veterinarian, Technical Trade Services Team—Animals, National Center for Import and Export, VS, APHIS, 4700 River Road, Unit 39, Riverdale, MD 20737; (301) 734–5677. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
The regulations in subpart D include requirements to ensure that cattle imported into the United States are free of bovine tuberculosis. Among other things, subpart D requires an import permit for cattle from Mexico and certain other countries, and requires that the application for the import permit list the specific location of all premises that the cattle to be imported have been on. Additionally, subpart D requires certification regarding the tuberculosis history of the herds from
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Revision and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to revise an information collection associated with regulations to allow importation of certain fruits and vegetables into the United States and to request extension of approval of the information collection.
We will consider all comments that we receive on or before October 13, 2009.
You may submit comments by either of the following methods:
•
•
For information on the importation of fruits and vegetables, contact Ms. Donna L. West, Senior Import Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737–1231; (301) 734–5298. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
Under these regulations, certain fruits and vegetables may be imported into the United States under specific conditions to prevent the introduction of plant pests into the United States. These conditions involve the use of information collection activities, including the issuance of permits and phytosanitary certificates, trapping surveys, labeling of boxes, and recordkeeping.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
This information collection includes information collection requirements currently approved by OMB control numbers 0579–0293, “Revision of Fruits and Vegetables Import Regulations,” and 0579–0316, “Importation of Fruits and Vegetables.” After OMB approves and combines the burden for both collections under a single collection (0579–0316), the Department will retire number 0579–0293.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning this information collection activity. These comments will help us:
(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations restricting the importation of products of poultry and birds into the United States in order to prevent the introduction of poultry disease.
We will consider all comments that we receive on or before October 13, 2009.
You may submit comments by either of the following methods:
•
•
For information regarding regulations for the importation of products of poultry and birds, contact Dr. Lynette Williams, Senior Staff Veterinarian, Technical Trade Services Team—Products, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 40, Riverdale, MD 20737; (301) 734–3277. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
Part 94, § 94.6, governs the importation of carcasses, parts or products of carcasses, and eggs (other than hatching eggs) of poultry, game birds, and other birds to prevent the introduction of exotic Newcastle disease (END) and highly pathogenic avian influenza subtype H5N1 into the United States. Various conditions for importation apply.
These conditions include four information collection activities: (1) A certificate of origin that must be issued, (2) serial numbers that must be recorded, (3) records that must be maintained, and (4) cooperative service agreements that must be signed.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Office of the Acting Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Acting Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Agricultural Marketing Service (AMS), Fruit and Vegetable Programs, USDA, are sponsoring a public meeting on September 17, 2009. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the 15th Session of the Codex Committee on Fresh Fruits and Vegetables (CCFFV) of the Codex Alimentarius Commission (Codex). The Acting Under Secretary for Food Safety and AMS recognize the importance of providing interested parties the opportunity to obtain background information on the 15th Session of the CCFFV and to address items on the agenda.
The public meeting is scheduled for Thursday, September 17, 2009, at 10 a.m. to 12 p.m.
The public meeting will be held in Room 2068, USDA South Building at 1400 Independence Ave., SW., Washington, DC 20250. Documents related to the 15th CCFFV Session will be accessible via the World Wide Web at the following address:
The U.S. Delegate to the 15th Session of the CCFFV invites interested U.S. parties to submit their comments electronically to the following e-mail address
The Codex Alimentarius (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade. The CCFFV is hosted by Mexico.
The following items on the Agenda for the 15th CCFFV Session will be discussed during the public meeting:
• Matters Arising from the Codex Alimentarius Commission and other Codex Committees;
• Matters Arising from other International Organizations on the Standardization of Fresh Fruits and Vegetables;
• United Nations Economic Commission for Europe (UNECE) Standards for Fresh Fruits and Vegetables: (i) UNECE Standard for Apples (FFV–50); (ii) UNECE Standard for Avocados (FFV–42);
• Draft Section 6 “Marking or Labeling” (Draft Standard for Bitter Cassava);
• Draft Standard for Apples;
• Proposed Draft Standard for Avocado (revision) (N19–2008);
• Proposed Draft Standard for Chili Peppers (N17–2008);
• Proposed Draft Standard for Tree Tomato (N18–2008);
• Layout for Codex Standards for Fresh Fruits and Vegetables;
• Proposed Layout for Codex Standards for Fresh Fruits and Vegetables—Comments in Response to CL 2008/13–FFV;
• Glossary of Terms used in the Proposed Layout for Codex Standards on Fresh Fruits and Vegetables;
• Proposals for Amendments to the Priority List for the Standardization of Fresh Fruits and Vegetables—CL 2008/13–FFV.
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the meeting. Members of the public may access copies of these documents via the World Wide Web at the following address:
At the September 17, 2009 public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate for the 15th CCFFV Session, Dorian LaFond (see
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the revision of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before October 13, 2009.
You may submit comments by any of the following methods:
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Requests for additional information should be directed to Robert A. Clarke, Director, Office of Patent Legal Administration, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450; by telephone at 571–272–7735; or by e-mail to
Patent applications that contain nucleotide and/or amino acid sequence disclosures must include a copy of the sequence listing in accordance with the requirements in 37 CFR 1.821–1.825. The rules of practice require applicants to submit these sequence listings in a standard international format that is consistent with World Intellectual Property Organization (WIPO) Standard ST.25 (1998). Applicants may submit sequence listings for both U.S. and international patent applications.
The USPTO uses the sequence listings during the examination process to determine the patentability of the associated patent application. Sequence listings are also disclosed as part of the published patent application or issued patent. Sequence listings that are extremely long (files larger than 600K or approximately 300 printed pages) are published only in electronic form and are available to the public on the USPTO sequence data Web page.
The sequence listing required by 37 CFR 1.821(c) for U.S. patent applications may be submitted on paper, compact disc (CD), or through EFS–Web, the USPTO's online filing system. Sequence listings for international applications may be submitted on paper or through EFS–Web only, though sequence listings that are too large to be filed electronically through EFS–Web may be submitted on a separate CD. Applicants may use EFS–Web to file a sequence listing online with a patent application or subsequent to a previously filed application.
Under 37 CFR 1.821(e)–(f), applicants must also submit a copy of the sequence listing in a computer-readable form@ (CRF) with a statement indicating that the CRF copy of the sequence listing is identical to the paper or CD copy required by 1.821(c). Applicants may submit the CRF copy of the sequence listing to the USPTO on CD or other acceptable media as provided in 37 CFR 1.824. Sequence listings that are submitted online through EFS–Web in the proper text format do not require a separate CRF copy or the associated statement.
If the CRF sequence listing in a new application is identical to the CRF sequence listing of another application that the applicant already has on file at the USPTO, 37 CFR 1.821(e) permits the applicant to refer to the CRF listing in the other application rather than having to submit a duplicate copy of the CRF listing for the new application. In such a case, the applicant may submit a letter identifying the application and CRF sequence listing that is already on file and stating that the sequence listing submitted in the new application is identical to the CRF copy already filed with the previous application. The USPTO is proposing to add a new form to this collection, Request for Transfer of a Computer Readable Form Under 37 CFR 1.821(e) (PTO/SB/93), in order to assist customers in submitting this statement.
This information collection contains the sequence listings that are submitted with biotechnology patent applications. Information pertaining to the filing of the initial patent application itself is collected under OMB Control Number 0651–0032, and international applications submitted under the Patent Cooperation Treaty (PCT) are covered under OMB Control Number 0651–0021.
By mail, hand delivery, or electronically to the USPTO.
There is no separate filing fee for submitting a sequence listing as part of a U.S. patent application. While there is also no filing fee for a sequence listing filed in an international application, the basic international filing fee only covers the first 30 pages of the application. As a result, there is a $13 fee per page that is added to the international filing fee for each page over 30 pages. The average length of a paper sequence listing in an international application is 150 pages, which would carry an additional fee of $1,950 if the international application were already at least 30 pages long without the listing. The USPTO estimates that approximately 380 of the 3,450 paper sequence listings submitted per year will be for international applications, for a total of $741,000 per year in page fees. There are no page fees for sequence listings that are submitted via EFS–Web in the proper text format.
Under 37 CFR 1.16(s) and 1.492(j), both U.S. and international patent applications that include lengthy paper sequence listings may be subject to an application size fee. For applications with paper sequences listings that exceed 100 pages, the application size fee is $270 (or $135 for small entities) for each additional 50 pages or fraction thereof. The USPTO estimates that approximately 120 applications with long paper sequence listings from large entities will incur an average application size fee of $810, and approximately 95 applications with long paper sequence listings from small entities will incur an average application size fee of $405, for a total of $135,675 per year. Therefore, this collection has a total of $876,675 in fees per year.
There are capital start-up costs associated with submitting sequence listings and CRF copies to the USPTO on CD. Applicants who submit sequence listings on CD must submit two copies of the CD (or three copies for international applications) along with a transmittal letter stating that the copies are identical. This process requires additional supplies, including blank recordable CD media and padded envelopes for shipping. The USPTO estimates that the cost of these supplies will be approximately $3 per CD submission and that it will receive approximately 865 CD submissions per year, for a total of $2,595. In addition, customers who submit sequence listings on paper or CD must also submit a separate CRF copy of the listing, which may be submitted on CD. The USPTO estimates that it will receive approximately 4,315 CRF copies for paper and CD sequence listings at an estimated cost of $2 per copy, for a total of $8,630. Therefore, this collection has total capital start-up costs of $11,225 per year.
Applicants who submit sequence listings on CD may also incur recordkeeping costs. The USPTO advises applicants to retain a back-up copy of CD submissions and associated documentation for their records. The USPTO estimates that it will take applicants five minutes to produce a back-up CD copy and two minutes to print copies of documentation, for a total of seven minutes (0.12 hours) to make a back-up copy of the CD submission. The USPTO estimates that approximately 865 CD submissions will be received per year, for a total of 104 hours for making back-up CD copies. The USPTO expects that these back-up copies will be prepared by paraprofessionals at an estimated rate of $100 per hour, for a recordkeeping cost of $10,400 per year.
There are also recordkeeping costs associated with submitting sequence listings online using EFS-Web. The USPTO recommends that customers print and retain a copy of the acknowledgment receipt after a successful online submission. The USPTO estimates that it will take five seconds (0.001 hours) to print a copy of the acknowledgment receipt and that approximately 12,935 sequence listings per year will be submitted via EFS-Web, for a total of approximately 13 hours per year for printing this receipt. The USPTO expects that these receipts will be printed by paraprofessionals at an estimated rate of $100 per hour, for a recordkeeping cost of $1,300 per year. Therefore, this collection has total recordkeeping costs of $11,700 per year associated with retaining copies of CDs and acknowledgment receipts.
Customers may incur postage costs when submitting a sequence listing to the USPTO by mail. Mailed submissions may include the sequence listing on either paper or CD, the CRF copy of the listing on CD, and a transmittal letter containing the required identifying information. The USPTO estimates that the average postage cost for a paper or CD sequence listing submission will be $4.95 and that 4,315 sequence listings will be mailed to the USPTO per year, for a total postage cost of $21,359 per year.
The total non-hour respondent cost burden for this collection in the form of fees, capital start-up costs, recordkeeping costs, and postage costs is estimated to be $920,959 per year.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents,
Comments submitted in response to this notice will be summarized or included in the request for OMB
The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Once submitted, the request will be publically available in electronic format through the Information Collection Review page at
Paper copies can be obtained by:
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Written comments and recommendations for the proposed information collection should be sent on or before September 10, 2009 to Nicholas A. Fraser, OMB Desk Officer, via e-mail at
Import Administration, International Trade Administration, Department of Commerce.
August 11, 2009.
Toni Dach or Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–1655 and (202) 482–0413, respectively.
On November 3, 2008, the Department of Commerce (“Department”) published a notice of opportunity to request an administrative review of the antidumping duty order on certain hot–rolled carbon steel flat products from the People's Republic of China (“PRC”) for the period of review (“POR”) November 1, 2007, through October 31, 2008.
On June 26, 2009, we rescinded this review with respect to Angang based on ArcelorMittal's withdrawal of their request for review, and preliminarily rescinded this review with respect to Baosteel based on evidence on the record indicating that Baosteel made no entries of subject merchandise into the United States during the POR.
For purposes of this review, the products covered are certain hot–rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non–metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included within the scope of this review are vacuum degassed, fully stabilized (commonly referred to as interstitial–free (“IF”)) steels, high strength low alloy (“HSLA”) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro–alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro–alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro–alloying levels of elements such as silicon and aluminum.
Steel products included in the scope of this review, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products in which: i) iron predominates, by weight, over each of the other contained elements; ii) the carbon content is 2 percent or less, by weight; and, iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of this review unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this review:
The merchandise subject to this review is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot–rolled carbon steel flat products covered by this review, including: vacuum degassed fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive.
The POR is November 1, 2007, through October 31, 2008.
Because there is no information on the record which indicates that Baosteel made sales to the United States of subject merchandise during the POR, and because we did not receive any comments on our Preliminary Rescission, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we are rescinding this review of the antidumping duty order on certain hot–rolled carbon steel flat products from the PRC for the period of November 1, 2007, to October 31, 2008.
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2). The Department will issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a final reminder to importers for whom this review is being rescinded, as of the publication date of this notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative
This notice is in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
On April 6, 2009, the Department of Commerce published its preliminary results of the administrative review of the antidumping duty order on certain orange juice from Brazil. The period of review (POR) is March 1, 2007, through February 29, 2008.
Based on our analysis of the comments received, we have made certain changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted–average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
August 11, 2009.
Elizabeth Eastwood or Miriam Eqab, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–3874 or (202) 482–3693, respectively.
On April 6, 2009, the Department published in the
We invited parties to comment on our preliminary results of review. In May 2009, we received case briefs from the petitioners (
The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The scope of this order includes certain orange juice for transport and/or further manufacturing, produced in two different forms: (1) frozen orange juice in a highly concentrated form, sometimes referred to as frozen concentrated orange juice for manufacture (FCOJM); and (2) pasteurized single–strength orange juice which has not been concentrated, referred to as not–from-concentrate (NFC). At the time of the filing of the petition, there was an existing antidumping duty order on frozen concentrated orange juice (FCOJ) from Brazil.
Excluded from the scope of the order are reconstituted orange juice and frozen concentrated orange juice for retail (FCOJR). Reconstituted orange juice is produced through further manufacture of FCOJM, by adding water, oils and essences to the orange juice concentrate. FCOJR is concentrated orange juice, typically at 42 Brix, in a frozen state, packed in retail–sized containers ready for sale to consumers. FCOJR, a finished consumer product, is produced through further manufacture of FCOJM, a bulk manufacturer's product.
The subject merchandise is currently classifiable under subheadings 2009.11.00, 2009.12.25, 2009.12.45, and 2009.19.00 of the Harmonized Tariff Schedule of the United States (HTSUS). These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive. Rather, the written description of the scope of the order is dispositive.
The POR is March 1, 2007, through February 29, 2008.
As discussed in the preliminary results, we conducted an investigation to determine whether Cutrale and Fischer made home market sales of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b) of the Act.
We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted–average COP for this period. Thus, we determined that these below–cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade.
Therefore, for purposes of these final results, we found that Cutrale and Fischer made below–cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.
All issues raised in the case and rebuttal briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the
In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn/. The paper copy and electronic version of the Decision Memo are identical in content.
Based on our analysis of the comments received, we have made certain changes to the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.
We determine that the following weighted–average margin percentages exist for the period March 1, 2007, through February 29, 2008:
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.
We have calculated importer–specific
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Further, the following deposit requirements will be effective for all shipments of certain orange juice from Brazil entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: 1) the cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent,
This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and section 351.221(b)(5) of the Department's regulations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Caribbean Fishery Management Council (Council) and its Administrative Committee will hold meetings.
The meetings will be held on September 1–2, 2009. The Council will convene on Tuesday, September 1, 2009, from 9 a.m. to 5 p.m., and the Administrative Committee will meet from 5:15 p.m. to 6 p.m. They will reconvene on Wednesday, September 2, 2009, from 8:30 a.m. to 5 p.m.
The meetings will be held at the Courtyard by Marriott Aguadilla Hotel, located in West Parade/Belt Road, Ramey Base, Aguadilla, Puerto Rico.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918–1920; telephone: (787) 766–5926.
The Council will hold its 132nd regular Council meeting to discuss the items contained in the following agenda:
•Call to Order
•Adoption of Agenda
•Consideration of the 131st Council Meeting Verbatim Transcription
•Executive Director's Report
•Presentation by Michael Kelly
•ACLs/AMs Scoping Meetings Report
•Administrative Committee Meeting
-AP/SSC/HAP Membership
-Budget
- FY 2009
- Budget Petition: 5-years (2010–14)
-SOPPs Amendment(s)
-Other Business
•Highly Migratory Species Presentation
•ACLs/AMs Scoping Meetings Report (Cont.)
•Bajo de Sico Regulations
•New Development of Acropora palmata Disease at a Marine Reserve in Puerto Rico
•Enforcement Reports
-Puerto Rico
-U.S. Virgin Islands - DPNR
-NOAA/NMFS
-U.S. Coast Guard
•Administrative Committee Recommendations
•Meetings Attended by Council Members and Staff
•PUBLIC COMMENT PERIOD (5-MINUTES PRESENTATIONS)
•Other Business
•Next Council Meeting
The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. To further accommodate discussion and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.
The meetings are open to the public, and will be conducted in English. However, simultaneous translation (English/Spanish) will be provided. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be subjects for formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice, and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico, 00918–1920, telephone: (787) 766–5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council's (CFMC) Scientific and Statistical Committee (SSC) will hold a meeting.
The SSC meeting will be held on August 31, 2009, from 9:30 a.m. until 5 p.m.
The meeting will be held at the Doubletree Hotel at Gallery Plaza (former Pierre Hotel), De Diego Avenue, Santurce, Puerto Rico.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918–1920; telephone: (787) 766–5926.
The SSC will meet to discuss the items contained in the following agenda:
•Call to order
•Update since the last meeting/131st CFMC meeting
•SEFSC Update
•Discussion of the development of an objective procedure to provide advice to the CFMC on catch limits in the short term based on informed judgment
•Guidance to the CFMC regarding catch limits for species undergoing overfishing
•Other Business
•Next Meeting
The SSC will convene on August 31st, 2009, from 9:30 a.m. until 5 p.m. The meeting is open to the public, and will be conducted in English.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico, 00918–1920, telephone: (787) 766–5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Council) Model Evaluation Workgroup (MEW) will hold a work session to review work products individual members have been developing prior to submission to the 2009 salmon methodology review process. The meeting is open to the public.
The work session will be held Thursday, August 27, 2009, from 9 a.m. to 12:30 p.m.
The work session will be held at the Northwest Indian Fisheries Commission Conference Room, 6730 Martin Way East, Olympia, WA 98516; telephone: (360) 438–1180.
Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council; telephone: (503) 820–2280.
The purpose of the work session is to review work products, including possible bias in the Fishery Regulation Assessment Model (FRAM) associated with multiple encounters during mark selective fisheries, and new methodology for estimating Columbia River Chinook ocean abundance. The results of the analyses will be submitted for review during the Council's 2009 salmon methodology review process.
Although non-emergency issues not contained in the meeting agendas may come before the MEW for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820–2280 at least 5 days prior to the meeting date.
International Trade Administration, U.S. Department of Commerce.
Notice of a meeting via teleconference.
The Manufacturing Council will hold a meeting via teleconference to deliberate a draft letter of recommendation to the Secretary of Commerce.
August 25, 2009.
Consumer Product Safety Commission.
Notice of public hearing.
The Consumer Product Safety Commission (Commission) will conduct a public hearing to receive views from all interested parties about its agenda and priorities for Commission attention during fiscal year 2011, which begins October 1, 2010, and about its current strategic plan. Participation by members of the public is invited. Written comments and oral presentations concerning the Commission's agenda and priorities for fiscal year 2011 and the strategic plan will become part of the public record.
The hearing will begin at 10 a.m. on August 25, 2009. Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary not later than 5 p.m. Eastern Standard Time (EST) on August 18, 2009.
The hearing will be in the Hearing Room, 4th Floor of the Bethesda Towers Building, 4330 East West Highway, Bethesda, Maryland 20814. Requests to make oral presentations and texts of oral presentations should be captioned “Agenda, Priorities and Strategic Plan FY 2011” and sent by electronic mail (“e-mail”) to
For information about the hearing or to request an opportunity to make an oral presentation, please send an e-mail, call, or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail
Section 4(j) of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2053(j)) requires the Commission to establish an agenda for action under the laws it administers and, to the extent feasible, to select priorities for action at least 30 days before the beginning of each fiscal year. Section 4(j) of the CPSA provides further that before establishing its agenda and priorities, the Commission conduct a public hearing and provide an opportunity for the submission of comments. In addition, section 306(d) of the Government Performance and Results Act (GPRA) (5 U.S.C. 306(d)) requires the Commission to seek comments from interested parties as part of the process of revising the current CPSC strategic plan.
On June 9, 2009, the Commission issued a notice in the
Persons who desire to make oral presentations at the hearing on August 25, 2009, should send an e-mail, call, or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814, e-mail
Persons desiring to make presentations must submit the text of their presentations to the Office of the Secretary not later than 5 p.m. EST on August 18, 2009. The Commission reserves the right to impose further time limitations on all presentations and further restrictions to avoid duplication of presentations. The hearing will begin at 10 a.m. on August 25, 2009, and will conclude the same day.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of comment period.
The public scoping comment period for the Intent to Prepare an Environmental Impact Statement for the Regional Watershed Supply Project by Million Conservation Resource Group, published in the
Questions and comments regarding the proposed action and EIS should be addressed to Ms. Rena Brand, Project Manager, U.S. Army Corps of Engineers, Denver Regulatory Office, 9307 S. Wadsworth Blvd., Littleton, CO 80128–6901; (303) 979–4120;
None.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of intent.
The U.S. Army Corps of Engineers, Vicksburg District, in cooperation with the New Orleans District and the Louisiana Coastal Protection and Restoration Authority (the non-Federal sponsor), are undertaking studies to develop and evaluate possible alternatives to improve the storm damage reduction capability of the Federal levee system, Plaquemines Parish, LA.
Initiate Supplemental Environmental Impact Statement (SEIS) August 17, 2009.
Correspondence may be sent to Mr. Larry Marcy at the U.S. Army Corps of Engineers, Vicksburg District, CEMVK–PP–PQ, 4155 Clay Street, Vicksburg, MS 39183–3435.
Mr. Larry Marcy at the U.S. Army Corps of Engineers, Vicksburg District, telephone (601) 631–5965, fax number (601) 631–5115, or e-mail at
The purpose of the SEIS is to identify and evaluate structural and nonstructural storm damage reduction alternatives to address hurricane-related flooding problems in Plaquemines Parish. Additional work is needed to restore the Federal levees and floodwalls to the authorized level of protection where the levee and floodwalls are below grade due to subsidence and/or post-Katrina design changes.
Two public scoping meetings will be held on Saturday, September 12, 2009: one meeting will be held at the Woodland Plantation, 21997 Highway 23, West Point a La Hache, Louisiana,
Department of Education.
Notice of arbitration panel decision under the Randolph-Sheppard Act.
The Department of Education (Department) gives notice that on March 1, 2009, an arbitration panel rendered a decision in the matter of
You may obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac Center Plaza, Washington, DC 20202–2800. Telephone: (202) 245–7374. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS), toll-free, at 1–800–877–8339.
Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under
Under section 6(c) of the Randolph-Sheppard Act (the Act), 20 U.S.C. 107d–2(c), the Secretary publishes in the
Mr. Bernard R. Werwie, Sr., (Complainant) alleged violations by the Pennsylvania Office of Vocational Rehabilitation, the State licensing agency (SLA) of the Randolph-Sheppard Act (Act) and the implementing regulations in 34 CFR part 395. Specifically, Complainant alleged that the SLA improperly administered the Randolph-Sheppard Vending Facility Program in violation of the Act, implementing regulations under the Act, and State rules and regulations, when the SLA denied Complainant's bid to manage Facility #804 at the U.S. Post Office in Pittsburgh, Pennsylvania.
On or about June 2006, Facility #804 became available due to the death of the previous vending facility manager. At that time, the SLA placed the facility out for bid on a regional satellite basis rather than on a Statewide or permanent basis. According to section 2430.91 of the SLA's rules and regulations governing the Randolph-Sheppard vending program, a satellite facility is one operated by a vendor at the same time the vendor is operating another assigned facility. The SLA is authorized to establish a satellite facility only on a temporary basis when the SLA can demonstrate that it does not have a qualified blind vendor to place on a permanent basis.
The SLA alleged that, because there was a crisis situation at Facility #804, its decision to place the facility out for bid on a regional satellite basis rather than on a Statewide or permanent basis was within its discretion under its State rules and regulations. Further, the SLA contended that its decision was sanctioned by the Elected Committee of Blind Vendors (ECBV), which pursuant to the Act and 34 CFR part 395, is an elected body fully representative of all blind vendors in a State.
A State fair hearing on this matter was held on March 19, 2007. On April 18, 2007, the hearing officer issued a decision denying Complainant's grievance. It was this decision that Complainant sought review of by a Federal arbitration panel.
According to the arbitration panel, the issues to be resolved were: (i) Whether the Pennsylvania Office of Vocational Rehabilitation's decision to bid Facility #804 on a regional basis violated the Randolph-Sheppard Act, the implementing regulations, and State program rules and regulations; and (ii) if there was a violation, what is the remedy.
After hearing testimony and reviewing all of the evidence, the panel majority ruled that the Pennsylvania Office of Vocational Rehabilitation's decision was a reasonable, good faith attempt to remedy a bad situation, and was done in the best interest of all licensed blind vendors in the State of Pennsylvania. The panel denied Complainant's request to be placed without delay to Facility #804. Additionally, the panel denied his request for monetary relief.
One panel member dissented. Specifically, this panel member believed that the SLA unlawfully designated Facility #804 as a satellite facility and that the Complainant should have been compensated for loss of revenue had he been the successful bidder as well as for attorney's fees incurred in his seeking Federal arbitration.
The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about
The official version of this document is the document published in the
Department of Energy, Office of Fossil Energy.
Notice of open meeting.
This notice announces a meeting of the Ultra-Deepwater Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, September 16, 2009, 1:30 p.m.–5 p.m. (CDT), and Thursday, September 17, 2009, 8 a.m.–12 p.m. (CDT).
Crowne Plaza Riverwalk, 111 E. Pecan Street, San Antonio, TX 78205.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: 202–586–5600.
Department of Energy, Office of Fossil Energy.
Notice of open meeting.
This notice announces a meeting of the Unconventional Resources Technology Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, September 15, 2009, 1:30 p.m.–5 p.m. (CDT) and Wednesday, September 16, 2009, 8 a.m.–12 p.m. (CDT).
Crowne Plaza Riverwalk, 111 E. Pecan Street, San Antonio, TX 78205.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: 202–586–5600.
1 p.m.–1:30 p.m.—Registration
1:30 p.m.—Call to Order and Welcome, Introductions, Opening Remarks, Standing Subcommittee Reports, Status Updates as of Last Meeting, Topical Presentations such as: Legislative Update; Benefits Assessment Program; the Technology Transfer Program and Knowledge Management Database demo; and Overview of the
5 p.m.—Suspend meeting until September 16
7:30 a.m.–8 a.m.—Registration
8 a.m.—Continue Overview of the
11:45 a.m.—Public Comments
12 p.m.—Adjourn
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act, 5 U.S.C. App., and in accordance with Title 41 of the Code of Federal Regulations, Section 102–3.65, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Fusion Energy Sciences Advisory Committee has been renewed for a two-year period.
The Committee will provide advice to the Office of Science (DOE), on long-range plans, priorities, and strategies for advancing plasma science, fusion science and fusion technology—the knowledge base needed for an economically and environmentally attractive fusion energy source. The Secretary of Energy has determined that the renewal of the Fusion Energy Sciences Advisory Committee is essential to the conduct of the Department's business and in the public interest in connection with the performance of duties imposed upon the Department of Energy by law. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, the Department of Energy Organization Act (Pub. L. 95–91), the General Services Administration Final Rule on Federal Advisory Committee Management, and other directives and instruction issued in the implementation of those Acts.
Ms. Rachel Samuel at (202) 586–3279.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to § 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commi ssion's Web site
m. The application is not ready for environmental analysis at this time.
n. The proposed 2.0-megawatt (MW) Inglis Project would operate in a run-of-river mode by using flows released to maintain the surface elevation of Lake Rousseau at 27.5 feet mean sea level (msl). Flow releases are determined by the Southwest Florida Water Management District (WMD). The proposed powerhouse would be 60-foot-long by 80-foot-wide by 30-foot-high, and contain three vertical shaft turbines. The penstock would be 130 feet in length. The project would generate about 12.3 gigawatt hours (GWH) annually, which would be fed into the interconnected transmission system via an existing 3.4-mile-long, 12,470-kV transmission line.
o. A copy of the application is available for review at the Commission in the Public Reference Room, or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Florida State Historic Preservation Officer (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR, at § 800.4.
q.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b
c.
d.
e.
f.
g.
h.
i.
j. This application is not ready for environmental analysis at this time.
k. The proposed Mahoning Creek Project would use the U.S. Army Corps of Engineers' (Corps) Mahoning Creek dam and would consist of: (1) A new 50-foot-high intake structure attached to the upstream face of the dam, equipped with removable trashracks, dewatering bulkhead panels, and a vertical slide gate; (2) a new lining on the existing (currently plugged), 108-inch-diameter conduit through dam monolith 15; (3) a new 1,090-foot-long, 120-inch-diameter penstock on the left (south) bank, bifurcating into two new 110-foot-long, 96-inch-diameter penstocks; (4) a new powerhouse located approximately 100 feet downstream of an existing stilling basin weir containing two new Kaplan turbine/generator units with a total installed capacity of 6.0 MW; (5) a new 40-foot-wide, 150-foot-long, 10-foot-deep tailrace; (6) a new 2.2-mile-long, 25-kilovolt transmission line; (7) a new 100-foot-long bridge to span a small stream to the entrance of a refurbished 0.5-mile-long access road; and (8) appurtenant facilities. The project would have an estimated annual generation of 20,000 megawatt-hours.
The project would operate using flows released by the Corps in accordance with the current dam operation as set by the Corps.
l. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. You may also register online at
n
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that on July 31, 2009, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, section 343.2 of the Procedural Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, sections 1(5), 8, 9, 13, 15, and 16 of the Interstate Commerce Act, 49 U.S.C. App. 1(5), 8, 9, 13, 15, and 16 (1988) and section 1803 of the Energy Policy Act of 1992, BP West Coast Products LLC (Complainant) filed a formal complaint against SFPP, L.P. (Respondent) challenging the justness and reasonableness of the rate increases placed into effect by Respondent's 2009 index rate filing in Docket No. IS09–375–000, tendering FERC Tariff Nos. 175, 176, 177, 178, 179, 180, and 181.
The Complainant states that a copy of the complaint has been served on both the counsel for the Respondent and the contacts for Respondent listed on Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 31, 2009, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, section 343.2 of the Procedural Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, sections 1(5), 8, 9, 13, 15, and 16 of the Interstate Commerce Act, 49 U.S.C. App. 1(5), 8, 9, 13, 15, and 16 (1988) and section 1803 of the Energy Policy Act of 1992, BP West Coast
The Complainant certifies that copies of the complaint were served on both counsel for the Respondent and contacts listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests, must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 31, 2009, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, section 343.2 of the Procedural Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, sections 1(5), 8, 9, 13, 15, and 16 of the Interstate Commerce Act, 49 U.S.C. App. 1(5), 8, 9, 13, 15, and 16 (1988) and section 1803 of the Energy Policy Act of 1992, BP West Coast Products LLC (Complainant) filed a formal complaint against SFPP, L.P. (Respondent) challenging the justness and reasonableness of all of the Respondent's rates in effect on July 31, 2009, as reflected in its FERC Tariff Nos. 175, 176, 177, 178, 179, 180, and 181.
The Complainant certifies that copies of the complaint were served on both counsel for the Respondent and contacts listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 31, 2009, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, section 343.2 of the Procedural Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, sections 1(5), 8, 9, 13, 15, and 16 of the Interstate Commerce Act, 49 U.S.C. App. 1(5), 8, 9, 13, 15, and 16 (1988) and section 1803 of the Energy Policy Act of 1992, BP West Coast Products LLC (Complainant) filed a formal complaint against Calnev Pipe Line, L.L.C. (Respondent) challenging the justness and reasonableness of the index rate increases placed into effect by the Respondent's 2009 index rate filing in Docket No. IS09–377–000, tendering FERC Tariff Nos. 26 and 27 (superseding FERC Tariff Nos. 24 and 25, respectively).
The Complainant certifies that copies of the complaint were served on both counsel for the Respondent and contacts listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47879) the Office of Energy Projects has reviewed an application filed on November 7, 2008, to surrender the project licenses for the Veazie, Great Works, and Howland Hydroelectric Projects, located on the Penobscot and Piscataquis Rivers in Penobscot County, Maine. A draft environmental assessment (DEA) has been prepared as part of staff's review. The DEA finds that approval of the application would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the DEA is on file with the Commission and is available for public inspection. The DEA may also be viewed on the Commission's Web site at
Any comments should be filed by September 3, 2009, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1–A, Washington, DC 20426. Please reference the project name and project number (P–2232) on all comments. Comments may be filed electronically via Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. For further information, contact Christopher Yeakel at (202) 502–8132.
Take notice that on July 31, 2009, PJM Interconnection, L.L.C. filed revised sheets to Schedule 1 of its Amended and Restated Operating Agreement, the parallel provisions of Attachment K—Appendix of the PJM Open Access Transmission Tariff, and Schedule 2 of the Operating Agreement in compliance with the Commission's February 19, 2009 Initial Order on Market Power Mitigation Provisions and Establishing Procedures,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 31, 2009, PJM Interconnection, L.L.C. filed a refund report in compliance with the Commission's April 2, 2009 Order,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 28, 2009, Entergy Texas, Inc. filed a supplement providing additional explanation to its April 30, 2009 application.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
1. Section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d (2006), and 18 CFR Part 35 (2009), require, among other things, that all rates, terms, and conditions of jurisdictional services be filed with the Commission. In Order No. 2001, the Commission revised its public utility filing requirements and established a requirement for public utilities, including power marketers, to file Electric Quarterly Reports summarizing the contractual terms and conditions in their agreements for all jurisdictional services (including market-based power sales, cost-based power sales, and transmission service) and providing transaction information (including rates) for short-term and long-term power sales during the most recent calendar quarter.
2. Commission staff's review of the Electric Quarterly Report submittals indicates that six utilities with authority to sell electric power at market-based rates have failed to file their Electric Quarterly Reports. This order notifies these public utilities that their market-based rate authorizations will be revoked unless they comply with the Commission's requirements within 15 days of the date of issuance of this order.
3. In Order No. 2001, the Commission stated that,
4. The Commission further stated that,
5. Pursuant to these requirements, the Commission has revoked the market-based rate tariffs of several market-based rate sellers that failed to submit their Electric Quarterly Reports.
6. As noted above, Commission staff's review of the Electric Quarterly Report submittals identified six public utilities with authority to sell power at market-based rates that failed to file Electric
7. In the event that any of the above-captioned market-based rate sellers has already filed its Electric Quarterly Report in compliance with the Commission's requirements, its inclusion herein is inadvertent. Such market-based rate seller is directed, within 15 days of the date of issuance of this order, to make a filing with the Commission identifying itself and providing details about its prior filings that establish that it complied with the Commission's Electric Quarterly Report filing requirements.
8. If any of the above-captioned market-based rate sellers do not wish to continue having market-based rate authority, they may file a notice of cancellation with the Commission pursuant to section 205 of the FPA to cancel their market-based rate tariff.
(A) Within 15 days of the date of issuance of this order, each public utility listed in the caption of this order shall file with the Commission all delinquent Electric Quarterly Reports. If a public utility fails to make this filing, the Commission will revoke that public utility's authority to sell power at market-based rates and will terminate its electric market-based rate tariff. The Secretary is hereby directed, upon expiration of the filing deadline in this order, to promptly issue a notice, effective on the date of issuance, listing the public utilities whose tariffs have been revoked for failure to comply with the requirements of this order and the Commission's Electric Quarterly Report filing requirements.
(B) The Secretary is hereby directed to publish this order in the
By the Commission.
Western Area Power Administration, DOE.
Notice of Availability of Request for Interest for Purchase of Long-Term Firm Electrical Energy with Capacity or Non-Firm Electrical Energy.
The Western Area Power Administration (Western), a Federal power marketing agency of the Department of Energy, announces the availability of a Request for Interest (RFI) for the Purchase of Long-Term Firm Electrical Energy with Capacity or Non-Firm Electrical Energy. Western seeks to determine whether suppliers are interested in providing Western with long-term firm energy with capacity, non-firm energy, or a combination of the two for a contract term to exceed five years but terminating no later than September 2024. The energy would be delivered to Western's Rocky Mountain Region's (RMR) Loveland Area Projects (LAP) at one or more of four points of delivery located within the Western Area Colorado Missouri (WACM) balancing authority.
Responses to the RFI must be received by Western on or before 4 p.m. MDT September 10, 2009.
Send written responses to: Regional Manager, Rocky Mountain Customer Service Region, Western Area Power Administration, 5555 East Crossroads Boulevard, Loveland, CO 80538–8986. Comments may be delivered by certified mail, commercial mail, e-mail
For further information or to obtain a copy of the RFI, please contact Mr. John Gierard, Western Area Power Administration, Rocky Mountain Customer Service Region, Federal Power Programs, P.O. Box 3700, Loveland, CO 80539–3003, (970) 461–7445, fax (970) 461–7204, or e-mail
Responses to the RFI will allow Western to determine how it chooses to supplement LAP Federal hydroelectric generation. Delivery points and maximum amounts of monthly on-peak and off-peak firm electrical energy with capacity or non-firm electrical energy are listed in the RFI. The RFI does not specify a maximum price for firm electrical energy with capacity or non-firm electrical energy.
On June 30, 2009, the Commission issued a notice scheduling staff technical conferences to examine the transmission planning processes that are being conducted pursuant to Order No. 890.
The attached agenda provides details on the topics that will be discussed on the panels at each of the three conferences as well as the topics panelists should be prepared to address.
As provided for in the June 30 notice, those wishing to participate as panelists should submit a request form, as indicated below, describing the topic(s) they wish to address. Those wishing to attend each conference are also asked to complete the registration form, as indicated below.
A final notice with a list of the panelists for each conference will be issued in advance of the conferences.
In the event a transmission provider is uncertain as to which technical conference is the appropriate forum for discussion of its planning process, such transmission providers should contact Commission staff in advance to discuss the matter. Lastly, a comment date will be set at a later date allowing for the filing of post-conference comments.
For further information about these conferences, please contact:
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44
Comments must be submitted on or before October 13, 2009.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2006–0407, by one of the following methods:
•
• E-mail:
• Fax: 202–566–9744.
• Mail: Air and Radiation Docket, Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
• Hand Delivery: Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Mary Susan Bailey, Climate Protection Partnerships Division, Mailcode: 6202J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202–343–9014; fax number: 202–343–2204; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OAR–2006–0407, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.
For several reasons, EPA has seen a dramatic increase in the public's participation in ENERGY STAR over the past several years and expects their participation to rise even more in the coming years. President Obama has made energy efficiency an important component of the Federal government's approach to energy management. Under the American Recovery and Reinvestment Act of 2009, Congress and the president allocated approximately $20 billion to encourage Federal agencies, States, local governments and industry to design, improve and use energy efficient buildings and products. President Obama is currently urging Congress to pass the American Clean Energy and Security Act, which would encourage greater energy efficiency in the nation's buildings and homes.
In addition, a growing number of State and local governments are promoting ENERGY STAR as a way for the public to respond to rising energy costs and global warming. Participation in ENERGY STAR has also risen dramatically because of the efforts of trade associations, utilities, and third-party providers in promoting the program to the public. These organizations voluntarily transmit ENERGY STAR messages and promote the use of ENERGY STAR tools and strategies in an effort to help companies reduce their energy consumption and find more environmentally friendly ways to conduct business.
To join ENERGY STAR, organizations are asked to complete a Partnership Letter or Agreement that establishes their commitment to protect the environment. Partners agree to undertake efforts such as measuring and tracking the energy performance of their facilities where possible by using tools such as those offered by ENERGY STAR, spreading the word about the importance of energy efficiency to staff and the community, supporting the ENERGY STAR Challenge, and highlighting achievements with recognition offered through ENERGY STAR.
Partners also may be asked to periodically submit information to EPA as needed to assist in program implementation. For example, EPA maintains the Most Active Service and Product Providers Directory to provide the public with easy access to energy efficiency services that can help companies lower operating costs and increase their bottom line. Businesses wishing to appear in this directory are asked to submit a completed application that demonstrates that they have met specified requirements.
Partnership in ENERGY STAR is voluntary and can be terminated by Partners or EPA at any time. EPA does not expect organizations to join the program unless their participation is cost-effective and otherwise beneficial for them.
In addition, Partners and any other interested party can help EPA promote energy-efficient technologies by evaluating the efficiency of their buildings using EPA's on-line tools (
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
The burden estimates presented in this document are from the last approval. EPA is currently evaluating and updating these estimates as part of the ICR renewal process. EPA will discuss its updated estimates, as well as changes from the last approval, in the next
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Request for nominations for Clean Air Excellence Awards.
EPA established the Clean Air Excellence Awards Program in February, 2000. This is an annual awards program to recognize outstanding and innovative efforts that support progress in achieving clean air. This notice announces the competition for the Year 2009 program.
All submissions of entries for the Clean Air Excellence Awards Program must be postmarked by September 25, 2009.
Concerning the Clean Air Excellence Awards Program please use the CAAAC Web site and click on awards program or contact Mr. Pat Childers, U.S. EPA at 202–564–1082 or 202–564–1352 (Fax), mailing address: Office of Air and Radiation (6102A), 1200 Pennsylvania Avenue, NW., Washington, DC 20004.
Environmental Protection Agency (EPA).
Notice.
The EPA is hereby granting a waiver of the Buy America requirements of ARRA Section 1605 under the authority of Section 1605(b)(2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] to the Hooksett, New Hampshire Sewer Commission (“HSC”) for the purchase of a foreign manufactured polyethylene Biofilm chip media. HSC's proposed upgrade of its wastewater treatment facility upgrade will utilize an Integrated Fixed Film Activated Sludge (IFAS) process, in which the AnoxKaldnes
Katie Connors, Environmental Engineer, (617) 918–1658, or David Chin, Environmental Engineer, (617) 918–1764, Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), U.S. EPA, One Congress Street, CMU, Boston, MA 02114.
In accordance with ARRA Section 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of Sections 1605(b)(2) of Public Law 111–5, Buy American requirements, to the Hooksett, New Hampshire Sewer Commission HSC) for the purchase of the AnoxKaldnes
Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project is produced in the United States or unless a waiver is provided to the recipient by the head of the appropriate agency, here the EPA. A waiver may be provided if EPA determines that (1) applying these requirements would be inconsistent with public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
The Hooksett, New Hampshire Sewer Commission (“HSC”), has requested through its design engineer a waiver from the Buy American Provision for the purchase of a foreign manufactured polyethylene Biofilm chip carrier element (media), as part of HSC's proposed wastewater treatment facility upgrade utilizing an Integrated Fixed Film Activated Sludge (IFAS) process.
According to HSC's design engineer, the rationale behind HSC's design and performance specifications utilizing the IFAS process is to increase its existing plant flow from 1.1 MGD to 2.2 MGD without requiring the construction of additional in-ground reinforced concrete aeration tanks. This process will also allow HSC to meet the current NPDES discharge permit loading requirements of 30 mg/L for both Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS), as well as newly established ammonia limits.
The specified media greatly increases the fixed film surface area for biomass growth over conventional activated sludge processes resulting in additional organic loading capability. According to its manufacturer, Kruger, Inc., the AnoxKaldnes
The HSC has requested a waiver of the ARRA Buy American provisions on the basis of unavailability of a domestic manufactured product that will meet the design specifications for this project, based on the following circumstances:
1. Each AnoxKaldnes
2. Constructing the additional aeration tanks to accommodate the U.S. made K3 media would not only be more costly, but would be physically and environmentally challenging due to space limitations, topography, the presence of a nearby perennial stream, and the need to find a location for a chemical building to be constructed adjacent to the existing aeration tanks. Constructing two additional aeration tanks would likely require the relocation of the perennial stream, involve creating additional compensatory flood plain storage, wetland restoration, extensive earthwork on a steep slope, and construction of stepped or cascading retaining walls. It would also require additional blower capacity, new process piping, slide gates, rapid mixers for dispersing chemicals, railings, additional dissolved oxygen analyzers, and the modification of a recently constructed influent flow splitter box.
3. Results from an on-site pilot study utilizing the AnoxKaldnes
The information provided to EPA by the HSC through its design engineer was confirmed through a technical review by EPA's national contractor of the submitted documentation. To the best of our knowledge at this time, there does not appear to be other IFAS process media manufactured in the United States available to meet the HSC's project design specifications and performance requirements for its proposed wastewater treatment plant upgrade. The applicant has provided a list of manufacturers of various polyethylene biofilm media, along with effective bulk specific surface area characteristics. The applicant has also provided additional information from the pilot testing to justify the 55% fill fraction and information on the surface area required to increase flow capacity from 1.1 MGD to 2.2 MGD.
The April 28, 2009 EPA HQ Memorandum, “Implementation of Buy American provisions of Public Law 111–5, the ‘American Recovery and Reinvestment Act of 2009' ” (“Memorandum”), defines
Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already “shovel ready” by requiring potential SRF eligible recipients such as the HSC to revise their design standards and specifications. The imposition of ARRA Buy American requirements in this case would result in unreasonable delay for this project. To delay this construction would directly conflict with a fundamental economic purpose of ARRA, which is to create or retain jobs.
The Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the HSC established both a proper basis to specify the particular good required and that this manufactured good was not available from a producer in the United States able to meet the design specifications for the proposed project. The information provided is sufficient to meet the following criteria listed under Section 1605(b) of the ARRA and in the April 28, 2009 Memorandum: Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the authority to issue exceptions to Section 1605 of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients.
Having established both a proper basis to specify the particular good required for this project and that this manufactured good was not available from a producer in the United States, the HSC is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111–5 for the purchase and use of the specified polyethylene Biofilm chip carrier element (media) documented in HSC's waiver request submittal dated May 19, 2009, for its proposed wastewater treatment plant upgrade using ARRA funds. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under subsection (b).
Public Law 111–5, section 1605.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 10, 2009. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418–2918.
In addition, on April 8, 2009, the Commission adopted a Report and Order and Fourth Further Notice of Proposed Rulemaking (the “323 Order”) in MB Docket Nos. 07–294, 06–121, 02–277, 01–235, 01–317, 00–244, 04–228;
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 26, 2009.
Board of Governors of the Federal Reserve System, August 6, 2009.
Federal Maritime Commission.
Department of Health and Human Services, Office of the Secretary.
Request for public comment.
The U.S. Department of Health and Human Services is hereby giving notice that the National Biodefense Science Board (NBSB) Medical Countermeasure Markets and Sustainability Working Group is requesting public comment to their working document, “Inventory of Issues Constraining or Enabling Industry Involvement in Medical Countermeasure Efforts”. The inventory (or grid) includes factors that may discourage industry involvement or partnering with the U.S. Government in medical countermeasure development efforts, reported constraints to industry involvement, and potential solutions for relief from a particular constraint. The inventory has been catalogued by financial, legislative, scientific, human capital, regulatory, and societal elements. The Working Group wishes to solicit comment, feedback, and guidance from members of industry, other government agencies, and the public at large for consideration by the Working Group to strengthen and refine the document prior to its public presentation to the NBSB at the scheduled Fall 2009 public meeting of the Board.
The public is asked to submit comments by October 30, 2009, to the NBSB e-mail box (
Donald Malinowski, M.Sc., HHS/ASPR/NBSB, 330 C St., SW., #5118, Washington, DC 20201, 202–205–4761,
Pursuant to section 319M of the Public Health Service Act (42 U.S.C. 247d–7f) and section 222 of the Public Health Service Act (42 U.S.C. 217a), the Department of Health and Human Services established the National Biodefense Science Board. The Board shall provide expert advice and guidance to the Secretary on scientific, technical, and other matters of special interest to the Department of Health and Human Services regarding current and future chemical, biological, nuclear, and radiological agents, whether naturally occurring, accidental, or deliberate. The Board may also provide advice and guidance to the Secretary on other matters related to public health emergency preparedness and response.
Request for Public Comment Published in
The public is encouraged to consider submitting comments and/or recommendations on the content of this inventory. Requests for a copy of the inventory and accompanying Comment Revision Form should be sent to the NBSB's e-mail box at
■ Contracting with some portions of the USG can be slow, unwieldy, expensive, and opaque.
■ Lack of clarity increases industry risk.
■ Procurement size, warm-base requirements, length of review, etc.
■ Lack of transparency increases industry risk.
■ Contract review process, rate of issuance of new proposals, requirement generation.
■ With a contract in place, situation improves.
■ HHS viewed as cooperative, helpful, responsible and responsive.
■ Perceived lack of coordination between development activities and regulatory responsibilities remains a concern to industry.
■ Lack of clarity regarding usable product definitions, seeming differences in FDA approaches to providing guidance to industry.
■ Industry reliance upon USG for key components of licensure submissions can lead to lack of accountability.
■ Disease studies, toxicology reports, etc.
■ Advanced Development needs more dedicated funding, separate from BioShield funding.
■ BioShield remains a funded procurement device, not an advanced-development mechanism.
■ Advanced development efforts would benefit from contracting flexibility.
■ Cost-plus-fee contracting flexibility is appropriate for advanced development and would reduce risk.
■ Multiyear funding.
■ Drug development and corporate investment/planning is long-term process, multiyear funding with carry-over authority, with multi-year contracting authority would signal USG commitment and increase industry sense of long-term stability.
■ Project BioShield expires in 2013 and will need to be reauthorized and funded.
■ Five years not a long time in drug-development process.
■ BioShield funds should not be diverted to fund other initiatives.
■ Inadequate funding delays the journey to MCM licensure.
■ Initiate additional program against emerging diseases, modeled after pandemic program.
■ Continue to identify obstacles to greater industry participation in MCM development.
■ Make recommendations where appropriate.
■ Identify incentives to encourage greater industry participation in MCM development.
■ Make recommendations where appropriate.
■ Consider alternative models for MCM development.
■ Do other models ensure national and public-health security while more efficiently using limited resources?
Project BioShield Act of 2004: Public Law 108–276,
BioShield II (2005):
PAHPA, PL 109–417, Dec 19, 2006.
Matheny J, Mair M, Mulcahy A, Smith BT. Incentives for biodefense countermeasure
Animal Rule = U.S. Food and Drug Administration. New drug and biological drug products; evidence needed to demonstrate effectiveness of new drugs when human efficacy studies are not ethical or feasible. Final rule.
In compliance with the requirement of section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Cancer Institute, (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collected below. This proposed information collection was previously published in the
Proposed Collection:
The annualized respondents' burden for record keeping is estimated to require 8,564 hours (see table below).
There are no capital costs, operating costs, and maintenance cost.
Request for Comments: Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Direct Comments to OMB: Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Attention: NIH Desk Officer, Office of Management and Budget, at
Comments Due Date: Comments regarding this information collection are best assured of having their full effect if received within 30 days following the date of this publication.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center of Mental Health Services is responsible for the national evaluation of the Comprehensive Community Mental Health Services for Children and Their Families Program (Children's Mental Health Initiative—CMHI) that will collect data on child mental health outcomes, family life, and service system development and performance. Data will be collected on 26 service systems, and approximately 5,541 children and families.
Data collection for this evaluation will be conducted over a five-year period. Child and family outcomes of interest will be collected at intake and during subsequent follow-up sessions at six-month intervals. The length of time that individual families will participate in the study ranges from 12 to 24 months depending upon when they enter the evaluation. The outcome measures include the following: Child symptomatology and functioning, family functioning, satisfaction, and caregiver strain. The core of service system data will be collected every 18–24 months throughout the 5-year evaluation period, with a sustainability survey conducted in years 3 and 5. Service utilization and cost data will be tracked and submitted to the national evaluation every six months using two tools: The Flex Fund Tool and the Services and Costs Data Tool to estimate average cost of treatment per child, distribution of costs, and allocation of costs across service categories. Service delivery and system variables of interest include the following: Maturity of system of care development in funded system of care communities, adherence to the system of care program model, and client service experience. We will also conduct a comprehensive evaluation of the CMHI's data driven technical assistance; this component of the evaluation will employ a mixed-methods approach, combining qualitative and quantitative data to provide a comprehensive assessment of the continuous quality improvement (CQI) process in funded system of care communities. Specifically, data will be gathered through three complementary activities: A baseline survey of key constituents in all funded communities; a subsequent monitoring survey administered every two years to the same constituents; and biennial case studies of four selected communities.
Internet-based technology such as Web-based surveys and data entry and management tools will be used in this evaluation. The measures of the national evaluation address the national outcome measures for mental health programs as currently established by SAMHSA.
The average annual respondent burden is estimated below. The estimate reflects the average number of respondents in each respondent category, the average number of responses per respondent per year, the average length of time it will take to complete each response, and the total average annual burden for each category of respondent, and for all categories of respondents combined.
Written comments and recommendations concerning the proposed information collection should be sent by September 10, 2009 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202–395–5806.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for NPLATE and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human biological product.
Submit written or electronic comments and petitions to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6222, Silver Spring, MD 20993–0002, 301–796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human biological products, the testing phase begins when the exemption to permit the clinical investigations of the biological product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human biological product and continues until FDA grants permission to market the biological product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human biological product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human biologic product NPLATE (romiplostim). NPLATE is indicated for the treatment of thrombocytopenia in patients with chronic immune (idiopathic) thrombocytopenic purpura (ITP) who have had an insufficient response to corticosteroids, immunoglobulins, or splenectomy. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for NPLATE (U.S. Patent No. 6,835,809) from Amgen Inc., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated February 26, 2009, FDA advised the Patent and Trademark Office that this human biological product had undergone a regulatory review period and that the approval of NPLATE represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for NPLATE is 2,319 days. Of this time, 2,014 days occurred during the testing phase of the regulatory review period, while 305 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 818 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Research Resources Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the National Institute of General Medical Sciences Special Emphasis Panel, August 17, 2009, 8 a.m. to August 17, 2009, 5 p.m., National Institutes of Health, Natcher Building, Room 3AN12, 45 Center Drive, Bethesda, MD, 20892 which was published in the
The meeting has been changed from August 17, 2009 to August 20, 2009. The meeting is closed to the public.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kalyani Bhatt at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given of the following meeting:
The ACCV will meet on Thursday, September 17 from 1 p.m. to 5:30 p.m. (EDT) and Friday, September 18 from 9 a.m. to 12 p.m. (EDT). The public can join the meeting via audio conference call by dialing 1–800–369–1791 on September 17 & 18 and providing the following information:
Anyone requiring information regarding the ACCV should contact Kay Cook, DVIC, HSB, HRSA, Room 11C–26, 5600 Fishers Lane, Rockville, MD 20857; telephone (301) 443–6593 or e-mail:
Administration for Children and Families, Department of Health and Human Services.
Notice of meeting.
The meeting will be held on Tuesday, September 15, 2009, from 9:30 a.m. to 3:30 p.m.
The meeting will be held at the Administration for Children and Families, 901 D Street, SW., Washington, DC 20024. To attend either in person or via teleconference, please register by 5 p.m., Eastern Time, September 11, 2009. To register, please e-mail
Written comments may be submitted electronically to
The Commission will provide an opportunity for public comments during the public meeting on September 15, 2009. Those wishing to speak will be limited to three minutes each; speakers are encouraged to submit their remarks in writing in advance to ensure their comment is received in case there is inadequate time for all comments to be heard on September 15, 2009.
The National Commission on Children and Disasters is an independent Commission that shall conduct a comprehensive study to examine and assess the needs of children as they relate to preparation for, response to, and recovery from all hazards, building upon the evaluations of other entities and avoiding unnecessary duplication by reviewing the findings, conclusions, and recommendations of these entities. The Commission shall then submit a report to the President and Congress on the Commission's independent and specific findings, conclusions, and recommendations to address the needs of children as they relate to preparation for, response to, and recovery from all hazards, including major disasters and emergencies.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given of the following meeting:
The Council will hear reports from three ACBSCT Work Groups: Informed Consent, Access to Transplantation, and Cord Blood Collections. The Council also will hear presentations and discussions on the following topics: Induced pluripotent stem cells and adult stem cells, National Marrow Donor Program Infrastructure Summit, Radiation Injury Treatment Network, and trends in post-transplant survival. Agenda items are subject to change as priorities indicate.
After the presentations and Council discussions, members of the public will have an opportunity to provide comments. Because of the Council's full agenda and the timeframe in which to cover the agenda topics, public comment will be limited. All public comments will be included in the record of the ACBSCT meeting. Meeting summary notes will be made available on the HRSA's Program Web site at
The draft meeting agenda and a registration form will be available on or about August 21, 2009, on the HRSA's Program Web site at
The completed registration form should be submitted by facsimile to Professional and Scientific Associates (PSA), the logistical support contractor for the meeting, at fax number (703) 234–1701 ATTN: Rebecca Pascoe. Registration can also be completed electronically at
Remy Aronoff, Executive Secretary, Healthcare Systems Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 12–105, Rockville, Maryland 20857; telephone (301) 443–3264.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
CLOLAR (clofarabine) Injection for intravenous use has a new proposed indication for treatment of AML in previously untreated adults aged 60 years or older with at least one medical or health factor that increases the risk of an unfavorable outcome. Laromustine Injection, with the proposed trade name ONRIGIN, has a proposed use for “remission induction therapy” for AML. This is an initial approach to AML treatment designed to induce, or bring about, remission (reduction or disappearance) of leukemia in patients 60 years or older with de novo, or first occurrence, AML designated as “poor-risk,” or more likely to have a poor outcome.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Nicole Vesely at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Nicole Vesely at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Deafness and Other Communication Disorders Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available, Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles, will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a program to support public health protection by facilitating the timely issuance of warning letters. The program establishes a timeframe for the submission and agency review of post-inspection responses to inspectional
The program will begin on September 15, 2009.
Karen Stutsman, Division of Compliance Policy (HFC–230), Office of Enforcement, Office of Regulatory Affairs, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 240–632–6860.
FDA issues a form FDA 483, Inspectional Observations, upon completion of an inspection, to notify an inspected establishment's top management of objectionable conditions relating to products and/or processes, or other violations of the Federal Food, Drug, and Cosmetic Act and related acts, that were observed during the inspection.
The FDA 483 form includes this preprinted instruction: “This document lists observations made by the FDA representative(s) during the inspection of your facility. They are inspectional observations; and do not represent a final agency determination regarding your compliance. If you have an objection regarding an observation, or have implemented, or plan to implement corrective action in response to an observation, you may discuss the objection or action with the FDA representative(s) during the inspection or submit this information to FDA at the address [on the form].”
When FDA determines, based on the inspection, that the establishment is in violation of the Federal Food, Drug, and Cosmetic Act or another statute that we enforce, we may issue a warning letter. Warning letters are issued only for significant violations that may lead to enforcement action if they are not promptly and adequately corrected. The decision to issue a warning letter is made by senior officials within FDA, often including the product center, after a thorough review of all of the relevant facts.
It is not uncommon for an inspected establishment to respond in writing to observations made on an FDA 483 to describe completed or ongoing corrective actions or to promise future corrections. In fact, some inspected establishments submit multiple responses to FDA, sometimes over many months. Delayed and multiple responses to an FDA 483 have resulted in delays in the issuance of warning letters while these responses are reviewed and addressed. FDA's timely issuance of a warning letter should help to achieve prompt voluntary compliance and is therefore in the public interest.
While FDA considers corrective actions, and other factors, in determining whether to issue a warning letter, ongoing or promised corrective actions generally do not preclude the issuance of a warning letter. A warning letter is an important means of notifying regulated industry of violations and achieving prompt voluntary correction. Warning letters serve to ensure that the seriousness and scope of the violations are understood by top management of the inspected establishment, and that the appropriate resources are allocated to fully correct the violations and to prevent their recurrence. FDA is initiating a program to establish a timeframe for the submission of such post-inspection responses to FDA 483 inspectional observations for FDA's consideration in deciding whether to issue a warning letter. Under the program (described in more detail later in this document), the agency will not ordinarily delay the issuance of a warning letter in order to review a response to an FDA 483 that is received more than 15 business days after the FDA 483 was issued.
The purpose of this program is to optimize resource utilization, facilitate the timely issuance of warning letters, and promote prompt correction of violations. FDA will use the information from the program to determine whether to make the program permanent. FDA will conduct an assessment of the program after approximately 18 months.
Under the program, before issuing a warning letter, FDA will generally allow firms 15 business days to provide a response to FDA 483 observations. If we receive a response to FDA 483 observations within 15 business days after the FDA 483 was issued, we plan to conduct a detailed review of the response before determining whether to issue a warning letter. If we issue a warning letter after reviewing a firm's timely response, the warning letter will recognize receipt of the response and reply as to the apparent adequacy of the firm's corrective actions set forth in the response. Additional correspondence from FDA may be issued with regard to the response, if needed.
If we receive a response to FDA 483 observations more than 15 business days after the FDA 483 was issued, we do not plan to routinely include a response on the apparent adequacy of the firm's corrective actions in the warning letter. Rather, we plan to evaluate the response along with any other written material provided as the direct response to the warning letter (a firm's response to a warning letter may reference any of the firm's earlier responses).
Note that FDA, at its discretion, may issue Warning Letters at any time, independent of receiving a response; and that firms are expected to implement needed corrections to conform to the requirements of the Federal Food, Drug, and Cosmetic Act and associated regulations regardless of whether they respond in writing to FDA or whether such a response is reviewed by FDA.
After the 18-month time period, FDA will evaluate this program and decide whether to continue it with or without adjustments.
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; revision of a currently approved information collection; OMB No. 1660–0099; FEMA Form 646–0, Citizen Corps Individual Registration.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this Notice seeks comments concerning the online registration process for Citizen Corps Individual Registration.
Comments must be submitted on or before October 13, 2009.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
(4)
All submissions received must include the agency name and docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Kerry Hoerth, Community Preparedness Division Program Specialist, FEMA, 202–786–9775 for additional information. You may contact the Records Management Branch for copies of the proposed collection of information at facsimile number (202) 646–3347 or e-mail address:
Citizen Corps was launched as a Presidential Initiative, Executive Order 13254, in 2002 with a mission to harness the power of every individual through education, training, and volunteer service to make communities safer, stronger, and better prepared for the threats of terrorism, crime, public health issues, and disasters of all kinds. In order to fulfill its mission, the Federal Emergency Management Agency (FEMA) Community Preparedness Division (CPD) requires individuals to submit profiles electronically through its information collection online process and forms.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; revision of a currently approved information collection; OMB No. 1660–0098; FEMA Form 646, Citizen Corps Council Registration.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this Notice seeks comments concerning the online database of Citizen Corps Councils and Community Emergency Response Team (CERT) so that they can submit profiles via the national Web site. Approved registration of a Council or CERT program allows them to be recognized as official entities
Comments must be submitted on or before October 13, 2009.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
(4)
All submissions received must include the agency name and docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Kerry Hoerth, Community Preparedness Division Program Specialist, FEMA, 202–786–9775 for additional information. You may contact the Records Management Branch for copies of the proposed collection of information at facsimile number (202) 646–3347 or e-mail address:
Citizen Corps was launched as a Presidential Initiative, Executive Order 13254, in 2002 with a mission to harness the power of every individual through education, training, and volunteer service to make communities safer, stronger, and better prepared for the threats of terrorism, crime, public health issues, and disasters of all kinds. In order to fulfill its mission, the Federal Emergency Management Agency (FEMA) Community Preparedness Division (CPD) seeks to establish a network of State, local, and Tribal Citizen Corps Councils that will coordinate activities, including Community Emergency Response Teams, at these levels. The Citizen Corps Council Registration Form will allow FEMA and State personnel to ensure that prospective Councils/CERTs have the support of the appropriate government officials in their area, ensure a dedicated coordinator is assigned to the Council, and will provide an efficient way to track the effectiveness of the nationwide network of Councils and CERTs. This revised registration process will allow the Community Preparedness Division to collect information that is more usable and provide a more efficient way to track the effectiveness of the nationwide network of Councils and CERTs and make it easier for Councils to register or update information.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Maine (FEMA–1852–DR), dated July 30, 2009, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated July 30, 2009, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Maine resulting from severe storms, flooding, and landslides during the period of June 18 to July 8, 2009, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Maine have been designated as adversely affected by this major disaster:
All counties within the State of Maine are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Nebraska (FEMA–1853–DR), dated July 31, 2009, and related determinations.
Effective Date: July 31, 2009.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated July 31, 2009, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Nebraska resulting from severe storms, flooding, and tornadoes during the period of June 5–26, 2009, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Karl of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Nebraska have been designated as adversely affected by this major disaster:
Arthur, Box Butte, Cherry, Custer, Dixon, Garden, Hamilton, Keya Paha, Morrill, Pawnee, Richardson, Rock, and Scotts Bluff Counties for Public Assistance.
All counties within the State of Nebraska are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Section 102 of the Department of Housing and Urban Development Reform Act of 1989 requires applicants for HUD assistance for certain projects to disclose information, which will include other government assistance being requested, names, and financial interests of all interested parties, and a report of expected sources and uses of funds. A $200,000 threshold applies to this disclosure requirement.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2510–0011) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Section 102 of the Department of Housing and Urban Development Reform Act of 1989 requires applicants for HUD assistance for certain projects to disclose information, which will include other government assistance being requested, names, and financial interests of all interested parties, and a report of expected sources and uses of funds. A $200,000 threshold applies to this disclosure requirement.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The HMDA Loan/Application Register collects information from mortgage lenders on application for, and originations and purchases of, mortgage and home improvement loans.
Non-depository mortgage lending institutions are required to use the information generated as a running log throughout the calendar year, and send the information to HUD by March 1 of the following calendar year.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502–0539) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Non-depository mortgage lending institutions are required to use the information generated as a running log throughout the calendar year, and send the information to HUD by March 1 of the following calendar year.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Lillian Deitzer, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410, or
Margaret Burns, Office of Single Family Program Development, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708–2121 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This information is collected on new mortgages offered by FHA approved mortgagees to mortgagors who are at risk of losing their homes to foreclosure. The new FHA insured mortgages refinance the borrowers' existing mortgage at a significant write-down. Under the program the mortgagors share the new equity and future appreciation with FHA.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502–0579) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the current list of 564 tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes. The list is updated from the notice published on April 4, 2008 (73 FR 18553).
Daisy West, Bureau of Indian Affairs, Division of Tribal Government Services, Mail Stop 4513–MIB, 1849 C Street, NW., Washington, DC 20240. Telephone number: (202) 513–7641.
This notice is published pursuant to section 104 of the Act of November 2, 1994 (Pub. L. 103–454; 108 Stat. 4791, 4792), and in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8.
Published below is a list of federally acknowledged tribes in the contiguous 48 states and in Alaska.
Two tribes have been added to the list since the last publication. Federal relations have been reestablished with Wilton Rancheria pursuant to a court-ordered settlement stipulation. The court order was dated June 8, 2009. Direct government-to-government relations were reestablished with the Delaware Tribe of Indians through its
Other amendments to the list include name changes and name corrections. To aid in identifying tribal name changes, the tribe's former name is included with the new tribal name. To aid in identifying corrections, the tribe's previously listed name is included with the tribal name. We will continue to list the tribe's former or previously listed name for several years before dropping the former or previously listed name from the list.
The listed entities are acknowledged to have the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. We have continued the practice of listing the Alaska Native entities separately solely for the purpose of facilitating identification of them and reference to them, given the large number of complex Native names.
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species and/or marine mammals.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 212, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA), the Federal Advisory Committee Act of 1972 (FACA), and the Federal Lands Recreation Enhancement Act of 2004 (FLREA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Twin Falls District Resource Advisory Council (RAC) will attend a tour as indicated below.
September 16, 2009. The Twin Falls District RAC meeting will begin at 9 a.m. (MST) and end no later than 4 p.m. at the Ameritel Inn in Twin Falls, Idaho, located at 539 Poleline Road. The public comment period for the RAC meeting will take place 9:15 a.m. to 9:45 a.m.
Heather Tiel-Nelson, Twin Falls District, Idaho, 2536 Kimberly Road, Twin Falls, Idaho 83301, (208) 736–2352.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Idaho. During this meeting, the Twin Falls District RAC members will discuss joint Resource Advisory Council meetings, the fire/fuels team report, and energy projects within the Twin Falls District. Additional topics may be added and will be included in local media announcements. More information is available at
RAC meetings are open to the public. For further information about the meeting, please contact Heather Tiel-Nelson, Public Affairs Specialist for the Twin Falls District, BLM at (208) 736–2352
Bureau of Land Management, Interior.
Notice of public meeting.
Bureau of Land Management (BLM), Colorado State Office, Lakewood, Colorado, hereby gives notice that the a public meeting will be held to receive comments on the Environmental Analysis (EA), Finding of No Significant Impact (FONSI), Maximum Economic Recovery (MER), and Fair Market Value (FMV) of Federal coal to be offered for a competitive lease sale. Coal Lease By Application (LBA) COC–70615 was filed by Oxbow Mining, LLC. The BLM plans to offer for competitive lease 785.79 acres of Federal coal in Gunnison County, Colorado.
The public meeting will be held at 7 p.m., Wednesday, September 9, 2009. Written comments should be received no later than September 25, 2009.
The public meeting will be held in the Paonia Town Hall located at 214 Grand Avenue, Paonia, Colorado. Written comments should be addressed to the Uncompahgre Field Office Manager, Uncompahgre Field Office, 2505 South Townsend Avenue, Montrose, Colorado 81401.
Field Office Manager, Uncompahgre Field Office at the address above, or by telephone at 970–240–5300.
BLM hereby gives notice that a public meeting will be held on Wednesday, September 9, 2009, at 7 p.m., at the Paonia Town Hall at the address given above. An LBA was filed by Oxbow Mining, LLC. The BLM offers for competitive lease Federal coal in the lands outside established coal production regions described as:
Containing approximately 785.79 acres more or less, in Gunnison County, Colorado.
The coal resource to be offered is limited to coal recoverable by underground mining methods.
One purpose of the meeting is to obtain public comments on the following items:
(1) The method of mining to be employed to obtain maximum economic recovery of the coal,
(2) The impact that mining the coal in the proposed leasehold may have on the area,
(3) The methods of determining the fair market value of the coal to be offered, and
(4) EA and the FONSI.
In addition, the public is invited to submit written comments concerning the MER and FMV of the coal resource. Public comments will be utilized in establishing FMV for the coal resource in the described lands. Comments should address specific factors related to fair market value including, but not limited to:
1. The quality and quantity of the coal resource.
2. The price that the mined coal would bring in the market place.
3. The cost of producing the coal.
4. The interest rate at which anticipated income streams would be discounted.
5. Depreciation and other accounting factors.
6. The mining method or methods which would achieve maximum economic recovery of the coal.
7. Documented information on the terms and conditions of recent and similar coal land transactions in the lease area, and
8. Any comparable sales data of similar coal lands in the lease area.
Written requests to testify orally at the September 9, 2009, public meeting should be received at the Uncompahgre Field Office prior to the close of business September 9, 2009. Those who indicate they wish to testify when they register at the meeting may have an opportunity if time is available.
If any information submitted as comments are considered to be proprietary by the commenter, the information should be labeled as such and stated in the first page of the submission. Written comments on the MER and FMV should be sent to the Uncompahgre Field Office at the above address prior to the close of business on September 25, 2009, the end of the 30 day public comment period.
Substantive comments, whether written or oral, will receive equal consideration prior to any lease offering. The MER Report is available from the Uncompahgre Field Office upon request.
A copy of the MER Report, the case file, and the comments submitted by the public, except those portions identified as proprietary by the commenter and meeting exemptions stated in the Freedom of Information Act, will be available for public inspection after September 25, 2009, at the Colorado State Office, 2850 Youngfield, Lakewood, Colorado 80215.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made 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.
Pursuant to (36 CFR 60.13(b,c)) and (36 CFR 63.5), this notice, through publication of the information included herein, is to apprise the public as well as governmental agencies, associations and all other organizations and individuals interested in historic preservation, of the properties added to, or determined eligible for listing in, the National Register of Historic Places from June 8, to June 12, 2009.
For further information, please contact Edson Beall via: United States Postal Service mail, at the National Register of Historic Places, 2280, National Park Service, 1849 C St., NW., Washington, DC 20240; in person (by appointment), 1201 Eye St., NW., 8th floor, Washington, DC 20005; by fax, 202–371–2229; by phone, 202–354–2255; or by e-mail,
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before July 25, 2009. Pursuant to § 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by August 26, 2009.
Bureau of Indian Affairs, Interior.
Notice of rate adjustment for San Carlos Irrigation Project—Joint Works, Arizona.
The Bureau of Indian Affairs (BIA) owns and operates the San Carlos Irrigation Project—Joint Works (SCIP–JW) located with the project office in Coolidge, Arizona. We are required to establish irrigation assessment rates to recover the costs to administer, operate, maintain, and rehabilitate this project. We are notifying you that we have adjusted the irrigation assessment rate at the SCIP–JW to reflect current costs of administration, operation, maintenance, and rehabilitation.
Effective September 10, 2009.
Bryan Bowker, Project Manager, P.O. Box 250, Coolidge, AZ 85228, telephone: (520) 723–6216.
A Notice of Proposed Rate Adjustment was published in the
This notice affects you if you own or lease land within the assessable acreage of the SCIP–JW or if you have a carriage agreement with this irrigation project.
The rate table below contains the current rate for SCIP–JW, where we recover costs of administering, operating, maintaining, and rehabilitating the project. The table also contains the final rate for the 2011 season.
Yes. The BIA proposed a $30/acre operation and maintenance (O&M) assessment rate for the SCIP–JW in 2011. This would have been a $9/acre increase from the 2010 O&M assessment rate of $21/acre. After further consideration, the BIA is establishing the 2011 O&M assessment rate at $25/acre. This $5/acre change in the proposed rate increase would extend, from two to three years, the time period required for BIA to collect from the water users the funds needed to replace the Coolidge Dam cylinder gates.
Yes. Written comments relating to the proposed rate adjustment for the SCIP–JW were received by letter dated May 29, 2009, from one entity, the San Carlos Irrigation and Drainage District (District).
The District raised the following comments in its letter. The BIA's response is provided immediately after each comment statement.
(1)
The SCIP–JW staff and District representatives discussed the pertinent budget information during several meetings held between November 13, 2008 and March 30, 2009. The District was provided with pertinent budget information during this time period.
(2)
In anticipation of the reduction-in-force resulting from the transfer of the SCIP–JW maintenance duties to the Joint Control Board (JCB) required by the Arizona Water Settlements Act (Pub. L. 108–451, 118 Stat. 3478, 3499 (Dec. 10, 2004)) and the Related Joint Control Board Agreement signed by the District and the Secretary of the Interior, the SCIP–JW will be updating its Irrigation Organization Chart. At that time, the District will be provided a copy of the revised Irrigation Organization Chart and associated salary table.
The reduction-in-force is in progress and the BIA estimates this action will result in an annual personnel cost savings of approximately $400,000. This savings is accounted for in the 2010 and 2011 O&M budgets for the SCIP–JW and was identified to the District on or before March 30, 2009. Although the Supervisory Civil Engineer position was vacant from August 2008 through May 2009, the position has now been filled. The BIA disagrees with the District's assertion that only a half-time Civil Engineer position is needed. There are extensive construction activities planned for SCIP–JW facilities pursuant to the Arizona Water Settlements Act by the District, the Gila River Indian Community, and the U.S. Bureau of Reclamation. These activities require the attention of the Supervisory Civil Engineer, in addition to the duties retained by the SCIP–JW after the transfer of maintenance duties to the JCB.
Similarly, the BIA disagrees with the District's estimate of how many irrigation system operators the SCIP–JW needs to perform the water delivery duties. The SCIP–JW has a vast geographical territory, and the irrigation system operators are regularly called on to perform water delivery duties after normal working hours and on weekends and holidays.
BIA notes that the District reiterates its request for the SCIP–JW to assign the well maintenance function to the JCB. The agreement applicable to the JCB requires the BIA to continue maintenance of project wells until such time as the wells become a “District Rehabilitation Responsibility” as defined in sections 9.1 and 9.4 of the Joint Control Board Agreement. There may be other options available for consideration by BIA in response to this request, such as a Federal procurement action or an Indian Self-Determination contract action. However, consideration of these options would take time to discuss and evaluate and cannot be resolved in the context of the 2011 O&M rate process. Regardless, implementation of other options for maintenance of project wells does not eliminate the costs; it only changes the way the costs are covered.
(3)
(4)
These reports provide the following information: a buckling failure of a cylinder gate while closed, due to large hydrostatic loads on a reduced steel section (from corrosion), could prevent re-opening of the gate for reservoir releases and also present a dam safety concern. A single nine-foot-diameter circular bulkhead gate could be fabricated for installation by a crane onto either cylinder gate seat within each intake tower for maintenance and inspection purposes, replacing the function of the cylinder gates at a reasonable cost. Failure of either cylinder gate is considered likely within the next 30 years under normal operating heads and immediate measures should be taken to lock both gates in the fully open position until they are removed. Based on this technical review and information, BIA decided to lock the existing cylinder gates in a fully open position and the gates are no longer available to be closed under any circumstance. This prevents inspection and maintenance of the emergency guard gate and sections of the conduit through the dam upstream of the emergency guard gate.
Based on this information, the BIA believes it is appropriate as the owner/operator of Coolidge Dam, as well as the steward of the water supply delivered from Coolidge Dam, to move forward with the actions required to replace the cylinder gates. In order to reduce the cost burden to the District landowners, the BIA will reduce the 2011 O&M rate from $30/acre to $25/acre and collect the funds for this purpose over a three-year period rather than a two-year period.
(5)
(6)
Examples of the information provided to the District include: staff position titles; staff position salary and wage grade scales; projected and actual expenditures for FY 2009; projected expenditures for 2010; final income and expenditure information for the reconciled year-end 2008 O&M budget (including volumes of documentation from the Federal Finance System and General Ledger); SCIP–JW budget spreadsheets displaying historical expenditure data for nearly the last ten years; and detailed descriptions of the O&M activities and performance standards for the SCIP–JW.
Additionally, the SCIP–JW provided the District with access to all of its contract files as part of the pending litigation in
You can contact the appropriate office(s) stated in the table for the SCIP–JW, or you can use the Internet site for the Government Printing Office at
Our authority to issue this notice is vested in the Secretary of the Interior by 5 U.S.C. 301 and the Act of August 14, 1914 (38 Stat. 583; 25 U.S.C. 385). The Secretary has, in turn, delegated this authority to the Assistant Secretary—Indian Affairs under Part 209, Chapter 8.1A, of the Department of the Interior's Departmental Manual.
The following table contains the regional and project/agency contacts for the SCIP–JW.
To fulfill its consultation responsibility to tribes and tribal organizations, BIA communicates, coordinates, and consults on a continuing basis with these entities on issues of water delivery, water availability, costs of administration, operation, maintenance, and rehabilitation of projects that concern them. This is accomplished at the individual irrigation project by project, BIA, and regional representatives, as appropriate, in accordance with local protocol and procedures. This notice is one component of our overall coordination and consultation process to provide notice to, and request comments from, these entities when we adjust irrigation assessment rates.
This rate adjustment will have no adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increase use of foreign supplies) as this rate adjustment is implemented. This is a notice for rate adjustment at a BIA-owned and operated irrigation project.
This rate adjustment is not a significant regulatory action and does not need to be reviewed by the Office of Management and Budget under Executive Order 12866.
This rate adjustment is not a rule for the purposes of the Regulatory Flexibility Act because it establishes “a rule of particular applicability relating to rates.” 5 U.S.C. 601(2).
This rate adjustment does not impose an unfunded mandate on State, local, or tribal governments in the aggregate, or on the private sector, of more than $130 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. Therefore, the Department of the Interior (Department) is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The Department has determined that rate adjustments do not have significant “takings” implications.
The Department has determined that rate adjustments do not have significant Federalism effects because they will not affect the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among various levels of government.
In issuing this rule, the Department has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988.
This rate adjustment does not affect the collections of information that have been approved by the Office of Information and Regulatory Affairs, Office of Management and Budget, under the Paperwork Reduction Act of 1995. The OMB Control Number is 1076–0141 and expires August 31, 2009.
The Department has determined that this rate adjustment does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370(d)).
In developing this notice, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. No. 106–554).
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications for permits to conduct certain activities with endangered species. The Endangered Species Act requires that we invite public comment on these permit applications.
Written data, comments or requests must be received by September 10, 2009
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 212, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests an amendment to an existing permit to import biological samples collected from captive-bred green sea turtles (
The applicant requests a permit to acquire from Coriell Institute of Medical Research, Camden, NJ, in interstate commerce fibroblast cell line cultures from gorillas (
The following applicants request a permit to import the sport-hunted trophy of one male bontebok (
The Department of Labor (DOL) hereby announces the submission of the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor-ETA, Office of Management and Budget, Room 10235,
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) hereby announces the submission of the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—ETA, Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–7316/Fax: 202–395–5806 (these are not toll-free numbers), E-mail:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Employment and Training Administration, Labor.
Notice.
This notice announces a change in benefit period eligibility under the EB program for New Hampshire.
The following change has occurred since the publication of the last notice regarding New Hampshire's EB status:
• New Hampshire's total unemployment rate (TUR) for June 2009, released on July 17, 2009, by the Bureau of Labor Statistics, brought its three-month average seasonally adjusted TUR to the threshold for triggering “on” to an extended benefit period. Beginning with the week of August 2, 2009, eligible unemployed workers will be able to collect up to an additional 13 weeks of Unemployment Insurance benefits.
The duration of benefits payable in the EB program, and the terms and conditions on which they are payable, are governed by the Federal-State Extended Unemployment Compensation Act of 1970, as amended, and the operating instructions issued to the States by the U.S. Department of Labor. In the case of a State beginning an EB period, the State Workforce Agency will furnish a written notice of potential entitlement to each individual who has exhausted all rights to regular benefits and is potentially eligible for EB (20 CFR 615.13 (c)(1)). Persons who believe they may be entitled to EB or who wish to inquire about their rights under the program should contact their State Workforce Agency.
Scott Gibbons, U.S. Department of Labor, Employment and Training Administration, Office of Workforce Security, 200 Constitution Avenue, NW., Frances Perkins Bldg. Room S–4231, Washington, DC 20210, telephone
Employment and Training Administration, Labor.
Notice.
This notice announces a change in benefit period eligibility under the EB program for Texas.
The following change has occurred since the publication of the last notice regarding Texas' EB status:
• Texas has modified its law by adding a total unemployment rate (TUR) trigger retroactive to February 1, 2009. As a result, Texas has retroactively triggered “on” to an extended benefit period for weeks of unemployment beginning May 3, 2009. Eligible claimants will be able to collect up to an additional 13 weeks of Unemployment Insurance benefits.
The duration of benefits payable in the EB program, and the terms and conditions on which they are payable, are governed by the Federal-State Extended Unemployment Compensation Act of 1970, as amended, and the operating instructions issued to the states by the U.S. Department of Labor. In the case of a state beginning an EB period, the State Workforce Agency will furnish a written notice of potential entitlement to each individual who has exhausted all rights to regular benefits and is potentially eligible for EB (20 CFR 615.13(c)(1)). Persons who believe they may be entitled to EB or who wish to inquire about their rights under the program should contact their State Workforce Agency.
Scott Gibbons, U.S. Department of Labor, Employment and Training Administration, Office of Workforce Security, 200 Constitution Avenue, NW., Frances Perkins Bldg., Room S–4231, Washington, DC 20210, telephone number (202) 693–3008 (this is not a toll-free number) or by e-mail:
Employment and Training Administration, Labor.
Notice.
This notice announces a change in benefit period eligibility under the EB program for Arizona, Delaware, and New York.
The following change has occurred since the publication of the last notice regarding these States' EB statuses:
• Total unemployment rate (TUR) data for June 2009, released on July 17, 2009, by the Bureau of Labor Statistics, brought the three-month average seasonally adjusted TURs in Arizona, Delaware, and New York to the threshold for triggering “on” to a high unemployment period (HUP) under the EB program. Beginning on August 2, 2009, eligible claimants will be able to collect up to 20 weeks of additional Unemployment Insurance benefits. A
The duration of benefits payable in the EB Program, and the terms and conditions on which they are payable, are governed by the Federal-State Extended Unemployment Compensation Act of 1970, as amended, and the operating instructions issued to the states by the U.S. Department of Labor. In the case of a state beginning a HUP period, the State Workforce Agency will furnish a written notice of potential entitlement to each individual who may be eligible for increased benefits due to the HUP (20 CFR 615.13 (c) (1)).
Persons who wish to inquire about their rights under the program should contact their State Workforce Agency.
Scott Gibbons, U.S. Department of Labor, Employment and Training Administration, Office of Workforce Security, 200 Constitution Avenue, NW., Frances Perkins Bldg., Room S–4231, Washington, DC 20210, telephone number (202) 693–3008 (this is not a toll-free number) or by e-mail:
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from July 16, 2009, to July 29, 2009. The last biweekly notice was published on July 28, 2009 (74 FR 37245).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rulemaking and Directives Branch (RDB), TWB–05–B01M, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E–Filing rule, which the NRC promulgated in August 28, 2007 (72 FR 49139). The E–Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E–Filing, at least ten (10) days prior to the filing deadline, the petitioner/requestor should contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory e-filing system may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the request and/or petition should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Providing the additional logic ensures the timely transfer of plant safety system loads to the Emergency Diesel Generators in the event sustained degraded bus voltage is present with a Loss of Coolant Accident (LOCA) signal. This ensures that Emergency Core Cooling System (ECCS) equipment is powered from the emergency diesel generators in a timely manner. This change is needed to bring Fermi 2 into full compliance with 10 CFR part 50, Appendix A, General Design Criterion–17, “Electric Power Systems,” and to meet the requirements of NUREG–0800 Rev. 2, Branch Technical Position (BTP) Power Systems Branch (PSB)–1. The shorter time delay supports the time assumed in the accident analysis for water injection into the reactor vessel under degraded voltage conditions. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of
The proposed change does not affect any of the current degraded voltage logic schemes or any other equipment provided to mitigate accidents. It utilizes existing logic systems to isolate safety buses from the grid and repower those safety buses using the onsite emergency power system. The change adds logic to ensure that in the case of a sustained degraded voltage condition concurrent with a LOCA signal, the safety electrical power buses will be transferred from the offsite power system to the onsite power system in a timely manner to ensure water is injected into the reactor vessel in the time assumed and evaluated in the accident analysis. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed change does not involve a significant reduction in the margin of safety.
This proposed change implements a new design for a reduced time delay to isolate safety buses from offsite power if a Loss of Coolant Accident were to occur concurrent with a sustained degraded voltage condition. This ensures that emergency core cooling system pumps inject water into the reactor vessel within the time assumed and evaluated in the accident analysis, consistent with the requirements of BTP PSB–1 section B.1.b. and 10 CFR part 50, Appendix A, General Design Criterion–17, “Electric Power Systems.” Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1: The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Removal of the Technical Specification requirements will be performed concurrently with the implementation of the 10 CFR part 26, subpart I, requirements. The proposed change does not impact the physical configuration or function of plant structures, systems, or components (SSCs) or the manner in which SSCs are operated, maintained, modified, tested, or inspected. Worker fatigue is not an initiator of any accident previously evaluated. Worker fatigue is not an assumption in the consequence mitigation of any accident previously evaluated.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2: The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Working hours will continue to be controlled in accordance with NRC requirements. The new rule allows for deviations from controls to mitigate or prevent a condition adverse to safety or as necessary to maintain the security of the facility. This ensures that the new rule will not unnecessarily restrict working hours and thereby create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the plant configuration, require new plant equipment to be installed, alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3: The proposed change does not involve a significant reduction in a margin of safety.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. The proposed change does not involve any physical changes to plant or alter the manner in which plant systems are operated, maintained, modified, tested, or inspected. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside the design basis. The proposed change does not adversely affect systems that respond to safely shutdown the plant and to maintain the plant in a safe shutdown condition.
Removal of plant-specific Technical Specification administrative requirements will not reduce a margin of safety because the requirements in 10 CFR part 26 are adequate to ensure that worker fatigue is managed.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1: The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Removal of the Technical Specification requirements will be performed concurrently with the implementation of the 10 CFR part 26, subpart I, requirements. The proposed change does not impact the physical
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2: The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Working hours will continue to be controlled in accordance with NRC requirements. The new rule allows for deviations from controls to mitigate or prevent a condition adverse to safety or as necessary to maintain the security of the facility. This ensures that the new rule will not unnecessarily restrict working hours and thereby create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the plant configuration, require new plant equipment to be installed, alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3: The proposed change does not involve a significant reduction in a margin of safety.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. The proposed change does not involve any physical changes to plant or alter the manner in which plant systems are operated, maintained, modified, tested, or inspected. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside the design basis. The proposed change does not adversely affect systems that respond to safely shutdown the plant and to maintain the plant in a safe shutdown condition.
Removal of plant-specific Technical Specification administrative requirements will not reduce a margin of safety because the requirements in 10 CFR part 26 are adequate to ensure that worker fatigue is managed.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1: The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Removal of the Technical Specification requirements will be performed concurrently with the implementation of the 10 CFR part 26, subpart I, requirements. The proposed change does not impact the physical configuration or function of plant structures, systems, or components (SSCs) or the manner in which SSCs are operated, maintained, modified, tested, or inspected. Worker fatigue is not an initiator of any accident previously evaluated. Worker fatigue is not an assumption in the consequence mitigation of any accident previously evaluated.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2: The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Working hours will continue to be controlled in accordance with NRC requirements. The new rule allows for deviations from controls to mitigate or prevent a condition adverse to safety or as necessary to maintain the security of the facility. This ensures that the new rule will not unnecessarily restrict working hours and thereby create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the plant configuration, require new plant equipment to be installed, alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3: The proposed change does not involve a significant reduction in a margin of safety.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. The proposed change does not involve any physical changes to plant or alter the manner in which plant systems are operated, maintained, modified, tested, or inspected. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside the design basis. The proposed change does not adversely affect systems that respond to safely shutdown the plant and to maintain the plant in a safe shutdown condition.
Removal of plant-specific Technical Specification administrative requirements will not reduce a margin of safety because the requirements in 10 CFR part 26 are adequate to ensure that worker fatigue is managed.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes revise [technical specification] TS 5.5.6 for [Clinton Power Station] CPS Unit 1 to conform to the requirements of 10 CFR 50.55a, “Codes and standards,” paragraph (f) regarding the inservice testing of pumps and valves beginning with the Third 10-year Interval. The current TS reference the [American Society of Mechanical Engineers] ASME Boiler and Pressure Vessel Code, Section XI, requirements for the inservice testing of ASME Code Class 1, 2, and 3 components, including applicable supports. The proposed changes would reference the ASME [Operation and Maintenances of Nuclear Power Plants] OM Code, which is consistent with 10 CFR 50.55a, paragraph (f), “Inservice testing requirements,” and approved for use by the NRC. In addition, provisions modifying TS 5.5.6, item b, clarify that [surveillance requirement] SR 3.0.2 is only applied to those inservice testing frequencies of two years or less. The definitions of the frequencies are not changed by this license amendment request. The change removing the phrase “including applicable supports” clarifies the scope of components in the [in-service testing] IST Program.
The proposed changes do not affect any accident initiators, do not affect the ability of CPS to successfully respond to previously evaluated accidents and do not affect radiological assumptions used in the evaluations. Thus, the radiological consequences of any accident previously evaluated are not increased.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes revise TS 5.5.6 for CPS Unit 1 to conform to the requirements of 10 CFR 50.55a(f) regarding the inservice testing of pumps and valves beginning with the Third 10-year Interval. The current TS reference the ASME Boiler and Pressure Vessel Code, section XI, requirements for the inservice testing of ASME Code Class 1, 2, and 3 components, including applicable supports. The proposed changes would reference the ASME OM Code, which is consistent with the 10 CFR 50.55a(f) and approved for use by the NRC. In addition, provisions modifying TS 5.5.6, item b, clarify that SR 3.0.2 is only applied to those inservice testing frequencies of two years or less. The definitions of the frequencies are not changed by this license amendment request. The change removing the phrase “including applicable supports” clarifies the scope of components in the IST Program.
The proposed changes to TS section 5.5.6 do not affect the performance of any CPS structure, system, or component credited with mitigating any accident previously evaluated and do not introduce any new modes of system operation or failure mechanisms. In addition, the proposed changes do not revise the frequency or method of testing the components covered by the IST program.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
Response: No.
The proposed changes revise TS 5.5.6 for CPS Unit 1 to conform to the requirements of 10 CFR 50.55a(f) regarding the inservice testing of pumps and valves beginning with the Third 10-year Interval. The current TS reference the ASME Boiler and Pressure Vessel Code, section XI, requirements for the inservice testing of ASME Code Class 1, 2, and 3 components, including applicable supports. The proposed changes would reference the ASME OM Code, which is consistent with the 10 CFR 50.55a(f) and approved for use by the NRC. In addition, provisions modifying TS 5.5.6, item b, clarify that SR 3.0.2 is only applied to those inservice testing frequencies of two years or less. The definitions of the frequencies are not changed by this license amendment request. The change removing the phrase “including applicable supports” clarifies the scope of components in the IST Program.
The proposed changes do not modify the safety limits or setpoints at which proactive actions are initiated and do not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The licensee is also requesting NRC approval to revise TS 3.4.1, “RCS [Reactor Coolant System] Pressure, Temperature, and Flow Departure from Nucleate Boiling Limits,” to change the minimum reactor coolant system (RCS) total flow rate from 366,400 to 354,000 gallons per minute (gpm). The current value is a minimum measured flow value which includes allowances for flow uncertainty. Current practice is that the thermal design flow value, which does not include allowances for flow measurement uncertainty, be specified in TSs. The minimum measured flow is specified in the COLR. That value is currently 354,000 gpm and is also reflected in the new LBLOCA analyses.
The licensee also proposes to amend TS 3.5.2, “ECCS—Operating.” Condition D allows the unit to be in Mode 1, 2, or 3 for an unlimited amount of time if a Safety Injection (SI) system cross-tie valve is closed, provided that thermal power is reduced to less than or
1. Does the proposed change involve a significant increase in the probability of occurrence or Consequences of an Accident Previously Evaluated?
Response: No.
The current minimum departure from nucleate boiling ratio Technical Specification (TS) specify a minimum measured flow value in the Reactor Coolant System (RCS) total flow requirement. I&M is proposing to replace this minimum measured flow value with a thermal design flow value. The current minimum departure from nucleate boiling ratio TS also require that RCS total flow meet the requirements in the Core Operating Limits Report (CORL). The COLR specifies the minimum measured flow value. Consequently, the minimum measured flow value will continue to be met. This proposed change does not alter any system or actual flow value.
I&M is proposing to delete a TS provision that allows the unit to operate for an unlimited amount of time with a Safety Injection (SI) system cross tie valve closed, provided that thermal power is reduced. As discussed below, I&M is proposing to adopt a new large break loss-of-coolant accident (LBLOCA) analysis. The new analysis does not evaluate plant operation with an SI system cross-tie valve closed. The position of the SI system cross connect valve does not affect the likelihood of an accident. This proposed change will assure the plant will be operated within the new LBLOCA analysis.
I&M is proposing to modify the TS such that it identifies the new LBLOCA analysis methodology rather than the analysis methodology being replaced. This TS change is administrative in that it will identify the new methodology following approval of the new methodology by the Nuclear Regulatory Commission (NRC).
I&M is proposing to adopt a new LBLOCA analysis which uses a plant-specific adaptation of a best-estimate methodology using automated statistical treatment of uncertainty methodology (ASTRUM). The analysis is based on the current plant configuration and the plant will be operated within the assumptions of the analysis. The analysis demonstrates that the current emergency core cooling system design performance conforms to the criteria contained in 10 CFR 50.46.b. An LBLOCA is the only accident involved in this change. No changes are being made to any reactor protection system or engineered safeguards features actuation system setpoints.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes to the TS will not result in the operation of any structure, system, or component in a new or different manner. Adoption of a plant-specific adaptation of the ASTRUM methodology will not create any new failure modes that could lead to a different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
It has been shown that the analytical technique used in the analysis realistically describes the expected behavior of the Donald C. Cook Nuclear Plant Unit 2 reactor system during a postulated LBLOCA. Uncertainties have been accounted for as required by 10 CFR 50.46. A sufficient number of loss-of-coolant accidents (LOCAs) with different break sizes, different locations, and other variations in properties have been analyzed to provide assurance that the most severe postulated LOCAs were analyzed.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Removal of the Technical Specification requirements will be performed concurrently with the implementation of the 10 CFR part 26, subpart I, requirements. The proposed change does not impact the physical configuration or function of plant structures, systems, or components (SSCs) or the manner in which SSCs are operated, maintained, modified, tested, or inspected. Worker fatigue is not an initiator of any accident previously evaluated. Worker fatigue is not an assumption in the consequence mitigation of any accident previously evaluated.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. Working hours will continue to be controlled in accordance with NRC requirements. The new rule allows for deviations from controls to mitigate or prevent a condition adverse to safety or as necessary to maintain the security of the facility. This ensures that the new rule will not unnecessarily restrict working hours and thereby create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the plant configuration, require new plant
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The proposed change removes Technical Specification restrictions on working hours for personnel who perform safety related functions. The Technical Specification restrictions are superseded by the worker fatigue requirements in 10 CFR part 26. The proposed change does not involve any physical changes to the plant or alter the manner in which plant systems are operated, maintained, modified, tested, or inspected. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside the design basis. The proposed change does not adversely affect systems that respond to safely shutdown the plant and to maintain the plant in a safe shutdown condition.
Removal of plant-specific Technical Specification administrative requirements will not reduce a margin of safety because the requirements in 10 CFR part 26 are adequate to ensure that worker fatigue is managed.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on that review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) The applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site,
The Commission's related evaluation of these amendments is contained in a Safety Evaluation dated July 22, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 28, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 20, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 22, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 16, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation and final no significant hazards consideration determination of the amendment is contained in a Safety Evaluation dated July 24, 2009.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 21, 2009.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 24, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 28, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 27, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated July 22, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated July 24, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated July 24, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 15, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 21, 2009.
No significant hazards consideration comments received: No.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of August 10, 17, 24, 31, September 7, 14, 2009.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of August 17, 2009.
There are no meetings scheduled for the week of August 24, 2009.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of September 7, 2009.
There are no meetings scheduled for the week of September 14, 2009.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
Affirmation of Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP–09–3 (Ruling on Standing and Contention Admissibility) previously postponed from July 23, 2009, was held on July 31, 2009.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an e-mail to
Nuclear Regulatory Commission.
Withdrawal of Regulatory Guide 1.16, “Reporting of Operating Information—Appendix A Technical Specifications.”
Carl S. Schulten, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–1192 or e-mail
The Nuclear Regulatory Commission (NRC) is withdrawing Regulatory Guide (RG) 1.16, “Reporting of Operating Information—Appendix A Technical Specifications.” Revision 4 of the Regulatory Guide was issued for comment in August 1975 and never finalized. The guide provides a description of each of the periodic reports licensees are required to submit to demonstrate compliance with the reporting requirements listed in Appendix A, “Technical Specifications Related to Health and Safety” of the license.
Regulatory Guide 1.16 is being withdrawn because it is no longer needed. Technical specification reporting requirements for licensees are contained in Title 10 of the Code of Federal Regulations, Part 50, “Domestic Licensing of Production and Utilization Facilities” (10 CFR Part 50) as well as other parts of 10 CFR Chapter I, “Nuclear Regulatory Commission.” Guidance on the content and frequency of required reports is contained in Chapter 5, “Administrative Controls,” of the standard technical specifications in the following NUREGs:
• NUREG–1430, Volume 1, “Standard Technical Specifications, Babcock and Wilcox Plants,”
• NUREG–1431, Volume 1, “Standard Technical Specifications, Westinghouse Plants,”
• NUREG–1432, Volume 1, “Standard Technical Specifications, Combustion Engineering Plants,”
• NUREG–1433, Volume 1, Standard Technical Specifications, General Electric Plants, BWR/4,” and
• NUREG–1434, Volume 1, Standard Technical Specifications, General Electric Plants, BWR/6.”
Withdrawal of RG 1.16 does not, in and of itself, alter any prior or existing licensing commitments based on its use. The guidance provided in this RG is no longer necessary. Regulatory Guides may be withdrawn when their guidance is superseded by Congressional action, the methods or techniques described in the Regulatory Guide no longer describe a preferred approach, or the Regulatory Guide does not provide useful information.
Regulatory guides are available for inspection or downloading through the NRC's public Web site under “Regulatory Guides” in the NRC's Electronic Reading Room at
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of intention to request extension of OMB approval.
The Pension Benefit Guaranty Corporation (“PBGC”) intends to request that the Office of Management and Budget (“OMB”) extend its approval of a collection of information
Comments should be submitted by October 13, 2009.
Comments may be submitted by any of the following methods:
Copies of the collections of information may be obtained without charge by writing to the Disclosure Division of the Office of the General Counsel of PBGC at the above address or by visiting that office or calling 202–326–4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and ask to be connected to 202–326–4040.)
Thomas H. Gabriel, Attorney, Legislative & Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005–4026, 202–326–4024. TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and request connection to 202–326–4024.
PBGC intends to request that OMB extend its approval, for a three-year period, of a generic collection of information consisting of customer satisfaction focus groups and surveys (OMB control number 1212–0053; expires 12/31/2009). The information collection will further the goals of Executive Order 12862, Setting Customer Service Standards, which states the Federal Government must seek to provide “the highest quality of service delivered to customers by private organizations providing a comparable or analogous service.”
PBGC uses customer satisfaction focus groups and surveys to find out about the needs and expectations of its customers and assess how well it is meeting those needs and expectations. By keeping these avenues of communication open, PBGC can continually improve service to its customers, including plan participants and beneficiaries, plan sponsors and their affiliates, plan administrators, pension practitioners, and others involved in the establishment, operation and termination of plans covered by PBGC's insurance program. Because the areas of concern to PBGC and its customers vary and may quickly change, it is important that PBGC have the ability to evaluate customer concerns quickly by developing new vehicles for gathering information under this generic approval.
Participation in the focus groups and surveys will be voluntary. PBGC will consult with OMB regarding each specific information collection during the approval period. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
PBGC estimates that the annual burden for this collection of information will total 710 hours for 2,000 respondents. PBGC further estimates that the cost to respondents per burden hour will average $72, resulting in a total cost of $51,120 ($72 × 710).
PBGC is specifically seeking public comments to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of PBGC's functions, including whether the information will have practical utility;
(2) evaluate the accuracy of the estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) enhance the quality, utility, and clarity of the information to be collected; and
(4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Commission adopted Regulation S–P (17 CFR part 248) under the authority set forth in section 504 of the Gramm-Leach-Bliley Act (15 U.S.C. 6804), sections 17 and 23 of the Securities Exchange Act of 1934 (15 U.S.C. 78q, 78w), sections 31 and 38 of the Investment Company Act of 1940 (15 U.S.C. 80a–30(a), 80a–37), and sections 204 and 211 of the Investment Advisers Act of 1940 (15 U.S.C. 80b–4, 80b–11). Regulation S–P implements the requirements of Title V of the Gramm-Leach-Bliley Act (“GLBA”), which include the requirement that at the time of establishing a customer relationship with a consumer and not less than annually during the continuation of such relationship, a financial institution shall provide a clear and conspicuous disclosure to such consumer of such financial institution's policies and practices with respect to disclosing nonpublic personal information to affiliates and nonaffiliated third parties (“privacy notice”). Title V of the GLBA also provides that, unless an exception applies, a financial institution may not disclose nonpublic personal information of a consumer to a nonaffiliated third party unless the financial institution clearly and conspicuously discloses to the consumer that such information may be disclosed to such third party; the consumer is given the opportunity, before the time that such information is initially disclosed, to direct that such information not be disclosed to such third party; and the consumer is given an explanation of how the consumer can exercise that nondisclosure option (“opt out notice”). The privacy notices required by the GLBA are mandatory.
Compliance with Regulation S–P is necessary for covered entities to achieve compliance with the consumer financial privacy notice requirements of Title V of the GLBA. The required consumer notices are not submitted to the Commission. Because the notices do not involve a collection of information by the Commission, Regulation S–P does not involve the collection of confidential information. Regulation S–P does not have a record retention requirement per se, although the notices to consumers it requires are subject to the recordkeeping requirements of Rules 17a–3 and 17a–4 (17 CFR 240.17a–3 and 17a–4).
The Commission estimates that approximately 20,065 covered entities (approximately 5,326 registered broker-dealers, 4,571 investment companies, and, out of a total of 11,266 registered investment advisers, 10,168 registered investment advisers that are not also registered broker-dealers) that must prepare or revise their annual and initial privacy notices will spend an average of approximately 12 hours per year complying with Regulation S–P. Thus, the total compliance burden is estimated to be approximately 240,780 burden-hours per year.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Comments should be directed to (1) the Desk Officer for the SEC, Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
Securities and Exchange Commission (“Commission”).
Notice.
The Commission today is providing notice that an NRSRO subject to the disclosure provisions of paragraph (d) of Rule 17g–2 can satisfy the requirement to make publicly available ratings history information in an XBRL format by using an XBRL format or any other machine-readable format, until such time as the Commission provides further notice.
The compliance date for Rule 17g–2(d) is August 10, 2009.
Michael A. Macchiaroli, Associate Director, at (202) 551–5525; Thomas K. McGowan, Deputy Associate Director, at (202) 551–5521; Randall W. Roy, Assistant Director, at (202) 551–5522; Joseph I. Levinson, Special Counsel, at (202) 551–5598; or Rebekah E. Goshorn, Attorney, at (202), 551–5514; Division of Trading and Markets, Securities and Exchange Commission; 100 F Street, NE., Washington, DC 20549–7010.
The Credit Rating Agency Reform Act of 2006 (“Rating Agency Act”)
On February 2, 2009, the Commission adopted amendments to its NRSRO rules imposing additional requirements on NRSROs in order to address concerns about the integrity of their credit rating procedures and methodologies.
Paragraph (d) of Rule 17g–2 further requires that this information be made public on the NRSRO's corporate Internet Web site in eXtensible Business Reporting Language (“XBRL”) format.
The Commission today is providing notice that an NRSRO subject to the disclosure provisions of paragraph (d) of Rule 17g–2 can satisfy the requirement to make publicly available ratings history information in an XBRL format by using an XBRL format or any other machine-readable format, until such time as the Commission provides further notice.
The Commission adopted Rule 17g–2 and the amendments thereto, in part, under authority to require NRSROs to make and keep for specified periods such records as the Commission prescribes as necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Exchange Act.
As noted above, Rule 17g–2(d) provides that the ratings histories required under the rule must be made public on the NRSRO's corporate Internet Web site using an XBRL format.
The Commission also notes that the requirement in Exhibit 1 to Form NRSRO which states that “If the Applicant/NRSRO is required to make and keep publicly available on its corporate Internet Web site in an XBRL (eXtensible Business Reporting Language) format a sample of ratings action information pursuant to the requirements of 17 CFR 240.17g–2(d), provide in this Exhibit the Web site address where this information is, or will be, made publicly available” can be satisfied by providing the Web site address where the information is made publicly available in an XBRL format or any other machine readable format, until such time as the Commission provides further notice.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Rule 103B (“Security Allocation and Reallocation”) to: (1) Modify the composition of the Exchange Selection Panel; and 2) prohibit any ex parte communications during and regarding the selection process between the DMM units and the individuals serving on the Exchange Selection Panel. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The New York Stock Exchange LLC (“NYSE” or “Exchange”) proposes to amend NYSE Rule 103B (“Security Allocation and Reallocation”) to: (1) Modify the composition of the Exchange Selection Panel; and (2) prohibit any
The Exchange notes that parallel changes are proposed to be made to the rules of NYSE Amex LLC (formerly the American Stock Exchange).
Currently, pursuant to NYSE Rule 103B, an issuer may select the DMM unit that will be assigned its security or delegate the selection of the DMM unit to the Exchange. If the issuer authorizes the Exchange to select the DMM unit to trade its security, an Exchange Selection Panel (the “ESP” or the “Panel”) is convened to select the DMM unit based on a review of all information that would be available to the issuer. The Panel is comprised of three members of the Exchange's Senior Management, as designated by the Chief Executive Officer (“CEO”) of the Exchange or his or her designee, one non-DMM Executive Floor Governor (“EFG”) and two non-DMM Floor Governors (“FGs”). The non-DMM EFG and non-DMM FGs are designated on a rotating basis. The Panel's decision is made by majority vote. In the event of a tie, the CEO of the Exchange or his/her designee makes the final decision. The Exchange then informs the issuer of the DMM unit selected by the Panel.
The Exchange proposes to amend NYSE Rule 103B to modify the composition of the Panel in order to ensure consistent Floor participation in the selection process and minimize delays due to scheduling conflicts.
The current composition of the Panel has proven difficult when scheduling the required participants within five days of the issuer's request. The Exchange therefore seeks to amend NYSE Rule 103B to modify the representation on the Panel to include: (1) At least one member of the Exchange's Senior Management; (2) any combination of two Exchange Senior Management or Exchange Floor Operations Staff, to be designated by the Executive Vice-President of Exchange Floor Operations or his/her designee; and (3) any combination of three non-DMM EFGs or non-DMM FGs for a total of six members.
Finally, to reinforce the integrity and objectivity of the ESP selection process, the Exchange proposes to amend NYSE Rule 103B to explicitly prohibit any communications regarding the selection process between the Panelists and the DMM units. The Exchange proposes to have communication regarding the selection process cease from the time the issuer delegates the selection responsibility to the Exchange until the Panel selects the DMM unit to trade the issuer's security.
The basis under the Act for the proposed rule change is the requirement under Section 6(b)(5),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSE–2009–74. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Direct Edge ECN's (“DECN”) fee schedule for ISE Members
All of the changes described herein are applicable to ISE Members. The text of the proposed rule change is available on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
DECN, a facility of ISE, operates two trading platforms, EDGX and EDGA. On July 1, 2009,
The Exchange is now proposing to establish an additional tier called the Full Sweep Tier, whereby ISE Members are provided a $0.0035 rebate per share for securities priced at or above $1.00 when ISE Members add liquidity on EDGX if the attributed MPID use of the ROUT order type adds 50,000,000 shares or more of liquidity to EDGX on a daily basis, measured monthly. A ROUT order type that is sent to EDGX is an order type that does a full sweep of the EDGX book, before being exposed to Enhanced Liquidity Providers (“ELPs”).
The Exchange also proposes to adopt additional fees and rebates. First, the Exchange proposes to adopt a fee of $0.0024 per share for securities priced at or above $1.00 which add liquidity to LavaFlow ECN (“LavaFlow”) and are routed from either EDGX or EDGA. Such a strategy is deemed a ROLF routing strategy, which is a destination specific routing strategy that will first sweep the EDGA or EDGX order book before being delivered to LavaFlow. A conforming amendment will be made to the fee schedule to yield an “M” flag to account
The fee changes discussed in this filing will become operative on August 1, 2009.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–ISE–2009–57. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to modify the amounts that Direct Edge ECN (“DECN”), in its capacity as an introducing broker for non-ISE Members, passes through to such non-ISE Members.
The text of the proposed rule change is available on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
DECN, a facility of ISE, operates two trading platforms, EDGX and EDGA. On July 31, 2009, the ISE filed for immediate effectiveness a proposed rule change to: (i) Amend DECN's fee schedule for ISE Members
In its capacity as a member of ISE, DECN currently serves as an introducing broker for the non-ISE Member subscribers of DECN to access EDGX and EDGA. DECN, as an ISE Member and introducing broker, receives rebates and is assessed charges from DECN for transactions it executes on EDGX or EDGA in its capacity as introducing broker for non-ISE Members. Since the amounts of such rebates and charges were changed pursuant to SR–ISE–2009–57, DECN wishes to make corresponding changes to the amounts it passes through to non-ISE Member subscribers of DECN for which it acts as introducing broker. As a result, the per share amounts that non-ISE Member subscribers receive and are charged will be the same as the amounts that ISE Members receive and are charged.
ISE is seeking accelerated approval of this proposed rule change, as well as a retroactive effective date of August 1, 2009. ISE represents that this proposal will ensure that both ISE Members and non-ISE Members (by virtue of the pass-through described above) will in effect receive and be charged equivalent amounts and that the imposition of such amounts will begin on the same August 1, 2009 start date.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–ISE–2009–58. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commissions Internet Web site (
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
As described more fully above, ISE recently amended DECN's fee schedule for ISE Members to, among other things, adopt a new Full Sweep Tier Rebate and adopt new fees and rebates in connection with the use of the ROLF and ROUC routing strategies.
The current proposal, which will apply retroactively to August 1, 2009, will allow DECN to pass through the revised rebates and fees to the non-ISE member subscribers for which it acts an introducing broker. The Commission finds that the proposal is consistent with the Act because it will provide rebates and charge fees to non-ISE member subscribers that are equivalent to those established for ISE member subscribers in the Member Fee Filing.
ISE has requested that the Commission find good cause for approving the proposed rule change prior to the thirtieth day after publication of notice of filing thereof in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to make a number of changes to its schedule of equity transaction fees and rebates, with effect from August 1, 2009. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to make a number of changes to its schedule of equity transaction fees, with effect from August 1, 2009.
The following are the proposed changes:
• The Exchange is introducing a new pricing tier of $0.0017 per share when taking liquidity from the NYSE for member organizations which have an average daily trading volume (“ADV”) on the NYSE in the applicable month of at least 130 million shares, including (i) providing liquidity of an ADV of at least 30 million shares and (ii) an ADV of at least 15 million shares total in market at-the-close (“MOC”) and limit at-the-
• The transaction fee per share for market at-the-close and limit at-the-close orders will increase from $.0005 to $0.0007 per share. The $120 trading fee cap per transaction for MOC and LOC orders will be eliminated.
• Executions at the open, which are currently free of charge, will be subject to a transaction fee of $0.0005 per share, subject to a monthly cap of $10,000 per member organization. For transactions in stocks with a trading price below $1.00, member will be charged the lesser of 0.3% of the total dollar value of the transaction and $0.0005 per share for executions at the open, subject to the $10,000 monthly cap. Executions at the open will continue to be free of charge for DMMs.
• The transaction fee per share for executions of odd-lots and the odd-lot portions of partial round lots will increase from $0.0005 per share to $0.0018 per share.
• The rebate per share paid to Designated Market Makers for executions of odd-lots and the odd-lot portions of partial round lots will be increased from $0.0004 per share to $0.0011 per share.
• The per share charge for transactions in stocks with a price of less than $1.00, which is the lesser of 0.3% of the dollar value of the transaction or $0.0018 per share, is being moved to the end of the applicable section of the Price List, as it is a more logical placement for it. The fee itself is not changing.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act.
Written comments were neither solicited nor received.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CBOE proposes to adjust (i) the monthly access fee for persons granted temporary CBOE membership status (“Temporary Members”) pursuant to Interpretation and Policy .02 under CBOE Rule 3.19 (“Rule 3.19.02”) and (ii) the monthly access fee for Interim Trading Permit (“ITP”) holders under CBOE Rule 3.27. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The current access fee for Temporary Members under Rule 3.19.02
The indicative lease rate is defined under Rule 3.27(b) as the highest clearing firm floating monthly rate
The Exchange used the same process to set the proposed Temporary Member and ITP access fees that it used to set the current Temporary Member and ITP access fees. The only difference is that the Exchange used clearing firm floating monthly rate information for the month of August 2009 to set the proposed access fees (instead of clearing firm floating monthly rate information for the month of July 2009 as was used to set the current access fees) in order to take into account changes in clearing firm floating monthly rates for the month of August 2009.
The Exchange believes that the process used to set the proposed Temporary Member access fee and the proposed Temporary Member access fee itself are appropriate for the same reasons set forth in CBOE rule filing SR–CBOE–2008–12 with respect to the original Temporary Member access fee.
Each of the proposed access fees will remain in effect until such time either that the Exchange submits a further rule filing pursuant to Section 19(b)(3)(A)(ii) of the Act
The procedural provisions of the CBOE Fee Schedule related to the assessment of each proposed access fee are not proposed to be changed and will remain the same as the current procedural provisions relating to the assessment of that access fee.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to change the transaction fee for market at-the-close and limit at-the-close orders. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Amex currently charges a transaction fee of $0.0005 per share for execution of market at-the-close and limit at-the-close orders. Effective August 1, 2009, this fee will change to a fee of $0.0007 per share.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt NASD Rule 2341 (Margin Disclosure Statement) with minor changes as FINRA Rule 2264 in the consolidated FINRA rulebook. The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
NASD Rule 2341 requires members that open margin accounts for or on behalf of non-institutional customers
The disclosure statement includes six specific points of information that must be disclosed to non-institutional customers before or at the time a margin account is opened for or on behalf of such customer:
•
•
•
•
•
•
Members also must provide the margin disclosure statement (or an abbreviated version as provided by the rule) to non-institutional margin account customers not less than once a calendar year. The rule provides members with the flexibility to use an alternative disclosure statement to the language specified in the rule provided that the alternative disclosures are substantially similar to the disclosures specified in the rule. Members must deliver the initial and annual disclosure statement, in writing or electronically, to customers covered by the rule on an individual basis.
In addition, the rule requires members that permit non-institutional customers to open accounts online, or engage in transactions in securities online, to post the margin disclosure statement on their Web sites in a clear and conspicuous manner. This provision was added to NASD Rule 2341 in 2002 based on a recommendation by the General Accountability Office (GAO) as a means to allow a broader array of persons to review the disclosures.
NASD Rule 2341 was approved by the SEC on April 26, 2001, and was the product of notice and comment rulemaking. FINRA proposes to adopt the requirements set forth in NASD Rule 2341 as FINRA Rule 2264 in the Consolidated FINRA Rulebook with minor changes. The minor changes, consistent with prior interpretive guidance, clarify that the initial margin disclosure statement may be furnished to customers in a separate document (or contained by itself on a separate page as part of another document), and that the annual disclosure statement may be provided within other documentation, such as the account statement, and does not have to be on a separate page.
FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–FINRA–2009–052. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Fee Schedule of the Boston Options Exchange Group, LLC (“BOX”). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to add the Non-Penny Pilot Class Pricing Structure as Section 8 of the BOX Fee Schedule. The Non-Penny Pilot Class Pricing Structure will apply to all classes listed for trading on BOX that are not included in the Penny Pilot Program, as referenced in Chapter V, Section 33 of the BOX Rules (“Non-Penny Pilot Classes”).
In proposed Section 8, for Non-Penny Pilot Classes, the Exchange will charge a fee of $0.30 for transactions that add liquidity to the BOX Book and provide a credit of $0.30 for transactions that remove liquidity from the BOX Book. These fees and credits will apply equally to all account types, whether Public Customer, Firm or Market Maker and will be in addition to any applicable `standard' trading fees and/or volume discounts, as described in Sections 1 through 4 of the BOX Fee Schedule.
For example, a Public Customer order is entered into the BOX Trading Host and executes against a Broker Dealer's order resting on the BOX Book. The Public Customer is the remover of liquidity and the Broker Dealer is the adder of liquidity. The Public Customer will receive a $0.30 credit and the Broker Dealer will be charged a $0.30 fee according to the Non-Penny Pilot Class pricing structure. The Public Customer will receive a $0.30 credit and the broker dealer will be charged $0.50 (the $0.30 Non-Penny Pilot Class Pricing Structure removal fee in addition to the standard $0.20 transaction fee).
The Exchange believes that the proposed fees are competitive, fair and reasonable, and non-discriminatory in
The Exchange also proposes to make a non-substantive change to Section 3 of the Fee Schedule to reflect that the differentiation between Market Maker volume in assigned and unassigned classes is no longer pertinent for billing purposes.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Rule 1000 to allow Exchange systems to access CCS interest to partially fill an incoming limit order. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries,
New York Stock Exchange LLC (“NYSE” or the “Exchange”) proposes to amend NYSE Rule 1000 to make available additional liquidity to partially fill an incoming limit order.
The Exchange notes that parallel changes are proposed to be made to the rules of NYSE Amex LLC (formerly the American Stock Exchange).
The NYSE implemented sweeping changes to its market rules and execution technology designed to improve execution quality on the Exchange. Among the elements of the enhanced Exchange market model, the NYSE eliminated the function of specialists on the Exchange creating a new category of market participant, the Designated Market Maker or DMM. The DMM, like specialists, have affirmative obligations to make an orderly market, including continuous quoting requirements and obligations to re-enter the market when reaching across to execute against trading interest. The NYSE also recognized that in view of the NYSE's electronic execution functionality, the DMM, unlike the specialist, would no longer be deemed the agent for every incoming order. The NYSE also responded to customer demand to create additional undisplayed reserve interest.
In another enhancement to the Exchange's market model, designed to encourage DMMs to add liquidity, the Exchange implemented a system change that allowed DMMs to create a schedule of additional non-displayed liquidity at various price points where the DMM is willing to interact with interest and provide price improvement to orders in the Exchange's system. This schedule is known as the DMM Capital Commitment Schedule (“CCS”).
When an order is entered for an amount of shares that exceeds the liquidity available at the Exchange BBO, Exchange systems review all the liquidity available on the Display Book including CCS interest to determine the final price point at which the order can be fully executed (the “completion price”). Exchange systems determine the completion price by calculating the unfilled volume of the incoming order (
Exchange systems then review the amount of liquidity offered by CCS to determine if the number of shares provided via the DMM's CCS at the completion price is less than the number of CCS shares provided at the next different price that has interest that is one minimum price variation (“MPV”) (as that term is defined in Exchange Rule 62
If the number of shares that would be allocated to the CCS interest at the better price is more than the number of shares that would be allocated to the DMM's CCS interest at the completion price, then Exchange systems will access the CCS liquidity available at the better price with CCS interest yielding to any other interest in Exchange systems (both displayed and undisplayed reserve interest) at the better price. Any remaining balance of the incoming order is executed at the completion price against displayable and non-displayable interest pursuant to NYSE Rule 72 (“Priority of Bids and Offers and Allocation of Executions”).
Exchange systems can access CCS interest only once to participate in the execution of an incoming order. As such, CCS interest that may exist at the completion price is inaccessible to Exchange systems to trade with any remaining balance of the incoming order if Exchange systems included the DMM's CCS interest in the execution of any portion of such order at the better price. Moreover, Exchange systems will only access CCS interest to participate in the execution of an incoming order where the incoming order will be executed in full.
The Exchange proposes to allow Exchange systems to access CCS interest to participate in executions where the incoming order will only be partially executed. The purpose of this change is to provide additional liquidity to the incoming order.
As illustrated in the example below, because Exchange systems are permitted to access CCS interest only where an incoming order would be executed in full, there are times when the incoming order exhausts the displayed and reserve interest on the Display Book at various price points and the remaining
The Exchange Market is 200 shares bid at the price of $20.05 and 200 shares offered at a price of $20.10. At the price points of $20.04, $20.03, $20.02, $20.01 and $20.00 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at each of those price points as well. A customer sends the Exchange a sell order for 1200 shares with a limit price of $20.00. Given the current operation of CCS, the order will execute against the 200 shares at the Exchange bid price of $20.05 and all the shares indicated in
The Exchange proposes to modify the operation of CCS interest to allow Exchange systems to access and execute CCS interest designated to partially fill an incoming limit order. This will create an additional processing action for Exchange systems. Exchange systems will continue to review all the liquidity available on the Display Book and any away market centers; however, once it determines that the order cannot be executed in full, it will also review the DMM CCS interest file to determine if any of the liquidity is eligible to partially fill the incoming limit order at the price where any remaining shares of the order would be quoted.
In order for the DMM CCS interest to participate in a partial execution of an incoming limit order that exceeds the liquidity available at the Exchange BBO the DMM must designate interest available in the CCS interest file eligible for partial execution by including a “PF” indicator on the shares provided at the price point. All liquidity provided in the CCS interest file will continue to be eligible to participate in executions of incoming limit orders in full. Only DMM CCS interest containing the PF indicator will be available to participate in an execution to provide a partial execution of an incoming limit order that exceeds the liquidity available at the Exchange BBO. In this way incoming limit orders will have another opportunity to receive fuller executions prior to quoting.
The Exchange Market is 200 shares bid at the price of $20.05 and 200 shares offered at a price of $20.10. At the price points of $20.04, $20.03, $20.02, $20.01 and $20.00 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at each of those price points as well. The CCS interest at $20.00 is designated for partial fill. A customer sends the Exchange a sell order for 1200 shares with a limit price of $20.00. Enabling Exchange systems to access CCS interest to partially fill the order, the incoming limit order will execute against the 200 shares at the Exchange bid price of $20.05. The order would then execute against all the shares bid, indicated in
When Exchange systems access the CCS interest in order to provide a partial execution of an incoming order, CCS interest will participate at the price point where the remaining shares will be quoted as illustrated in the example above. If, however, the incoming order reaches a Liquidity Replenishment Point (“LRP”)
The Exchange Market is 200 shares bid at the price of $20.10 and 200 shares offered at a price of $20.15. The price
The Exchange Market is 200 shares bid at the price of $20.10 and 200 shares offered at a price of $20.15. The price point of $20.05 is a designated LRP. At the price points of $20.09 and $20.08 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at the price points of $20.09 down to $20.05. In addition, the CCS interest file indicates that the interest at the prices $20.08, $20.07 and $20.05 is available to provide a partial fill. A customer sends the Exchange a sell order for 700
When accessing CCS interest to partially execute an order, Exchange systems will not review the liquidity available at one minimum price variation better than the execution price to determine if the number of shares that CCS interest is willing to provide at the better price is greater than the number of shares at the price point where the order would execute and then post. The order will be executed against the CCS interest where the remaining shares of the order will ultimately be quoted or in the event an LRP is reached, at the LRP price.
Whether the order is executed at the price where the remaining shares will be quoted or at the LRP price, Exchange systems will not access CCS interest designated PF until all other interest on
The Exchange therefore proposes to amend NYSE Rule 1000, to allow Exchange systems to access available CCS interest in order to provide an incoming order with a fuller execution. The Exchange proposes to amend NYSE Rule 1000(e)(iii)(A)(4) to include this provision and renumber former subparagraph (e)(iii)(A)(4) to (e)(iii)(A)(5).
The Exchange believes that the instant proposal to maximize an order's partial execution by allowing Exchange systems to access CCS interest removes the current impediment from a limit order accessing all the liquidity available on the Display Book. The proposed modification increases the opportunities for executing a greater number of shares of the incoming order and exposes it to additional opportunity for price improvement. The Exchange believes that the proposal therefore contributes to perfect the mechanism of a free and open market and ultimately protects investors and the public interest.
The Exchange further proposes to delete legacy references to “ITS Plan” contained in NYSE Rule 1000 subparagraphs (e)(ii) and (e)(iii) and replace the concept of ITS commitments with appropriate language consistent with the current practice of routing orders to away market centers.
The Exchange also proposes to include references to its Do Not Ship Order
Finally, the Exchange proposes to delete the rule language of NYSE Rule 1000 Supplementary Material .10 that is no longer applicable, as it relates to a former pilot operated by the Exchange between May 12, 2006 and October 31, 2006. The Exchange proposes to reserve this rule section.
The basis under the Securities Exchange Act of 1934 (the “Act”)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. In addition, the Commission seeks comment on whether the proposed handling of incoming orders receiving partial fills that include CCS interest is consistent with the Act and, in particular, whether the proposed rule changes are designed to promote just and equitable principles of trade and, in general, to protect investors and the public interest.
Specifically, in certain situations, the Exchange's proposal would allow the DMM's CCS interest to participate in partial fills at the best possible price (from the DMM's perspective), even when this price is inferior to all the non-CCS interest participating in the same execution. Currently, NYSE's rules allow for CCS participation only when the incoming order will be completely filled, and the DMM's CCS interest may not participate in an execution at a price inferior to the completion price.
The Commission notes the fact pattern presented above under the heading “CCS Partial Fill at the LRP #2” where, under NYSE's current rules, an incoming order of 600 shares would be completed at $20.08 (200, 100, and 100 shares of non-CCS interest at $20.10, $20.09, and $20.08 respectively, and 200 shares of CCS interest also at $20.08).
Absent the proposed rule change, a 700-share incoming order would result in a partial fill without any CCS participation, with 300 shares unexecuted and quoting at the LRP. Thus, the Commission notes that the proposal may benefit the incoming order by immediately and automatically executing additional shares at the order's limit price or at the LRP price, as applicable. However, the Commission is interested in commenters' views on the proposed expansion of DMMs' CCS capabilities for partial fills and, in particular, on the proposed execution of CCS interest at the limit price of the order or the LRP price, as the case may be, even when no other interest resides at that price. To illustrate, in the “CCS Partial Fill at the LRP #2” example above, the proposal would result in a CCS interest execution at $20.05 (
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to modify NYSE Arca Equities Rule 7.31(oo) governing the Primary Until 9:45 Order. The text of the proposed rule change is attached as Exhibit 5 to the 19b–4 form. A copy of this filing is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify NYSE Arca Equities Rule 7.31(oo) pertaining to the Primary Until 9:45 Order.
The Primary Until 9:45 Order permits NYSE Arca Users to submit an order that will be routed directly to the primary listing market until 9:45 am (Eastern Time). If the order is not executed on the primary market by 9:45 am (Eastern Time), the order will be cancelled from the primary market and a new order will be entered on the Arca Book for execution during the remainder of the Exchange's Core Trading Session.
Currently, a Primary Until 9:45 Order may be marked with a Time in Force of Day, Good Till Cancelled (“GTC”), or Good Till Date (“GTD”). However, potential confusion arises in that the Primary Until 9:45 Order is not designed to re-route to the primary if not executed on its initial day of entry. The Exchange proposes to eliminate the option to mark a Primary Until 9:45 Order as GTC or GTD. This change eliminates that potential confusion by allowing the Primary Until 9:45 Order to be marked as Day only.
The Exchange plans to implement this change on July 20, 2009 in conjunction with the implementation of the Primary Until 9:45 Order.
The proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to amend its By-Laws to establish a regulatory oversight committee of the Board of Governors (the “Board”); describe the office and responsibilities of the chief regulatory officer in the By-Laws; eliminate the audit committee and compensation committee of the Board, with their duties being assigned to other board committees of Phlx or its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”); amend the Exchange's By-Laws to delete the Referee process and establish a new Options Trade Review Committee in
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On July 24, 2008, Phlx was acquired by NASDAQ OMX. Following that acquisition, Phlx has been assessing means to improve its governance structure and conform it more closely to that of The NASDAQ Stock Market LLC (the “NASDAQ Exchange”), an effort that has already resulted in the submission of several proposed rule changes to the Commission.
In making this evaluation, Phlx and its sister exchanges have given consideration to the experiences of their respective boards and have reviewed the governance documents of other exchanges. In particular, Phlx and the other exchanges have reviewed the board structures established by NYSE Euronext and its exchange subsidiaries. In Securities Exchange Act Release No. 55293,
These committees also will perform relevant functions for NYSE Group,
Phlx and the other exchanges owned by NASDAQ OMX have also considered the experience of the NASDAQ Exchange in operating as a subsidiary of a public company since 2006. During the period, the board of each of the NASDAQ Exchange and its parent corporation (currently NASDAQ OMX, and formerly The Nasdaq Stock Market, Inc.) has appointed its own audit committee and management compensation committee. However, these committees at the NASDAQ Exchange level have generally found themselves duplicating the work of other committees at the exchange or holding company level. The NASDAQ OMX audit committee has broad authority to review the financial information that will be provided to shareholders and others, systems of internal controls, and audit, financial reporting and legal and compliance processes. Because NASDAQ OMX's financial statements are prepared on a consolidated basis that includes the financial results of NASDAQ OMX's subsidiaries, including Phlx and the other exchange subsidiaries, the NASDAQ OMX audit committee's purview necessarily includes these subsidiaries. The committee is composed of four or five directors, all of whom must be independent under the standards established by Section 10A(m) of the Act
By contrast, the audit committee of the NASDAQ Exchange has a more limited role, focused solely on the exchange entity and its subsidiaries that operate as facilities of the NASDAQ Exchange. As described in the current By-Laws of the NASDAQ Exchange (which are, in this respect, virtually identical to the current By-Laws of Phlx), the primary functions of the audit committee are (i) oversight over financial reporting, (ii) oversight over the systems of internal controls established by management and the Board and the legal and compliance process, (iii) selection and evaluation of independent auditors, and (iv) direction and oversight of the internal audit function. However, to the extent that the committee reviews financial and accounting matters, its activities are duplicative of the activities of the NASDAQ OMX audit committee, which is also charged with providing oversight over financial reporting and independent auditor selection for NASDAQ OMX and all of its subsidiaries, including the NASDAQ Exchange, BX, and Phlx and their subsidiaries. Similarly, the NASDAQ
Similarly, drawing upon the model established by NYSE Euronext and the experience of the NASDAQ Exchange, Phlx is proposing to amend Section 10–9 of its By-Laws to eliminate its audit committee. While the committee formerly played a vital role in oversight of the preparation of Phlx's financial statements when Phlx was owned by a group of investors and sat at the top of a holding company structure, that role has been assumed by the NASDAQ OMX audit committee now that Phlx is a wholly owned subsidiary. Moreover, since Phlx does not currently have a regulatory oversight committee, Phlx is now proposing to establish such a committee so that regulatory oversight functions formerly performed by the audit committee may be assumed by the new committee.
Phlx believes that even in light of the NASDAQ OMX audit committee's overall responsibilities for internal controls and the internal audit function, it is nevertheless important for the Phlx Board to maintain its own independent oversight over Phlx's controls and internal audit matters relating to Phlx's operations. In this regard, Phlx notes that its regulatory oversight committee, like the NASDAQ Exchange's regulatory oversight committee, will have broad authority to oversee the adequacy and effectiveness of Phlx's regulatory and self-regulatory organization responsibilities, and will therefore be able to maintain oversight over controls in tandem with the NASDAQ OMX audit committee's overall control oversight responsibilities. Similarly, it is already the practice of NASDAQ OMX's Internal Audit Department, which performs internal audit functions for all NASDAQ OMX subsidiaries, to report to the Phlx Board on all internal audit matters relating to Phlx. This practice will be formally reflected in the Department's written procedures, which will now direct such reports to the regulatory oversight committee. In addition, to ensure that the Phlx Board retains authority to direct the Department's activities with respect to Phlx, the Department's written procedures will be amended to stipulate that the Phlx regulatory oversight committee may, at any time, direct the Department to conduct an audit of a matter of concern to it and report the results of the audit both to the Phlx regulatory oversight committee and the NASDAQ OMX audit committee. Finally, although language regarding the audit committee's authority to conduct special reviews of any alleged improper conduct is being removed, Phlx believes that such authority is inherent in the powers of its Board, the NASDAQ OMX Board, and their respective committees. Accordingly, retaining this language for a specific committee is unnecessary.
Although the position of chief regulatory officer has long existed, Phlx has concluded that the position should be formally described in the By-Laws. Accordingly, new Section 5–6 of the By-Laws will provide that the chief regulatory officer will have general supervision of Phlx's regulatory operations, including the responsibility for overseeing its surveillance, examination, and enforcement functions and for administering any regulatory services agreements with another self-regulatory organization to which Phlx is a party. The chief regulatory officer shall meet with the regulatory oversight committee in executive session at regularly scheduled meetings, and at any time upon request of the chief regulatory officer or any member of the committee.
Phlx also proposes to amend Section 4–13 of the By-Laws in order to follow the NYSE Euronext model with respect to allowing the elimination of its compensation committee and the performance of its function by the NASDAQ OMX compensation committee and/or subsidiary boards.
The Exchange proposes to replace the current Referee process with an Options Trade Review Committee, which is similar to the processes of other exchanges, including the NASDAQ Exchange.
Currently, the Exchange's By-Laws and rules provide that the Referee is an Exchange employee (or independent contractor), supervised by the audit committee,
The Exchange proposes to eliminate the Referee and replace that function with an Options Trade Review Committee, which will review Options Exchange Official rulings. Even though the Referee was able to, the Options Trade Review Committee will not act in the capacity of an Options Exchange Official; its function will be limited to reviewing such rulings.
In order to implement the Options Trade Review Committee, the Exchange is proposing to delete the By-Law provision that currently vests supervision over the Referee in the audit committee and generally defines the Referee's role and background.
In addition, the Exchange proposes to amend various rules that refer to the Referee, including Rule 124, which currently outlines in detail the responsibilities of the Referee. Specifically, Rule 124 is being amended to establish the Options Trade Review Committee's role. In addition to the language in By-Law Article X, Section 10–10, proposed new language in Rule 124 will state that the Options Trade Review Committee may act through a panel with a minimum of three Committee members, of which no more than 50% can be engaged in market making activity or employed by an Exchange Member Organization whose revenues from market making activity exceed ten percent of its total revenues.
Commentary .02 to Rule 124 is proposed to be deleted, because it details the role of the Referee. The details regarding who can serve as Referee, how the Referee is appointed, designation of a Backup Referee, what additional functions the Referee can perform, and how the Referee is supervised and evaluated are no longer needed.
Other than the role of the Referee, most aspects of the review process in Rule 124 are not being changed; for example, the time period to request a review, the fee for a review that sustains the ruling, and that rulings may be sustained, overturned or modified all remain unchanged. Decisions of the Options Trade Review Committee, like the Referee's decisions, would not be appealable. Because Advice F–27 corresponds to Rule 124, corresponding changes to Advice F–27 are also proposed.
Minor changes to Rule 124 include: (i) [sic] removing references to Referee decisions from Rule 124(b) in the sentence that deals with rulings being effective immediately and being complied with promptly, because the provision that Options Trade Review Committee decisions are effective immediately and must be complied with promptly will appear instead in the paragraph governing the Options Trade
Rule 1092 is also being changed to refer to the Options Trade Review Committee, rather than the Referee in paragraphs (f)(iv) and (g), which relate to requesting a review of obvious error and catastrophic error determinations.
The changes to the remaining provisions are minor. Rule 1, Definitions, is being amended to state that the list of Options Exchange Officials will be maintained by the Chief Regulatory Officer rather than the Referee.
In summary, the Exchange believes that, under this proposal, the Options Trade Review Committee should further the goal of impartial, objective decisions, which should, in turn, result in fairness and certainty in the overall process of resolving trading disputes.
Phlx believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 35 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend a temporary equity transaction fee for shares executed on the NYSE MatchPoint
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
On January 7, 2009, the Exchange filed with the Securities and Exchange Commission (the “Commission”) a proposed rule change to adopt a temporary equity transaction fee for shares executed on the NYSE MatchPoint
Prior to the January filing, the equity transaction fee was $.0015 per share executed on the MatchPoint system. In the January filing, the Exchange proposed to adopt a scaled fee for MatchPoint users based on the average daily volume of shares executed during a calendar month through the MatchPoint system as follows:
The March, April and July filings proposed to continue this fee schedule.
The Exchange believes that the extension of the fee schedule through October 31, 2009 will continue to reward those who have been using the MatchPoint system for share execution, and will provide a continued incentive for new participants in MatchPoint.
The basis under the Securities Exchange Act of 1934 (the “Act”)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Amex Equities Rule 103B (“Security Allocation and Reallocation”) to: (1) Modify the composition of the Exchange Selection Panel; and (2) prohibit any
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Amex LLC (“NYSE Amex” or “Exchange”), formerly the American Stock Exchange LLC, proposes to amend NYSE Amex Equities Rule 103B (“Security Allocation and Reallocation”) to: (1) Modify the composition of the Exchange Selection Panel; and (2) Prohibit any
The Exchange notes that parallel changes are proposed to be made to the rules of the New York Stock Exchange LLC (“NYSE”).
As described more fully in a related rule filing,
In connection with the Merger, on December 1, 2008, the Exchange relocated all equities trading conducted on the Exchange legacy trading systems and facilities located at 86 Trinity Place, New York, New York, to trading systems and facilities located at 11 Wall Street, New York, New York (the “Equities Relocation”). The Exchange's equity trading systems and facilities at 11 Wall Street (the “NYSE Amex Trading
As part of the Equities Relocation, NYSE Amex adopted NYSE Rules 1–1004, subject to such changes as necessary to apply the Rules to the Exchange, as the NYSE Amex Equities Rules to govern trading on the NYSE Amex Trading Systems.
Currently, pursuant to NYSE Amex Equities Rule 103B, an issuer may select the DMM unit that will be assigned its security or delegate the selection of the DMM unit to the Exchange. If the issuer authorizes the Exchange to select the DMM unit to trade its security, an Exchange Selection Panel (the “ESP” or the “Panel”) is convened to select the DMM unit based on a review of all information that would be available to the issuer. The Panel is comprised of three members of the Exchange's Senior Management, as designated by the Chief Executive Officer (“CEO”) of the Exchange or his or her designee, one non-DMM Executive Floor Governor (“EFG”) and two non-DMM Floor Governors (“FGs”). The non-DMM EFG and non-DMM FGs are designated on a rotating basis. The Panel's decision is made by majority vote. In the event of a tie, the CEO of the Exchange or his/her designee makes the final decision. The Exchange then informs the issuer of the DMM unit selected by the Panel.
The Exchange proposes to amend NYSE Amex Equities Rule 103B to modify the composition of the Panel in order to ensure consistent Floor participation in the selection process and minimize delays due to scheduling conflicts.
The current composition of the Panel has proven difficult when scheduling the required participants within five days of the issuer's request. The Exchange therefore seeks to amend NYSE Amex Equities Rule 103B to modify the representation on the Panel to include: (1) At least one member of the Exchange's Senior Management; (2) any combination of two Exchange Senior Management or Exchange Floor Operations Staff, to be designated by the Executive Vice-President of Exchange Floor Operations or his/her designee; and (3) any combination of three non-DMM EFGs or non-DMM FGs for a total of six members.
Finally, to reinforce the integrity and objectivity of the ESP selection process, the Exchange proposes to amend NYSE Amex Equities Rule 103B to explicitly prohibit any communications regarding the selection process between the Panelists and the DMM units. The Exchange proposes to have communication regarding the selection process cease from the time the issuer delegates the selection responsibility to the Exchange until the Panel selects the DMM unit to trade the issuer's security.
The basis under the Act for the proposed rule change is the requirement under Section 6(b)(5),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSEAMEX–2009–49. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Amex Equities Rule 1000 to allow Exchange systems to access CCS interest to partially fill an incoming limit order. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Amex LLC (“NYSE Amex” or the “Exchange”), formerly the American Stock Exchange LLC, proposes to amend NYSE Amex Equities Rule 1000 to allow Exchange systems to access CCS interest to partially fill an incoming limit order.
The Exchange notes that parallel changes are proposed to be made to the rules of New York Stock Exchange LLC.
NYSE Amex adopted sweeping changes to its market rules and execution technology designed to improve execution quality on the Exchange as a result of its merger with the New York Stock Exchange LLC.
In another enhancement to the Exchange's market model, designed to encourage DMMs to add liquidity, the Exchange implemented a system change that allowed DMMs to create a schedule of additional non-displayed liquidity at various price points where the DMM is willing to interact with interest and provide price improvement to orders in the Exchange's system. This schedule is known as the DMM Capital Commitment Schedule (“CCS”).
When an order is entered for an amount of shares that exceeds the liquidity available at the Exchange BBO, Exchange systems review all the liquidity available on the Display Book including CCS interest to determine the final price point at which the order can be fully executed (the “completion price”). Exchange systems determine the completion price by calculating the unfilled volume of the incoming order (
Exchange systems then review the amount of liquidity offered by CCS to determine if the number of shares provided via the DMM's CCS at the completion price is less than the number of CCS shares
If the volume of CCS interest that would be accessed is the same at the completion price and the better price, Exchange systems access CCS interest at the completion price with CCS interest yielding to any other interest in Exchange systems at the completion price.
If the number of shares that would be allocated to the CCS interest at the better price is more than the number of shares that would be allocated to the DMM's CCS interest at the completion price, then Exchange systems will access the CCS liquidity available at the better price with CCS interest yielding to any other interest in Exchange systems (both displayed and undisplayed reserve interest) at the better price. Any remaining balance of the incoming order is executed at the completion price against displayable and non-displayable interest pursuant to NYSE Amex Equities Rule 72 (“Priority of Bids and Offers and Allocation of Executions”).
Exchange systems can access CCS interest only once to participate in the execution of an incoming order. As such, CCS interest that may exist at the completion price is inaccessible to Exchange systems to trade with any remaining balance of the incoming order if Exchange systems included the DMM's CCS interest in the execution of any portion of such order at the better price. Moreover, Exchange systems will only access CCS interest to participate in the execution of an incoming order where the incoming order will be executed in full.
The Exchange proposes to allow Exchange systems to access CCS interest to participate in executions where the incoming order will only be partially executed. The purpose of this change is to provide additional liquidity to the incoming order.
As illustrated in the example below, because Exchange systems are permitted to access CCS interest only where an incoming order would be executed in full, there are times when the incoming order exhausts the displayed and reserve interest on the Display Book at various price points and the remaining shares of the order are quoted. In these instances Exchange systems cannot access the CCS interest available at the price point where the remaining shares of the order will be quoted to partially fill the incoming limit order.
The Exchange Market is 200 shares bid at the price of $20.05 and 200 shares offered at a price of $20.10. At the price points of $20.04, $20.03, $20.02, $20.01 and $20.00 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at each of those price points as well. A customer sends the Exchange a sell order for 1200 shares with a limit price of $20.00. Given the current operation of CCS, the order will execute against the 200 shares at the Exchange bid price of $20.05 and all the shares indicated in
The Exchange proposes to modify the operation of CCS interest to allow Exchange systems to access and execute CCS interest designated to partially fill an incoming limit order. This will create an additional processing action for Exchange systems. Exchange systems will continue to review all the liquidity available on the Display Book and any away market centers; however, once it determines that the order cannot be executed in full, it will also review the DMM CCS interest file to determine if any of the liquidity is eligible to partially fill the incoming limit order at the price where any remaining shares of the order would be quoted.
In order for the DMM CCS interest to participate in a partial execution of an incoming limit order that exceeds the liquidity available at the Exchange BBO the DMM must designate interest available in the CCS interest file eligible for partial execution by including a “PF” indicator on the shares provided at the price point. All liquidity provided in the CCS interest file will continue to be eligible to participate in executions of incoming limit orders in full. Only DMM CCS interest containing the PF indicator will be available to participate in an execution to provide a partial execution of an incoming limit order that exceeds the liquidity available at the Exchange BBO. In this way incoming limit orders will have another opportunity to receive fuller executions prior to quoting.
The Exchange Market is 200 shares bid at the price of $20.05 and 200 shares offered at a price of $20.10. At the price points of $20.04, $20.03, $20.02, $20.01 and $20.00 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at each of those price points as well. The CCS interest at $20.00 is designated for partial fill. A customer sends the Exchange a sell order for 1200 shares with a limit price of $20.00. Enabling Exchange systems to access CCS interest to partially fill the order, the incoming limit order will execute against the 200 shares at the Exchange bid price of $20.05. The order would then execute against all the shares bid, indicated in
When Exchange systems access the CCS interest in order to provide a partial execution of an incoming order, CCS interest will participate at the price point where the remaining shares will be quoted as illustrated in the example above. If, however, the incoming order reaches a Liquidity Replenishment Point (“LRP”)
The Exchange Market is 200 shares bid at the price of $20.10 and 200 shares offered at a price of $20.15. The price point of $20.05 is a designated LRP. At the price points of $20.09 down to $20.05 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at the price points of $20.09 down to $20.05.
The Exchange Market is 200 shares bid at the price of $20.10 and 200 shares offered at a price of $20.15. The price point of $20.05 is a designated LRP. At the price points of $20.09 and $20.08 there are 100 shares bid. The CCS interest file is willing to provide 200 shares of additional bid liquidity at the price points of $20.09 down to $20.05. In addition, the CCS interest file indicates that the interest at the prices $20.08, $20.07 and $20.05 is available to provide a partial fill. A customer sends the Exchange a sell order for 700
When accessing CCS interest to partially execute an order, Exchange systems will not review the liquidity available at one minimum price variation better than the execution price to determine if the number of shares that CCS interest is willing to provide at the better price is greater than the number of shares at the price point where the order would execute and then post. The order will be executed against the CCS interest where the remaining shares of the order will ultimately be quoted or in the event an LRP is reached, at the LRP price.
Whether the order is executed at the price where the remaining shares will be quoted or at the LRP price, Exchange systems will not access CCS interest designated PF until all other interest on the Display Book up to the price point is executed in full. CCS interest therefore, remains the interest of last resort because Exchange systems will access CCS interest to provide a partial execution to an incoming limit order only after all it has satisfied protected interest on away market centers and all other interest on the Display Book eligible to be executed against the order is executed in full. In all instances where Exchange systems access CCS to provide a partial execution of an order, the customer order is afforded the ability for price improvement within the parameters of the rule.
The Exchange therefore proposes to amend NYSE Amex Equities Rule 1000, to allow Exchange systems to access available CCS interest in order to provide an incoming order with a fuller execution. The Exchange proposes to amend NYSE Amex Equities Rule 1000(e)(iii)(A)(4) to include this provision and renumber former subparagraph (e)(iii)(A)(4) to (e)(iii)(A)(5).
The Exchange believes that the instant proposal to maximize an order's partial execution by allowing Exchange systems to access CCS interest removes the current impediment from a limit order accessing all the liquidity available on the Display Book. The proposed modification increases the opportunities for executing a greater number of shares of the incoming order and exposes it to additional opportunity for price improvement. The Exchange believes that the proposal therefore contributes to perfect the mechanism of a free and open market and ultimately protects investors and the public interest.
The Exchange further proposes to include references to its Do Not Ship Order
Finally, the Exchange proposes to delete the redundant text of NYSE Amex Equities Rule 1000 subparagraph (e)(ii)(D) because it restates the information contained in subparagraph (e)(ii) above it.
The basis under the Securities Exchange Act of 1934 (the “Act”)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. In addition, the Commission seeks comment on whether the proposed handling of incoming orders receiving partial fills that include CCS interest is consistent with the Act and, in particular, whether the proposed rule changes are designed to promote just and equitable principles of trade and, in general, to protect investors and the public interest.
Specifically, in certain situations, the Exchange's proposal would allow the DMM's CCS interest to participate in partial fills at the best possible price (from the DMM's perspective), even when this price is inferior to all the non-CCS interest participating in the same execution. Currently, NYSE Amex's rules allow for CCS participation only when the incoming order will be completely filled, and the DMM's CCS interest may not participate in an execution at a price inferior to the completion price.
The Commission notes the fact pattern presented above under the heading “CCS Partial Fill at the LRP #2” where, under NYSE Amex's current rules, an incoming order of 600 shares would be completed at $20.08 (200, 100, and 100 shares of non-CCS interest at $20.10, $20.09, and $20.08 respectively, and 200 shares of CCS interest also at $20.08).
Absent the proposed rule change, a 700-share incoming order would result in a partial fill without any CCS participation, with 300 shares unexecuted and quoting at the LRP. Thus, the Commission notes that the proposal may benefit the incoming order by immediately and automatically executing additional shares at the order's limit price or at the LRP price, as applicable. However, the Commission is interested in commenters' views on the proposed expansion of DMMs' CCS capabilities for partial fills and, in particular, on the proposed execution of CCS interest at the limit price of the order or the LRP price, as the case may be, even when no other interest resides at that price. To illustrate, in the “CCS Partial Fill at the LRP #2” example above, the proposal would result in a CCS interest execution at $20.05 (
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”
FINRA is proposing to amend Incorporated NYSE Rules 12 (“Business Day”) and 282 (Buy-in Procedures)
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing changes to Incorporated NYSE Rules 12
According to the NYSE filing,
Under the NYSE filing, references to proposed NYSE Rule 14 (Non-Regular Way Settlement Instructions for Orders) and non-regular way settlement instructions were added to NYSE Rule 12 (“Business Day”), and specific provisions related to orders submitted with cash settlement instructions were added to NYSE Rule 282 (Buy-in Procedures).
FINRA is making conforming changes to Incorporated NYSE Rules 12 and 282 to ensure consistency with NYSE's versions of Rules 12 and 282.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, such that FINRA can implement the proposed rule change immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest, (ii) impose any significant burden on competition, and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative until 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.
NASDAQ proposes to streamline and clarify the fee schedule for members using the NASDAQ Market Center. No fee charged or credit offered is being modified. The text of the proposed rule change is attached as Exhibit 5 [sic] and also is available at
In its filing with the Commission, NASDAQ included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASDAQ has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is making clerical changes to NASDAQ Rule 7018 to streamline and simplify its fee schedule. First, NASDAQ is moving all references to securities priced under $1 to a new subsection 7018(b) and renumbering the remaining subsections (c) through (j). Second, NASDAQ is combining Rule 7018(a)(2) and (a)(3), both of which govern trading of securities listed on the New York Stock Exchange, into a single paragraph and re-numbering current paragraph 7018(a)(4). Third, NASDAQ is eliminating multiple instances of redundant or superfluous text. None of the clerical changes will modify any fee assessed or credit earned for trading on the NASDAQ Market Center.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
By virtue of the authority vested in me as Chairperson of the Board of Directors of the Millennium Challenge Corporation by Section 18 of Article I of the Bylaws and other relevant provisions of the bylaws and law, including Section 614(d) of the Millennium Challenge Act, 2003, and Section 1(a)(4) of the State Department Basic Authorities Act of 1956, I hereby delegate to Darius Mans, Vice President for Compact Implementation, to the extent authorized by law, the functions, duties and powers of the chief executive officer, to be exercised subject to my direction.
Any authorities covered by this delegation may also be exercised by me and may be redelegated to the extent authorized by law.
This delegation shall enter into effect on July 31, 2009 and shall expire upon the appointment and entry upon duty of a new Chief Executive Officer pursuant to Section 604(b) of the Millennium Challenge Act of 2003.
This delegation of authority shall be published in the
Palouse River & Coulee City Railroad, Inc. (PRCC) has filed a verified notice of exemption under 49 CFR Part 1152 Subpart F—
PRCC has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic on the line can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on September 10, 2009, unless stayed pending reconsideration.
A copy of any petition filed with the Board should be sent to PRCC's representative: Karl Morell, Ball Janik LLP, 1455 F Street, NW., Suite 225, Washington, DC 20005.
If the verified notice contains false or misleading information, the exemption is void
PRCC has filed environmental and historic reports that address the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by August 14, 2009. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423–0001) or by calling SEA, at (202) 245–0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), PRCC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by PRCC's filing of a notice of consummation by August 11, 2010, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at http://
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Transit Administration, DOT.
Notice of request for comments.
The Federal Transit Administration invites public comment about our intention to request the Office of Management and Budget's (OMB) approval to renew the following information collection: Tribal Transit Program (OMB Number: 2132–0567). The information to be collected for this program is to ensure FTA's compliance with applicable Federal laws and the Common Grant Rule. The
Comments must be submitted before September 10, 2009. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Sylvia L. Marion, Office of Administration, Office of Management Planning, (202) 366–6680.
The American Recovery Act of 2009 (ARRA) established funding for the Tribal Transit Program. This program is a $17,000,000 discretionary grant program to support capital investments for public transit services that serve Indian tribes and Alaska Native villages. To meet the requirements of the American Recovery Act, FTA requested an emergency approval from OMB for the Tribal Transit Program. OMB approved FTA's emergency request for approval on March 17, 2009. The OMB Control Number is 2132–0567. FTA published a
All written comments must refer to the docket number that appears at the top of this document and be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: FTA Desk Officer.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR Part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the applications described herein. This notice is abbreviated to expedite docketing and public notice. Because the sections affected, modes of transportation, and the nature of application have been shown in earlier Federal Register publications, they are not repeated here. Requests for modification of special permits (e.g., to provide for additional hazardous materials, packaging design changes, additional mode of transportation, etc.) are described in footnotes to the application number. Application numbers with the suffix “M” denote a modification request. These applications have been separated from the new application for special permits to facilitate processing.
Comments must be received on or before August 26, 2009.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue, Southeast, Washington, DC or at
This notice of receipt of applications for modification of special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR Part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before September 10, 2009.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue, Southeast, Washington DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Motor Carrier Safety Advisory Committee meeting.
FMCSA announces that the Motor Carrier Safety Advisory Committee (MCSAC) will hold a committee meeting. The meeting is open to the public.
The meeting will be held on September 2, 2009, from 1 p.m. to 4 p.m. Eastern Daylight Time (EDT).
The meeting will be held at the U.S. Department of Transportation, Conference Center, Oklahoma Room, West Building, Ground Floor, located at 1200 New Jersey Avenue, SE., Washington, DC 20590.
Mr. Jeffrey Miller, Chief, Strategic Planning and Program Evaluation Division, Office of Policy Plans and Regulation, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366–1258,
Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU, Pub. L. 109–59) required the Secretary of the U.S. Department of Transportation to establish a MCSAC in the FMCSA. The advisory committee provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and motor carrier safety regulations. The advisory committee operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App 2) and is comprised of 15 members appointed by the FMCSA Administrator.
The meeting is open to the public and FMCSA invites participation by all interested parties, including motor carriers, drivers, and representatives of motor carrier associations. Please note that attendees will need to be pre-cleared in advance of the meeting in order to expedite entry into the building. By August 26, 2009, please e-mail
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Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or
Comments on petitions received must identify the petition docket number involved and must be received on or before August 31, 2009.
You may send comments identified by Docket Number FAA–2009–0709 using any of the following methods:
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We will post all comments we receive, without change, to
Tyneka Thomas (202) 267–7626 or Ralen Gao (202) 267–3168, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before August 31, 2009.
You may send comments identified by Docket Number FAA–2009–0702 using any of the following methods:
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We will post all comments we receive, without change, to
Tyneka Thomas (202) 267–7626 or Ralen Gao (202) 267–3168, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on its proposal to extend this information collection.
Submit written comments on or before October 13, 2009.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906–6518; or send an e-mail to
You can request additional information about this proposed information collection from Judi McCormick. (202) 906–5636, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS's estimate of the burden of the proposed information collection;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
OTS will use the information in order to ensure that the proposed activities conform to applicable statutes and regulations and are properly organized and conducted.
Notice is hereby given that, pursuant to the authority contained in section 5(d)(2) of the Home Owners' Loan Act, the Office of Thrift Supervision (OTS) has duly appointed the Federal Deposit Insurance Corporation as sole Receiver for Peoples Community Bank, West Chester, Ohio (OTS No. 08097), on July 31, 2009.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule updates the payment rates used under the prospective payment system (PPS) for skilled nursing facilities (SNFs), for fiscal year (FY) 2010. In addition, it recalibrates the case-mix indexes so that they more accurately reflect parity in expenditures related to the implementation of case-mix refinements in January 2006. It also discusses the results of our ongoing analysis of nursing home staff time measurement data collected in the Staff Time and Resource Intensity Verification project, as well as a new Resource Utilization Groups, version 4 case-mix classification model for FY 2011 that will use the updated Minimum Data Set 3.0 resident assessment for case-mix classification. In addition, this final rule discusses the public comments that we have received on these and other issues, including a possible requirement for the quarterly reporting of nursing home staffing data, as well as on applying the quality monitoring mechanism in place for all other SNF PPS facilities to rural swing-bed hospitals. Finally, this final rule revises the regulations to incorporate certain technical corrections.
Ellen Berry, (410) 786–4528 (for information related to clinical issues). Trish Brooks, (410) 786–4561 (for information related to Resident Assessment Protocols (RAPs) under the Minimum Data Set (MDS)). Jeanette Kranacs, (410) 786–9385 (for information related to the development of the payment rates and case-mix indexes). Abby Ryan, (410) 786–4343 (for information related to the STRIVE project). Jean Scott, (410) 786–6327 (for information related to the request for comment on the possible quarterly reporting of nursing home staffing data). Bill Ullman, (410) 786–5667 (for information related to level of care determinations, consolidated billing, and general information).
To assist readers in referencing sections contained in this document, we are providing the following Table of Contents.
In addition, because of the many terms to which we refer by abbreviation in this final rule, we are listing these abbreviations and their corresponding terms in alphabetical order below:
On May 12, 2009, we published a proposed rule (74 FR 22208) in the
Section 4432 of the BBA amended section 1888 of the Act to provide for the implementation of a per diem PPS for SNFs, covering all costs (routine, ancillary, and capital-related) of covered SNF services furnished to beneficiaries under Part A of the Medicare program, effective for cost reporting periods beginning on or after July 1, 1998. In this final rule, we are updating the per diem payment rates for SNFs for FY 2010. Major elements of the SNF PPS include:
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Section 1888(e)(4)(H) of the Act requires that we provide for publication annually in the
1. The unadjusted Federal per diem rates to be applied to days of covered SNF services furnished during the upcoming FY.
2. The case-mix classification system to be applied with respect to these services during the upcoming FY.
3. The factors to be applied in making the area wage adjustment with respect to these services.
Along with other revisions discussed later in this preamble, this final rule provides these required annual updates to the Federal rates.
There were several provisions in the BBRA that resulted in adjustments to the SNF PPS. We described these provisions in detail in the SNF PPS final rule for FY 2001 (65 FR 46770, July 31, 2000). In particular, section 101(a) of the BBRA provided for a temporary 20 percent increase in the per diem adjusted payment rates for 15 specified RUG–III groups. In accordance with section 101(c)(2) of the BBRA, this temporary payment adjustment expired on January 1, 2006, upon the implementation of case-mix refinements (
Also, section 103 of the BBRA designated certain additional services for exclusion from the consolidated billing requirement, as discussed in greater detail in section III.G of this final rule. Further, for swing-bed hospitals with more than 49 (but less than 100) beds, section 408 of the BBRA provided for the repeal of certain statutory restrictions on length of stay and aggregate payment for patient days, effective with the end of the SNF PPS transition period described in section 1888(e)(2)(E) of the Act. In the final rule for FY 2002 (66 FR 39562, July 31, 2001), we made conforming changes to the regulations at § 413.114(d), effective for services furnished in cost reporting periods beginning on or after July 1, 2002, to reflect section 408 of the BBRA.
The BIPA also included several provisions that resulted in adjustments to the SNF PPS. We described these provisions in detail in the final rule for FY 2002 (66 FR 39562, July 31, 2001). In particular:
• Section 203 of the BIPA exempted CAH swing-beds from the SNF PPS. We included further information on this provision in Program Memorandum A–01–09 (Change Request #1509), issued January 16, 2001, which is available online at
• Section 311 of the BIPA revised the statutory update formula for the SNF market basket, and also directed us to conduct a study of alternative case-mix classification systems for the SNF PPS. In 2006, we submitted a report to the Congress on this study, which is available online at
• Section 312 of the BIPA provided for a temporary increase of 16.66 percent in the nursing component of the case-mix adjusted Federal rate for services furnished on or after April 1, 2001, and before October 1, 2002; accordingly, this add-on is no longer in effect. This section also directed the Government Accountability Office (GAO) to conduct an audit of SNF nursing staff ratios and submit a report to the Congress on whether the temporary increase in the nursing component should be continued. The report (GAO–03–176), which GAO issued in November 2002, is available online at
• Section 313 of the BIPA repealed the consolidated billing requirement for services (other than physical, occupational, and speech-language therapy) furnished to SNF residents during noncovered stays, effective January 1, 2001.
• Section 314 of the BIPA corrected an anomaly involving three of the RUGs that section 101(a) of the BBRA had designated to receive the temporary payment adjustment discussed above in section I.C. of this final rule. (As noted previously, in accordance with section 101(c)(2) of the BBRA, this temporary payment adjustment expired upon the implementation of case-mix refinements on January 1, 2006.)
• Section 315 of the BIPA authorized us to establish a geographic reclassification procedure that is specific to SNFs, but only after collecting the data necessary to establish a SNF wage index that is based on wage data from nursing homes. To date, this has proven to be infeasible due to the volatility of existing SNF wage data and the significant amount of resources that would be required to improve the quality of that data.
We included further information on several of the BIPA provisions in Program Memorandum A–01–08 (Change Request #1510), issued January 16, 2001, which is available online at
The MMA included a provision that results in a further adjustment to the SNF PPS. Specifically, section 511 of the MMA amended section 1888(e)(12)
For the limited number of SNF residents that qualify for the AIDS add-on, implementation of this provision results in a significant increase in payment. For example, using FY 2007 data, we identified slightly more than 2,700 SNF residents with a diagnosis code of 042 (Human Immunodeficiency Virus (HIV) Infection). For FY 2010, an urban facility with a resident with AIDS in RUG group “SSA” would have a case-mix adjusted payment of $252.95 (
In addition, section 410 of the MMA contained a provision that excluded from consolidated billing certain practitioner and other services furnished to SNF residents by rural health clinics (RHCs) and Federally Qualified Health Centers (FQHCs), as discussed in section III.G of this final rule.
We implemented the Medicare SNF PPS effective with cost reporting periods beginning on or after July 1, 1998. This PPS pays SNFs through prospective, case-mix adjusted per diem payment rates applicable to all covered SNF services. These payment rates cover all costs of furnishing covered SNF services (routine, ancillary, and capital-related costs) other than costs associated with approved educational activities. Covered SNF services include post-hospital services for which benefits are provided under Part A, as well as those items and services (other than physician and certain other services specifically excluded under the BBA) which, before July 1, 1998, had been paid under Part B but furnished to Medicare beneficiaries in a SNF during a covered Part A stay. A comprehensive discussion of these provisions appears in the May 12, 1998 interim final rule (63 FR 26252).
The PPS uses per diem Federal payment rates based on mean SNF costs in a base year (FY 1995) updated for inflation to the first effective period of the PPS. We developed the Federal payment rates using allowable costs from hospital-based and freestanding SNF cost reports for reporting periods beginning in FY 1995. As discussed previously in section I.A of this final rule, the data used in developing the Federal rates also incorporated a “Part B add-on,” an estimate of the amounts that would be payable under Part B in the base year for covered SNF services furnished to individuals during the course of a covered Part A SNF stay.
In developing the rates for the initial period, we updated costs to the first effective year of the PPS (the 15-month period beginning July 1, 1998) using a SNF market basket index, and then standardized for the costs of facility differences in case-mix and for geographic variations in wages. In compiling the database used to compute the Federal payment rates, we excluded those providers that received new provider exemptions from the routine cost limits, as well as costs related to payments for exceptions to the routine cost limits. Using the formula that the BBA prescribed, we set the Federal rates at a level equal to the weighted mean of freestanding costs plus 50 percent of the difference between the freestanding mean and weighted mean of all SNF costs (hospital-based and freestanding) combined. We computed and applied separately the payment rates for facilities located in urban and rural areas. In addition, we adjusted the portion of the Federal rate attributable to wage-related costs by a wage index.
The Federal rate also incorporates adjustments to account for facility case-mix, using a classification system that accounts for the relative resource utilization of different patient types. The RUG–III classification system uses beneficiary assessment data from the Minimum Data Set (MDS) completed by SNFs to assign beneficiaries to one of 53 RUG–III groups. The original RUG–III case-mix classification system included 44 groups. However, under incremental refinements that became effective on January 1, 2006, we added nine new groups—comprising a new Rehabilitation plus Extensive Services category—at the top of the RUG hierarchy. The May 12, 1998 interim final rule (63 FR 26252) included a detailed description of the original 44-group RUG–III case-mix classification system. A comprehensive description of the refined 53-group RUG–III case-mix classification system (RUG–53) appeared in the proposed and final rules for FY 2006 (70 FR 29070, May 19, 2005, and 70 FR 45026, August 4, 2005).
Further, in accordance with section 1888(e)(4)(E)(ii)(IV) of the Act, the Federal rates in this final rule reflect an update to the rates that we published in the final rule for FY 2009 (73 FR 46416, August 8, 2008) and the associated correction notice (73 FR 56998, October 1, 2008), equal to the full change in the SNF market basket index. A more detailed discussion of the SNF market basket index and related issues appears in sections I.F.2 and III.F of this final rule.
Section 1888(e)(5) of the Act requires us to establish a SNF market basket index that reflects changes over time in the prices of an appropriate mix of goods and services included in covered SNF services. We use the SNF market basket index to update the Federal rates on an annual basis. In the SNF PPS final rule for FY 2008 (72 FR 43425 through 43430, August 3, 2007), we revised and rebased the market basket, which included updating the base year from FY 1997 to FY 2004. The FY 2010 market basket increase is 2.2 percent, which is based on IHS Global Insight, Inc. second quarter 2009 forecast with historical data through the first quarter 2009.
In addition, as explained in the final rule for FY 2004 (66 FR 46058, August 4, 2003) and in section III.F.2 of this final rule, the annual update of the payment rates includes, as appropriate, an adjustment to account for market basket forecast error. As described in the final rule for FY 2008, the threshold percentage that serves to trigger an adjustment to account for market basket forecast error is 0.5 percentage point effective for FY 2008 and subsequent years. This adjustment takes into account the forecast error from the most recently available FY for which there is
In the FY 2010 proposed rule (74 FR 22208), we proposed to update the payment rates used under the SNF PPS for FY 2010. We also proposed to recalibrate the case-mix indexes so that they more accurately reflect parity in expenditures related to the implementation of case-mix refinements in January 2006. We also discussed the results of our ongoing analysis of nursing home staff time measurement (STM) data collected in the Staff Time and Resource Intensity Verification (STRIVE) project, and proposed a new RUG–IV case-mix classification model that would use the updated Minimum Data Set (MDS) 3.0 resident assessment for case-mix classification effective FY 2011. In addition, we requested public comment on a possible requirement for the quarterly reporting of nursing home staffing data, and also on applying the quality monitoring mechanism in place for all other SNF PPS facilities to rural swing-bed hospitals. Finally, we proposed to revise the regulations to incorporate certain technical corrections.
In response to the publication of the FY 2010 proposed rule, we received over 112 timely items of correspondence from the public. The comments originated primarily from various trade associations and major organizations, but also from individual providers, corporations, government agencies, and private citizens.
Brief summaries of each proposed provision, a summary of the public comments that we received, and our responses to the comments appear below.
In addition to the comments that we received on the proposed rule's discussion of specific aspects of the SNF PPS (which we address later in this final rule), commenters also submitted the following, more general observations on the payment system.
We also believe it is important to monitor ongoing research activities, and work with all stakeholders, including MedPAC, to identify opportunities for future program enhancements. At the same time, we note that the SNF PPS reimbursement structure will be completely examined as part of the Post Acute Care Payment Reform Demonstration (PAC–PRD) project. Under this major CMS initiative, we intend to analyze the costs and outcomes across all post-acute care providers, and the data collected in this demonstration will enable us to evaluate the possibility of establishing an integrated payment model centered on beneficiary needs and service utilization (including the use of non-therapy ancillaries) across settings. In considering future changes to the SNF PPS, it will be important to evaluate how shorter term enhancements contribute to our integrated post acute care strategy.
A discussion of the public comments that we received on the STRIVE project itself appears in section III.C.1 of this final rule.
This final rule sets forth a schedule of Federal prospective payment rates applicable to Medicare Part A SNF services beginning October 1, 2010. The schedule incorporates per diem Federal rates that provide Part A payment for almost all costs of services furnished to a beneficiary in a SNF during a Medicare-covered stay.
In accordance with section 1888(e)(2)(B) of the Act, the Federal rates apply to all costs (routine, ancillary, and capital-related) of covered SNF services other than costs associated with approved educational activities as defined in § 413.85. Under section 1888(e)(2)(A)(i) of the Act, covered SNF services include post-hospital SNF services for which benefits are provided under Part A (the hospital insurance program), as well as all items and services (other than those services excluded by statute) that, before July 1, 1998, were paid under Part B (the supplementary medical insurance program) but furnished to Medicare beneficiaries in a SNF during a Part A covered stay. (These excluded service categories are discussed in greater detail in section V.B.2 of the May 12, 1998 interim final rule (63 FR 26295 through 26297)).
The FY 2010 rates reflect an update using the full amount of the latest market basket index. The FY 2010 market basket increase factor is 2.2 percent. A complete description of the multi-step process used to calculate Federal rates initially appeared in the May 12, 1998 interim final rule (63 FR 26252), as further revised in subsequent rules. We note that in accordance with section 101(c)(2) of the BBRA, the previous temporary increases in the per diem adjusted payment rates for certain designated RUGs, as specified in section 101(a) of the BBRA and section 314 of the BIPA, are no longer in effect due to the implementation of case-mix refinements as of January 1, 2006. However, the temporary increase of 128 percent in the per diem adjusted payment rates for SNF residents with AIDS, enacted by section 511 of the MMA (and discussed previously in section I.E of this final rule), remains in effect.
We used the SNF market basket to adjust each per diem component of the Federal rates forward to reflect cost increases occurring between the midpoint of the Federal FY beginning October 1, 2008, and ending September 30, 2009, and the midpoint of the Federal FY beginning October 1, 2009, and ending September 30, 2010, to which the payment rates apply. In accordance with section 1888(e)(4)(E)(ii)(IV) of the Act, we would update the payment rates for FY 2010 by a factor equal to the full market basket index percentage increase. We further adjust the rates by a wage index budget neutrality factor, described later in this section. Tables 2 and 3 reflect the updated components of the unadjusted Federal rates for FY 2010.
Section 1888(e)(4)(G)(i) of the Act requires the Secretary to make an adjustment to account for case-mix. The statute specifies that the adjustment is to reflect both a resident classification system that the Secretary establishes to account for the relative resource use of different patient types, as well as resident assessment and other data that the Secretary considers appropriate. In first implementing the SNF PPS (63 FR 26252, May 12, 1998), we developed the
Although the establishment of the SNF PPS did not change Medicare's fundamental requirements for SNF coverage, there is a correlation between level of care and provider payment. One of the elements affecting the SNF PPS per diem rates is the RUG–III case-mix adjustment classification system based on beneficiary assessments using the MDS 2.0. RUG–III classification is based, in part, on the beneficiary's need for skilled nursing care and therapy. As discussed previously in section I.F.1 of this final rule, the SNF PPS final rule for FY 2006 (70 FR 45026, August 4, 2005) refined the case-mix classification system effective January 1, 2006, by adding nine new Rehabilitation Plus Extensive Services RUGs at the top of the original, 44-group system, for a total of 53 groups. This nine-group addition was designed to better account for the higher costs of beneficiaries requiring both rehabilitation and certain high intensity medical services. When we developed the refined RUG–53 system, we constructed new case-mix indexes, using the STM study data that was collected during the 1990s and originally used in creating the SNF PPS case-mix classification system and case-mix indexes. In addition, the RUG–III system was standardized with the intent of ensuring parity in payments under the 44-group and 53-group models. In section III.B.2.b of this final rule, we discuss further adjustments to those new case-mix indexes.
The RUG–III case-mix classification system uses clinical data from the MDS 2.0, and wage-adjusted STM data, to assign a case-mix group to each patient record that is then used to calculate a per diem payment under the SNF PPS. The existing RUG–III grouper logic was based on clinical data collected in 1990, 1995, and 1997. As discussed in section III.C.1, we have recently completed a multi-year data collection and analysis under the STRIVE project to update the RUG–III case-mix classification system for FY 2011. As discussed later in this preamble, we are introducing a revised case-mix classification system, the RUG–IV, based on the data collected in 2006–2007 during the STRIVE project. At the same time, we plan to introduce an updated new resident assessment instrument, the MDS 3.0, to collect the clinical data that will be used for case-mix classification under RUG–IV. We believe that the coordinated introduction of the RUG–IV and MDS 3.0 reflects current medical practice and resource use in SNFs across the country, and will enhance the accuracy of the SNF PPS. Further, we plan to defer implementation of the RUG–IV and MDS 3.0 until October 1, 2010, to allow all stakeholders adequate time for the systems updates and staff training needed to assure a smooth transition. We discuss the RUG–IV methodology, the MDS 3.0, and the stakeholder comments in greater detail in sections III.C and III.D, respectively.
Under the BBA, each update of the SNF PPS payment rates must include the case-mix classification methodology applicable for the coming Federal FY. As indicated in section I.F.1 of this final rule, the FY 2010 payment rates set forth herein reflect the use of the refined RUG–53 system that we discussed in detail in the proposed and final rules for FY 2006.
In the FY 2010 proposed rule (74 FR 22208, 22214, May 12, 2009), we discussed the incremental refinements to the case-mix classification system that we introduced effective January 1, 2006. We also discussed the accompanying adjustment that was intended to ensure that estimated total payments under the refined 53-group model would be equal to those payments that would have been made under the 44-group model that it replaced. We then explained that actual utilization patterns under the refined case-mix system differed significantly from the initial projections, and as a consequence, rather than simply achieving parity, this adjustment inadvertently triggered a significant increase in overall payment levels under the refined model, representing substantial overpayments to SNFs. Accordingly, the FY 2010 proposed rule included a proposal to recalibrate the parity adjustment in order to restore the intended parity to the 2006 case-mix refinements on a prospective basis. The comments that we received on this proposal, and our responses, appear below.
However, we do not agree that changes in patient acuity levels skewed the results of our recalibration analysis. When we introduced nine new Rehabilitation Plus Extensive Care groups to create the RUG–53 model in January 2006, we made a small, focused adjustment to the case-mix classification of patients receiving both Extensive Care and Rehabilitation services. Under RUG–44, patients receiving both services would be classified into the highest paying group for which they qualified—either Extensive Care or Rehabilitation. Under RUG–53, we created a separate category for this subgroup of patients. As explained in the FY 2006 proposed rule (70 FR 29070, 29077, May 19, 2005), we took the nursing minutes used to create the original RUG–III system, and resorted the records to create three hierarchy categories (Rehabilitation, Extensive Care, and Rehabilitation Plus Extensive) from the two categories that were used
In addition, we believe this concern may erroneously equate the introduction of a new classification model with the regular SNF PPS annual update process. Normally, changes in case mix are accommodated as the classification model identifies changes in case mix and assigns the appropriate RUG group. Actual payments will typically vary from projections since case-mix changes, which occur for a variety of reasons, cannot be anticipated in an impact analysis.
However, in January 2006, we did not just update the payment rates, but introduced a new classification model, the RUG–53 case-mix system. As discussed above, the purpose of this refined model was to redistribute payments across the 53 groups while maintaining the same total expenditure level that we would have incurred had we retained the original 44-group RUG model.
In testing the two models, we used 2001 data because it was the best data we had available, and found that using the raw weights calculated for the RUG–53 model, we could expect aggregate payments to decrease as a result of introducing the refinement. To prevent this expected reduction in overall Medicare expenditures, we applied an adjustment to the RUG–53 case-mix weights as described earlier in this section. Later analysis using actual 2006 data showed that, rather than achieving budget neutrality between the two models, expenditures under the RUG–53 model were significantly higher than intended. For FY 2010, we estimate expenditures to be $1.05 billion higher than intended.
As noted previously, we do not agree that updating our analysis using CY 2006 data captured payments related to increased case mix rather than establishing budget neutrality between the two models. First, by using 2006 data to estimate expenditures under both models, we incorporate the same case-mix changes into the estimated expenditure levels for RUG–44 as well as for RUG–53. Second, we believe it is appropriate to standardize the new model for the time period in which it is being introduced. The only reason we used 2001 data in the original calculation is that it was the best data available at the time. The CY 2006 data allowed us to calibrate the RUG–53 model more precisely for its first year of operation.
One commenter recommended using alternative time periods in calculating the budget neutrality adjustment. However, while it might be possible to use some or all of CY 2005 rather than CY 2006 data, using CY 2005 data still requires us to use a projection of the distributional shift to the nine new groups in the RUG–53 group model. We believe that using actual instead of projected data is the most appropriate approach. We also looked at a second recommended alternative, which involved averaging data periods directly before and after implementation of the RUG–53 model; 2005 for the RUG–44 model and 2006 for the RUG–53 model. Again, we believe that using actual utilization data for CY 2006 is more accurate, as actual case mix during the calibration year is the basis for computing the case-mix adjustment. We have determined that using the 2006 data instead of the suggested alternatives is the most appropriate data to adopt.
The impact of the recalibration lowers total payments to SNFs by approximately $1 billion (or 3.3 percent), to about $30.3 billion. Of this $30.3 billion, beneficiary cost-sharing (as determined by the statutory formula) remains unchanged at $5.4 billion, while Medicare reimbursement is reduced to $24.8 billion. Thus, although the determination of the total dollar impact changed, the methodology used to determine the need to recalibrate the CMIs did not change from FY 2009 to FY 2010. The total payments to SNFs that are used to determine the dollar impacts are not explicitly published anywhere, but can be easily estimated by dividing the dollar impacts by the percentage impact. These results can be confirmed by contacting the CMS Office of the Actuary.
The separate recalibrated parity adjustment factor and the NTA cost adjustment factor were considered in the calculation of the combined parity adjustment factor of 9.68 in the FY 2009 SNF PPS proposed rule (73 FR 25923, May 7, 2008), the FY 2009 SNF PPS final rule (73 FR 46421–22, August 8, 2008), and the FY 2010 SNF PPS proposed rule (74 FR 22214, May 12, 2009). We presented the total adjustment to the nursing case-mix indexes of 9.68 percent because this reflects all changes to the payment system with respect to the recalibration. The percentage adjustment to the nursing CMIs to maintain parity between the 44-group and 53-group models is a 2.43 percent increase. The adjustment to account for the variability in the non-therapy ancillary utilization is a 7.08 percent increase. The separate adjustments represent interim steps in the calculations, and the final result of 9.68 percent represents the complete change to aggregate payments.
Although the SNF baseline is not explicitly published, the baseline used can be determined by dividing the dollar impacts by the percentage impact. Many commenters used this approach to conduct their own analyses. Some of the commenters contacted CMS to confirm the baseline in use, and this information was provided or verified.
In the FY 2006 final rule (70 FR 45033, August 4, 2005), we addressed the introduction of the refinements within the broader context of ensuring payment accuracy and beneficiary access to care. We pointed out that
Finally, the budget neutrality factor was applied to the unadjusted RUG–53 case-mix weights that were introduced in January 2006. As stated above, our initial analyses indicated that payments would be lower under the RUG–53 model. As the purpose of the refinement was to reallocate payments, and not to reduce expenditures, we believe that increasing the case-mix weights to equalize payments under the two models is an appropriate exercise of our broad authority to establish an appropriate case-mix system. We further note that the FY 2006 refinement to the case-mix classification system using adjusted CMIs was implemented through the rulemaking process, and we received no comments on the use of a budget neutrality adjustment at that time.
There are several reasons why Medicare cross-subsidization is not advisable policy for the Medicare program. On average, Medicare payments accounted for 21 percent of revenues to freestanding SNFs in 2006. As a result, the policy would use a minority of Medicare payments to subsidize a majority of Medicaid payments. If Medicare were to pay still higher rates, facilities with high shares of Medicare payments—presumably the facilities that need revenues the least—would receive the most in subsidies from the higher Medicare payments. In other words, the subsidy would be poorly targeted. Given the variation among States in the level and method of nursing home payments, the impact of the subsidy would be highly variable; in States where Medicaid payments were adequate, it would have no positive impact. In addition, increasing Medicare's payment rates could encourage States to reduce Medicaid payments further and, in turn, result in pressure to again raise Medicare rates. It could also encourage providers to select patients based on payer source or to rehospitalize dual-eligible patients so that they qualified for a Medicare-covered, and higher payment, stay.
We agree with MedPAC and, therefore, do not agree with the commenters that cited cross-subsidizing Medicaid as a justification for maintaining Medicare SNF payments at any specific level.
We are also aware of the concerns that reductions in payment levels can have a negative impact on SNFs and the quality of care furnished to nursing home patients across the country. However, in this particular case, we have proposed to correct, on a prospective basis, an overpayment situation that has been in effect since January 2006. To avoid possible negative consequences, we have decided not to go back and recoup the excess expenditures made to SNFs ever since January 2006. Instead, we are limiting the scope of the recalibration to restoring the intended SNF PPS payment levels on a prospective basis only, effective October 1, 2010.
We have also considered the concerns raised by industry representatives that restoring the intended payment levels will result in job losses and add significant burden to health care workers and State governments. CMS cost report and Online Survey Certification and Reporting System (OSCAR) data show that, for the majority of SNFs that operate as freestanding facilities or as parts of chains, there has been little change in staffing or in facility costs since 2006. Therefore, as data do not indicate that the overpayment was used to increase staffing during this time, we do not believe that restoring payments to their intended and appropriate levels should necessarily result in job losses or add significant burden to health care workers and State governments. Further, in its March 2009 Report to the Congress (available online at
A few commenters expressed concern that the recalibration would have the same impact as the original implementation of the SNF PPS in the late 1990s, which they asserted had pushed providers into bankruptcy. However, studies have indicated multiple factors for those nursing home closures. Castle
A similar finding had been reported in the March 2002 MedPAC report.
Research fails to indicate that case-mix reimbursement is a significant contributor to nursing home bankruptcy. Thus, we do not agree with the commenters who asserted that the recalibration of Medicare CMIs to restore budget neutrality on a prospective basis will force providers into bankruptcy, or create the type of fiscal pressure that would negatively affect facility staffing or the quality of care furnished to Medicare beneficiaries. As regards the comment that CMS should reconsider the recalibration in light of the potential impact on a weak economy, we do not believe that a weak economy justifies perpetuating an overpayment.
Accordingly, for the reasons specified in the FY 2010 proposed rule (74 FR 22214–22215), we are finalizing the recalibration of the parity adjustment to the RUG–53 case-mix indexes in order to restore the intended parity in overall payments between the RUG–44 model and the RUG–53 model, and the factor used to recognize variability in NTA utilization, using the methodology described in the FY 2009 proposed and final rules (73 FR 25923, 73 FR 46421–24). Thus, for FY 2010, the aggregate impact of this recalibration would be the difference between payments calculated using the original FY 2006 total CMI increase of 17.9 percent and payments calculated using the recalibrated total CMI increase of 9.68 percent. The total difference is a decrease in payments of $1.05 billion (on an incurred basis) in payments for FY 2010. We also note that the negative $1.05 billion would be partly offset by the FY 2010 market basket adjustment factor of 2.2 percent, or $690 million, with a net result of a negative 1.1 percent update of $360 million for FY 2010. Again, we want to emphasize that we are implementing the recalibration on a prospective basis, which is the strategy that we believe best mitigates the potential impact on providers. By using CY 2006 claims data (which represent actual RUG–53 utilization), rather than FY 2001 claims data, we believe the SNF PPS will better reflect resources used, resulting in more accurate payment.
We list the case-mix adjusted payment rates separately for urban and rural SNFs in Tables 4 and 5, with the corresponding case-mix values. These tables do not reflect the AIDS add-on enacted by section 511 of the MMA, which we apply only after making all other adjustments (wage and case-mix).
Section 1888(e)(4)(G)(ii) of the Act requires that we adjust the Federal rates to account for differences in area wage levels, using a wage index that we find appropriate. Since the inception of a PPS for SNFs, we have used hospital wage data in developing a wage index to be applied to SNFs.
In the FY 2010 proposed rule, we proposed to continue that practice, as we continue to believe that in the absence of SNF-specific wage data, using the hospital inpatient wage index is appropriate and reasonable for the SNF PPS. As explained in the update notice for FY 2005 (69 FR 45786, July 30, 2004), the SNF PPS does not use the hospital area wage index's occupational mix adjustment, as this adjustment serves specifically to define the occupational categories more clearly in a hospital setting; moreover, the collection of the occupational wage data also excludes any wage data related to SNFs. Therefore, we believe that using the updated wage data exclusive of the occupational mix adjustment continues to be appropriate for SNF payments.
In the FY 2010 proposed rule, we also proposed to continue using the same methodology discussed in the SNF PPS final rule for FY 2008 (72 FR 43423) to address those geographic areas in which there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the FY 2010 SNF PPS wage index. For rural geographic areas that do not have hospitals and, therefore, lack hospital wage data on which to base an area wage adjustment, we proposed to use the average wage index from all contiguous CBSAs as a reasonable proxy. This methodology is used to construct the wage index for rural Massachusetts. However, we indicated that we would not apply this methodology to rural Puerto Rico due to the distinct economic circumstances that exist there, but instead would continue using the most recent wage index previously available for that area. For urban areas without specific hospital wage index data, we proposed to use the average wage indexes of all of the urban areas within the State to serve as a reasonable proxy for the wage index of that urban CBSA. The only urban area without wage index data available is CBSA (25980) Hinesville-Fort Stewart, GA.
The comments that we received on the wage index adjustment to the Federal rates, and our responses to those comments, appear below.
In addition, we reviewed the Medicare Payment Advisory Commission's (MedPAC) wage index recommendations as discussed in MedPAC's June 2007 report entitled, “Report to Congress: Promoting Greater Efficiency in Medicare.” Although some commenters recommend that we adopt the IPPS wage index policies such as reclassification and floor policies, we note that MedPAC's June 2007 report to Congress recommends that Congress “repeal the existing hospital wage index statute, including reclassification and exceptions, and give the Secretary authority to establish new wage index systems.” We believe that adopting the IPPS wage index policies (such as reclassification or floor) would not be prudent at this time, because MedPAC suggests that the reclassification and exception policies in the IPPS wage index alters the wage index values for one-third of IPPS hospitals. In addition, MedPAC found that the exceptions may lead to anomalies in the wage index. By adopting the IPPS reclassification and exceptions at this time, the SNF PPS wage index could become vulnerable to problems similar to those that MedPAC identified in their June 2007 Report to Congress. However, we will continue to review and consider MedPAC's recommendations on a refined or alternative wage index methodology for the SNF PPS in future years.
We also note that section 106(b)(2) of the Medicare Improvements and Extension Act (MIEA) of 2006 (which is Division B of the Tax Relief and Health Care Act (TRHCA) of 2006, Public Law 109–432, collectively referred to as “MIEA–TRHCA”) required the Secretary of Health and Human Services, taking into account MedPAC's recommendations on the Medicare wage index classification system, to include in the FY 2009 IPPS proposed rule one or more proposals to revise the wage index adjustment applied under section 1886(d)(3)(E) of the Act for purposes of the IPPS. To assist CMS in meeting the requirements of section 106(b)(2) of MIEA–TRHCA, in February 2008, CMS awarded a Task Order under its Expedited Research and Demonstration Contract, to Acumen, LLC. Acumen, LLC conducted a study of both the current methodology used to construct the Medicare wage index and the recommendations reported to Congress by MedPAC. Part One of Acumen's final report, which analyzes the strengths and weaknesses of the data sources used to construct the CMS and MedPAC indexes, is available online at
Moreover, in light of all of the pending research and review of wage index issues in general, we believe that it would be premature at this time to initiate revisiting the use of CBSA labor market areas and review of a SNF-specific wage index.
Therefore, in this final rule, we will continue to use hospital wage data exclusive of the occupational mix adjustment to calculate the SNF PPS wage index adjustment, and we are finalizing the wage index and associated policies as proposed in the SNF PPS proposed rule for FY 2010 (74 FR 22217–22219, May 12, 2009).
To calculate the SNF PPS wage index adjustment, we apply the wage index adjustment to the labor-related portion of the Federal rate, which is 69.840 percent of the total rate. This percentage reflects the labor-related relative importance for FY 2010, using the revised and rebased FY 2004-based market basket. The labor-related relative importance for FY 2009 was 69.783, as shown in Table 16. We calculate the labor-related relative importance from the SNF market basket, and it approximates the labor-related portion of the total costs after taking into account historical and projected price changes between the base year and FY 2010. The price proxies that move the different cost categories in the market basket do not necessarily change at the same rate, and the relative importance captures these changes. Accordingly, the relative importance figure more closely reflects the cost share weights for FY 2010 than the base year weights from the SNF market basket.
We calculate the labor-related relative importance for FY 2010 in four steps. First, we compute the FY 2010 price index level for the total market basket and each cost category of the market basket. Second, we calculate a ratio for each cost category by dividing the FY 2010 price index level for that cost category by the total market basket price index level. Third, we determine the FY 2010 relative importance for each cost category by multiplying this ratio by the base year (FY 2004) weight. Finally, we add the FY 2010 relative importance for each of the labor-related cost categories (wages and salaries, employee benefits, non-medical professional fees, labor-intensive services, and a portion of capital-related expenses) to produce the FY 2010 labor-related relative importance. Tables 6 and 7 show the Federal rates by labor-related and non-labor-related components.
Section 1888(e)(4)(G)(ii) of the Act also requires that we apply this wage index in a manner that does not result in aggregate payments that are greater or less than would otherwise be made in the absence of the wage adjustment. For FY 2010 (Federal rates effective October 1, 2009), we apply an adjustment to fulfill the budget neutrality requirement. We meet this requirement by multiplying each of the components of the unadjusted Federal rates by a budget neutrality factor equal to the ratio of the weighted average wage adjustment factor for FY 2009 to the weighted average wage adjustment factor for FY 2010. For this calculation, we use the same 2007 claims utilization data for both the numerator and denominator of this ratio. We define the wage adjustment factor used in this calculation as the labor share of the rate component multiplied by the wage index plus the non-labor share of the rate component. The budget neutrality factor for this year is 1.0010. The wage index applicable to FY 2010 is set forth in Tables A and B, which appear in the Addendum of this final rule.
In the SNF PPS final rule for FY 2006 (70 FR 45026, August 4, 2005), we adopted the changes discussed in the Office of Management and Budget (OMB) Bulletin No. 03–04 (June 6, 2003), available online at
In adopting the OMB Core-Based Statistical Area (CBSA) geographic designations, we provided for a 1-year transition with a blended wage index for all providers. For FY 2006, the wage index for each provider consisted of a blend of 50 percent of the FY 2006 MSA-based wage index and 50 percent of the FY 2006 CBSA-based wage index (both using FY 2002 hospital data). We referred to the blended wage index as the FY 2006 SNF PPS transition wage index. As discussed in the SNF PPS final rule for FY 2006 (70 FR 45041), subsequent to the expiration of this 1-year transition on September 30, 2006, we used the full CBSA-based wage index values, as now presented in Tables A and B in the Addendum of this final rule.
In accordance with section 1888(e)(4)(E) of the Act, as amended by section 311 of the BIPA, the payment rates in this final rule reflect an update equal to the full SNF market basket, estimated at 2.2 percentage points. We continue to disseminate the rates, wage index, and case-mix classification methodology through the
As discussed in § 413.345, we include in each update of the Federal payment rates in the
A beneficiary assigned to any of the lower 18 groups is not automatically classified as either meeting or not meeting the definition, but instead receives an individual level of care determination using the existing administrative criteria. This presumption recognizes the strong likelihood that beneficiaries assigned to one of the upper 35 groups during the immediate post-hospital period require a covered level of care, which would be less likely for those beneficiaries assigned to one of the lower 18 groups.
In this final rule, we are continuing the designation of the upper 35 groups for purposes of this administrative presumption, consisting of all groups encompassed by the following RUG–53 categories:
• Rehabilitation plus Extensive Services;
• Ultra High Rehabilitation;
• Very High Rehabilitation;
• High Rehabilitation;
• Medium Rehabilitation;
• Low Rehabilitation;
• Extensive Services;
• Special Care; and,
• Clinically Complex.
Using the hypothetical SNF XYZ described in Table 8, the following shows the adjustments made to the Federal per diem rate to compute the provider's actual per diem PPS payment. SNF XYZ's 12-month cost reporting period begins October 1, 2009. SNF XYZ's total PPS payment would equal $30,635. We derive the Labor and Non-labor columns from Table 6 of this final rule.
In the FY 2010 proposed rule (74 FR 22208, 22220, May 12, 2009), we noted that the SNF PPS uses the Resource Utilization Group (RUG) to which a resident is assigned to make a case-mix adjustment to that resident's payment amount, in order to reflect the relative resource intensity that would typically be associated with the resident's clinical condition. In this context, we discussed our STRIVE project, which we conducted to help ensure that the SNF PPS payment rates reflect current practices and resource needs. The following sections discuss the comments that we received on this issue and related topics, along with our responses.
To help ensure that the SNF PPS payment rates reflect current practices
A number of commenters addressed issues regarding the sampling methodology of the STRIVE project. These comments fell into several major categories:
• Sample size and margin of error.
• Random nature of the sample.
• Representativeness of the sample and data collection process.
Upon further review, as noted by a few commenters, we found minor flaws in the methodology, and have updated our analysis. As shown below, we believe that the simplest and most informative overall measure of the precision of the sample is the margin of error associated with the nursing and therapy overall means. Table 9 below presents relevant values from the STRIVE study and from the prior 1995/97 time study.
For each of these studies, the table above presents statistics for mean nursing time (based upon all residents in the sample) and for therapy time (based upon all residents who received any therapy time). For each of these datasets, the table presents the number of cases (raw, unweighted counts), the mean of the wage-weighted minutes, the standard error of the mean, the margin of error associated with the mean, and the margin of error expressed as a percentage of the mean.
We note that for both nursing and therapy time, the methodology used to wage-weight time differed between the two studies. (A detailed discussion of the wage-weighting protocols is presented below.) Therefore, the means, standard errors, and margins of error cannot be directly compared between the two studies. We have, therefore, computed the margin of error as a percentage of the mean to allow such comparison.
It can be seen that in the STRIVE sample, the margin of error for the nursing time is about ±4.6 percent of mean nursing time, compared with ±6.2 percent in the earlier study. This represents a 26.8 percent improvement in precision over the earlier study. For therapy time, the STRIVE margin of error is ±7.6 percent, a 4.7 percent improvement over the earlier study. With regard to therapy time, the
Thus, the STRIVE sample is larger and has considerably more precision for nursing time than the earlier time study. The results of the earlier study have served as the basis for Medicare and Medicaid rate setting since 1998 and the new results should, if anything, lead to more accuracy than the data collected more than 10 years ago. We believe that the ability to distinguish more precisely and accurately between patient characteristics and varying degrees of acuity with the time study methodology outweighs the issues of ease of collection and analysis of population-based administrative data.
It is true that the sample sizes for some RUG groups are small and that the margins of errors for these RUG groups means are large. However, there are several reasons why we believe that the precision is sufficient for rate setting:
• Some comments appeared to suggest that only Medicare cases were used to produce the group means and CMIs that were used for rate setting. Because Medicare residents comprised only about 14 percent of the total weighted STRIVE sample, this would have exacerbated problems with small sample sizes. In fact, however, we used the entire sample of valid cases (that is, all cases that passed our accuracy edits), not just Medicare cases, to produce these group means and CMIs. Thus, the RUG group sample sizes were considerably larger than some comments suggested.
• Therapy CMIs are based upon mean therapy times for the therapy categories, not the means for individual therapy groups. That is, mean therapy times are calculated for the RU, RV, RH, RM, and RL categories and therapy CMIs are computed based upon these category means. The therapy CMI for a category is then used to calculate the therapy payment rate applied to all of that category's subgroups. For example, the RU therapy CMI and corresponding rate are applied across the RUX, RUL, RUC, RUB, and RUA groups. Because the therapy CMIs and therapy rate components are computed at the category level, the sample sizes are considerably larger than some comments suggest.
• We recognized that the nursing time sample sizes were quite small for some individual RUG groups, especially those with tertiary splits (based on nursing rehabilitation and depression) and for the “Rehabilitation plus Extensive” groups. To address this problem, we used regression-based estimation procedures to develop group means and CMIs for these groups. For example, the individual combined Rehabilitation-Extensive Services RUG–IV groups (for example, RUX) had very small sample sizes, with weighted sample sizes varying from less than 1 to 12 cases. Clearly, this was an insufficient number of cases in these individual groups to obtain reliable individual group means or reliable CMIs based on individual group means. Therefore, we developed a regression model to estimate the overall average increase in nursing time for providing extensive services to residents receiving rehabilitation, controlling for level of therapy and ADL dependence. The estimated average increase due to extensive services was based on comparison of all Rehabilitation-Extensive Services residents (49 sample weighted cases) versus all Rehabilitation-only residents (1,261 sample weighted cases). The nursing time estimate for each Rehabilitation-Extensive Services group was then calculated as the nursing time mean for Rehabilitation-only residents with the same level of rehabilitation and ADL dependence plus the estimated average increase due to extensive services. For example, the nursing time estimate for RUX was calculated as the mean for RUC plus the average extensive services increase. This estimate is based on much larger sample sizes and is, therefore, much more reliable than individual Rehabilitation-Extensive Services group means. Similar models and adjustments were made for the depression and restorative therapy splits.
• The RUG–IV model, like previous RUG models, is structured and contains implicit assumptions about the ordering of group means. One assumption is that within a category, payment rates will increase as the ADL score (and ADL dependence) increases. A second assumption is that within a corridor of ADL scores, payment rates will decrease as one moves down the hierarchy. Exceptions to these constraints are called rate inversions and are to be avoided because of the perverse incentives they can create (for example, when a resident qualifies for more than one group and would produce a higher payment in a lower group with fewer services being provided). A considerable effort was made to examine the individual group means, CMIs, and rates for possible inversions, and to make adjustments where necessary to fix these inversions. Inversions were fixed employing the regression models described above and by smoothing techniques (for example, computing the weighted mean of two groups that had a small inversion and using that weighted mean as the basis for computing the rate for those two groups). Some of the observed inversions were in groups with small sample sizes and may have been the result of imprecise estimates of the group means. The smoothing and estimation procedures described above produced payment rates that, with a few exceptions, conformed with the RUG model's hierarchical constraints. Most exceptions where rate inversions remained involved the following rare groups (with sample weighted number
• Finally, regarding those comments which stated that the lack of sampling precision associated with some RUG groups meant that the STRIVE results were too imprecise to be used with confidence for rate setting, we note that the logic of PPS models is that they successfully predict cost, and that payment rates that are based on those models will be accurately aligned with actual cost. The net result will be that providers will be paid in proportion to the cost of providing care to their residents. Nevertheless, PPS models do not perfectly predict cost, and there is error inherent in using such PPS models. This is true of the diagnosis-related group (DRG) model used for acute hospitals, the case-mix group (CMG) model used for inpatient rehabilitation hospitals, and the home health resource group (HHRG) model used for home health care. It has been recognized since the late 1980s that these models are not perfect predictors of cost. In fact, in 2002, a Report to Congress (“Prospective Payment System for Inpatient Services in Psychiatric Hospitals and Exempt Units,” available online at
As discussed above, there will always be a certain amount of error associated with payment rates. For the SNF PPS, much of this inaccuracy is “averaged out” when payment is made to a facility for a large number of days and for multiple residents. That small sample sizes and some degree of sampling error may contribute to this overall estimation error does not mean that rate setting cannot be performed with an acceptable level of accuracy.
A few commenters noted that at the last stage of the design, facilities had to be sub-sampled if the facilities were too large to be observed in their entirety. Due to a lack of PDAs and data monitors, data collection was limited to a portion of the facility, be it one or more floors, or one or more units. The subsample was selected by the project staff in consultation with facility management. The commenters stated that the subsampling was not conducted using any randomization method, and may have introduced bias to the sample and data collection.
Generally, several commenters argued that because the STRIVE sampling plan relied upon voluntary participation, sample selection was not random and may have introduced sampling biases.
While we sought to utilize random processes where possible (for example, the list of facilities that were invited to participate in the study in each State was generated using a random procedure), the nature of this study precluded the use of strictly random selection. Because CMS did not have the authority to compel any State or nursing home to participate in the study, it was impossible to use a strictly random procedure for selecting States or nursing homes. Further, in larger nursing homes where all nursing units could not be included in the study, it was not possible to select nursing units randomly for inclusion in the study, because this could have introduced difficult logistical problems for data monitors if the selected nursing units were located on different floors of a building or different buildings on a campus.
It was, therefore, apparent from the outset of the study that the sampling design would have to accommodate non-random selection procedures. Potential problems that could be introduced by the use of non-random selection were addressed in several ways.
First, random procedures were used whenever possible, such as for generating lists of facilities that were invited to participate in the study. Second, where random processes were not feasible, we developed protocols that described exactly how selection was to occur. For example, we used a detailed decision tree to select nursing units in larger facilities. This protocol was uniform across nursing homes and applied by the project staff who managed the study. Use of these protocols eliminated important types of bias (for example, selecting a nursing unit because it was deemed more efficient or of better quality). Third, we directly assessed the study's sampling error and quantified its precision statistically. Fourth, we developed sampling weights based on the sample design that adjust the sample for over- or under-sampling and produced sample estimates that were not biased by the design itself. A number of analyses were performed comparing the STRIVE sample with national OSCAR and MDS databases to determine the degree to which the sample was representative (that is, the degree to which the sample resembled the population on important variables). The results of these analyses are described later in this final rule.
Another bias factor mentioned by commenters was geographic location. Specifically, the commenters indicated that the STRIVE sample size was too small to be nationally representative, that important States were omitted from the sample, and that the 15 States that were included in the sample were not representative of the nation. It was also noted that in four States, we drew facilities from only a portion of the State and that this could have introduced additional geographic bias. In order to demonstrate the potential biases introduced by these geographic selections, several comments included analyses showing statistically significant differences in claims, OSCAR, and MDS data between the 15 States that were included in the sample and the remaining States in the nation. Commenters were concerned that no data were collected from the Mid-Atlantic or New England regions, California and Oregon, or in the area the commenter characterized as the “entire mid-section” of the country. One commenter noted that the initial STRIVE collection methodology was tested in one center in Maryland and that none of the preliminary data from that center were considered.
Some commenters argued that there is greater relative resource use with significantly higher costs in those missing States than in the STRIVE States, as well as the nation overall. The commenters indicated that the operating characteristics of the facilities in the STRIVE States do not appear to be representative of the characteristics of the facilities in the other States.
Another commenter questioned CMS's reference to Canadian data, given the significant differences in the health systems between the two countries. The commenter asked CMS to explain how and why Canadian data were used, and how such data can be considered representative of New England States, the Mid-Atlantic States, the Southeastern States, and California.
One commenter asserted that the participating States were not representative of SNFs nationwide, and that the STRIVE sample likely may be weighted in a manner that reflects care patterns in rural areas and facilities more than in urban facilities. The commenter argued that the STRIVE sample only included 2 of the 7 States with a high urban ratio (the District of Columbia, and 4 Florida facilities) where more than 90 percent of facilities are in an urban region. The commenter believed that selecting the majority of the participating States from the remaining 44 States (where the urban-to-rural ratio is about 70 percent to 30 percent) biased the sample.
One commenter submitted a regression analysis suggesting that the RUG costs, both overall and by RUG–53 category, are different in STRIVE States when compared to non-STRIVE States, indicating that the STRIVE relative weight structure could be non-representative. The commenter believed that the perceived lack of representativeness calls into question the validity and appropriateness of the updated weights and the re-categorization of residents who were key to the STRIVE project and critical to the design of RUG–IV. In addition, several commenters asserted patients evaluated in the STRIVE sample may not be representative of the actual acuity of most SNF residents nationwide.
Finally, a commenter claimed that CMS failed to make publicly available sufficient information to allow for an external evaluation of the impact. As a result, the commenter concluded that it is not known how much bias might have been added to the estimators of the mean staff time due to these nonsampling errors. The commenter recommended performing further analysis of the current sample before implementing the RUG–IV model, in order to determine whether and to what extent the sample might have been affected by these potential biases.
Of course, in any sample that includes less than all of the States (or indeed, less than all facilities throughout the country), it is always possible to question whether the sample is sufficiently representative of the nation as a whole. While some commenters suggested that selecting facilities in only 2 of the 7 States with the highest urban-to-rural ratios might have understated STRIVE acuity levels, it is equally possible that oversampling the States with atypical population distributions could have resulted in the opposite effect. However, whether the STRIVE sample is representative can be and was tested by comparing data from STRIVE with national data to determine the degree to which the sample statistics match with national statistics. Some commenters noted that the data and analyses that were previously presented were insufficient to judge the degree of sampling bias that was present. We have, therefore, performed supplemental analysis which will be presented later in this section.
It is true, as some commenters noted, that our actual sample size of 205 nursing homes was smaller than the goal of 238 nursing homes that was set at the beginning of the study. While it is always preferable to have a larger sample size, we were unable, given available time and resources, to achieve the initial goal. During the planning phase of the study, we projected the expected margins of error using various sample sizes, including the size that was actually achieved. All things being equal, precision is always better when the sample size is larger, but we determined that the incremental precision that would have been achieved with 238 facilities was small and that the sample size that was actually achieved was sufficient to meet the analytic goals of the study.
Regarding the comment that questioned CMS's reference to Canadian data, we note that in fact, the Canadian data were not merged with the STRIVE sample at all. Instead, we worked with Canadian officials who were developing their own STM study based on our efforts: CAN–STRIVE. We have shared data and discussed findings as a way of testing the accuracy of our own findings. For example, patients with similar characteristics and care needs required similar staff resources for treatment. In addition, the CAN–STRIVE project reports that applying our RUG–IV model to their data results in a variance explanation of weighted nursing time of 35.4 percent. This represents an independent and highly successful validation of the RUG–IV model. Far from being an inappropriate misuse of data, we believe that this inter-governmental collaboration actually serves to further the interests of both Canada and the United States. Similarly, data from 2 facilities, including 1 in Maryland, that were used to pilot test the data collection process, were used to determine facility training needs and to finalize data collection procedures. These pilot facilities were crucial in testing protocols and, as a result of honest and open staff feedback, in modifying some of our original data collection methods. Since the data collection process was still under
Finally, in response to the commenters' concerns about our evaluation and validation of the study, a validation methodology was built into the STRIVE study. With the large sample size obtained, we reserved one third (3,253 observations) for validation: We did not use these reserved observations at all in the derivation of the RUG–IV classification. After the RUG–IV system was fully developed, we then tested it on the validation sample. Such a cross-validation procedure is standard statistical practice to ensure that a statistical model is not “over-fitted,” meaning that some of the relationships that appear to be statistically significant are merely noise. Cross-validation allows us to verify that the model will perform well in practice, will replicate well, and will have reasonably accurate predictive ability. The results showed that the derived system described in the proposed rule was robust. For example, the variance explanation of nursing time (sample weighted) of the RUG–IV system fitted to the derivation sample was 41.8 percent, while in the validation sample, the same statistic was 41.4 percent. Because the results have been cross-validated within the original STRIVE sample, we do not consider a separate validation study to be necessary, nor was a separate study part of the original STRIVE design. Further, the results of the CAN–STRIVE project, reported above, serve as a second type of model validation.
Another voluntary sampling issue raised by the commenters was the selection of facilities until enough facilities agreed to participate. Bias could be introduced here when such factors as resources or staff availability could influence the decision of a facility to agree or not agree to participate.
A few commenters questioned the high non-response rate. The commenters noted that of the 837 sampled facilities, 100 were dropped by State agencies or CMS regional offices. Of the 737 eligible facilities, 523 were invited to participate, 214 (about 40 percent) agreed to participate, and 205 (about 39 percent) actually participated in the study. The STRIVE sample survey literature indicates that voluntary response samples are biased, as people with strong opinions or atypical institutions tend to respond.
We tested this possibility using OSCAR staffing data. Staffing data were cleaned using standard CMS algorithms to remove erroneous data, and were matched to the STRIVE data. For each nursing home in the database, both STRIVE and non-STRIVE, we computed the number of staff minutes per resident day for RNs, LVNs, and aides separately. Table 10 shows the mean minutes per resident day by staff type for the following groups of STRIVE nursing homes in the first 3 rows: (1) STRIVE nursing homes that were eliminated from consideration by State and Regional staff, (2) STRIVE nursing homes that were invited but declined to participate, and (3) STRIVE nursing homes that participated in the study. We also show three national groups of nursing homes: (4) All nursing homes nationally that passed the QI/QM and survey deficiency quality data screens, (5) all nursing homes nationally that failed the quality data screens, and (6) all nursing homes nationally. Note that the number of facilities shown in Rows 1, 2, and 3 of the table are slightly lower than those in previously published documentation, because not all STRIVE facilities could be matched to OSCAR data.
The proper basis for comparison between the STRIVE sample groups and the nation is Row 4: Facilities that passed the quality data screens. As part of the design, we excluded about 8 percent of all nursing homes nationally from the sampling frame that had very poor QI, QM, or survey deficiency histories (Row 5). Since these nursing
The three groups of STRIVE nursing homes matched the national statistics in Row 4 fairly well. Nursing homes that declined to participate (Row 2) had significantly lower aide and total time, but the staff times for nursing homes that completed the study were not significantly different from the nation. Therefore, we conclude that the factors related to self-selection did not create a sample that was biased (upwards) in staff time.
We do not agree with the comment that resource constraints on the number of facilities that data monitors could visit may have introduced another source of bias. When a State agreed to participate in the study, an evaluation was made of the number of facilities that the data monitors would be able to visit. The sample size for the State was agreed upon before the sample was drawn. These resource constraints, therefore, could not have produced a sample bias.
During the past few years, we have been conducting analyses on episodes of care (that are separate from STRIVE) and are concerned that episodes of care increasingly show repeated transfers between acute and post acute care. We agree with the commenters that these short-stay admissions appear to be more costly, but we have not yet determined the reasons for these transfers. It is not clear whether the primary reasons for frequent readmission to an acute care setting reflect hospital discharge patterns, SNF care practices, or a combination of both. Until more research is available, we do not believe it would be appropriate to establish a separate payment structure for short-term patients. In the future, we hope to include an analysis of short-stay patients as part of other post-acute health care reform initiatives. In this way, we can make appropriate adjustments as we develop the next generation of post acute care payment systems.
• This short-stay SNF resident population has substantially higher acuity and substantially higher resource utilization.
• Very short stay SNF residents account for over 21.0 percent of SNF stays.
• The omission of this critical population may well have underestimated and skewed the reclassification of SNF residents and the nursing and therapy weights that underlie the proposed RUG–IV system.
• Given that these very short stay, higher acuity residents generally would not be captured in the STRIVE data, the conclusion of the STRIVE project concerning resource utilization of SNF residents who received extensive services in the hospital may be wrong.
However, we do not believe that excluding patients with stays of 2 days or less skewed the nursing time and nursing case-mix weights. The STRIVE methodology only excluded nursing facility stays with lengths of stay of 1 or 2 days. Other short SNF stays (for example, length of stay of 3 days) were included in all analyses.
We note that the results submitted by one commenter indicating that short-stay SNF residents have higher acuity were based on the MS–DRG CMIs for the cost of hospital care preceding the SNF stay rather than on the cost of the SNF stay itself, and that using the hospital cost as a proxy for the SNF cost might not be accurate. Further, the hospital CMIs do not show “substantially higher resource utilization” for short stays excluded by STRIVE (1 to 2 days) versus short stays included by STRIVE (for example, 3 to 7 days). The MS–DRG CMI decrease for 3- to 7-day stays versus 1- to 2-day stays is 2.9 percent for short-stay SNF patients readmitted to the hospital, 4.1 percent for short-stay SNF patients who die in the SNF after a short stay, and 3.0 percent for short-stay SNF patients who are discharged to another setting. While the hospital acuity for the very short 1- to 2-day stays is somewhat higher than 3- to 7-day stays, it certainly is not “substantially higher.”
Again, we were very concerned by the assertion that very short stays involving 21 percent of all SNF stays were excluded, and after reviewing the data carefully, we found the claim to be at least partially inaccurate. The 21 percent of stays refers to stays involving 1 to 7 days. STRIVE only excluded 1- to 2-day stays, and this comprises only 5.4 percent of all SNF stays. Even this 5.4 percent of stays greatly overestimates the actual impact of the excluded stays. The excluded very short stays of 1 to 2 days represent only 0.2 percent of all SNF paid days of service for a year. We do not believe that excluding these stays has much impact at all on (a) patterns of resident classification, (b) the nursing and therapy weights underlying RUG–IV, or (c) the resulting payments to providers. However, we do believe that additional research is needed to determine the reasons for the high
Finally, exclusion of very short 1- to 2-day stays does not invalidate STRIVE project results concerning resource utilization of SNF residents who received extensive services in the hospital. Pre-admission hospital services were captured for residents who were admitted 1 to 6 days before the nursing staff time study, as long as they were not discharged during that 2-day study. The STRIVE results included over 500 residents who were assessed for extensive services received in the hospital within 7 days prior to SNF admission. Thus, the exclusion of very short 1- to 2-day stays did not preclude valid analysis of pre-admission extensive services.
Moreover, while we recognize that hospital-based, proprietary, and nonprofit SNFs have some different facility characteristics, CMS does not have the authority to create separate classification models by provider type. During the STRIVE project, we did collect data on all 3 provider types for future analysis. In this way, we can continue to monitor the accuracy of our payment system and adjust for changes in patient acuity and staff resource needs.
In order to produce counts that can be validly compared with the STRIVE data, an MDS snapshot must be produced that represents the latest assessment for each resident who is active on a given day. As part of our sampling process, we built a snapshot file for March 1, 2006 and matched Part A claims with this file. Based upon this analysis, we estimated that about 13.5 percent of nursing home residents are in SNF stays, which closely matches the national estimate from the STRIVE sample (14.1 percent).
The commenter stated that unlike the change from RUG–44 to RUG–53, the estimate of distribution of days under the proposed RUG–IV is not directly calculated based on a linked MDS/claims data file, but rather, inferred using the STRIVE data to estimate the distribution of paid days in each of the RUG–66 groups. The commenter questioned the accuracy of the payment impact analysis based on these estimated distributions.
It is true, as noted in the comments, that the fiscal estimates hinge upon the Medicare transition matrix. Ideally, fiscal estimates would be based upon an existing national assessment database. However, RUG–IV classifications cannot be performed on existing MDS 2.0 data, and MDS 3.0 will not be implemented for over a year, so the only way to make financial projections based on currently
We do not agree, however, that this is a critically flawed methodology. While there may be instances in which estimates for individual RUG–IV groups are not precisely accurate, any estimation errors should be random, with estimates for some groups being too high and others being too low compared with actual values. When estimates are made across all groups, however, these random estimation errors will tend to offset each other, and the overall estimates will have much greater precision.
Further, the fiscal impact estimates have other sources of error (for example, changes in provider behavior, changes in the cost of specific services,
Finally, we recognize the difficulty of implementing changes to a payment system that cannot be verified by a review of historical data. In this case, we estimated changes to the distribution of paid days across the RUG–IV model, because the RUG–IV grouper utilizes clinical data that will not be collected until we introduce the MDS 3.0. In adopting this methodology, we recognize that there is a tradeoff between timely updating of the case-mix system to ensure more accurate distribution of SNF PPS payments and the potential weakness of using estimated data. For this reason, we have committed to post-implementation monitoring of the accuracy of the system calibration. We will, if needed, recalibrate the CMIs in the RUG–IV model using actual data if our analyses indicate that an adjustment is needed.
• The activities of daily living (“ADL”) Index component for Self-Performance item G1aa (Bed Mobility Self-Performance) reveals a significant difference between the STRIVE Medicare cases and MDS Medicare cases for the Extensive Assistance category.
• Similarly, the ADL Index component for Self-Performance item G1ba (Transfer Self-Performance) shows a significant difference between the STRIVE Medicare cases and MDS Medicare cases for the Extensive Assistance categories.
• The ADL Index component for Self-Performance item G1ha (Eating Self-Performance) shows a significant difference between the STRIVE Medicare cases and MDS Medicare cases for the Extensive Assistance category.
• Finally, the ADL Index component for Self-Performance item G1ia (Toilet Use Self-Performance) shows a significant difference between the STRIVE Medicare cases and MDS Medicare cases for the Extensive Assistance category.
Table 11 compares STRIVE statistics for the entire sample with national MDS statistics. For these comparisons, a cross-section of MDS data was selected, which contained the latest assessment for every resident who was active in a nursing home on a given date. March 1, 2006 was selected for this analysis, so that the data would be as contemporaneous as possible with the STRIVE data. Variables important to case-mix determination were selected for analysis. Chi-square tests were performed to determine whether the distribution of scores on each variable deviated significantly from the national distribution. The columns in Table 11 show the MDS variable, the number and percent of cases for each value of the variable for the nation and for STRIVE, and an indicator of whether or not the chi-square test showed the STRIVE distribution to be significantly different from the national distribution.
While several of the variables that were analyzed showed no significant difference, there were significant differences between the sample and the nation on a number of other variables. On the ADLs, for example, there was a consistent trend for residents in the sample to show slightly more dependence than residents nationally. On each of the ADLs, the percent of STRIVE cases in the “total dependence” category exceeded the national percentage by between 1.7 and 3.4 percentage points. Conversely, the percent of residents in the “independent” category was lower for the STRIVE sample by between 0.5 and 6.8 percentage points. The picture was mixed on the services items that displayed significant differences. Among these items, the STRIVE residents were slightly more likely to receive feeding tubes, suctioning, and tracheostomy care, but less likely to receive IV medications or oxygen therapy. Slightly more STRIVE residents had diabetes mellitus and Stage 3 or 4 pressure ulcers than was seen nationally.
The overall picture from these comparisons is that the STRIVE sample has somewhat higher acuity than the nation. This could have been due to the last stage in the sample selection process, where nursing units within larger nursing homes were selected for inclusion in the study. In selecting units for inclusion, the protocol used by data monitors tended to favor SNF units and other specialty units that likely had higher acuity. Because of a lack of data that would have allowed for correction of this bias, it is possible that a greater proportion of higher-acuity residents were included in the sample, and that the sample weights did not correct for this.
However, the impact of this bias should be small. First, while those differences displayed above were statistically significant due to the large sample sizes involved, they were not substantial. Second, the RUG–III and RUG–IV classification models are designed specifically to classify residents into groups with similar acuity levels; for example, ADL scores are used explicitly to subdivide residents falling into each of the major hierarchical groups. While the impact of this bias might have been to place slightly more residents into heavier care nursing groups, this bias should have been corrected when using national days of service (from claims data) to standardize the RUG–IV distribution.
We note that even if the STRIVE sample's RUG distribution exactly matched the national cross-sectional distribution, this cross-sectional distribution must be standardized against the national days of service distribution, which accumulates paid days over an entire year. To the extent that the distribution of residents, even if perfectly representative of the nation, does not match the distribution of paid days, this standardization step is necessary. Thus, standardizing the RUG distribution to paid days should remove the relatively small amount of bias that was observed above.
As stated in our discussion of the collection and adjustment of therapy minutes, our analysis indicated that therapy minutes were underreported. When the therapists reported staff time data, we found it to be reasonably accurate. The problem was that therapists did not consistently report the services that they provided to patients. The omissions in the data collection process do not appear to be related to changes in the training process. We provided training and technical assistance to all therapists who participated in the study. STRIVE staff were available either onsite or by phone during the entire study, and the facility staff received copies of the training materials. While direct oversight of therapists' data collection for the entire 7-day time study period was not feasible, ample training and resource materials were available to guide them. However, some therapists simply did not submit data for the entire 7-day time study period. Again, we do not believe the underreporting can be associated with changes in the training manuals or in the data collection procedures.
In this instance, we worked closely with our MDS development team to integrate payment needs into the structure of the MDS 3.0 assessment. We also made available a RUG–IV grouper and our estimates on the distribution of patient days to allow stakeholders to assess the impact of the new case-mix model.
Finally, we have made provision for correcting discrepancies in the estimates used to introduce the RUG–IV model. In this final rule, we have committed to monitoring the accuracy of our projections and, when actual data becomes available, to recalibrate the system to ensure that the conversion to RUG–IV was budget neutral. This recalibration would be data driven, and could result in either payment increases or decreases. Therefore, we do not agree that the introduction of the RUG–IV case-mix system should be delayed beyond October 1, 2010.
In the FY 2010 proposed rule (74 FR 22208, 22221, May 12, 2009), we noted that information acquired through the STRIVE research pointed to the need for modifications to the RUG–IV model in a number of specific areas, which we discuss in the following sections.
Concurrent therapy is the practice of one professional therapist treating multiple patients at the same time while the patients are performing different activities. In the SNF Part A setting, concurrent therapy is distinct from group therapy, where one therapist provides the same services to everyone in the group. In a concurrent model, the therapist works with multiple patients at the same time, each of whom can be receiving different therapy treatments. For concurrent therapy, there are currently no MDS coding restrictions regarding either the number of patients that may be treated concurrently, or the amount or percentage of concurrent therapy time that can be included on the MDS, whereas with group therapy there are limitations, as discussed in the July 30, 1999 SNF PPS final rule (64 FR 41662).
In the FY 2010 proposed rule (74 FR 22208, 22222, May 12, 2009), we noted a significant shift in the provision of therapy from individual one-on-one treatment to a concurrent basis. We stated that given that Medicare and Medicaid patients are among the frailest and most vulnerable populations in nursing homes, we believed that the most appropriate mode of providing therapy would usually be individual, and not concurrent therapy. We indicated that concurrent therapy should never be the sole mode of delivering therapy to a SNF patient; rather, it should be used as an adjunct to individual therapy when clinically appropriate. Further, we expressed concern that the current method for reporting concurrent therapy on the MDS creates an inappropriate payment incentive to perform concurrent therapy in place of individual therapy, because the current method permits concurrent therapy time provided to a patient to be counted in the same manner as individual therapy time. Accordingly, we proposed that, effective with the introduction of RUG–IV, concurrent therapy time provided in a Part A SNF setting would no longer be counted as individual therapy time for each of the patients involved; rather, for each discipline, we would require allocating concurrent therapy minutes among the individual patients receiving it before reporting total therapy minutes on the MDS 3.0. The comments that we received on this issue, and our responses, appear below.
Many other commenters opposed any allocation whatsoever for concurrent therapy. Some of those commenters argued that allocation would, in effect, reduce the therapy provided to patients. Others expressed concern that some patients would not receive therapy at all in parts of the country (particularly rural areas) where therapists are scarce. Some believed that by allocating therapy, CMS would actually incur a greater cost to the Medicare program, as there would be a greater rate of re-hospitalizations. Others stated that allocating concurrent therapy would increase labor costs to SNFs and, thus, would “force” contract therapy providers to increase their charges to SNFs.
We do not agree that allocating concurrent therapy minutes means that patients will not receive needed therapy. Assuming that concurrent therapy is being used appropriately, the allocation requirements do not change the actual provision of services. The only change is in the way the therapist records the time he or she spends with each patient. In fact, we believe therapists will continue to provide therapy services in a combination of individual, concurrent, and group as appropriate based on the therapist's professional judgment of the individual's needs and in accordance with Medicare coverage requirements. Similarly, the requirement to track concurrent therapy does not, in and of itself, increase labor costs to SNFs. We are aware, however, that by allocating concurrent therapy minutes to assign the RUG–IV category, the total number of therapist staff minutes may not be sufficient to keep a patient in the same therapy group for payment purposes. For example, under RUG–III, a patient receiving a combination of 325 individual and (unallocated) concurrent therapy minutes would be assigned to a RUG–III High Rehabilitation group. Under RUG–IV, the patient might be classified into a lower-paying therapy group if the adjusted therapist time falls below the 325-minute threshold needed to qualify for High Rehabilitation. We regard it as likely that providers will ask therapists to modify their treatment plans to make sure that patients qualify for the higher therapy groups. However, this type of behavioral adjustment, even if it increases labor cost, may not be reflective of actual patient need. We also see no imperative in this reporting change that would “force” contract therapy providers to increase their charges to SNFs. However, the specific details of contractual arrangements between SNFs and therapy contractors are essentially private business arrangements that are outside the scope of this rule. Finally, we are extremely concerned that some commenters believe that allocating therapy minutes will result in poor patient outcomes, such as underutilization and rehospitalizations. While we believe these negative outcomes are unlikely, we intend to alert our Survey and Quality Monitoring staff to the possibility so that we can monitor facility practices to ensure quality care for all SNF residents.
We agreed with those commenters who supported placing some limits on concurrent therapy. Commenters who supported concurrent therapy almost unanimously stated that when concurrent therapy is properly delivered, patients are fully engaged during the entire treatment time and that the therapist is able to direct the entire treatment session for each participant. We believe that in order for the therapist to be able to direct the entire treatment session and ensure that the patients are fully engaged, the number of participants should be limited to two. We agree with the commenters who pointed out that, once a clinician has to divide his/her time between three or more patients, the therapist's ability to direct the entire treatment session for each individual and ensure that the patients are fully engaged can become problematic. In addition, in order for a therapist to direct the entire treatment session of both participants and ensure that they are fully engaged, the therapist must have line-of-sight of both patients. Both the American Physical Therapy Association (APTA) and the American Occupational Therapy Association (AOTA) recommended limiting concurrent therapy to two patients. In fact, the AOTA reports in their comment on the FY 2010 SNF PPS proposed rule, and on their Web site at
• Individual therapy; or
• Concurrent therapy consisting of no more than 2 patients (regardless of payer source), both of whom must be in line-of-sight of the treating therapist (or assistant); or
• Group therapy consisting of 2 to 4 patients (regardless of payer source), who are performing similar activities, and are supervised by a therapist (or assistant) who is not supervising any other individuals.
In instances that involve a therapist treating 3 or more patients that do not meet the definition of group therapy, that is, similar activities are not being performed by the participants, then for purposes of MDS reporting, the definition of concurrent therapy is not met and, thus, those therapy minutes may not be coded.
We agree that requirements set forth in the Medicare Benefit Policy Manual (Pub. L. 100–2), chapter 8, section 30.4.1.1 should be met for medical review purposes. However, as stated previously, from a payment perspective, the SNF PPS is based on resource utilization and costs. When a therapist treats two patients concurrently for an hour, it does not cost the SNF twice the amount (or 2 hours of the therapist's salary) to provide those services. The therapist would appropriately receive one hour's salary for the hour of therapy provided, regardless of whether the therapist treated one patient individually or two patients concurrently for that hour. Therefore, Medicare should pay for the one hour of the therapist's time.
Furthermore, the criteria set forth in section 30 for skilled nursing facility level of care must be met in order for a beneficiary to meet the requirements for a SNF Part A stay. These requirements are:
• The patient requires skilled nursing services or skilled rehabilitation services, that is, services that must be performed by or under the supervision of professional or technical personnel (
• The patient requires these skilled services on a daily basis (
• As a practical matter, considering economy and efficiency, the daily skilled services can be provided only on an inpatient basis in a SNF (
• The services must be reasonable and necessary for the treatment of a patient's illness or injury, that is, be consistent with the nature and severity of the individual's illness or injury, the individual's particular medical needs, and accepted standards of medical practice. The services must also be reasonable in terms of duration and quantity.
We also believe that, when appropriate, therapy services should be treated uniformly across the PAC settings and under Parts A and B. We intend to work with the professional organizations and within the various CMS components to analyze and explore the various issues that affect therapy services in the various provider types and payment systems.
We realize that establishing guidelines, requirements, and criteria for therapy services is a complex matter regardless of setting. For instance, we must be cognizant of multiple issues that may affect the delivery of therapy services to patients, such as:
• Patient rights (patient preference for a particular treatment method (for example, individually and not with others, either concurrently or in a group setting), and whether this preference is honored);
• Infection precautions (whether therapists follow standard infection control practices when treating more than one patient at time);
• Facility layout (logistical feasibility of treating multiple patients and maintaining proper and adequate supervision).
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We do not agree with the suggestion to implement a “take back” policy at this time. However, as the MDS 3.0 will require the therapist to code the minutes for each mode of therapy being delivered, we will be able to analyze the data and, if need be, address any issues in the future. Thus, we will update our policy based on data, not on a pre-defined limit. In addition, we will need to conduct further analysis to determine an appropriate amount of allowed concurrent therapy, as well as the appropriate fiscal penalty if we were to implement a “take back” policy.
Therefore, as we proposed in the FY 2010 proposed rule, effective with RUG–IV, we will use allocated concurrent therapy minutes to establish the RUG–IV group to which the patient is assigned. In addition, as discussed above, a therapist (or assistant) will be permitted to treat no more than two patients concurrently. In addition, we will require the therapist to report the three different delivery modes of therapy (individual, concurrent, and group) on the MDS 3.0 in the manner discussed above.
Under the SNF PPS, while nursing services are fully reimbursed using a prospective case-mix adjusted algorithm, payment for therapy services is more closely linked to the amount of therapy actually received at a particular time. In the FY 2010 proposed rule (74 FR 22208, 22223, May 12, 2009), we noted that the STRIVE analysis included an examination of therapy services reimbursed under RUG–III, and we included a detailed explanation of the STRIVE therapy data collection methodology. The comments that we received on this subject, and our responses, appear below.
We do recognize from the comments that one of the statistics provided in the proposed rule and in Slide #33 of the March 11 TEP presentation was incorrect: the percentage of all time collected that was concurrent therapy. Our contractor located a mistake made in the computation for this statistic alone that substantially inflated this percentage. As noted previously, the correct percentage of concurrent time is 28.26 percent. This error only affected the calculations performed to produce this one slide; the numbers used in all other analyses, the allocation of concurrent time, the derivation of RUG–IV, and the released public database were correct.
After this error was found, all calculations concerning concurrent therapy were reviewed. Our initial method of allocating concurrent time was to combine all resident time records for a staff member where there was any continuous overlap among the residents. These records were then used to calculate the time in therapy for each resident involved and the unduplicated staff time involved. The staff time was then allocated to each resident in proportion to resident time in therapy, yielding the allocated concurrent time for each resident. This method led to minor inaccuracies when a resident left an ongoing concurrent therapy group or a new resident entered an ongoing concurrent therapy group.
Based on the comments that we received, we reviewed our allocation method described above, and developed a more sensitive method based on a “time slice” approach. A staff member's time was divided into 1-minute “time slices.” When there was only one resident in a 1-minute time slice, the entire minute was assigned to that resident as individual therapy time. If there were multiple residents, the minute was divided equally among the residents as concurrent therapy time. All current time for a specific resident under the treatment of a specific staff member was then accumulated, separately as individual and concurrent time. This more accurate allocation caused only minor changes for individual residents, and had very little impact on aggregate results. The results referenced in this final rule incorporate these changes.
The two methods are contrasted in the following example. Assume that the therapist has a session of 30 minutes involving three residents. The first resident (“A”) arrives at the beginning of the session and stays for the entire 30 minutes. The second resident (“B”) arrives 10 minutes after the session begins and stays until the end (that is, 20 minutes). The third resident (“C”) arrives 20 minutes after the session begins and also stays until the session's end (that is, 10 minutes). The original research used a proportional method, in which each resident's time was considered as a percentage of the total person-minutes. This can be seen in Table 12. “Resident A” received 30 minutes of therapy, Resident B 20 minutes, and Resident C 10 minutes, for a total of 60 person-minutes. The proportional method would thus compute Resident A as having 30/60 (that is, 50 percent) of the 30-minute session time, or 15 minutes. The other two residents' times would be calculated similarly.
We now determined that a more accurate approach would be to divide the session into “slices,” beginning when a resident joins or leaves the session. The minutes in each time slice are divided equally among all the residents receiving therapy during that time slice. In the example above, the first slice would consist of the first 10 minutes of the session, the second slice is minutes 11–20 of the session, and the third slice is minutes 21 to 30. As only one person is receiving therapy in the first slice, Resident A is credited with all 10 minutes of that slice (which is now reported as “individual” therapy time). In the second slice, there are two residents, so both Resident A and B each receive half of the 10 minutes in that slice, or 5 minutes each. Finally, in the third slice, there are three residents receiving therapy, so each receives a third of 10 minutes, or 3.33 minutes each. Summing across all three slices, Resident A is credited with 10 + 5 + 3.33 minutes, or 18.33 minutes of time. This example demonstrates that the improved methodology does make minor differences in time allocation, although the total allocated therapy time is not affected. Moreover, the two methods will provide identical results when all individuals receive therapy for the full session. Thus, the recomputation of therapy sessions using the time slice methodology, while more accurate, made only minor changes for individual residents.
Our approach to adjusting therapy addressed our concern that, in some facilities, therapists under-reported resident therapy time on weekends and other “non-PDA” days, including days where there was no supervision, either by STRIVE data monitors or by staff at the participating facility, of the data collection. However, at least a quarter of the facilities did report patterns of therapy time that appeared reasonable. We took care to include these times, even if paper based, when they seemed appropriate.
We found that the data obtained from facilities where the data collection had been most complete, closely matched the therapy time extrapolated to the entire week from the 3-day period where data had been collected electronically. A final comparison was made to verify the therapy minutes reported on the MDS that was completed during the time study. Again, the reported minutes were consistent with the extrapolation procedure we used. In addition, the RUG distribution, after the adjustment of therapy time, more closely matches the expected therapy RUG national distribution. This comparison was aimed solely at validating the accuracy of our adjustment procedures by comparing our study's RUG–III distribution with the known national distribution. It did not constrain in any way our ability to test alternative approaches to RUG classification. Thus, we are confident that the procedures we used to adjust for data collection were appropriate, and that the therapy analyses conducted during STRIVE accurately reflect therapy utilization overall. Accordingly, we do not believe that it is necessary to discard the paper surveys as the commenter suggested. However, we are also cognizant of the importance of therapy services in the RUG model, and plan to continue our analyses as part of our implementation and post-utilization monitoring of the RUG–IV system.
Generally, most participating SNFs provide therapy 5 days a week, and only a small subset provide therapy on weekends. Therefore, we agree with the commenter that weekend days and weekdays differ in the amount of therapy provided. However, the STRIVE study took this into account and gave credit only for weekend therapy when it was reported on the paper data collection tool. We did not extrapolate weekday therapy time to the weekend days, and agree with the commenter that such a practice would be inappropriate.
Although we noticed a significant reduction in therapy time when data were collected with the paper tool, we believe this is due to the data collection method and does not indicate a consistent pattern of significantly less therapy being delivered on Mondays or Fridays due to admissions and meetings. In several facilities, PDA data collection was used on Wednesday through Friday rather than Tuesday through Thursday. When the PDA was used on Friday, 21 percent of all therapy time was recorded for Friday. This is close to the 23 percent of time reported for Thursday. When paper data collection was used on Friday, only 12 percent of all therapy time was recorded, indicating a loss of data with the paper collection. If admissions and meetings were the cause of a significant decrease in therapy time, we would expect to see this pattern for all Fridays. Therefore, we believe that our adjustment methodology is a more accurate reflection of the services actually provided during the study.
RUG–IV, like RUG–III, uses a scale measuring Activities of Daily Living (ADLs) to identify residents with similar levels of physical function. This scale is used to sub-divide (“split”) each of the major hierarchical categories except Extensive Services. It is also used as part of the qualification criteria for many of the RUG–IV hierarchical categories (Extensive Services, Special High, Special Low, and Cognitive Performance and Behavioral Symptoms), and is used as part of the specific criteria for classifying patients to RUGs within certain categories. In the FY 2010 proposed rule (74 FR 22208, 22225–26, May 12, 2009), we proposed revisions to the RUG–IV ADL Index that reflect both clinical and statistical considerations, with the aim of scoring similarly those residents with similar function. The comments that we received on this issue, and our responses, appear below.
Some commenters stated that the ADL scale does not capture provider burden as only 4 ADL areas are used in the calculation, and suggested that other ADL activities such as dressing and bathing should be included. A few commenters were concerned that by starting the ADL score at `0,' some providers may perceive a `0' as requiring no staff time, and that this may cause providers to discharge patients early, refuse to admit certain patients, or not provide the needed supervision or assistance. One commenter stated “The staff time required to provide `limited' assistance with bed mobility, transferring, toileting, and/or eating does not vary significantly enough from the staff time required to provide `extensive' assistance for the same ADL activities.” One commenter stated that changing the coding of “Activity Did Not Occur During the Entire 7 Day Period” from a code of (8) to a code of (0) for both self-performance and staff support was logical because the activity did not occur and, therefore, no resources were used to support the activity. However, one commenter expressed concern regarding the ADL score of “0” when the component ADL activity did not occur during the entire 7-day period, and suggested that it should be modified to take into consideration end-of-life situations. For patients in these situations, the commenter stated the ADL score may be low, but the level of resources to care for the resident may be significant, which would not be reflected in their ADL score.
Thus, we do not agree with the commenter's conclusion that the change in coding ADLs will have a negative impact on the care provided to patients in nursing homes. However, we will incorporate training on the new ADL index in our upcoming “train-the-trainer” sessions to mitigate concerns on the new scale and interpretation of its purpose.
We do not agree with the commenter who stated that there is no significant difference in staff resource time when providing limited assistance compared to extensive assistance. STRIVE data demonstrate a difference in staff resources among the various levels of assistance that are provided to nursing home residents. We do, however, agree that if resources are not provided for an ADL, then the ADL index should not reflect that care was rendered. It is important to note that the ADL index is based on the 4 late-loss ADL areas and, therefore, while one ADL activity (for example, transferring) may not have occurred during the entire 7-day look-back period, the other ADLs are usually occurring and would be included in the ADL index. We agree with the commenter that the ADL index may not fully reflect care needs for patients nearing the end of life. However, we note that the ADL index is only one factor used to determine resource use. The intensity of nursing staff time and resources for these individuals is reflected more completely in the STRIVE minutes and categorical classification.
One commenter cited the statement, “In the STRIVE analysis, we found that patients receiving One Person Physical Assist or more needed comparable staff resources to patients who were being fed by artificial means * * * the RUG–IV ADL component score does not use Parenteral/IV or feeding tube items.” The commenter believed that the statement about comparable staff resources is inaccurate, as parenteral/IV or feeding tube assistance can only be done by a licensed nurse, while one person physical assist is most often that of a certified nurse assistant; thus, these are not comparable staff resources.
In this final rule, we are finalizing the revisions to the RUG–IV ADL index as proposed in the FY 2010 proposed rule (74 FR 22225–27).
In the RUG–III case-mix classification system, we identified five services that the data showed to require the highest levels of staff time use: Ventilator/respirator, tracheostomy, suctioning, IV medications, and transfusions. The instructions for coding these items in the MDS 2.0 specified that the item should be coded if it was furnished within the prior 14 days, even if the services were provided to the resident prior to admission to the SNF. In this way, the MDS 2.0 would collect data that should be considered during the patient care planning process. When the RUG–III system was developed, we retained the MDS 2.0 coding procedure regarding these 5 items, based on a clinical analysis suggesting that they would serve as a proxy for medical complexity and higher resource use after admission to the SNF. However, in the SNF PPS final rule for FY 2000 (64 FR 41668–69, July 30, 1999), we reserved the right to reconsider this policy in the future “* * * if it should become evident in actual practice that this is not the case.” In the FY 2010 proposed rule (74 FR 22208, 22227, May 12, 2009), we noted that we analyzed the STRIVE data to test the effectiveness of including services furnished during the prior hospital stay in the classification system. We found that, for these five services, utilization during the prior hospital stay does not, in fact, provide an effective proxy for medical complexity for SNF residents, and instead results in payments that are inappropriately high in many cases. Accordingly, we proposed to modify the look-back period under RUG–IV for items in section P1a, Special Treatments and Procedures, of the MDS 2.0, to include only those services that are provided after admission (or readmission) to the SNF. The comments that we received on this issue, and our responses, appear below.
We are concerned that commenters believe that eliminating the look-back to the hospital stay from the payment system will result in poor quality of care provided to SNF residents. The SNF is expected to provide the care required to achieve and/or maintain the resident's highest practicable level of well-being. However, as this concern was raised by several commenters, we will monitor the re-admission rates to hospitals and other proxies that may indicate poor care outcomes, such as QMs. In addition, we will work with the other CMS components to ensure that facilities are adhering to survey and certification requirements, including providing appropriate care to residents.
Further, we do not believe that limiting the look-back period for P1a services would unfairly punish SNFs that provide services to high-acuity patients. As stated above, the STRIVE data do not support the premise that services provided only during the hospital stay to SNF residents result in higher costs to the SNF. Limiting the look-back period helps to ensure that adequate and appropriate payments are made for services received during the SNF stay, while eliminating inappropriately high reimbursement for services that are provided solely prior to admission. Thus, if a patient receives high-acuity services during the SNF stay, those services should be adequately reimbursed. Therefore, we will eliminate the look-back period into the hospital stay for those specific services in section P1a on MDS 2.0, but we will maintain the ability for the provider to code those services provided prior to admission to the SNF on the MDS 3.0 by expanding the MDS 3.0 for these items to 2 columns. We believe that coding for these pre-admission services on the MDS 3.0 will allow providers to effectively capture these services for care planning purposes.
For the 3 P1a services used in the RUG–III model for which we did not collect extra data on the STRIVE Addendum, the frequencies for coding for the same time frame are:
Of these, all 3 services are furnished to a small volume of SNF patients. Moreover, the actual service may sometimes be performed outside the SNF, and at least some of the individual services within each of these 3 categories are excluded from SNF consolidated billing and paid separately under Part B, outside of the bundled SNF PPS rate. Therefore, we believe it was appropriate to focus on the 6 P1a services listed above.
As noted above, we focused on certain services that, while they are frequently provided in a hospital, are furnished less frequently after the admission to the SNF. One of the main purposes of including P1a services on the STRIVE Addendum was to gather data to determine if utilization of these treatments in the hospital serves as a proxy for medical complexity for a SNF patient, as well as a predictor of SNF staff resource utilization. In fact, we collected data on all of the items used as qualifiers for the RUG–III Extensive Services category, as well as oxygen therapy, a Clinically Complex treatment coded frequently on the MDS 2.0. As discussed above, our analysis of 6 of the 9 look-back items listed above clearly indicated that utilization during a prior hospital stay is not an effective proxy for medical complexity for a SNF patient. Based on this, we believe that it is appropriate to eliminate the look-back period to the prior hospital stay for all P1a Special Treatments and Procedures to ensure that accurate and appropriate payments are made based on resources used during the SNF stay.
Finally, one commenter asked us to limit the look-back period for Parenteral/IV feedings (K5a) so that these services are coded on the MDS only when provided during the SNF stay, and not during the hospital stay.
We did include 2 items on the STRIVE Addendum for parenteral feedings. The first item asked the assessor to report the number of days that the parenteral feeding was administered in the facility over the last 7 days, while the second asked for the date on which the parenteral feeding was last administered. However, we were not able to use this information to determine with absolute certainty when the patient received the service in the SNF. When the data indicated a higher probability that the feeding was provided during the SNF stay as opposed to solely during the hospital stay, the resources were similar to when the data indicated that the feeding was provided exclusively in the hospital. In other words, for this particular treatment, the staff resources to care for a patient who received parenteral feeding only during the hospital stay and the staff resources to care for a patient who received the parenteral feeding in the SNF appeared to be comparable and, thus, indistinguishable. Therefore, based on the limited nature of the information we have available at this time, we do not believe that it would be appropriate to limit the look-back period for Parenteral/IV feedings (K5a) so that these services are coded on the MDS only when provided during the SNF stay (and not during the hospital stay). Thus, we will maintain our current MDS instructions for coding Parenteral/IV feedings (K5a), such that patients may be coded as receiving parenteral/IV feedings, regardless of whether they receive them before or after admission to the SNF.
As proposed in the FY 2010 proposed rule (74 FR 22227–28), we are modifying the look-back period under RUG–IV for the Special Treatment and Procedures currently listed in section P1a of the MDS 2.0, to include only those services that are provided after admission (or readmission) to the SNF. In addition, we will expand the MDS 3.0 for these items to 2 columns. The first column will allow providers to code services that were provided prior to SNF admission for care planning purposes.
In the FY 2010 proposed rule (74 FR 22208, 22228, May 12, 2009), we discussed the proposed organization of nursing and therapy minutes under the RUG–IV model. The comments that we received on this subject have been addressed in detail in section III.C.1.b.ii of this final rule.
We also wish to note that one of the large provider groups submitted a detailed report by an independent contractor, stating that the lack of available data precluded ruling out the possibility that the study was seriously flawed. While we appreciate the concerns raised in this report, we have no way of knowing what data were provided to the researcher in order to conduct the analysis, as we did not receive any requests for technical information or clarification. Thus, in section III.C.1 of this final rule, we have provided detailed responses to the independent researcher's report, but cannot accept the researcher's more global conclusions on methodological flaws and the validity of the study.
Finally, a few commenters expressed their concern that CMS has not provided them with the raw data used in the study, and cited the unavailability of raw data as the reason they could not adequately evaluate the RUG–IV model. CMS does not typically release analytic data files that contain data on participating facilities, participating employees, or on individual patients whose data are HIPAA-protected. We did, however, eliminate the personally identifiable data, and made a detailed analytic file available to all stakeholders. We believe that this file, in conjunction with the RUG–IV grouper, data on the anticipated redistribution of patient days under the RUG–IV, and the CMIs calculated for use in the RUG–IV model, provided more than sufficient data to evaluate the impact of the conversion to RUG–IV. Thus, we do not agree with the commenters who claimed that we failed to provide adequate data for the evaluation of the RUG–IV model.
In addition, as evidenced by the detailed discussion in section III.C.1 of this final rule, we are confident that we have met OMB's requirements for regulatory analysis and full disclosure. Moreover, we evaluated the STRIVE findings at every stage of our research over the past 3
In the FY 2010 proposed rule (74 FR 22208, 22229, May 12, 2009), we discussed the various features of the proposed RUG–IV model, and compared the proposed model to the existing RUG–III model that is currently in use. The comments that we received on this subject, and our responses, appear below.
Other commenters questioned the accuracy of the RUG–IV model in capturing changes in acuity, such as the higher nursing complexity for patients in rehabilitation groups. While several commenters appreciated the added levels for extremely complex patients with ventilators and/or isolation, they were concerned that the RUG–IV model did not adequately recognize patients that had high-cost IV medication and pharmaceutical needs.
Another commenter believed that Stage 2 pressure ulcers should be in Special Care Low, and that Stage 3 and 4 should be in Special Care High, because they require more nursing time and treatments than Stage 2 ulcers. One commenter was concerned that venous
• 2 or more Stage 2 pressure ulcers; or
• 1 or more Stage 3 or Stage 4 pressure ulcers.
• 2 or more venous/arterial ulcers; or
• 1 Stage 2 pressure ulcer and 1 venous/arterial ulcer.
Based on the comments received, we reviewed the data on the staff resources required to treat patients with feeding tubes. We found that fever was a complicating factor and that the resources needed to treat a patient with both fever and a feeding tube were significantly higher than for a feeding tube alone. Thus, we will keep fever with tube feeding as a qualifier in the Special Care High category. Again, tube feeding alone remains as a Special Care Low item.
Another commenter cited the American Medical Directors Association's (AMDA's) newly revised clinical practice guideline, “Dehydration and Fluid Maintenance in the Long-Term Care Setting” (
A number of commenters stated that while dehydration may be difficult to quantify (as stated in the proposed rule), the requirement to assess, plan, intervene, evaluate, and revise care plans for the patient at high risk of dehydration remains a significant clinical issue. The commenters further stated that instances whereby facilities fail to complete such assessment and documentation is not a valid reason to eliminate appropriate reimbursement for facilities that do provide the necessary standard of care.
Some commenters believed the inclusion of IV medications as an Extensive Services qualifier, as it is in the RUG–III classification system, appropriately captures the cost of providing the critical treatment these therapies offer to ill and injured patients.
Several commenters believed the appropriate and necessary monitoring of the patient to prevent recurrence or exacerbation of the condition for which the IV medication was provided is a reason for inclusion in the Extensive Services category, and that it has not been considered in the removal of IV medication in the look-back period.
Some commenters noted that the STRIVE data analysis of the 14-day “look back” period for IV medication and 7-day “look back” period for IV fluids did not demonstrate a statistically significant difference in nursing time. The commenters suggested that CMS look at the nursing time spent monitoring when a resident has had an IV medication administered within the last 7 days, and factor it into the nursing component. The commenters believed that residents receiving IV medication in this time frame require a significant amount of nursing time to monitor side effects of the medications, as well as disease exacerbations. The commenters referenced literature indicating that SNFs have a lower rate of return to the hospital than other post acute settings; therefore, the time spent monitoring residents, notifying physicians of condition changes, and implementing care plan changes must be taken into consideration when making changes in the RUG system. The commenters recommended shortening the window as opposed to removing the provision altogether, that is, a 7-day look-back to capture IV meds. The commenters requested alternatives be considered before the proposed rule is implemented.
• They are very expensive, which may be a factor for consideration in determining potential admissions to long-term care facilities. It is hard enough now not to lose money on patients requiring expensive IV medications.
• They are used for very ill residents who require more nursing hours than any of the conditions included in any of the Extensive Care or Special Care categories.
The commenters did not question the general findings of the STRIVE project, but expressed concern about the specific implications of those findings for IV medications used in the facilities.
One commenter requested that data analyses be performed to compare nursing home residents admitted with IV therapy to those admitted without IV therapy, both for their facilities' residents and for a benchmark of nursing home residents nationwide. The commenter presented the results of one such study. The national benchmark was constructed using MDS data for all clients from a specific organization and its members and includes more than 2,700 facilities nationwide with more than 400,000 MDS assessments. Two MDS variables were used in this analysis: (1) Item P1ac (IV medications), and (2) item K5a (IV fluids). The commenter's analysis of data from the specific facilities and from the national data showed statistically significant differences between the group with IV therapy and the group without IV therapy, with the former group having a higher level of acuity and a greater need for skilled nursing resources. The commenters questioned the validity of the STRIVE study, which demonstrated no time difference between giving a patient an oral antibiotic versus administering an IV antibiotic.
The commenters stated that most of the patients receiving IV therapy are elderly and have suffered a major illness or hospitalization and, thus, require the IV therapy they are receiving. These commenters questioned the incentive for SNFs to continue to provide IV therapy services if the RUG–IV system is implemented as proposed.
Another commenter pointed out that IV medications and IV fluids provided in a SNF require the presence of an RN in most States, and that facilities must employ RNs specifically to provide the residents with IV services, which can be costly in rural areas where there are shortages of healthcare professionals. The commenter asserted that prior to the RUG–53 refinement to the SNF PPS, residents requiring IV medications or fluids were frequently rejected by SNFs because of the expense and difficulty in finding nurses to provide care. The commenter expressed concern that bumping the IV medications down to the Clinically Complex category will again adversely affect resident admissions to nursing homes.
Thus, we believe that classification and reimbursement under the Clinically Complex category for IV medications is appropriate, and should not result in financial hardship. Under RUG–IV, reimbursement for patients with complex nursing needs such as IV therapy will increase significantly, and should be sufficient to cover the cost associated with these patients. We will, of course, continue to monitor utilization practices to determine whether there is any impact on access to or quality of care.
Still, as the payment under RUG–IV reflects the nursing resources and patient complexity associated with the provision of IV medications, we do not believe that access to care will be adversely affected. As discussed above, CMS recognizes the impact of high-cost medications on SNFs and is presently developing a protocol to assess the impact of non-therapy ancillaries as discussed in the FY 2010 proposed rule (74 FR 22238–41).
One commenter noted that while patients would classify in this group when they display only behavioral symptoms, or when they display only issues of cognition, they also remain in this group even when they have both conditions. The commenter added that many residents have issues with both dementia and behavioral problems and probably require more resources or staff time to deal with both issues. The commenter believes that there needs to be an additional category with a higher CMI that recognizes the combination of both issues.
• Decrease in the number of acquired pressure ulcers.
• Increase in the number of residents ambulating independently.
• Increase in the number of residents feeding themselves.
• Decrease in the number of incontinent residents.
• Decrease in the number of Foley catheters.
• Decrease in the number of physical constraints.
• Increase in the number of residents involved in sensory stimulation, exercise, and grooming classes.
• Decrease in the number of contractures.
• Decrease in the number of accidents.
• Increase in the individual's mental stature and awareness.
Finally, we note that it was brought to our attention during the comment period that there were certain inconsistencies in our FY 2010 proposed rule. We noted these inconsistencies on our Web site, at
Accordingly, we are finalizing the RUG–IV classification system as proposed in the FY 2010 proposed rule (74 FR 22229–36) for implementation in FY 2011, with the corrections noted above and with the following modifications:
• Fever with feeding tube has been added to Special Care High;
• We are clarifying that dehydration has been deleted as a qualifier in any category, including the Special Care and Clinically Complex categories;
• Respiratory failure in combination with oxygen therapy while a resident is added to Special Care Low;
• Oxygen therapy alone while a resident is moved to Clinically Complex; and
• A patient will also qualify in the Special Care Low category if 1 of the following is present along with 2 or more skin treatments:
○ 2 or more venous/arterial ulcers; or
○ 1 Stage 2 pressure ulcer and 1 venous/arterial ulcer.
Section 1888(e)(4)(G)(i) of the Act requires that the Federal rates be adjusted for case mix. Pursuant to the statute, such adjustment must be based on a resident classification system, established by the Secretary, that accounts for the relative resource utilization of different patient types. The case-mix adjustment must be based on resident assessment data and other data the Secretary considers appropriate.
As discussed in the previous section, we are finalizing the RUG–IV model to be implemented in FY 2011. The RUG–IV update uses data collected in 2006–2007 during the STRIVE project, and reflects current medical practice and resource use in SNFs across the country. Our description of the proposed RUG–IV model in the FY 2010 proposed rule included a discussion of the development of the case-mix indexes to be used under this model (74 FR 22208, 22236–22238, May 12, 2009).
The case-mix indexes will be applied to the unadjusted rates resulting in 66 separate rates, each corresponding with one of the 66 RUG–IV classification groups. To determine the appropriate payment rate, SNFs will classify each of their patients into a RUG–IV group based on assessment data from the MDS 3.0.
Our intent in implementing RUG–IV is to allocate payments more accurately based on current medical practice and updated staff resource data obtained during the STRIVE study, and not to decrease or increase overall expenditures. Thus, consistent with the policy in place when we transitioned to the RUG–III 53-group model in FY 2006 (as discussed in section III.B.2.b of this final rule), we believe that overall expenditures under the RUG–IV model should maintain parity with overall expenditures under the RUG–III 53-group model. Therefore, we simulated payments under the RUG–III 53-group model and the RUG–IV 66-group model to ensure that the change in classification systems did not result in greater or lesser aggregate payments.
We used the resource minute data collected from STRIVE to create a new set of unadjusted relative weights, or case-mix indexes (CMIs), for the RUG–IV model as described in the proposed rule (74 FR 22208, 22236–22238, May 12, 2009). We then compared the CMIs for the RUG–53 and RUG–66 models in a way that is intended to ensure that estimated total payments under the 66-group RUG–IV model would be equal to those payments that would have been made under the 53-group RUG–III model. In the FY 2010 proposed rule, we stated that we used STRIVE data with sample weights applied and FY 2007 claims data (the most recent final claims data available at the time) to compare the distribution of payment days by RUG category in the 53-group model with the anticipated payments by RUG category in the new 66-group RUG–IV model. However, after the
The parity adjustment relies on projecting the utilization for a new classification system, RUG–IV, based on a new assessment instrument, MDS 3.0. Our calculation of the parity adjustment uses the most recent data available to estimate RUG–IV utilization for FY 2011. In the absence of actual RUG–IV utilization data for this timeframe, we believe the most recent data are the best source available, as they are closest to the FY 2011 timeframe. As actual data for RUG–IV utilization become available, we intend to assess the effectiveness of the parity adjustment in maintaining budget neutrality and, if necessary, to recalibrate the adjustment in future years.
We intend to actively monitor the changes in beneficiary access and utilization patterns as a response to the implementation of RUG–IV. For example, we anticipate that the changes to the Extensive Services category could result in increased beneficiary access for patients with severe respiratory conditions. In addition, we intend to monitor utilization for any potential coding changes that could occur as a result of the changes to the SNF PPS. If, in future years, evidence becomes available that indicates that a change in aggregate payments are a result of changes in the coding or classification of residents that do not reflect real changes in case mix, CMS will consider the authority given to the Secretary under Section 1888(e)(4)(F) of the Act to provide for an adjustment to the unadjusted Federal per diem rates so as to eliminate the effect of such coding and classification changes.
We are finalizing the RUG–IV CMIs utilizing the methodology discussed. The final RUG–IV CMIs reflecting the parity adjustment are displayed in Table 14 and, as discussed in the previous section, we will implement these CMIs with the RUG–IV system beginning in FY 2011.
The comments that we received on this subject, and our responses, appear below.
We believe we included sufficient information regarding how the wage weights were calculated in the FY 2010 proposed rule (74 FR 22237). To establish wage weights for each staff type, the STRIVE study obtained national median wage values for staff types from the May 2006 Bureau of Labor Statistics/Occupational Employment Statistics (BLS/OES). Next, we computed the ratio of median salaries for the different nursing and rehabilitation therapy staff to the median salary of a certified nurse aide. These ratios were used as salary weights for each staff category. The BLS/OES provides national data by staff type for Nursing Care Facilities and is publicly available. We considered many other sources of wage data, such as the BLS National Compensation Survey Employer Cost for Employee Compensation product; however, this product does not provide national averages and is not very specific to nursing homes. We also considered survey data collected by the industry. We found that these data were less
The STRIVE study allowed facilities to select from a wide range of staff type categories. For example, there were 11 different categories for non-licensed aide staff, as follows:
• Certified Medication Aide.
• Certified Nursing Assistant (CNA).
• Geriatric Nursing Assistant.
• Resident Care Technician.
• Restorative Aide.
• Feeding Aide.
• Transportation.
• Bath Aide.
• Non-certified care tech.
• Clinical Associate.
• Psychological Therapy Aide.
When one of these staff categories appeared in the BLS/OES, then the corresponding median hourly wage for that category was used by the STRIVE study. The participating facilities used a variety of titles for staff with similar job duties; for example, different kinds of certified nurse assistants (CNAs) or aides. When a staff category did not appear in the BLS/OES, a decision was made to set the wage for STRIVE computations to a value relative to most comparable staff category available in BLS/OES. The relative value used was based on an assessment of the functions performed by the staff in relation to the functions performed by the most comparable staff category available in BLS/OES. For example, “restorative aide” did not occur in BLS/OES and the wage for restorative aide was set to the 75th percentile of CNA wage. “Geriatric nursing assistant” did not appear in the BLS/OES and the wage for this staff type was set to the median CNA wage. “Bath aide” was not listed in the BLS/OES and the wage for this staff type was set to the 25th percentile of CNA wage, as aides in this staffing category were restricted to a single function. Generally, the few staff categories that were not available in the BLS/OES reported very few resident-specific time minutes.
BLS/OES is widely used as a source for average salary information. In fact, both MedPAC (“Report to Congress: Promoting Greater Efficiency in Medicare”, June 2007) and Acumen, LLC (
The following table presents the STRIVE study wages and corresponding wage weights. Wage weights were standardized so that the CNA value equaled 1.00. This allowed an interpretation of a wage-weighted time as “CNA equivalent minutes.”
We note that staff types not included in this table were not considered in calculating nursing time in the STRIVE study. Some staff types (for example, nurse practitioner and dialysis technician) were excluded because there was little or no time for this staff type in the STRIVE study. Others were excluded because their services are not covered under Medicare Part A (for example, acupuncturist) or their services are not included in the Medicare Part A nursing rate component (for example, dietitian).
Finally, we used 2006 BLS/OES data to construct the wage weights, and although more recent data are available, we believe that the 2006 data represent the wages related to the staffing patterns in use during a period of time when the STRIVE data were collected. Although the absolute wages change over time, we have evaluated the differences in the wage weights from 2006–2008 and find that wage weights for most staff types over this period are stable. In other words, although the absolute wages change, the relative wages between staff types are not changing significantly. Therefore, we are finalizing our decision to use the 2006 BLS/OES data to calculate the wage weights used to construct the case-mix indexes.
As discussed previously in section III.B.5 of this final rule, the existing level of care presumption currently applies to the upper 35 groups of the refined 53-group RUG–III model. In the FY 2010 proposed rule (74 FR 22208, 22238, May 12, 2009), we proposed that under the new 66-group RUG–IV model, this presumption would apply to the upper 52 groups, as encompassed by the following categories: Rehabilitation Plus Extensive Services; Ultra High Rehabilitation; Very High Rehabilitation; High Rehabilitation; Medium Rehabilitation; Low Rehabilitation; Extensive Services; Special Care High; Special Care Low; and, Clinically Complex. We received no comments on this proposal, and in this final rule, we are implementing this provision as proposed.
The FY 2010 proposed rule discussed the issue of payment for nontherapy ancillary costs under the SNF PPS (74 FR 22208, 22238–22241, May 12, 2009). This discussion described the previous research that has been conducted in this area as well as current policy and analysis, and also specifically examined this issue as it relates to the temporary AIDS add-on payment established by section 511 of the MMA (
Sections 1819(f)(6)(A)–(B) and 1919(f)(6)(A)–(B) of the Act, as amended by the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), require the Secretary to specify a Minimum Data Set (MDS) of core elements and common definitions for use by nursing homes in conducting assessments of their residents, and to designate one or more instruments which are consistent with these specifications. As stated in regulations at § 483.20, Medicare- and Medicaid-participating nursing homes must conduct initially and periodically “a comprehensive, accurate, standardized, reproducible assessment” of each nursing home resident's functional capacity. The FY 2010 proposed rule included an examination of various aspects of a new version of the MDS, MDS 3.0 (74 FR 22208, 22241, May 12, 2009), as discussed in the following sections.
The FY 2010 proposed rule described the major features of the MDS 3.0 (74 FR 22241). We determined that including information on the MDS 3.0 would be beneficial to stakeholders, as RUG–IV and MDS 3.0 will be introduced at the same time, as requested by virtually all stakeholders last year. Even though we included a discussion of the MDS 3.0 in the SNF PPS proposed rule, the instrument itself was not proposed. However, we did receive many comments on the MDS 3.0, which we summarize below.
Concerning the comments seeking clarification of the draft MDS 3.0 item set, CMS believes that these issues will be addressed with the MDS 3.0 RAI Manual and MDS 3.0 Final Item Set that are scheduled to be published on the CMS Web site,
We understand the concern of maintaining the MDS 2.0 scoring system for ADLs. We have revised the ADL-Self-performance response codes to address a care planning concern raised by stakeholders. While we agree that the Data Assessment and Verification (DAVE) findings on discrepancy rates for the ADL items are high, the DAVE contractor did not, as part of its analysis, factor into account the degree or severity of the discrepancy. For example, in a situation where one assessor coded a resident as supervision, the DAVE project did not consider whether the second assessor coded the same person as limited assistance, extensive assistance, or total dependence, but simply determined whether the codes were the same. We are currently working with stakeholders to ensure that the MDS 3.0 RAI manual provides clear guidance.
While we want to ensure that a paper version of the MDS 3.0 is user-friendly, we encourage providers and users to move toward an electronic model. We will take into consideration the concerns provided to us on the record layout.
• Addition of pressure ulcer items where the clinician reports the actual stage of the ulcer, not the appearance;
• Use of resident interview items for mood and other areas;
• Use of valid and reliable assessment tools, such as the Brief Interview for Mental Status; and
• Improvement of pain assessment items.
Therefore, we do not agree with the assertion that we did not accomplish what we had intended.
We have stated from the outset of releasing version 3.0 of the MDS that it was in draft form, and that providers and users should not consider the draft version final. We have built upon RAND's study to improve the assessment further and ensure that it meets, as much as possible, the needs of multiple users, such as Medicaid State Agencies for payment purposes and return-to-the-community initiatives. Lastly, the STRIVE project did not “evaluate” the effectiveness of the MDS 3.0. RAND's responsibility was to improve the clinical effectiveness of the instrument. They were not required to ensure that quality measures and indicators or the RUG classification systems were kept fully “intact.” RAND was aware of the other purposes of the MDS and did take this into consideration during their study and analysis. We did not approach the issue with the belief that a single project would meet the needs of all users, and have actually incorporated lessons learned from other CMS projects, such as the CARE tool. The STRIVE project did not evaluate the effectiveness of the MDS 3.0. In fact, the STRIVE study was conducted at the same time the RAND staff were testing the pilot MDS 3.0 instrument. The STRIVE contractor did conduct analysis to ensure that payment systems and quality measures were not negatively affected based on data collected under the MDS 3.0 project.
Currently, we post updates to the MDS 2.0 on the CMS Web site so that all users and assessors are able to access the changes. Our expectation is that the MDS 3.0 instrument and RAI manual will not require updates for some time. However, the format, that is, the item numbering and layout, as well as the specifications, will provide us with the ability to update the tool in a simple and quick method when the need arises. Finally, we will take into consideration the comment on “batching” updates, and will work with stakeholders to ensure that they have access to the updates in a timely fashion.
• Increasing efforts in Federally-mandated initiatives to adopt cost-effective use of information technology in healthcare settings;
• Consider present and future data use and exchange requirements to format and exchange MDS 3.0 data;
• Incorporate all standardized terminology approved by Consolidated Health Informatics (CHI), Office of the National Coordinator for Health Information Technology (ONC), National Institute of Standards and Technology (NIST), or American National Standards Institute (ANSI) in all HIT projects; and
• Consider incorporating all available approved terminology and exchange standards for use in all Health Information Exchange or HIT projects.
Contained in the comments was the suggestion that if CMS were unable to carry out the approach outlined in the bullets above for MDS 3.0, then CMS should consider placing efforts on the CARE tool.
The FY 2010 proposed rule included a discussion of the MDS 3.0's MDS elements, common definitions, and RAPs (74 FR 22243). The comments that we received on this subject, and our responses, appear below.
For example, the CDC Advisory Committee on Immunization Practices (ACIP) has recommended vaccination against the varicella zoster virus (VZV, that is, chicken pox) for individuals over age 60. VZV can reactivate clinically decades after initial infection to cause herpes zoster (that is, shingles), a localized and generally painful cutaneous eruption that occurs most frequently among older adults and affects approximately 1 million individuals in the United States every year. A common complication of zoster is post-herpetic neuralgia (PHN), a chronic pain condition that can last months or even years. Complications include involvement of the eye that can threaten sight, bacterial super infections, and disfiguring facial scarring. Another example is the annual CDC ACIP recommendations regarding the provision of influenza vaccinations in relation to the timing and duration of the influenza season. Based on recommendations such as these, we need the flexibility to add or change vaccinations promptly to the MDS domains.
In a December 23, 1997 final rule (62 FR 67174), we removed the MDS and its instructions from the regulation text that was inserted in the December 28, 1992 proposed rule (57 FR 61414). In that final rule, we noted this was necessary in order to allow us to easily modify the MDS so that it requires collection of information that is clinically relevant and meets evaluative needs as clinical practice evolves (62 FR 67174, 67203). These notations still continue to reflect our current view.
In the past, as we have proposed changes to the MDS domains and common definitions, we have given the public ample opportunity to comment through the use of CMS Open Door Forums and Town Hall meetings; dedicated mailboxes for comments; CMS Web site postings; and meetings with stakeholder organizations. We believe that in directly discussing and negotiating with affected parties, it will be possible to maintain an MDS assessment process that is clinically relevant while also obtaining public comment. We will continue to use these venues to solicit public comments on proposed changes, and we believe they are sufficient to allow robust public input and address the commenter's concerns. Therefore, we are not accepting the comment. Accordingly, this final rule removes the language identifying MDS domains and common definitions at §§ 483.315(e)(1) through (18), and instead references the domain requirements at § 483.20(b)(1)(i) through (xviii). We will use the RAI Manual for specific details regarding the MDS domains and common definitions.
The FY 2010 proposed rule included a discussion of data submission requirements under the MDS 3.0 (74 FR 22243). The comments that we received on this subject, and our responses, appear below.
In the context of the MDS 3.0 discussion, the FY 2010 proposed rule proposed certain revisions to the reporting of therapy services effective October 1, 2010 (74 FR 22244). First, we proposed to eliminate Section T of the RAI. In addition, we proposed (a) to revise the therapy reporting procedures related to short-stay patients so that the appropriate therapy level is calculated using items that will be reported on the MDS 3.0 (using the procedures set forth in the proposed rule); (b) to provide SNFs with the option to use the Other Medicare Required Assessment (OMRA) to signal the start of therapy; and (c) to require SNFs to complete an OMRA with an ARD that is set 1 to 3 days (rather than 8 to 10 days) from the last day therapy services were provided. A more detailed description of the proposals appears in the SNF PPS proposed rule for FY 2010 (74 FR 22244). The comments that we received on these proposed revisions, and our responses, appear below.
In reality, we have actually reduced the burden associated with the end-of-therapy OMRA, by including only the required demographic items and payment items. As we stated in the proposed rule, we have included the ability to provide two Medicare RUG classifications. The first will be the “therapy” RUG, which is based on all of the payment items, including the rehabilitation items. The second RUG is the “non-therapy” RUG. This RUG classification will not consider any of the rehabilitation items when assigning a RUG. Therefore, when submitting a claim for days of service after therapy has been discontinued, the provider would use the “non-therapy” RUG. We will provide detailed MDS coding and
We do not agree that requiring SNFs to complete an OMRA within 1 to 3 days following the discontinuation of therapy would result in patients being denied valuable recovery time by no longer paying for therapy services for 7 days after all therapy is discontinued. It is the responsibility of the professional therapist to determine when a patient has met the goals established for the patient in the therapy plan of care, and to avoid discontinuing therapy prematurely. If this determination is appropriately made by the therapist, we do not believe requiring an OMRA to be completed within 1 to 3 days after the discontinuation of therapy should cause inappropriate utilization of the OMRA triggering additional assessments. Also, we do not believe that changing the ARD for the end-of-therapy OMRA will affect the assessment of the need for continued skilled nursing services, as the nursing needs of a resident should not be affected by whether therapy is being provided. The SNF should be providing for all of the resident's needs during the entire SNF stay, regardless of when the ARD for the end-of-therapy OMRA is required to be set. In addition, if the patient continues to receive skilled nursing after the therapy has been discontinued, the patient will continue to be covered under the Medicare Part A benefit until such time as a skilled level of care is no longer required. For these reasons, we do not agree that additional assessments would be needed, or that additional days paid at the therapy RUG would affect the recovery of the patient or the assessment of the need for continued skilled nursing services.
We do not agree with the commenters that a brief illness would increase the number of required assessments. As stated in the “daily basis” criteria at 42 CFR 409.34(b), “a break of one to two days in the furnishing of rehabilitation services will not preclude coverage if discharge would not be practical for the one or two days during which, for instance, the physician has suspended the therapy sessions because the patient exhibited extreme fatigue.” Therefore, according to these regulations, a brief illness would not necessarily result in the provider having to complete an end-of-therapy OMRA. Based on the concerns expressed by these commenters, we would like to take this opportunity to help ensure that the end-of-therapy OMRA is completed timely and appropriately. We proposed that the end-of-therapy OMRA be completed with an ARD of 1 to 3 days after the discontinuation of all therapies (speech-language pathology services and occupational and physical therapies). For purposes of the ARD for an end-of-therapy OMRA, the provider shall consider day 1 the day after all therapies are discontinued. When a facility provides rehabilitation therapies five days a week (Monday through Friday), we would like to clarify that day 1 would correspond to the first day, following the cessation of therapy services, on which therapy services would normally be provided. For example, if all therapies are discontinued on October 15, 2010 (which is a Friday), the next day that therapy would normally be provided would be Monday, October 18, and this day would become day 1 after therapies were discontinued. The provider would have the ability to choose the ARD to be set on October 18 (day 1), October 19 (day 2), or October 20 (day 3). As set forth in 42 CFR 409.34(a)(2), when therapy services are not available 7 days a week, therapy services must be needed and provided at least 5 days a week. When a facility only provides therapy 5 days a week, the therapy department would not be open on the weekend. Therefore, the weekend days would not be counted toward the establishment of the ARD for the end-of-therapy OMRA. Again, as discussed above, we believe the ability to choose the ARD up to 3 days after the discontinuation of all therapies will not lead to over-utilization of OMRAs.
For SNF PPS purposes, SNFs are required to complete the Medicare-required 5-day assessment in order to initiate Medicare payment for the stay. The facility captures clinical data with an ARD from days 1 through 8 of the covered stay on this Medicare-required 5-day assessment, which is then used to assign the patient to a RUG group. Generally, the RUG group assigned using the Medicare 5-day assessment is used to pay for up to 14 days of the covered stay.
Since the inception of the SNF PPS, CMS has allowed providers to record therapy services based on a projection via section T of the MDS. This projection can only be made when two criteria are met. First, the need for therapy must have been established through a therapy evaluation and a physician's order. Second, therapy could not be initiated early enough in the beneficiary's stay to capture (on the Medicare-required 5-day assessment) the 5 days of therapy required to assign a therapy case-mix group. The projected therapy days and minutes are used in the calculation of the assigned RUG, thus allowing an SNF to receive payment for therapy services that it plans to provide to a beneficiary in the beginning of the stay. Even when patients are discharged before the Medicare 5-day assessment can be fully completed (that is, prior to day 8, the last allowed date that can be used to report the MDS clinical data), providers are still expected to complete section T as accurately as possible and submit at least a partial Medicare-required 5-day assessment. Because the Medicare-required 5 day assessment may be performed until day 8 of the resident's stay, we believe that it is appropriate to define a short-stay patient as one who is discharged on day 8 or earlier.
Based on the comments that we received, it appears that our proposal regarding the revised therapy reporting procedures for short-stay patients (74 FR 22245) may have caused some confusion among commenters, as we inadvertently described a short-stay patient as a patient who is discharged prior to day 14. Therefore, we are clarifying in this final rule that short-stay patients are patients who are discharged on day 8 or earlier, and that the revised reporting procedures for short-stay patients apply to those patients who are discharged on day 8 or earlier. The RUG–IV group established under this revised reporting procedure can then be used to reimburse SNFs at the therapy rate from day 1 to the date of short-stay discharge.
• Average daily therapy minutes are between 30–64 minutes, a Rehabilitation Medium category (RMx).
• Average daily therapy minutes are between 65–99 minutes, a Rehabilitation High category (RHx).
• Average daily therapy minutes are between 100–143 minutes, a Rehabilitation Very High category (RVx).
• Average daily therapy minutes are 144 or greater, a Rehabilitation Ultra High category (RUx).
We determined the minutes above for each rehabilitation RUG category by taking the minimum required minutes for each category and dividing by 5, which represents the minimum weekly required number of days of therapy according to the SNF level of care criteria's daily basis requirement (42 CFR 409.34). Accordingly, we are taking this opportunity to update the example that we provided in the FY 2010 proposed rule regarding the therapy reporting procedure for short-stay patients. Physical therapy is started on day 4 and the resident is discharged on day 7; the resident received 65 minutes of individual therapy on day 4, 70 minutes of individual therapy on day 5, 73 minutes of individual therapy on day 6, and 67 minutes of individual therapy on day 7. The ARD on the assessment is day 7. The total physical therapy minutes provided are 275. The average number of daily therapy minutes is 68.75. The rehabilitation RUG assigned will be RHx (the average daily therapy minutes are between 65–99).
We are reiterating that this policy only applies to the short-stay resident whose stay is 8 days or less and who received less than 5 days of therapy. Also, as stated in the proposed rule, the ADL index will be based on the ADL level reported on the MDS. Together, the ADL index and the average daily therapy minutes determine the RUG–IV group that will be assigned. We will provide detailed instructions in the online Medicare manuals and the MDS 3.0 RAI Manual.
Therefore, effective October 1, 2010, we will eliminate section T of the MDS and revise the therapy reporting procedures as proposed in the FY 2010 proposed rule (74 FR 22244–46) (that is, reporting procedures for short-stay patients, implementation of an optional start-of-therapy OMRA, and revised ARD for the end-of-therapy OMRA), with the modifications and clarifications discussed above.
Although we did not propose specific regulatory language in this area under the FY 2010 proposed rule, we did request public comment on a possible requirement for nursing homes to report nursing staffing data to CMS on a quarterly basis.
While we have not assessed the relative accuracy of the staffing data posted publicly in each facility compared to payroll data, the research base supports the use of payroll data as a more accurate source for staffing data.
In the FY 2010 proposed rule, we proposed to correct the paragraph heading in the regulations text at § 483.75(j), by removing the phrase “Level B requirement:” and italicizing the remaining text in the heading (“
Section 1888(e)(5)(A) of the Act requires us to establish a SNF market basket index (input price index), that reflects changes over time in the prices of an appropriate mix of goods and services included in the SNF PPS. In the FY 2010 proposed rule, we stated that the proposed rule incorporated the latest available projections of the SNF market basket index. In this final rule, we are updating projections based on the latest available projections at the time of publication. Accordingly, we have developed a SNF market basket index that encompasses the most commonly used cost categories for SNF routine services, ancillary services, and capital-related expenses.
We also do not agree with the commenter's claim that the market basket does not reflect changing staffing costs, higher pharmacy costs, and rising liability insurance. For the FY 2008 final rule (72 FR 43424–43429), we adopted a revised and rebased 2004-based SNF market basket that reflected the 2004 cost structures of Medicare- participating SNFs. The previous SNF market basket was based on the 1997 cost structures for Medicare-participating SNFs. The major cost weights of the 2004-based SNF market basket, which are inclusive of compensation, pharmacy, and professional liability insurance, were derived mainly from 2004 Medicare cost reports. During the rebasing process, we revised our methodology for calculating the pharmacy cost weight to incorporate an estimate of Medicaid drug expenses (72 FR 43426) incurred by SNFs. The inclusion of these costs resulted in a pharmacy cost weight for the 2004-based SNF market basket that was twice as large as that of the 1997-based market basket pharmacy cost weight. We also explicitly designated a professional liability insurance cost category (which was not a separate cost category in the 1997-based SNF market basket due to lack of sufficient data). As a result, we believe the current SNF market basket cost weights reflect the cost structures of Medicare-participating SNFs.
Each year, we calculate a revised labor-related share based on the relative importance of labor-related cost categories in the input price index. Table 16 summarizes the updated labor-related share for FY 2010.
Section 1888(e)(5)(B) of the Act defines the SNF market basket percentage as the percentage change in the SNF market basket index from the average of the previous FY to the average of the current FY. For the Federal rates established in this final rule, we use the percentage increase in the SNF market basket index to compute the update factor for FY 2010. This is based on the IHS Global Insight, Inc. (formerly DRI–WEFA) second quarter 2009 forecast (with historical data through the first quarter 2009) of the FY 2010 percentage increase in the FY 2004-based SNF market basket index for routine, ancillary, and capital-related expenses, to compute the update factor in this final rule. Finally, as discussed in section I.A. of this final rule, we no longer compute update factors to adjust a facility-specific portion of the SNF PPS rates, because the initial three-phase transition period from facility-specific to full Federal rates that started with cost reporting periods beginning in July 1998 has expired.
As discussed in the FY 2004 supplemental proposed rule (68 FR 34768, June 10, 2003) and finalized in the FY 2004 final rule (68 FR 46067, August 4, 2003), the regulations at § 413.337(d)(2) provide for an adjustment to account for market basket forecast error. The initial adjustment applied to the update of the FY 2003 rate for FY 2004, and took into account the cumulative forecast error for the period from FY 2000 through FY 2002. Subsequent adjustments in succeeding FYs take into account the forecast error from the most recently available FY for which there is final data, and apply whenever the difference between the forecasted and actual change in the market basket exceeds a specified threshold. We originally used a 0.25 percentage point threshold for this purpose; however, for the reasons specified in the FY 2008 SNF PPS final rule (72 FR 43425, August 3, 2007), we adopted a 0.5 percentage point threshold effective with FY 2008. As discussed previously in section I.F.2. of this final rule, because the difference between the estimated and actual amounts of increase in the market basket index for FY 2008 (the most recently available FY for which there is final data) does not exceed the 0.5 percentage point threshold, the payment rates for FY 2010 do not include a forecast error adjustment.
Section 1888(e)(4)(E)(ii)(IV) of the Act requires that the update factor used to establish the FY 2010 Federal rates be at a level equal to the full market basket percentage change. Accordingly, to establish the update factor, we determined the total growth from the average market basket level for the period of October 1, 2008 through September 30, 2009 to the average market basket level for the period of October 1, 2009 through September 30, 2010. Using this process, the market basket update factor for FY 2010 SNF PPS Federal rates is 2.2 percent. We used this update factor to compute the Federal portion of the SNF PPS rate shown in Tables 2 and 3.
Section 4432(b) of the BBA established a consolidated billing requirement that places the Medicare billing responsibility for virtually all of the services that the SNF's residents receive with the SNF, except for a small number of services that the statute specifically identifies as being excluded from this provision. As noted previously in section I. of this final rule, subsequent legislation enacted a number of modifications in the consolidated billing provision.
Specifically, section 103 of the BBRA amended this provision by further excluding a number of individual “high-cost, low-probability” services, identified by the Healthcare Common Procedure Coding System (HCPCS) codes, within several broader categories (chemotherapy and its administration, radioisotope services, and customized prosthetic devices) that otherwise remained subject to the provision. We discuss this BBRA amendment in greater detail in the proposed and final rules for FY 2001 (65 FR 19231–19232, April 10, 2000, and 65 FR 46790–46795, July 31, 2000), as well as in Program Memorandum AB–00–18 (Change Request #1070), issued March 2000, which is available online at
Section 313 of the BIPA further amended this provision by repealing its Part B aspect; that is, its applicability to services furnished to a resident during a SNF stay that Medicare Part A does not cover. (However, physical, occupational, and speech-language therapy remain subject to consolidated billing, regardless of whether the resident who receives these services is in a covered Part A stay.) We discuss this BIPA amendment in greater detail in the proposed and final rules for FY 2002 (66 FR 24020–24021, May 10, 2001, and 66 FR 39587–39588, July 31, 2001).
In addition, section 410 of the MMA amended this provision by excluding certain practitioner and other services furnished to SNF residents by RHCs and FQHCs. We discuss this MMA amendment in greater detail in the update notice for FY 2005 (69 FR 45818–45819, July 30, 2004), as well as in Program Transmittal #390 (Change Request #3575), issued December 10, 2004, which is available online at
Further, while not substantively revising the consolidated billing requirement itself, a related provision was enacted in the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA, Pub. L. 110–275). Specifically, section 149 of MIPPA amended section 1834(m)(4)(C)(ii) of the Act to create a new subclause (VII), which adds SNFs (as defined in section 1819(a) of the Act)
As explained in the Medicare Physician Fee Schedule (PFS) final rule for Calendar Year (CY) 2009 (73 FR 69726, 69879, November 19, 2008), a telehealth originating site receives a facility fee which is always separately payable under Part B outside of any other payment methodology. Section 149(b) of MIPPA amended section 1888(e)(2)(A)(ii) of the Act to exclude telehealth services furnished under section 1834(m)(4)(C)(ii)(VII) of the Act from the definition of “covered skilled nursing facility services” that are paid under the SNF PPS. Thus, a SNF “* * * can receive separate payment for a telehealth originating site facility fee even in those instances where it also receives a bundled per diem payment under the SNF PPS for a resident's covered Part A stay” (73 FR 69881). By contrast, under section 1834(m)(2)(A) of the Act, a telehealth distant site service is payable under Part B to an eligible physician or practitioner only to the same extent that it would have been so payable if furnished without the use of a telecommunications system. Thus, as explained in the CY 2009 PFS final rule, eligible distant site physicians or practitioners can receive payment for a telehealth service that they furnish
This means that in those situations where a SNF serves as the telehealth originating site, the distant site professional services would be separately payable under Part B only to the extent that they are not already included in the SNF PPS bundled
To date, the Congress has enacted no further legislation affecting the consolidated billing provision. However, as noted above and explained in the proposed rule for FY 2001 (65 FR 19232, April 10, 2000), the amendments enacted in section 103 of the BBRA not only identified for exclusion from this provision a number of particular service codes within four specified categories (that is, chemotherapy items, chemotherapy administration services, radioisotope services, and customized prosthetic devices), but also gave the Secretary “* * * the authority to designate additional, individual services for exclusion within each of the specified service categories.” In the proposed rule for FY 2001, we also noted that the BBRA Conference report (H.R. Rep. No. 106–479 at 854 (1999) (Conf. Rep.)) characterizes the individual services that this legislation targets for exclusion as “* * * high-cost, low probability events that could have devastating financial impacts because their costs far exceed the payment [SNFs] receive under the prospective payment system * * *”. According to the conferees, section 103(a) “is an attempt to exclude from the PPS certain services and costly items that are provided infrequently in SNFs. * * * For example, * * * specific chemotherapy drugs * * * not typically administered in a SNF, or * * * requiring special staff expertise to administer * * *.” By contrast, the remaining services within those four categories are not excluded (thus leaving all of those services subject to SNF consolidated billing), because they are relatively inexpensive and are furnished routinely in SNFs.
As we further explained in the final rule for FY 2001 (65 FR 46790, July 31, 2000), and as our longstanding policy, any additional service codes that we might designate for exclusion under our discretionary authority must meet the same statutory criteria used in identifying the original codes excluded from consolidated billing under section 103(a) of the BBRA: They must fall within one of the four service categories specified in the BBRA, and they also must meet the same standards of high cost and low probability in the SNF setting, as discussed in the BBRA Conference report. Accordingly, we characterized this statutory authority to identify additional service codes for exclusion “* * * as essentially affording the flexibility to revise the list of excluded codes in response to changes of major significance that may occur over time (for example, the development of new medical technologies or other advances in the state of medical practice)” (65 FR 46791). In the FY 2010 proposed rule, we specifically invited public comments identifying codes in any of these four service categories (chemotherapy items, chemotherapy administration services, radioisotope services, and customized prosthetic devices) representing recent medical advances that might meet our criteria for exclusion from SNF consolidated billing (74 FR 22208, 22249, May 12, 2009). The comments that we received on this subject, and our responses, appear below.
One commenter took exception to this position and cited the Conference report that accompanied the BBRA (H.R. Rep. No. 106–479 at 854 (1999) (Conf. Rep.)), which gives two examples of potential problems with the practice of “* * * excluding services or items from the [SNF] PPS by specifying codes in legislation”:
• Some already-existing items that meet the exclusion criteria may have inadvertently been left off of the original exclusion list.
• New, extremely costly items may come into use or codes may change over time.
The commenter then asserted that our discretionary authority to identify additional codes for exclusion should apply not only to the latter concern, but also to the former one as well. As a result, the commenter argued that our periodic review of the codes for possible additional exclusions from consolidated billing should not be limited to only new and revised codes, but should also consider the entire set of codes that were already in existence as of the BBRA legislation's reference date, July 1, 1999.
We have also included in a number of previous rules an explanation of the setting-specific nature of the exclusion for certain high-intensity outpatient hospital services—most recently, in the FY 2009 SNF PPS final rule (73 FR 46436, August 8, 2008):
We believe the comments that reflect previous suggestions for expanding this administrative exclusion to encompass services furnished in non-hospital settings indicate a continued misunderstanding of the underlying purpose of this provision. As we have consistently noted in response to comments on this issue in previous years * * * and as also explained in Medicare Learning Network (MLN) Matters article SE0432 (available online at
Moreover, we note that when the Congress enacted the consolidated billing exclusion for certain RHC and FQHC services in section 410 of the MMA, the accompanying legislative history's description of present law acknowledged that the existing exclusions for exceptionally intensive outpatient services are specifically limited to “* * * certain outpatient services
Further, the authority for us to establish a categorical exclusion for these services that would apply irrespective of the setting in which they are furnished does not exist in current law. In addition, with regard to the relative availability of such services in hospital versus nonhospital settings, we have also noted previously that:
Regarding the comment on ambulance services, we agree with the commenters that carving out an entire service category from consolidated billing would require legislation by the Congress, and cannot be accomplished administratively. Finally, with reference to the suggestion for a comprehensive overhaul of the existing consolidated billing rules, while the commenter's interest in promoting improved ease of administration is understandable, we note that current law contains no authority to adopt the suggested approach.
In accordance with section 1888(e)(7) of the Act, as amended by section 203 of the BIPA, Part A pays CAHs on a reasonable cost basis for SNF services furnished under a swing-bed agreement. However, effective with cost reporting periods beginning on or after July 1, 2002, the swing-bed services of non-CAH rural hospitals are paid under the SNF PPS. As explained in the final rule for FY 2002 (66 FR 39562, July 31, 2001), we selected this effective date consistent with the statutory provision to integrate swing-bed rural hospitals into the SNF PPS by the end of the SNF transition period, June 30, 2002.
Accordingly, all non-CAH swing-bed rural hospitals have come under the SNF PPS as of June 30, 2003. Therefore, all rates and wage indexes outlined in earlier sections of this final rule for the SNF PPS also apply to all non-CAH swing-bed rural hospitals. A complete discussion of assessment schedules, the MDS and the transmission software (RAVEN–SB for Swing Beds) appears in the final rule for FY 2002 (66 FR 39562, July 31, 2001). The latest changes in the MDS for swing-bed rural hospitals appear on the SNF PPS Web site,
Since that time, we have expanded our quality analysis in a variety of settings, and have made SNF information publicly available through Nursing Home Compare and other initiatives. While developing ways to monitor and compare quality across swing-bed facilities and between swing-bed facilities and other SNFs would increase swing-bed facility data collection and transmission requirements, it would also increase the information available to patients, families, and oversight agencies for making placement decisions and evaluating the quality of care furnished by swing-bed facilities. For these reasons, in the FY 2010 proposed rule (74 FR 22208, 22250, May 12, 2009), we stated that we were considering a change in the swing-bed MDS (SB–MDS) reporting requirements that would go into effect with the introduction of the MDS 3.0. Since the current SB–MDS does not include the items needed to evaluate quality in the same way as for other nursing facilities, we proposed to eliminate the SB–MDS, and replace it with the MDS 3.0 equivalent of the Medicare Payment Assessment Form (MPAF) that captures all of the items used in determining quality measures. Accordingly, in the FY 2010 proposed rule (74 FR 22208, 22250, May 12, 2009), we solicited comments on expanding swing-bed MDS reporting requirements to apply the quality monitoring mechanism in place for all other SNF PPS facilities to rural swing-bed hospitals. The comments that we received on this subject, and our responses, appear below.
This final rule incorporates the provisions of the regulations text of the proposed rule (74 FR 22208), as herein modified. We have adopted the proposed changes from the above captioned proposed rule with regard to the Resident Assessment Instrument under the MDS 3.0 (including an implementation schedule) provision that will be introduced in conjunction with the RUG–IV classification system.
In § 483.315(h), we have removed the term “survey” and replaced it with “agency”.
In § 483.315(h)(3), we have removed the word “all”.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs):
Section 483.20(b) requires the facility to make a comprehensive assessment of a resident's needs using the resident assessment instrument (RAI) provided by the State.
Section 483.20(f)(3) requires upon completion of the RAI for the facility to electronically transmit encoded, accurate, complete MDS data to the CMS system.
While there is burden associated with the requirements found under Section 483.20, they are currently approved under OMB# 0938–0739.
Section 483.315(h) requires the facility to support and maintain the CMS State system and database and analyze data and generate and transmit reports as specified by CMS.
While there is burden associated with this requirement, we believe this requirement is exempt from the PRA as stated in sections 4204(b) and 4214(d) of the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987, Pub. L. 100–203), which specifically waive PRA requirements with respect to the revised requirements for participation introduced by the nursing home reform legislation.
In the FY 2002 SNF PPS proposed rule (66 FR 24026–28, May 10, 2001) and final rule (66 FR 39594–96, July 31, 2001), we invited and discussed public comments on the information collection aspects of establishing the existing, abbreviated MDS completion requirements that apply to rural swing-bed hospitals paid under the SNF PPS (CMS–10064, OMB# 0938–0872, 73 FR 30105, May 23, 2008). Similarly, in the FY 2010 proposed rule (74 FR 22208, 22250, May 12, 2009), we invited public comment with respect to the expansion of MDS reporting requirements so that the quality measures currently in place for all other SNF PPS facilities can be applied to swing-bed hospitals, as discussed previously in section III.H of this final rule. Specifically, we proposed to replace the SB–MDS with the MDS 3.0 version of the MPAF.
If you comment on these information collection and recordkeeping requirements, please submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget,
We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (September 19, 1980, RFA, Pub. L. 96–354), section 1102(b) of the Social Security Act (the Act), the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104–4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This final rule is an economically significant rule under Executive Order 12866, because we estimate the FY 2010 impact reflects a $690 million increase from the update to the payment rates and a $1.05 billion reduction (on an incurred basis) from the recalibration of the case-mix adjustment, thereby yielding a net decrease of $360 million in payments to SNFs. For FY 2011, we estimate that there will be no aggregate impact on payments as a result of the implementation of the RUG–IV model, which will be introduced on a budget neutral basis. The final FY 2011 impacts will be issued prior to August 1, 2010, and will include the FY 2011 market basket update, FY 2011 wage index, and any further FY 2011 policy changes. Furthermore, we are also considering this a major rule as defined in the Congressional Review Act (5 U.S.C. 804(2)).
The update set forth in this final rule would apply to payments in FY 2010. In addition, we include a preliminary estimate of the impact of the introduction of the RUG–IV model on FY 2011 payments. In accordance with the requirements of the Act, we will publish a notice for each subsequent FY that will provide for an update to the payment rates and include an associated impact analysis. Therefore, final estimates for FY 2011 will be published prior to August 1, 2010.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small businesses or other small entities. For
This final rule updates the SNF PPS rates published in the final rule for FY 2009 (73 FR 46416, August 8, 2008) and the associated correction notice (73 FR 56998, October 1, 2008), thereby decreasing net payments by an estimated $360 million. As indicated in Table 17a, the effect on facilities will be a net negative impact of 1.1 percent. The total impact reflects a $1.05 billion reduction from the recalibration of the case-mix adjustment, offset by a $690 million increase from the update to the payment rates. We also note that the percent decrease will vary due to the distributional impact of the FY 2010 wage indexes and the degree of Medicare utilization. For FY 2011, we estimate that there will be no aggregate impact on payments due to the introduction of the RUG–IV model. However, we estimate that there will be distributional impacts that vary from slight increases to slight decreases due to the case-mix distribution of individual providers.
Guidance issued by the Department of Health and Human Services, on the proper assessment of the impact on small entities in rulemakings, utilizes a revenue impact of 3 to 5 percent as a significance threshold under the RFA. While this final rule is considered economically significant, its relative impact on SNFs overall is small because Medicare is a relatively minor payer source for nursing home care. We estimate that Medicare covers approximately 10 percent of service days, and approximately 20 percent of payments. However, the distribution of days and payments is highly variable, with the majority of SNFs having significantly lower Medicare utilization. As a result, for most facilities, the impact to total facility revenues, considering all payers, should be substantially less than those shown in Table 17a. Therefore, the Secretary has determined that this final rule would not have a significant impact on a substantial number of small entities. However, in view of the potential economic impact on small entities, we have considered alternatives as described in section III.K.3 of this final rule.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. This final rule will affect small rural hospitals that (a) furnish SNF services under a swing-bed agreement or (b) have a hospital-based SNF. We anticipate that the impact on small rural hospitals will be similar to the impact on SNF providers overall. Therefore, the Secretary has determined that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates regulations that impose substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule would have no substantial direct effect on State and local governments, preempt State law, or otherwise have Federalism implications. Further, while we realize that there is an impact on the Federal portion of the Medicaid payment, we have not yet determined the specific amount of that impact. However, we are working closely with State survey and Medicaid agencies to gain a better understanding of the impact from the transition to MDS 3.0 and the RUG–IV model.
Section 202 of UMRA also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2009, that threshold is approximately $133 million. This final rule would not impose spending costs on State, local, or Tribal governments in the aggregate, or by the private sector, of $133 million.
This final rule sets forth updates of the SNF PPS rates contained in the final rule for FY 2009 (73 FR 46416, August 8, 2008) and the associated correction notice (73 FR 56998, October 1, 2008). Based on the above, we estimate the FY 2010 impact would be a net decrease of $360 million in payments to SNFs (this reflects a $1.05 billion reduction from the recalibration of the case-mix adjustment, offset by a $690 million increase from the update to the payment rates). The impact analysis of this final rule represents the projected effects of the changes in the SNF PPS from FY 2009 to FY 2010. We assess the effects by estimating payments while holding all other payment-related variables constant. Although the best data available is utilized, there is no attempt to predict behavioral responses to these changes, or to make adjustments for future changes in such variables as days or case-mix. In addition, we provide an impact analysis projecting the changes for FY 2011 due to the introduction of the RUG–IV model.
Certain events may occur to limit the scope or accuracy of our impact analysis, as this analysis is future-oriented and, thus, very susceptible to forecasting errors due to certain events that may occur within the assessed impact time period. Some examples of possible events may include newly legislated general Medicare program funding changes by the Congress, or changes specifically related to SNFs. In addition, changes to the Medicare program may continue to be made as a result of previously enacted legislation, or new statutory provisions. Although these changes may not be specific to the SNF PPS, the nature of the Medicare program is that the changes may interact and, thus, the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon SNFs.
In accordance with section 1888(e)(4)(E) of the Act, we update the payment rates for FY 2009 by a factor equal to the full market basket index percentage increase plus the FY 2008 forecast error adjustment to determine the payment rates for FY 2010. The special AIDS add-on established by section 511 of the MMA remains in effect until “* * * such date as the Secretary certifies that there is an appropriate adjustment in the case mix * * *.” We have not provided a separate impact analysis for the MMA provision. Our latest estimates indicate that there are slightly more than 2,700 beneficiaries who qualify for the AIDS add-on payment. The impact to Medicare is included in the “total” column of Table 17a. In updating the rates for FY 2010, we make a number of standard annual revisions and clarifications mentioned elsewhere in
We estimate the net decrease in payments associated with this final rule to be $360 million for FY 2010. The decrease of $1.05 billion due to the recalibration of the case-mix adjustment, together with the market basket increase of $690 million, results in a net decrease of $360 million.
The FY 2010 impacts appear in Table 17a. The breakdown of the various categories of data in the table follows.
The first column shows the breakdown of all SNFs by urban or rural status, hospital-based or freestanding status, and census region.
The first row of figures in the first column describes the estimated effects of the various changes on all facilities. The next six rows show the effects on facilities split by hospital-based, freestanding, urban, and rural categories. The urban and rural designations are based on the location of the facility under the CBSA designation. The next twenty-two rows show the effects on urban versus rural status by census region.
The second column in the table shows the number of facilities in the impact database.
The third column of the table shows the effect of the annual update to the wage index. This represents the effect of using the most recent wage data available. The total impact of this change is zero percent; however, there are distributional effects of the change.
The fourth column shows the effect of recalibrating the case-mix adjustment to the nursing CMIs. As explained previously in section II.B.2 of this final rule, we are proposing this recalibration so that the CMIs more accurately reflect parity in expenditures under the refined, 53-group RUG system introduced in 2006 relative to payments made under the original, 44-group RUG system, and in order to keep the NTA component at the appropriate level specified in the FY 2006 SNF PPS final rule. The total impact of this change is a decrease of 3.3 percent. We note that some individual providers may experience larger decreases in payments than others due to case-mix utilization.
The fifth column shows the effect of all of the changes on the FY 2010 payments. The market basket increase of 2.2 percentage points is constant for all providers and, though not shown individually, is included in the total column. It is projected that aggregate payments will decrease by 1.1 percent, assuming facilities do not change their care delivery and billing practices in response.
As can be seen from Table 17a, the combined effects of all of the changes vary by specific types of providers and by location. For example, though nearly all facilities would experience payment decreases, providers in the rural Mountain region would show a slight increase of 0.1 percent for FY 2010 total payments. Of those facilities showing decreases, facilities in the urban New England and urban Mountain areas of the country show the smallest decreases.
Table 17b shows the estimated effects for the FY 2011 distributional changes due to the proposed RUG–IV classification system. Though the aggregate impact shows no change in total payments, it is estimated that some facilities will experience payment increases while others experience payment decreases due to the Medicare utilization under RUG–IV. For example, providers in the urban New England and urban Middle Atlantic regions show increases of 1.3 percent, while providers in the rural East North Central region show a decrease of 1.5 percent. In addition, voluntary providers show an increase of 0.2 percent, while there is no change for proprietary facilities in aggregate.
Another effect of the introduction of the RUG–IV model is a re-distribution of dollars between payment groups that focus on rehabilitation in contrast to those focused primarily on nursing services. In order to further understand the changes to specific provider types and case-mix, we evaluated the individual effect on the nursing and therapy portion of total payments. Table 18 shows the nursing and therapy percentage change as a portion of total payments by comparing the nursing and therapy rate components using the RUG–III CMIs and RUG–IV CMIs. As shown in Table 18, although hospital-based facilities do not show as large an increase in the nursing portion of total payments, they also show a slightly smaller decrease in the therapy portion of their payments. We expect that facilities providing more intensive
We further note that while this analysis is focused primarily on the anticipated impact to the Medicare program, we understand that States are also concerned about potential systems needs to address the transition to the MDS 3.0 and the RUG–IV case-mix system. Although our systems analysis showed that the transition to a national CMS data collection system would retain all existing functionality, we have been working closely with the State Agencies (SAs) to verify that the transition will be as seamless as possible. Starting in the Fall of 2008, we initiated monthly conference calls between CMS staff and representatives from the State Survey and Medicaid agencies to make sure that we have taken all State systems needs into account, and to develop strategies to support the SAs. Our progress has been hampered by three factors. First, many States have developed MDS-based applications to support a variety of State functions beyond the typical survey and payment operations. We are developing a comprehensive list of all affected State functions currently using the MDS so we can develop ways for the States to access the data once we adopt the MDS 3.0 format. Second, most States have customized their Medicaid payment systems, which means that potential CMS data solutions cannot utilize a “one size fits all” approach.
The third issue is that the majority of the States have not yet reached a final decision on the payment system changes they will implement in October 2010. Some States will maintain their existing RUG–III payment systems and will simply need support to convert MDS 3.0 data into an MDS 2.0 format to continue calculating their Medicaid payments. Other States are considering adopting all or part of the RUG–IV model, and will need more extensive support.
We recently conducted a survey asking each State to identify their likely transition scenarios and system costs and are beginning to analyze the information provided. We will continue to work with individual States and will develop a comprehensive transition plan that will include an analysis of the systems costs likely to be incurred under each transition approach; that is, maintaining a standard RUG–III payment structure, maintaining a customized RUG–III structure, and adopting all or part of RUG–IV.
For those States that will maintain their existing RUG–III based payment models, we have already started work on support systems that will allow States to convert or crosswalk the MDS 3.0 data to the current MDS 2.0 structure. The data specifications for these crosswalks are expected to be released by October 2010. We plan to work closely with the States to ensure a smooth transition.
State Medicaid agencies are not required to adopt the RUG–IV model and will only do so after careful consideration of the cost and benefit of such a change on an individual State-by-State basis. For those States choosing to adopt the RUG–IV model, CMS provides detailed program specifications free of charge, which will mitigate State program design costs associated with converting from RUG–III to RUG–IV. We intend to continue to work closely with State Medicaid agencies during the next year to assist them in evaluating the RUG–IV model for Medicaid use.
We have determined that this final rule is an economically significant rule under Executive Order 12866. As described above, we estimate the FY 2010 impact will be a net decrease of $360 million in payments to SNFs, resulting from a $690 million increase from the update to the payment rates and a $1.05 billion reduction from the recalibration of the case-mix adjustment. In view of the potential economic impact, we considered the alternatives described below.
Section 1888(e) of the Act establishes the SNF PPS for the payment of Medicare SNF services for cost reporting periods beginning on or after July 1, 1998. This section of the statute prescribes a detailed formula for calculating payment rates under the SNF PPS, and does not provide for the use of any alternative methodology. It specifies that the base year cost data to be used for computing the SNF PPS payment rates must be from FY 1995 (October 1, 1994, through September 30, 1995). In accordance with the statute, we also incorporated a number of elements into the SNF PPS (for example, case-mix classification methodology, the MDS assessment schedule, a market basket index, a wage index, and the urban and rural distinction used in the development or adjustment of the Federal rates). Furthermore, section 1888(e)(4)(H) of the Act specifically requires us to disseminate the payment rates for each new FY through the
Using our authority to establish an appropriate adjustment for case mix under section 1888(e)(4)(G)(i) of the Act, this final rule recalibrates the adjustment to the nursing case-mix indexes based on actual CY 2006 data instead of FY 2001 data. In the SNF PPS final rule for FY 2006 (70 FR 45031, August 4, 2005), we committed to monitoring the accuracy and effectiveness of the case-mix indexes used in the 53-group model. We believe that using the CY 2006 actual claims data to perform the recalibration analysis results in case-mix weights that reflect the resources used, produces more accurate payment, and represents an appropriate case-mix adjustment. Using the CY 2006 data is consistent with our intent to make the change from the 44-group RUG model to the refined 53-group model in a budget-neutral manner, as described in section III.B.2.b of this final rule and in the SNF PPS
We investigated using alternative time periods in calculating the case-mix adjustments. One possibility was to use CY 2005 rather than CY 2006 data. However, using CY 2005 data still requires us to use a projection of the distributional shift to the nine new groups in the RUG–53 group model. We also looked at a second alternative, which involved comparing quarterly data periods directly before and after implementation of the RUG–53 model; for example, October through December 2005 for the RUG–44 model and January through March 2006 for the RUG–53 model. This approach uses a combination of projected and actual data for only a 6-month time period. However, we believe that using actual utilization data for the entire CY 2006 is more accurate, as actual case mix during the calibration year is the basis for computing the case-mix adjustment. Accordingly, we have determined that performing the recalibration using the CY 2006 data is the most appropriate methodology.
We considered various options for implementing the recalibrated case-mix adjustment. For example, we considered implementing partial adjustments to the case-mix indexes over multiple years until parity was achieved. However, we believe that these options would continue to reimburse in amounts that significantly exceed our intended policy. Moreover, as we move forward with programs designed to enhance and restructure our post-acute care payment systems, we believe that payments under the SNF PPS should be established at their intended and most appropriate levels. Stabilizing the baseline is a necessary first step toward implementing the RUG–IV classification methodology. As discussed in section III.C.2 of this final rule, RUG–IV will more accurately identify differences in patient acuity and will more closely tie reimbursement to the relative cost of goods and services needed to provide high quality care.
We believe the introduction of the RUG–IV classification system better targets payments for beneficiaries with greater care needs, improving the accuracy of Medicare payment. In addition, RUG–IV changes such as eliminating the “look-back” period for preadmission services correct for existing vulnerabilities in the RUG–53 system. Therefore, we believe it would be prudent to move to RUG–IV as quickly as possible. However, we also recognize the need to allow sufficient lead time to ensure an orderly and successful transition. Accordingly, while we initially considered implementing the RUG–IV model for FY 2010, we are instead implementing the system for FY 2011. Many of the refinements of the RUG–IV model are integrated into the MDS 3.0 resident assessment instrument. The transition to both the MDS 3.0 and the RUG–IV case-mix system requires careful planning, as it will affect multiple Medicare and Medicaid quality monitoring and production systems, including Medicaid PPS systems used by more than half the State agencies. In addition, State agencies, providers, and software vendors would benefit by receiving adequate time to prepare for a smooth transition. Therefore, we plan to implement RUG–IV for FY 2011.
The final fiscal estimates are based on the distribution of RUG–IV days obtained by applying the STRIVE transition matrix that cross-tabulated RUG–III classifications with RUG–IV classifications for STRIVE Medicare Part A residents. The RUG–III classification used index maximizing, but the RUG–IV classification used a hierarchical approach. Grouper code allowing RUG–IV index maximizing classification has not yet been developed and tested and, therefore, it was not possible to use the index maximizing approach for RUG–IV at this time.
When making fiscal estimates, it is absolutely critical that index maximizing be used for RUG–III. Index maximizing causes major shifts in the days of service for RUG–III. Most importantly, with index maximizing, some residents in RVL and all residents in RHX and RHL shift to either RMX or RML. In contrast, the use of index maximizing RUG–IV classification has very little impact on the fiscal estimates, because fewer residents will shift into other groups after index maximizing. With RUG–IV, index maximizing will only affect rare groups, and not all residents in a group will shift to another group. Analyses indicate that the maximum possible impact of RUG–IV index maximizing would be a 0.23 percent increase in total estimated RUG–IV payments. The actual impact is likely to be much less, probably 0.1 percent or less.
As required by OMB Circular A–4 (available at
Overall estimated payments for SNFs in FY 2010 are projected to decrease by $360 million, or 1.1 percent, compared with those in FY 2009. We estimate that SNFs in urban areas would experience a 1.1 percent decrease in estimated payments compared with FY 2009. We estimate that SNFs in rural areas would experience a 1.3 percent decrease in estimated payments compared with FY 2009. Providers in the rural New England region would show decreases in payments of 1.8 percent, the highest decreases for any region. This area shows the largest decrease in payments due to the wage index.
Though the FY 2011 aggregate impact due to the introduction of the RUG–IV model shows no change in payments, there are distributional effects for providers due to Medicare utilization. These effects range from a decrease of 1.5 percent for Rural East North Central facilities to an increase of 1.4 percent for Government facilities.
Finally, in accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Grants programs—health, Health facilities, Health professions, Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting and recordkeeping requirements, Safety.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
The revisions read as follows:
(b)
(xvii) Documentation of summary information regarding the additional assessment performed on the care areas triggered by the completion of the Minimum Data Set (MDS).
(f) * * *
(2)
(3)
(j)
The revisions read as follows:
(d) * * *
(2) Care area assessment (CAA) guidelines and care area triggers (CATs) that are necessary to accurately assess residents, established by CMS.
(e)
(h)
(1) Support and maintain the CMS State system and database.
(2) Specify to a facility the method of transmission of data, and instruct the facility on this method.
(3) Upon receipt of facility data from CMS, ensure that a facility resolves errors.
(4) Analyze data and generate reports, as specified by CMS.
(i)
(2) Transmission of reports to CMS.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is adopting Regulation S–AM to implement Section 624 of the Fair Credit Reporting Act as amended by Section 214 of the Fair and Accurate Credit Transactions Act of 2003, which required the Commission and other Federal agencies to adopt rules implementing limitations on a person's use of certain information received from an affiliate to solicit a consumer for marketing purposes, unless the consumer has been given notice and a reasonable opportunity and a reasonable and simple method to opt out of such solicitations. The final rules implement the requirements of Section 624 with respect to investment advisers and transfer agents registered with the Commission, as well as brokers, dealers and investment companies.
For information regarding the regulation as it relates to brokers, dealers, or transfer agents, contact Brice Prince, Special Counsel, or Ignacio Sandoval, Attorney, Office of Chief Counsel, Division of Trading and Markets, (202) 551–5550, or regarding the regulation as it relates to investment companies or investment advisers, contact Penelope Saltzman, Assistant Director, Office of Regulatory Policy, Division of Investment Management, (202) 551–6792, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
The Commission today is adopting Regulation S–AM, 17 CFR 248.101 through 248.128, under the Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”),
Section 214 of the FACT Act added Section 624 to the Fair Credit Reporting Act (“FCRA”).
A portion of Section 214 of the FACT Act amended the FCRA to add a new Section 624, while other provisions of Section 214 were not incorporated into the FCRA. Throughout this release, references to “Section 214” or “Section 624 of the FCRA” are used depending on whether the reference is to Section 624 or to a portion of Section 214 not incorporated into the FCRA.
Commission staff consulted and coordinated with staff of the Agencies in drafting rules to implement Section 624. As required by Section 214 of the FACT Act, Regulation S–AM is, to the extent possible, consistent with and comparable to the implementing regulations adopted by the Agencies.
On July 8, 2004, the Commission proposed Regulation S–AM (the “proposal” or “proposed rules”).
Regulation S–AM will allow a consumer, in certain limited situations, to block affiliates of a person subject to Regulation S–AM that the consumer does business with from soliciting the consumer based on certain “eligibility information” (
As adopted, Regulation S–AM differs from the proposed rules in several significant ways. First, an affiliate communicating eligibility information is not responsible for providing an affiliate marketing notice. Instead, the notice may be provided by any affiliate identified in the notice that has, or has previously had, a pre-existing business relationship with the consumer to whom the notice is provided. Second, the final rules do not apply to “constructive sharing” scenarios, as considered in the Proposing Release. Third, the Commission requested and received comment on the use of oral notices, and after careful consideration of the comments, the final rules provide that notices cannot be delivered orally, but instead, must be delivered electronically or in writing. While consumers can elect to opt out orally after receipt of the notice, they may not orally revoke their opt out. Fourth, unlike the proposal which referred to “making or sending” marketing solicitations, the final rules eliminate the reference to “send” because we concluded, based on comments, that “sending” and “making” marketing solicitations are different activities. Fifth, the final rules clarify that an opt
While the Proposing Release placed Regulation S–AM in 17 CFR 247.1–247.28, the final rules are located in 17 CFR 248.101 through 248.128.
We received no comments on proposed § 247.1, which identifies the purposes and scope of the rules, and we are adopting it as proposed, redesignated as § 248.101. Paragraph (a) of § 248.101 of Regulation S–AM provides that the purpose of Regulation S–AM is to implement the affiliate marketing provisions of Section 624 of the FCRA. Paragraph (b) of § 248.101 lists the entities to which the final rules apply. Although the FACT Act does not specifically identify the entities that are to be subject to the rules prescribed by the Commission,
We are adopting as proposed § 247.2, which clarifies the effect of the examples used in the rules and model forms, redesignated as § 248.102. Given the wide range of possible situations covered by Section 624 of the FCRA, Regulation S–AM includes general rules, provides more specific examples, and includes model opt out notice forms. The examples, which are not exclusive, provide guidance concerning the rules' application in ordinary circumstances. The facts and circumstances of each individual situation, however, will determine whether compliance with an example, to the extent applicable, constitutes compliance with this subpart.
As noted, for consistency and ease of reference, Regulation S–AM generally follows the section numbering used in the Joint Rules and the FTC Rule. Therefore, the defined terms proposed under § 247.3 are now located in § 248.120. In addition, the examples corresponding to the definition of “pre-existing business relationship,” in proposed § 247.20(d)(1), are now included in the definition of “pre-existing business relationship,” which is redesignated as § 248.120(q)(2) in the final rules.
We are revising the proposed definition of “affiliate” in response to issues raised by commenters. The proposal defined “affiliate” of a Covered Person as any person that is related by common ownership or common corporate control with the Covered Person. The proposed rule also provided that a Covered Person is considered an affiliate of another person for purposes of Regulation S–AM if: (1) The other person is regulated under Section 214 of the FACT Act by one of the Agencies; and (2) the rules adopted by that Agency treat the Covered Person as an affiliate of the other person.
Commenters noted with approval the proposed definition's general consistency with the definition of “affiliate” in the GLBA and Regulation S–P, but some suggested the definitions should be made more consistent.
After considering the comments, we are revising the definition of “affiliate” to eliminate the term “corporate” from the definition.
We received no comments on the proposed definition of “broker” and are adopting it as proposed.
We are adopting the definition of “clear and conspicuous” as proposed to mean reasonably understandable and designed to call attention to the nature and significance of the information presented.
• Using clear and concise sentences, paragraphs, and sections;
• Using short explanatory sentences;
• Using bullet lists;
• Using definite, concrete, everyday words;
• Using active voice;
• Avoiding multiple negatives;
• Avoiding legal and highly technical business terminology; and
• Avoiding explanations that are imprecise and readily subject to different interpretations.
A notice or disclosure could also use various design methods to call attention to the nature and significance of the information in it, including but not limited to:
• Using a plain-language heading;
• Using a typeface and type size that are easy to read;
• Using wide margins and ample line spacing; and
• Using boldface or italics for key words.
Persons who choose to provide the notice or disclosure by using an Internet Web site may use text or visual cues to encourage the reader to scroll down the page, if necessary, to view the entire document. Persons may also take steps to ensure that other elements on the Web site (such as text, graphics, hyperlinks, or sound) do not distract attention from the notice or disclosure.
If a notice or disclosure required under Regulation S–AM is combined with other information, methods for designing the notice or disclosure to call attention to the nature and significance of the information in it may include distinctive type sizes, styles, fonts, paragraphs, headings, graphic devices, and appropriate groupings of information. However, there is no need to use distinctive features, such as distinctive type sizes, styles, or fonts, to differentiate an affiliate marketing opt out notice from other components of a required disclosure. For example, the notice could be included in a GLBA privacy notice that combines several opt out disclosures in a single notice. Moreover, nothing in the clear and conspicuous standard requires segregation of the affiliate marketing opt out notice when it is combined with a GLBA privacy notice or other required disclosures.
We recognize that it will not be feasible or appropriate to incorporate all of the methods described above with respect to every affiliate marketing notice. We recommend, but do not require, that institutions consider the methods described above in designing their notices. We also encourage the use of consumer or other readability testing to devise notices that are understandable to consumers.
Five commenters addressed the proposed definition of “clear and
Because the FACT Act requires that we provide specific guidance on how to comply with the clear and conspicuous standard,
Accordingly, we are adopting the definition of “clear and conspicuous” as proposed.
We received no comment on the definition of “Commission” to mean the Securities and Exchange Commission and are adopting it as proposed.
We received no comment on the definition of “company” and are adopting the term as proposed.
We received no comment on the definition of “concise” and are adopting it as proposed.
Proposed paragraph (f) of § 247.3 defined “consumer” to mean an individual, including an individual acting through a legal representative.
The Commission is aware of the narrower definition of “consumer” in the privacy regulations enacted under Title V of the GLBA.
We are adopting the definition of “control” as proposed.
We received no comments on the definition of “dealer” and are adopting it as proposed.
We are adopting the proposed definition of “eligibility information” to mean any information, the communication of which would be a consumer report, if the statutory exclusions from the definition of “consumer report” in Section 603(d)(2)(A) of the FCRA, for transaction or experience information and for “other” information that is subject to the affiliate-sharing opt out, did not apply.
We have revised the definition of “eligibility information” to clarify that the term does not apply to aggregate or blind data that does not contain personal identifiers.
We recognized in the Proposing Release that it might be burdensome for Covered Persons to determine and track whether consumer report information is (1) “eligibility information” and thus subject to the notice and opt out provisions of Section 624 or (2) information that might be shared with affiliates under other exceptions to the FCRA (to which the notice and opt out provisions of Section 624 do
Some commenters indicated that the proposed definition did not provide enough meaningful guidance as to what sort of information is covered.
The Commission believes that further clarification of, or exclusions from, the term “eligibility information” would implicate the definitions of “consumer report” and “consumer reporting agency” in Sections 603(d) and (f), respectively, of the FCRA. The Commission does not define the terms “consumer report” and “consumer reporting agency” in this rulemaking or construe terms therein, such as “transaction or experience” information. We note that financial institutions have relied on these statutory definitions for many years. Providing examples of information that would or would not be eligibility information would not necessarily reduce the complexity of the definition, and could create greater uncertainty with regard to information that is not covered by an example. The definition of “eligibility information” in Regulation S–AM is the same as the one found in the Joint Rules adopted by the Banking Agencies.
We received no comment on the term “FCRA” and are adopting it as proposed to mean the Fair Credit Reporting Act.
The proposed rule defined “GLB Act” to mean the Gramm-Leach-Bliley Act. We received no comment on this definition but are changing the term to “GLBA” to be more consistent with the way the Agencies refer to the Gramm-Leach-Bliley Act.
We received no comment on the definition of “investment adviser” and are adopting it as proposed.
We received no comment on the definition of “investment company” and are adopting it as proposed.
We are adopting the definition of “marketing solicitation,” with modifications discussed below.
Seven commenters addressed the definition of “marketing solicitation.”
Several commenters also addressed Internet-based marketing and generally opposed including it in this rulemaking.
The commenter also opined that pop-up ads that appear automatically without the use of eligibility information or information from other affiliates are communications directed at the general public, and that a consumer visiting an Internet Web site is effectively making an inquiry which is tantamount to an affirmative request for information. In addition, the commenter asked for clarification that pre-recorded messages played while consumers are on hold when calling a call center should be construed as general marketing solicitations. Another commenter asked for a similar clarification for advertisements that appear on password-protected Web sites.
The revised definition tracks the statutory language more closely by encompassing the marketing “of a product or service.”
The definition of “marketing solicitation” does not distinguish among different delivery methods or media. A determination of whether a marketing communication in any medium constitutes a marketing solicitation depends upon the facts and circumstances. The Commission declines to exclude categorically from the definition of “marketing solicitation,” pre-recorded messages played while a consumer is on hold with a call center, or advertisements that appear solely on password-protected Web sites. Marketing delivered by such media may constitute a marketing solicitation if it is targeted to a particular consumer based on eligibility information received from an affiliate. For example, a pre-recorded message played while a consumer is on hold with a call center would be a marketing solicitation if it is targeted to a particular consumer based on eligibility information received from an affiliate, but would not be a marketing solicitation if it is played for all consumers who are on hold with the call center.
We note that the Agencies declined to exclude educational seminars, customer appreciation events, focus group invitations, and similar forms of communication from the definition of “solicitation” in their final rules.
We received no comment on the definition of “person,” and we are adopting it as proposed.
We are adopting the definition of “pre-existing business relationship” substantially as proposed,
Ten commenters addressed the definition of “pre-existing business relationship.”
Some commenters questioned the requirement in the first part of the definition that a financial contract be in force “on the date on which the consumer is sent a marketing
Some commenters addressed various parts of the second part of the definition.
One commenter stated that when consumers pay in advance for future services, the 18-month exemption under the second part of the definition should not begin until after the last payment or shipment of the product.
Two commenters discussed the third part of the definition of “pre-existing business relationship”—an inquiry or application by the consumer regarding a product or service offered by the person during the preceding three months.
Certain elements of the definition of “pre-existing business relationship” are substantially similar to the definition of “established business relationship” under the FTC's Telemarketing Sales Rule (“TSR”).
Like the Agencies, the Commission believes it is not necessary to add any additional bases for a pre-existing business relationship. Paragraph (q)(2)(i) of § 248.120 provides an example of a brokerage firm with a pre-existing business relationship using eligibility information from an affiliate to make marketing solicitations about products or services. This example should provide Covered Persons with sufficient guidance regarding a securities affiliate's use of eligibility information.
Paragraph (d)(1) of proposed § 247.20 provided four examples to illustrate the pre-existing business relationship exception. Proposed paragraphs (d)(1)(i) through (iii) contained examples illustrating each of the three parts of the definition.
One commenter generally expressed approval of the examples we provided, other than the example in proposed § 247.20(d)(1)(iii).
We are adopting seven examples of a pre-existing business relationship set out in § 248.120(q)(2).
We received no comment on the definition of “transfer agent” and are adopting it as proposed.
We received no comment on the definition of “you” and are adopting it substantially as proposed.
Proposed § 247.20 set forth the requirement that a consumer be provided with notice and a reasonable opportunity to opt out before a receiving affiliate uses eligibility information to make marketing solicitations to the consumer. Proposed paragraphs (a) and (b) bifurcated duties between the “communicating affiliate” and “receiving affiliate” to resolve what we perceived as an ambiguity in the FCRA with regard to which affiliate was to provide the opt out notice to the consumer.
Under proposed § 247.20(a)(1), before a receiving affiliate could use eligibility information to make or send marketing solicitations to a consumer, the communicating affiliate would have had to provide a notice to the consumer stating that the information may be communicated to and used by the receiving affiliate for marketing purposes. The consumer also would have had to have a reasonable opportunity to opt out through some simple method before the receiving affiliate could make a marketing solicitation. The notice and opt out requirements would have applied only if a receiving affiliate would use eligibility information for marketing purposes.
Proposed § 247.20(b) set forth the general duties of a receiving affiliate. In particular, a receiving affiliate could not have used the eligibility information it received from its affiliate to make marketing solicitations to a consumer unless, prior to such use the consumer had: (1) Been provided an opt out notice (as described in proposed paragraph (a) of § 247.20) that applied to that affiliate's use of eligibility information; (2) received a reasonable opportunity to opt out of that use through one or more simple methods; and (3) not opted out. The Commission solicited comment on these provisions. In addition, the Commission also solicited comment on whether there were situations where oral notices and opt outs should be allowed and, if so, how the statute's clear and conspicuous standard could be satisfied.
Five commenters addressed the duties of the communicating affiliate and the receiving affiliate.
Six commenters addressed oral notices and supported permitting their use.
After considering these comments regarding proposed paragraphs (a) and (b), the Commission is adopting these paragraphs, redesignated as § 248.121(a), with modifications. Section 248.121(a)(1) sets forth the general rule and contains the three conditions that must be met before a Covered Person may use eligibility information about a consumer that it
The Commission has eliminated as unnecessary the rules of construction in proposed paragraph (a)(2) as well as the provisions in the proposal relating to notice provided by an agent. General agency principles, however, continue to apply. An affiliate that has a pre-existing business relationship with the consumer may direct its agent to provide the opt out notice on its behalf. In light of one commenter's concern about civil liability, the final rules do not impose duties on any affiliate other than the affiliate that intends to use shared eligibility information to make solicitations to the consumer. Although an opt out notice must be provided by or on behalf of an affiliate that has a pre-existing business relationship with the consumer (or as part of a joint notice), that affiliate has no duty to provide such a notice. Instead, the final rules provide that absent such a notice, an affiliate must not use shared eligibility information to make solicitations to the consumer.
Proposed paragraph (b) of § 247.20 has been deleted and replaced with paragraph (a)(3) in § 248.121. Section 248.121(a)(3) provides that the initial opt out notice must be provided either by an affiliate that has a pre-existing business relationship with the consumer, or as part of a joint notice from two or more members of an affiliated group of companies, provided that at least one of the affiliates on the joint notice has a pre-existing business relationship with the consumer. This follows the general approach taken in the proposal to ensure that the notice would be provided by an entity known to the consumer. While we used the terms “communicating affiliate” and “receiving affiliate” in the proposal and continue to use these terms in this release, the final rule text does not include these terms in order to avoid potential confusion.
The proposed rules referred to “making or sending” marketing solicitations. One commenter urged us not to address “sending” marketing solicitations.
The Commission concludes that “making” and “sending” marketing solicitations are different activities and that the focus of the FCRA is primarily on the “making” of marketing solicitations.
The Commission has added new § 248.121(b) in the final rules to clarify what constitutes “making” a marketing solicitation for purposes of Regulation S–AM. Section 248.121(b)(1) provides that a Covered Person makes a marketing solicitation to a consumer if: (1) It receives eligibility information from an affiliate; (2) it uses that eligibility information to identify the consumer or type of consumer to receive a marketing solicitation, establish the criteria used to select the consumer to receive a marketing solicitation, or decide which of its products or services to market to the consumer or tailor its marketing solicitation to that consumer; and (3) as a result of its use of the eligibility information, the consumer is provided a marketing solicitation.
The Commission understands that several common business practices may complicate application of this provision. Affiliated groups sometimes use a common database as the repository for eligibility information obtained by various affiliates, and information in that database may be accessible to multiple affiliates. In addition, affiliated companies sometimes use the same service providers to perform marketing activities, and some of those service providers may provide services for a number of different affiliates. Moreover, an affiliate may use its own eligibility information to market the products or services of another affiliate. Paragraphs (b)(2)–(5) of § 248.121 address these issues.
Section 248.121(b)(2) clarifies that a Covered Person may receive eligibility information from an affiliate in various ways, including by the affiliate placing that information into a common database that a Covered Person may access. Of course, receipt of eligibility information from an affiliate is only one element of making a marketing solicitation. In the case of a common database,
To clarify the application of the concept of “making” a marketing solicitation in the context of a Covered Person using a service provider, § 248.121(b)(3) generally provides that a person receives or uses an affiliate's eligibility information if a service provider acting on behalf of the Covered Person receives or uses that information on the Covered Person's behalf.
In § 248.121(b)(4), we address the concept of “constructive sharing.” In the proposing release, we illustrated the constructive sharing concept with an example in which a consumer has a pre-existing business relationship with a broker-dealer that is affiliated with a financing company. In the example, the financing company would provide the broker-dealer with specific eligibility criteria, such as consumers who have a margin loan balance in excess of $10,000, for the purpose of having the broker-dealer make marketing solicitations on behalf of the financing company to consumers that meet those criteria. A consumer who meets the eligibility criteria would contact the financing company after receiving the financing company marketing materials in the manner specified in those materials. We contemplated that the consumers' responses would provide the financing company with discernable eligibility information, such as through a coded response form that would identify a consumer as an individual who meets the specific eligibility criteria.
We solicited comment on whether, given the policy objectives of Section 214 of the FACT Act, the notice and opt out requirements of these rules should apply to circumstances that involve a constructive sharing of eligibility information to make marketing solicitations.
Commenters consistently opposed inclusion of the concept of constructive sharing in the final rules.
After carefully considering the comments, we conclude that the FCRA only covers situations in which a person
The Commission acknowledges that the FCRA's affiliate marketing provisions only limit the use of eligibility information received from an affiliate to make marketing solicitations to a consumer. Separately, the affiliate sharing notice and opt out provisions of the FCRA (Section 603(d)(2)(A)(iii)) regulate the sharing of eligibility information other than transaction or experience information among affiliates and prohibit the sharing of such information among affiliates, unless the consumer is given notice and an opportunity to opt out.
Section 248.121(b)(4) describes two situations in which a Covered Person has
The core concept is that the affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer controls the actions of the service provider using that information. Therefore, the service provider's use of the eligibility information should not be attributed to the Covered Person whose products or services will be marketed to consumers. In such circumstances, the service provider is acting on behalf of the affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer, and not on behalf of the Covered Person whose products or services will be marketed to that affiliate's consumers.
In addition, the Commission recognizes that there may be situations in which the Covered Person whose products or services are being marketed
Section 248.121(b)(5) provides that a Covered Person does not make a marketing solicitation subject to Regulation S–AM if a service provider (including an affiliated or third-party service provider that maintains or accesses a common database that the Covered Person may access) receives and uses eligibility information from the Covered Person's affiliate to market the Covered Person's products or services to the affiliate's consumer, so long as five conditions are met.
Under these conditions, the service provider is acting on behalf of an affiliate that obtained the eligibility information in connection with a pre-existing business relationship with the consumer because, among other things, the affiliate controls the actions of the service provider in connection with the service provider's receipt and use of the eligibility information.
To provide additional guidance to Covered Persons, § 248.121(b)(6) provides six illustrative examples of the rules relating to making marketing solicitations.
Proposed § 247.20(c) contained exceptions to the requirements of Regulation S–AM and incorporated each of the statutory exceptions to the affiliate marketing notice and opt out requirements that are set forth in Section 624(a)(4) of the FCRA. The Commission has revised the preface to the exceptions for clarity to provide that Regulation S–AM does not apply to “you” if a Covered Person uses eligibility information that it receives from an affiliate in certain circumstances. In addition, each of the exceptions has been moved to § 248.121(c) in the final rules and is discussed below.
Proposed paragraph (c)(1) of § 247.20 clarified that the notice and opt out requirements of proposed Regulation S–AM would not apply when the receiving affiliate has a pre-existing business relationship with the consumer. We are adopting § 247.20(c)(1) substantially as proposed,
Proposed § 247.20(c)(2) provided that Regulation S–AM would not apply to an affiliate using the information to facilitate communications to an individual for whose benefit the affiliate provided employee benefit or other services under a contract with an employer related to and arising out of a current employment relationship or an individual's status as a participant or beneficiary of an employee benefit plan. One commenter stated that the exception should be revised to permit communications “to an affiliate about an individual for whose benefit an entity provides employee benefit or other services pursuant to a contract with an employer related to and arising out of the current employment relationship or status of the individual as a participant or beneficiary of an employee benefit plan.”
We decline to adopt the changes suggested by this commenter and adopt the employee benefit exception, redesignated as § 248.121(c)(2), as proposed. The focus of the rule is on facilitating communications “to an individual for whose benefit the [Covered Person] provides employee benefit or other services,” which more closely tracks the statutory language than the alternative language proposed by the commenter.
Moreover, we note that the only type of Covered Person to whom Section 624 of the FCRA might apply is one that receives eligibility information from an affiliate.
Proposed § 247.20(c)(3) provided that the notice and opt out requirements of Regulation S–AM would not apply when the eligibility information is used to perform services for another affiliate. The exception would not have applied if the other affiliate was not permitted to make or send marketing solicitations on its own behalf, for example as a result of the consumer's prior decision to opt out. Thus, under the proposal, when the notice has been provided to a consumer and the consumer has opted out, a receiving affiliate subject to the
One commenter urged the Commission to adopt this exception.
We are adopting the service provider exception, redesignated as § 248.121(c)(3), substantially as proposed. We have eliminated the references to marketing solicitations made by a service provider on its own behalf. The general rule in § 248.121(a)(1) prohibits a service provider from using eligibility information it received from an affiliate to make marketing solicitations to a consumer about its own products or services unless the consumer is given notice and an opportunity to opt out and has not opted out, or unless one of the other exceptions applies. The service provider exception simply allows a service provider to do what the affiliate on whose behalf it is acting may do, such as using shared eligibility information to make marketing solicitations to consumers to whom the affiliate is permitted to make such marketing solicitations.
Proposed paragraph (c)(4) of § 247.20 provided that the notice and opt out requirements would not have applied when eligibility information was used in response to a communication initiated by the consumer. This exception could have been triggered by an oral, electronic, or written communication initiated by the consumer. To be covered by the proposed exception, any use of eligibility information would need to be responsive to the communication initiated by the consumer. Paragraph (d)(2) of the proposed rule provided three examples of situations that would and would not meet the exception.
Five commenters addressed this exception.
Some commenters objected to the example in proposed § 247.20(d)(2)(ii), stating that a consumer responding to a call-back message should qualify as a consumer-initiated communication and noting that the consumer has the option of not returning the call.
After considering the comments, we are adopting paragraphs (c)(4) and (d)(2) of proposed § 247.20 with some modifications, redesignated as §§ 248.121(c)(4) and (d)(3), respectively. The final rule eliminates the reference to oral, electronic, or written communications. Any form of communication may come within the exception as long as the consumer initiates the communication, whether in-person or by mail, e-mail, telephone, facsimile, or through other means.
Section 248.121(c)(4) provides that the communications covered by the exception must be consumer-initiated and must concern a Covered Person's products or services. The FCRA requires a person relying on the exception to use eligibility information only “in response to” a communication initiated by a consumer.
However, the Commission recognizes that if a consumer-initiated conversation turns to a discussion of products or services the consumer may need, marketing solicitations may be responsive if the consumer agrees to receive marketing materials and provides or confirms contact information by which he or she can receive those materials. For example, if a consumer calls a broker-dealer to ask about retail locations and hours, the broker-dealer's customer service representative asks the consumer if there is a particular product or service about which the consumer is seeking information, the consumer responds affirmatively and expresses an interest in mutual funds offered by the broker-dealer, the customer service representative offers to provide that information by telephone and mail additional information to the consumer, and the consumer agrees and provides or confirms contact information for receipt of the materials to be mailed, the broker-dealer may use eligibility information it receives from an affiliate to make marketing solicitations to the consumer about mutual funds because such marketing solicitations would respond to the consumer-initiated communication about mutual funds.
Likewise, if a consumer who has opted out of an affiliate's use of eligibility information to make marketing solicitations calls the affiliate for information about a particular product or service, (
We are adopting the example in proposed § 247.20(d)(2)(i), redesignated as § 248.121(d)(3)(i), and modified to delete the references to a telephone call as the specific form of communication and the reference to providing contact information. As discussed above and illustrated in the examples in §§ 248.120(q)(2)(v) and (vi), the need to provide contact information may vary depending on the form of communication used by the consumer. A new example in § 248.121(d)(3)(ii) illustrates a situation involving a consumer-initiated communication in which a consumer does not know exactly what products, services, or investments he or she wants, but initiates a communication to obtain information about investing for a child's college education. We are adopting the call-back example in proposed § 247.20(d)(2)(ii), redesignated as § 248.121(d)(3)(iii) and modified to illustrate that when a Covered Person makes an initial marketing call without using eligibility information received from an affiliate and leaves a message that invites the consumer to receive information about the Covered Person's products and services by calling a toll-free number, the consumer's response qualifies as a consumer-initiated communication about a product or service. The modified example is intended to avoid requiring Covered Persons to track which calls are call-backs.
We are adopting the retail hours example in proposed § 247.20(d)(2)(iii) substantially as proposed and redesignated as § 248.121(d)(3)(iv). We are also adopting a new example in § 248.121(d)(3)(v) to address the situation where a consumer calls to ask about retail locations and hours and a call center representative, after eliciting information about the reason the consumer wants to visit a retail location, offers to provide information about products of interest to the consumer by telephone and mail, and the consumer agrees and provides or confirms contact information. This example demonstrates how a conversation may develop to the point where making marketing solicitations would be responsive to the consumer's call.
Proposed § 247.20(c)(5) provided that the notice and opt out requirements would not apply when the information is used to make marketing solicitations that have been affirmatively authorized or requested by the consumer.
Some commenters noted that the proposed exception would have required an “affirmative” authorization or request but that the FCRA did not.
We are adopting § 247.20(c)(5), redesignated as § 248.121(c)(5), substantially as proposed but without the word “affirmative.” This change does not affect the meaning of the exception and the consumer still must take steps to “authorize” or “request” marketing solicitations. The GLBA and the implementing privacy rules include an exception to permit the disclosure of nonpublic personal information “with the consent or at the direction of the consumer.”
For the reasons discussed in connection with the consumer-initiated communication exception, we omitted the reference to oral, electronic, or written communications from this exception. We do not believe it is necessary to clarify the elements of an authorization or request. Section 624(a)(4)(E) of the FACT Act clearly refers to “solicitations authorized or requested by the consumer.” The facts and circumstances will determine what marketing solicitations have been authorized or requested by the consumer.
Proposed § 247.20(c)(6) clarified that the provisions of Regulation S–AM would not apply to an affiliate if compliance with the requirements of Section 624 by the affiliate would prevent that affiliate from complying with any provision of State insurance law pertaining to unfair discrimination in a State where the affiliate is lawfully doing business.
Proposed paragraph (f) of § 247.20 clarified the relationship between the affiliate-sharing notice and opt out opportunity required under Section 603(d)(2)(A)(iii) of the FCRA and the affiliate marketing notice and opt out opportunity required by new Section 624 of the FCRA.
The FCRA provides that a person may communicate to its affiliates information other than transaction and experience information without becoming a consumer reporting agency if the person first gives the consumer a clear and conspicuous notice that such information may be communicated to its affiliates and an opportunity to “opt out,” or block the person from sharing the information.
One commenter urged the Commission to delete this provision as unnecessary.
The scope of the opt out was addressed in various sections of the proposal. Proposed § 247.21(c) provided that the notice could have allowed a consumer to choose from a menu of alternatives when opting out, such as opting out of receiving marketing solicitations from certain types of affiliates, or from receiving marketing solicitations that use certain types of information or are delivered using certain methods of communication. If a Covered Person provided a menu of alternatives, one of the alternatives would have had to allow the consumer to opt out with respect to all affiliates, all eligibility information, and all methods of delivering marketing solicitations. Proposed § 247.25(d) described how the termination of a consumer relationship would have affected the consumer's opt out. Under the proposal, if a consumer's relationship with a Covered Person terminated for any reason when the consumer's opt out election was in force, the opt out would have continued to apply indefinitely unless revoked by the consumer. The Proposing Release indicated that the opt out would have been tied to the consumer, rather than to the information used for the marketing solicitations.
Some commenters were critical of the provision requiring Covered Persons that provide a menu of alternatives, to provide the consumer with the ability to opt out with respect to all affiliates, all eligibility information, and all methods of delivery.
After considering the comments, we are adopting the provision relating to the scope of the opt out, with modifications, as § 248.122(a) of Regulation S–AM. Under this section, which is modeled on Section 624(a)(2)(A) of the FCRA, the scope of the opt out depends upon the content of the opt out notice. Under § 248.122(a)(1), except as otherwise provided in that section, a consumer's election to opt out prohibits any affiliate covered by the opt out notice from using the eligibility information received from another affiliate as described in the notice to make marketing solicitations to the consumer.
Section 248.122(a)(2)(i) clarifies that, in the context of a continuing relationship, an opt out notice may apply to eligibility information obtained in connection with a single continuing relationship, multiple continuing relationships, continuing relationships established subsequent to delivery of the opt out notice, or any other transaction with the consumer. Section 248.122(a)(2)(ii) provides examples of continuing relationships. These examples are substantially similar to the examples used in the GLBA privacy rules, with added references to relationships between consumers and affiliates.
Section 248.122(a)(3)(i) limits the scope of an opt out notice that is not connected with a continuing relationship. This section provides that if there is no continuing relationship between a consumer and a Covered Person or its affiliate, and if the Covered Person or its affiliate provides an opt out notice to a consumer that relates to eligibility information obtained in connection with a transaction with the consumer, such as an isolated transaction or a credit application that is denied, the opt out notice only applies to eligibility information obtained in connection with that transaction. The notice cannot apply to eligibility information that may be obtained in connection with subsequent transactions or a continuing relationship that may be subsequently established by the consumer with the Covered Person or its affiliate. Section 248.122(a)(3)(ii) provides examples of isolated transactions.
Section 248.122(a)(4) provides that a consumer may be given the opportunity to choose from a menu of alternatives when electing to prohibit marketing solicitations. An opt out notice may give the consumer the opportunity to elect to prohibit marketing solicitations from certain types of affiliates covered by the opt out notice but not other types of affiliates covered by the notice, marketing solicitations based on certain types of eligibility information but not other types of eligibility information, or marketing solicitations by certain methods of delivery but not other methods of delivery, so long as one of the alternatives is the opportunity to prohibit all marketing solicitations from all of the affiliates that are covered by the notice. We continue to believe that Section 624(a)(2)(A) of the FCRA requires the opt out notice to contain a single opt out option for all marketing solicitations within the scope of the notice. The Commission recognizes that consumers could receive a number of different opt out notices, even from the same affiliate. Accordingly, we anticipate monitoring industry notice practices and evaluating whether further action is needed.
Section 248.122(a)(5)(i) contains a special rule that explains the obligations with respect to notice following the termination of a continuing relationship. Under this rule, a consumer must be given a new opt out notice if, after all continuing relationships with a person or its affiliate have been terminated, the consumer subsequently establishes a new continuing relationship with that person or the same or a different affiliate and the consumer's eligibility information is to be used to make a marketing solicitation.
Proposed § 247.25 addressed the duration and effect of a consumer's opt out election. Section 247.25(a) provided that a consumer's election to opt out is effective for the opt out period, which is a period of at least five years beginning as soon as reasonably practicable after the consumer's opt out election is received. Nothing in the paragraph limited the ability of Covered Persons to set an opt out period of longer than five years, including an opt out period that does not expire unless revoked by the consumer. We also stated that if for some reason, a consumer elects to opt out again while the opt out period remains in effect, a new opt out period of at least five years would begin upon receipt of each successive opt out election.
Proposed § 247.25(b) provided that a receiving affiliate could not make or send marketing solicitations to a consumer during the opt out period based on eligibility information it receives from an affiliate, except as provided in the exceptions in proposed § 247.20(c) or if the consumer had revoked his or her opt out.
Section 624(a)(5) of the FCRA contains a non-retroactivity provision, which provides that nothing shall prohibit the use of information that was received prior to the date on which persons are required to comply with the regulations implementing Section 624. 15 U.S.C. 1681s–3(a)(5).
Commenters generally favored the five-year opt out provisions.
We are adopting the provisions addressing the duration of the opt out as redesignated § 248.122(b), with some modifications. The final rule clarifies that the opt out period expires if the consumer revokes his or her opt out in writing, or, if the consumer agrees, electronically. This is consistent with the approach taken in the GLBA privacy rules. We do not believe it is necessary or appropriate to permit oral revocations. Many of the exceptions to Regulation S–AM's notice and opt out provisions may be triggered by oral communications, as discussed above, which would permit the use of shared eligibility information to make marketing solicitations pending receipt of a written or electronic revocation. Also, as noted in the proposal, nothing prohibits setting an opt out period longer than five years, including an opt out period that does not expire unless revoked by the consumer.
The Commission does not agree that the opt out period should begin on the date the consumer's election to opt out is received. We interpret the FACT Act requirement to mean that the consumer's opt out election must be honored for a period of at least five years from the date the election is implemented. We believe that Congress did not intend for the opt out period to be shortened to a period of less than the five years specified in the statute to reflect the time between the date the consumer's opt out election is received and the date the consumer's opt out election is implemented.
The Commission also believes that it is neither necessary nor appropriate to set a mandatory deadline for implementing the consumer's opt out election. A general standard better reflects that the time it will reasonably take to implement a consumer's opt out election may vary depending on the facts and circumstances of the situation.
Consistent with the special rule for a notice following termination of a continuing relationship, the duration of the opt out is not affected by the termination of a continuing relationship. When a consumer opts out in the course of a continuing relationship and that relationship is terminated during the opt out period, the opt out remains in effect for the remainder of the opt out period. If the consumer subsequently establishes a new continuing relationship while the
Proposed § 247.25(c) clarified that a consumer could opt out at any time.
Proposed § 247.21 addressed the contents of the affiliate marketing opt out notice, and proposed § 247.24(c) permitted joint notices with affiliates identified in the notice with respect to which the notice was accurate. Proposed § 247.21(a) would have required the opt out notice to be clear, conspicuous, and concise, and to accurately disclose: (1) That the consumer may elect to limit a person's affiliate from using eligibility information about the consumer that the affiliate obtains from the person to make marketing solicitations to the consumer; and (2) if applicable, that the consumer's election will apply for a specified period of time and that the consumer will be allowed to extend the election once that period expires. The notice also would have had to provide the consumer with a reasonable and simple method to opt out.
We are adopting proposed § 247.21(a), redesignated as § 248.123(a) with some modifications to enhance the clarity and usability of the model notices. We are also incorporating provisions of proposed § 247.24(c), pertaining to joint notices.
Sections 248.123(a)(1)(iii)–(vii) require the opt out notice to include: (1) A general description of the types of eligibility information that may be used to make marketing solicitations to the consumer; (2) a statement that the consumer may elect to limit the use of eligibility information to make marketing solicitations to the consumer; (3) a statement that the consumer's election will apply for the specified period of time stated in the notice and, if applicable, that the consumer will be allowed to renew the election once that period expires; (4) if the notice is provided to consumers who may have previously opted out, such as if a notice is provided to consumers annually, a statement that the consumer who has chosen to limit marketing offers does not need to act again until the consumer receives a renewal notice; and (5) a reasonable and simple method for the consumer to opt out. The requirement in § 248.123(a)(1)(vi) to include a statement regarding consumers who may have previously opted out would be satisfied by appropriate use of the model forms in the Appendix.
Proposed § 247.24(d)(1) set out rules that would have applied when two or more consumers (referred to in the proposed regulation as “joint consumers”) jointly obtained a product or service, such as a joint securities account.
In the proposal, we requested specific comment on proposed paragraph (d)(1)(vii) and the example in paragraph (d)(2)(iii) that addressed the situation in which only one of two joint consumers had opted out. Under those paragraphs, in a joint consumer situation, if A had opted out only for A, and B did not opt out, we indicated that a Covered Person's affiliate could use eligibility information about B to send marketing solicitations to B as long as the eligibility information was not based on A and B's joint consumer relationship. One commenter argued that this approach would be overly restrictive and challenging to implement because exclusion of joint account information could block information about both a customer who had decided to opt out and one that had not.
We are adopting proposed paragraphs (d)(1) and (d)(2) of § 247.24 with modifications, redesignated as § 248.123(a)(2). However, in light of the comment received, we are not adopting the example of joint relationships in proposed § 247.24(d)(2) because it addressed, in part, the sharing of information rather than the use of information to make marketing solicitations, and thus would be beyond the scope of this rulemaking. In addition, we have also made some technical changes to improve readability and promote consistency with the GLBA privacy rules.
Proposed § 247.21(d) provided that if a person chose to give consumers a broader opt out right than required by law, the person could modify the contents of the opt out notice to reflect accurately the scope of the opt out right it had provided. Proposed Model Form A–3 of Appendix A provided guidance for Covered Persons wishing to allow consumers to prevent all marketing from that person and its affiliates. We received no comments on this provision and are adopting it as proposed, redesignated as § 248.122(a)(3). We are adopting proposed Model Form A–3, redesignated as Model Form A–5 with slight modifications for clarity.
Section 248.123(a)(4) provides that model notices are in the Appendix. The Commission has provided model notices to facilitate compliance with the rule, although the final rules do not require their use.
Proposed § 247.27 provided that a notice required by proposed Regulation S–AM could be coordinated and consolidated with any other notice or disclosure required to be issued under any other provision of law.
We requested comment on whether persons subject to the proposed rules would plan to consolidate their affiliate marketing notices with GLBA privacy notices or affiliate sharing opt out notices, whether we provided sufficient guidance on consolidated notices, and whether consolidation would be helpful or confusing to consumers. While one commenter expressed general support for the provision,
We encourage Covered Persons to consolidate their affiliate marketing opt out notice with GLBA privacy notices, including any affiliate sharing opt out notice under Section 603(d)(2)(A)(iii) of the FCRA, so that consumers receive a single notice they can use to review and exercise all applicable opt outs. We recognize, however, that special issues arise when these notices are
Proposed § 247.22(a) provided that the communicating affiliate would have to provide a consumer a “reasonable opportunity to opt out” after delivery of the opt out notice but before a marketing solicitation based on eligibility information is sent. We noted that because of the various circumstances in which opt out rights are provided, a “reasonable opportunity to opt out” should be generally construed to avoid setting a mandatory waiting period. A general standard would provide flexibility to allow receiving affiliates to use eligibility information to make marketing solicitations at an appropriate point in time, while assuring that the consumer is given a realistic opportunity to prevent such use of the information. We received no comments on proposed § 247.22(a) and are adopting it substantially as proposed, redesignated as § 248.124(a) with technical changes for clarity.
Proposed §§ 247.22(b)(1) through (5) provided examples of what might constitute a reasonable opportunity to opt out in different situations. Proposed §§ 247.22(b)(1) and (2) provided examples of reasonable opportunities to opt out by mail or by electronic means consistent with the examples used in the GLBA privacy rules.
A number of commenters addressed the 30-day safe harbor.
We are adopting §§ 247.22(b)(1) and (b)(3) substantially as proposed, redesignated as §§ 248.124(b)(1) and (3). We are retaining the 30-day safe harbor because it helps afford certainty to entities that choose to follow the 30-day waiting period. We understand, however, that shorter waiting periods may be adequate under certain facts and circumstances in accordance with the general test for a reasonable opportunity to opt out.
The final rule divides proposed § 247.22(b)(2) into two subparts, redesignated as §§ 248.124(b)(2)(i) and (ii), to illustrate the different means of delivering an electronic notice. The example illustrates that for notices provided electronically, such as at an Internet Web site at which the consumer has obtained a product or service, a reasonable opportunity to opt out would include giving the consumer 30 days after the consumer acknowledges receipt of the electronic notice to opt out by any reasonable means. The acknowledgement of receipt aspect of this example is consistent with an example in the GLBA privacy regulations.
We agree with commenters that the example regarding electronic transactions in redesignated § 248.124(b)(3) is limited in scope, and have added a new example for in-person transactions in § 248.124(b)(4). Together, these examples illustrate that an abbreviated opt out period is appropriate when the consumer is given a “yes” or “no” choice and is not permitted to proceed with the transaction unless he or she makes a choice.
We received no comments on proposed § 247.22(b)(4), which provides that an affiliate marketing opt out notice can be included in a GLBA privacy notice, and are adopting it substantially as proposed, redesignated as § 248.124(b)(5). We are not adopting the example in proposed § 247.22(b)(5) that would have illustrated the option of providing a consumer with an opportunity to “opt in” to affiliate marketing because the example was unnecessary and confusing.
Proposed § 247.23(a) provided guidance on how a person could provide consumers with reasonable and simple methods of opting out. These examples generally track the examples of reasonable opt out means from Section 7(a)(2)(ii) of the GLBA privacy rules,
Proposed § 247.23(b) provided examples of opt out methods that would not be considered reasonable and simple. These methods include requiring the consumer to write a letter or to call or write to obtain an opt out form that was not included with the notice. A consumer who agrees to receive the opt out notice in electronic form only, such as by electronic mail or at an Internet Web site, would have to be allowed to opt out by the same or a substantially similar electronic form and should not be required to opt out solely by telephone or paper mail.
Eight commenters addressed these examples,
Other commenters addressed electronic opt outs.
We are adopting § 247.23, redesignated as § 248.125, revised as discussed below. Paragraph (a) provides the general rule that Covered Persons must not use eligibility information from an affiliate in order to make marketing solicitations to a consumer unless the consumer has been provided with a reasonable and simple method to opt out. Paragraph (b) provides examples illustrating opt out methods that are reasonable and simple, as well as examples that are not.
We decline to follow commenters' suggestion that we adopt the GLBA examples without change. Section 624 of the FCRA requires the Commission to ensure that the consumer is given reasonable and
One new example in § 248.125(b)(1)(v) illustrates that reasonable and simple methods include allowing consumers to exercise all of their opt out rights described in a consolidated opt out notice that includes GLBA privacy, FCRA affiliate sharing, and FCRA affiliate marketing opt outs, by a single method, such as calling a single toll-free telephone number. This example furthers the Commission's statutory directive to ensure that notices and disclosures may be coordinated and consolidated.
We have retained the examples of opt out methods that are not reasonable and simple in proposed §§ 247.23(b)(1) through (b)(3), redesignated as §§ 248.125(b)(2)(i) through (b)(2)(iii) respectively. The example redesignated as § 248.125(b)(2)(iii) has been slightly modified to illustrate that it is not reasonable or simple to require a consumer who receives the opt out notice in electronic form, such as through posting at an Internet Web site, to opt out solely by paper mail or solely by visiting a different Web site without providing a link to that site. We did not find the commenters' views on these examples to be persuasive.
In order to be consistent with the Joint Rules and the FTC rule,
Paragraph (a) of proposed § 247.24 provided that a person covered by the proposed rule would have needed to deliver its opt out notice so that each consumer reasonably could be expected to receive actual notice. An electronically delivered opt out notice could have been delivered either in accordance with the electronic disclosure provisions in proposed Regulation S–AM or in accordance with the E–Sign Act.
Proposed § 247.24(b) provided examples of fulfilling the expectation of actual notice. We indicated that the “reasonable expectation of delivery” standard is a lesser standard than actual notice. For instance, if a communicating affiliate mailed a printed copy of its notice to the last known mailing address of a consumer, it would have met its obligation even if the consumer has changed addresses and never received the notice. One commenter expressed support for this standard.
We are adopting § 247.24, redesignated as § 248.126, with modifications. We retained the reasonable expectation of actual notice standard, and the examples of a reasonable expectation of actual notice for an electronic notice have been revised and divided into two sets of examples of what does and does not meet the requirement.
As discussed above, the Commission has determined that the electronic delivery of opt out notices does not require consumer consent in accordance with the E–Sign Act because nothing in Section 624 of the FCRA requires the notice to be provided in writing. Thus, we believe that requiring an acknowledgement of receipt is not inconsistent with the E–Sign Act. Moreover, this example is consistent with an example in the GLBA privacy rules and is appropriate, particularly where the notice is posted on an Internet Web site.
Unlike the Agencies, the Commission did not receive requests to require the mandatory delivery of electronic notices by e-mail. Like the Agencies, however, we decline to do so. The Commission agrees with the Agencies that concerns about unsolicited e-mail and the security of e-mail make it inappropriate to require e-mail as the only permissible form of electronic delivery for opt out notices.
Proposed § 247.26 described procedures for extending an opt out. Proposed paragraph (a) of § 247.26 required consumers to be provided with a new notice and a reasonable opportunity to extend their opt out before a receiving affiliate could make marketing solicitations based on the consumer's eligibility information upon expiration of the opt out period. The affiliate that initially provided the notice, or its successor, would provide the extension notice. If an extension notice were not provided to the consumer, the opt out period would continue indefinitely. The requirement to provide an extension notice upon expiration of the opt out period would apply to any opt out—even if, for example, the consumer failed to opt out initially and informed the communicating affiliate of his or her opt out at some later time. The consumer could extend the opt out at the expiration of each successive opt out period. Proposed paragraph (b) of § 247.26 provided that each opt out extension would be effective for a period of at least five years, in compliance with proposed § 247.25.
Proposed § 247.26(c) addressed the contents of an extension notice.
Proposed § 247.26(d) addressed the timing of the extension notice and provided that an extension notice could be delivered to the consumer either a reasonable period of time before an opt out period expired, or any time after the opt out period expired, but before covered marketing solicitations were made to the consumer. Requiring the extension notice a reasonable period of time before the opt out period expired was intended to facilitate the smooth transition of consumers who choose to change their elections. An extension notice given too far in advance of the expiration of the opt out period might confuse consumers. We did not propose to set a fixed time for what would constitute a “reasonable period of time,” noting that a reasonable period of time could depend upon the amount of time given to the consumer for a reasonable opportunity to opt out, the amount of time necessary to process opt outs, and other factors. Nevertheless, we stated that providing an extension notice in combination with the last annual privacy notice required by the GLBA that was provided to the consumer before expiration of the affiliate marketing opt out period would have been reasonable in all cases. Proposed § 247.26(e) made clear that sending an extension notice to a consumer before the expiration of the opt out period would not shorten the five-year opt out period.
We also noted that opt out elections under the GLBA do not expire, and that GLBA notices typically state that a consumer need not opt out again if the consumer previously opted out. We recognized that including an affiliate marketing opt out notice or an extension notice in combination with an initial or annual notice under the GLBA required complying with both FCRA and GLBA requirements as applicable. Under the proposal, if a person chose to make the affiliate marketing opt out effective in perpetuity, the statement in the GLBA notice would have remained correct. However, the GLBA notice would not have been accurate with respect to the extension notice if the affiliate marketing opt out were limited to a defined period of five or more years. In that case, the extension notice regarding affiliate marketing would have had to make clear to the consumer the necessity of opting out again in order to extend the opt out. We requested comment on this interaction between the FACT Act and GLBA notices, including whether the Commission should provide further guidance regarding how a communicating affiliate might ensure that the difference in opt out rights is clear to consumers.
Commenters expressed concern that the extension notice would differ from the initial notice because the extension notice would be required to inform the consumer that the consumer's prior opt out had expired or was about to expire, as applicable, and that the consumer would have to opt out again to keep the opt out election in force.
The Commission is adopting proposed § 247.26, redesignated as § 248.127, with modifications as discussed below. The final rules also replace the references to “extension” with references to a “renewal” notice.
Section 248.127(a) provides that after an opt out period expires, a person may not make marketing solicitations to a consumer who previously opted out unless the consumer has been given a compliant renewal notice and a reasonable opportunity to opt out, and the consumer does not renew the opt out. This section also clarifies that a person can make marketing solicitations to a consumer after expiration of the opt out period if one of the exceptions in § 248.121(c) applies.
Section 248.127(a)(2) addresses the opt out renewal period. We continue to believe it is not necessary to set a fixed minimum period of time for a reasonable opportunity to renew the opt out, and that doing so would be inconsistent with the approach taken in other sections of Regulation S–AM and in the GLBA privacy rules. We received no comment regarding the minimum five-year period duration of the renewed opt out and are adopting this provision as proposed. Section 248.127(a)(3) states that a renewal notice must be provided either by the affiliate (or its successor) who provided the previous opt out notice, or as part of a joint renewal notice from two or more members of an affiliated group of companies, or their successors, that jointly provided the previous opt out notice. This provision balances the goal of ensuring that the notice is provided by an entity known to the consumer with the need to provide a degree of flexibility to recognize changes in corporate structure that may occur over time.
In the proposal, we recognized that the content of the extension or renewal notice would differ from the content of the initial notice. We note that while the statute does not require that affiliate marketing initial and opt out renewal notices be identical, it does require that the Commission provide guidance to ensure that opt out notices are clear, conspicuous, and concise. We find it unreasonable to expect a consumer, after receiving a renewal notice, to remember that he or she previously opted out five years ago (or longer). We also find it unreasonable to expect a consumer who remembers opting out to know that he or she must opt out again in order to renew that decision. To ensure that a consumer receives a meaningful renewal notice, the consumer must be: (1) Reminded that he or she previously opted out; (2) informed that the previous opt out has expired or is about to expire; and (3) advised that to continue to limit solicitations from affiliates, he or she must renew the previous opt out. The renewal notice can state that “the consumer's election has expired or is about to expire.” The final rule omits the words “as applicable” to clarify that the notice does not have to be tailored to differentiate consumers for whom the election “has expired” from those for whom the election “is about to expire.”
The Commission does not agree with the commenters who indicated that the renewal notice's additional content
Proposed § 247.26(d) addressed the timing of the extension or renewal notice. We received no comment on this section and are adopting it substantially as proposed, redesignated as § 248.127(d).
In the Proposing Release, we recognized that some institutions may want to combine their affiliate marketing opt out notice with their next annual GLBA privacy notice. Twelve commenters addressed the effective and mandatory compliance dates.
Regulation S–AM becomes effective approximately 30 days after publication in the
Proposed § 247.20(e) provided that Regulation S–AM would not apply to eligibility information received by a receiving affiliate prior to the required compliance date. Some commenters argued that the proposed rule did not track the statutory language or reflect the intent of Congress.
We are adopting § 247.20(e) substantially as proposed, redesignated as § 248.128(c), with modifications discussed below. To address concerns expressed by commenters, the final rules clarify that a Covered Person receives eligibility information from an affiliate when the affiliate places that information in a common database that is accessible by a Covered Person, even if the Covered Person has not accessed or used that information as of the compliance date. The final rules do not apply to eligibility information placed in a common database before the mandatory compliance date by an affiliate who has a pre-existing business relationship with a consumer. The rules
Proposed Appendix A provided model forms as examples to illustrate how Covered Persons could comply with the notice and opt out requirements of Section 624 of the FCRA and proposed Regulation S–AM.
We stated that use of the proposed model forms would not be mandatory.
Each of the proposed model forms was designed as a stand-alone form. We anticipated that some Covered Persons might want to combine the affiliate marketing opt out notice with a GLBA privacy notice. We noted that if the notices were combined, we expected that Covered Persons would integrate the affiliate marketing opt out notice with other required disclosures and avoid repetition of information such as the methods for opting out. Finally, we noted that the development of a model form that would combine the various opt out notices was beyond the scope of the proposed rulemaking. We received one comment on the model forms that generally supported the development of templates.
We are adopting the model forms in Appendix A of the proposal substantially as proposed, redesignated as Appendix to Subpart B—Model Forms, with additions and revisions to reflect changes incorporated in the final rules, discussed above. The model forms are designed to be helpful for entities that give notices and beneficial for consumers. As under the proposal, the model forms are provided as stand-alone documents. Persons may also choose to combine their affiliate marketing notices with other consumer disclosures, such as GLBA privacy notices.
While use of the model forms is not mandatory, appropriate use of the model forms satisfies the requirement in Section 624 of the FCRA that Covered Persons provide notices that are “clear, conspicuous, and concise.”
The Commission is sensitive to the costs and benefits of its rules and understands that the rules may impose costs on Covered Persons. Regulation S–AM's requirement to provide consumers with notice and an opportunity to opt out of receiving affiliate marketing solicitations is designed to benefit consumers by enabling them to limit certain marketing solicitations from affiliated companies. In addition, the notice requirement should enhance the transparency of each Covered Person's affiliate marketing and information sharing practices.
In the proposal, we noted that the proposed rules would impose costs upon Covered Persons
In proposing the rules, we estimated that approximately 6,768 broker-dealers, 5,182 investment companies, 7,977 registered investment advisers, and 443 registered transfer agents would be required to comply with Regulation S–AM.
We received one comment on the cost-benefit analysis, which stated that the estimates understated the compliance burden associated with Regulation S–AM.
The Commission recognizes that costs for developing and maintaining records of delivery of affiliate marketing notices and recording opt out elections, and costs for personal training, will vary greatly, depending on the size of a financial institution, its customer base, number of affiliates, and the extent to which the institution intends to share information. Accordingly, we have revised our estimates to make them consistent with the compliance estimates provided by the Banking Agencies in their Joint Rules,
Certain provisions of Regulation S–AM may constitute a “collection of information” within the meaning of the Paperwork Reduction Act of 1995.
Before an affiliate may use eligibility information received from another affiliate to make marketing solicitations to a consumer, the consumer must be provided with a notice informing the individual of his or her right to opt out of such marketing. In addition, as a practical matter, Covered Persons must keep records of any opt out elections in order for the opt outs to be effective. The opt out period must last at least five years. At the end of the opt out period, the consumer must be provided with a renewal notice and a new chance to opt out before the resumption of marketing solicitations to the consumer based on the consumer's eligibility information.
Notice and opt out are only required if a Covered Person uses eligibility information from an affiliate for use in marketing solicitations. Covered Persons that do not have affiliates, or whose affiliates do not make marketing solicitations based on eligibility information received from a Covered Person, are not required to provide notice and opt out. Regulation S–AM contains a number of other exceptions as directed by Section 214 of the FACT Act, such as for situations in which the affiliate has a pre-existing business relationship with the consumer or in which the consumer requests marketing information. In the final rules, we have attempted to retain procedural flexibility and to minimize compliance burdens except as required by the terms of the FACT Act.
Section 624 of the FCRA is intended to enhance the protection of consumer financial information in the affiliate marketing context and to enable consumers to limit Covered Persons from using eligibility information they receive from an affiliate to make marketing solicitations. Regulation S–AM is necessary to fulfill the statutory mandate, in Section 214 of the FACT Act, that the Commission prescribe regulations to implement Section 624.
We estimate that approximately 5,561 broker-dealers, 4,586 investment companies, 11,300 registered investment advisers, and 413 registered transfer agents will be required to comply with Regulation S–AM. However, we expect that only a fraction of all Covered Persons will be required to provide notices and opt out opportunities to consumers. First, the rules only apply to Covered Persons that have affiliates, and then only if affiliates receiving eligibility information make marketing solicitations based on the eligibility information received from a Covered Person. Based on a review of forms filed with the Commission, we estimate that approximately 56% of Covered Persons have an affiliate.
Every Covered Person that has one or more affiliates likely would incur a one-time burden in reviewing its policies and business practices to determine the
Because the notice and opt out requirements are a prerequisite to conducting covered forms of affiliate marketing, most Covered Persons would provide notice within the first year after which compliance with Regulation S–AM is required. However, additional notices will be required as new customer relationships are formed. We anticipate that many Covered Persons will ensure delivery to new consumers with a minimum of additional effort by providing or combining the notices with other documents such as account opening documents or initial GLBA privacy notices. Accordingly, we estimate an ongoing annual burden of 4 hours per year (or 8,744 hours total) for creating and delivering notices to new consumers and recording any opt outs that are received on an ongoing basis.
A consumer opt out may expire at the end of five years, as long as the person that provided the initial notice provides the consumer with renewed notice and an opportunity to extend his or her opt out election before any affiliate marketing may begin.
In sum, we estimate that each of approximately 12,242 Covered Persons will require an average one-time burden of 1 hour to review affiliate marketing practices (12,242 hours total). We estimate that the approximately 2,186 Covered Persons required to provide notices and opt out opportunities will incur an average first-year burden of 18 hours to provide notices and allow for consumer opt outs, for a total estimated first-year burden of 39,348 hours. With regard to continuing notice burdens, we estimate that each of the approximately 2,186 Covered Persons required to provide notices and opt out opportunities will incur an annual burden of 2 hours to develop notices for new consumers (4,372 hours total) and an annual burden of 2 hours to deliver the notices and record any opt outs for new consumers (4,372 hours total). These estimates represent a total one-time burden of 51,590 hours (12,242 hours plus 39,348 hours) and an ongoing annual burden of 8,744 hours (4,372 hours plus 4,372 hours). We do not expect that Covered Persons will incur start-up or materials costs in addition to the staff time discussed above.
Regulation S–AM does not contain express provisions governing the retention of records related to opt outs. However, as noted above, a person subject to Regulation S–AM would need to keep some record of consumer opt outs in order to know which consumers should not receive marketing solicitations based on eligibility information. These records would need to be retained for at least as long as the opt out period of five or more years, so that the person responsible for providing the renewal notice would know when that notice is required.
As noted, Covered Persons that use eligibility information from their affiliates for marketing purposes will be required to comply with the notice and opt out provisions of Regulation S–AM. Assuming that no other exception applies, the disclosure and recordkeeping requirements will be mandatory with respect to those Covered Persons.
The Commission has prepared this Final Regulatory Flexibility Analysis for Regulation S–AM in accordance with 5 U.S.C. 604.
Regulation S–AM implements Section 214 of the FACT Act (which added new Section 624 to the FCRA) that, in general, prohibits a person from using certain information received from an
Regulation S–AM applies to any Covered Person that uses eligibility information for the purpose of making marketing solicitations. Of the entities registered with the Commission, 896 broker-dealers, 197 investment companies, 671 registered investment advisers, and 76 registered transfer agents are considered small entities.
Regulation S–AM requires Covered Persons to provide consumers with notice and an opportunity to opt out of affiliated persons' use of eligibility information for marketing purposes. The final rule prohibits a Covered Person from using eligibility information received from an affiliate to make marketing solicitations to consumers, unless: (1) The potential marketing use of the information has been clearly, conspicuously and concisely disclosed to the consumer; (2) the consumer has been provided a reasonable opportunity and a simple method to opt out of receiving the marketing solicitation; and (3) the consumer has not opted out.
For those entities that provide the Section 624 notice in consolidation with other documents such as notices provided under the GLBA or other Federally mandated disclosures, the final rules impose very limited additional reporting or recordkeeping requirements. However, for Covered Persons that choose to send the notices separately, the reporting and recordkeeping requirements and other compliance requirements may be more substantial. Although the final rules do not include specific recordkeeping requirements, in practice some system of recordkeeping must exist to ensure that any consumer opt outs are honored.
There are a number of features of the FACT Act's affiliate marketing provisions as implemented by Regulation S–AM that limit its scope. First, the law only applies to the use of eligibility information by affiliates for the purpose of making marketing solicitations. Thus, affiliates that make marketing solicitations based solely upon their own information or without regard to eligibility information are not affected by this law. Second, the law provides exceptions to its notice and opt out requirements that permit Covered Persons to market to consumers with whom they have a “pre-existing business relationship” or from whom they have received a request for information. Third, § 248.123(a)(1)(i) allows a single, joint notice to be sent to a consumer on behalf of multiple affiliates.
A number of alternatives exist that could reduce the costs associated with compliance with Regulation S–AM. First, significant cost savings may be obtained by consolidating affiliate marketing notices with GLBA privacy notices or with other documents provided to consumers such as account statements. In addition, the model forms could be used for opt out notices that comply with the requirements of the rules. Regulation S–AM also permits Covered Persons to reduce the need for ongoing tracking by offering a permanent opt out from both the sharing of information between affiliates and from receiving marketing based on such sharing, which would be consistent with both the GLBA and FCRA notice and opt out requirements as well as with the FACT Act's notice and opt out requirements. Small entities may wish to consider whether consolidation of their privacy and affiliate marketing notices and opt out forms can reduce their compliance costs. Similar considerations can reduce the burden of providing affiliate marketing notices to new consumers. For example, as long as the notices remain clear, conspicuous, and concise,
The Commission was concerned about the potential impact of the proposed rules on small entities and requested comment on: (1) The potential impact of any or all of the provisions in the proposed rules, including any benefits and costs, that the Commission should consider; (2) the costs and benefits of any alternatives, paying special attention to the effect of the proposed rules on small entities in light of the above analysis; (3) costs to implement and to comply with the proposed rules, including any expenditure of time or money for, for example, employee training, legal counsel, or other professional time, for preparing and processing the notices; and (4) costs to record and track consumers' elections to opt out. We received no comments on these issues.
With the exception of the opt out for affiliate sharing under Section 603(d)(2)(A)(iii) of the FCRA, we have not identified any Federal statutes or regulations that duplicate, overlap, or conflict with Regulation S–AM. As discussed previously, while there is some overlap between Regulation S–AM and the affiliate sharing provisions of the FCRA and the notice provisions of Regulation S–P, we expect that Covered Persons will consolidate the notice provisions of Regulation S–AM, the affiliate sharing provisions of the FCRA and the privacy notice provisions of Regulation S–P.
The Regulatory Flexibility Act directs the Commission to consider significant alternatives that would accomplish the stated objectives of a rule while minimizing any significant adverse impact on small businesses. In connection with Regulation S–AM, the Commission considered the following alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the proposed rules for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the proposed rules, or any part thereof, for small entities.
The Commission does not believe that an exemption from coverage or special compliance or reporting requirements for small entities would be consistent with the mandates of the FACT Act. Section 214 of the FACT Act addresses the protection of consumer privacy, and consumer privacy concerns do not depend on the size of the entity involved. However, we have endeavored throughout the final rules to minimize the regulatory burden on all Covered Persons, including small entities, while meeting the statutory requirements. Small entities should benefit from the existing emphasis on performance rather than design standards throughout the final rules and the use of examples, including model forms for affiliate marketing notices. The Commission solicited and received no comment on any alternative system that would be consistent with the FACT Act but would minimize the impact on small entities.
Section 23(a)(2) of the Exchange Act
Section 3(f) of the Exchange Act,
The Commission is adopting Regulation S–AM and making conforming, technical amendments to Regulation S–P under the authority set forth in Section 214 of the FACT Act,
Affiliate marketing, Brokers, Consumer protection, Dealers, Investment advisers, Investment companies, Privacy, Reporting and recordkeeping requirements, Securities, Transfer agents.
15 U.S.C. 78q, 78q–1, 78w, 78mm, 80a–30, 80a–37, 80b–4, 80b–11, 1681s–3 and note, 1681w(a)(1), 6801–6809, and 6825.
(a)
(b)
The examples in this subpart are not exclusive. The examples in this subpart provide guidance concerning the rules' application in ordinary circumstances. The facts and circumstances of each individual situation, however, will determine whether compliance with an example, to the extent applicable, constitutes compliance with this subpart. Examples in a paragraph illustrate only the issue described in the paragraph and do not illustrate any other issue that may arise under this subpart. Similarly, the examples do not illustrate any issues that may arise under other laws or regulations.
As used in this subpart, unless the context requires otherwise:
(a)
(1) That company is regulated under section 214 of the FACT Act, Public Law 108–159, 117 Stat. 1952 (2003), by a government regulator other than the Commission; and
(2) Rules adopted by the other government regulator under section 214 of the FACT Act treat the broker, dealer, or investment company, or investment adviser or transfer agent registered with the Commission as an affiliate of that company.
(b)
(c)
(d)
(e)
(f)
(2)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(i) Based on eligibility information communicated to that person by its affiliate as described in this subpart; and
(ii) Intended to encourage the consumer to purchase or obtain such product or service.
(2)
(3)
(p)
(q)
(i) A financial contract between the person and the consumer which is in force on the date on which the consumer is sent a solicitation covered by this subpart;
(ii) The purchase, rental, or lease by the consumer of the person's goods or services, or a financial transaction (including holding an active account or a policy in force or having another continuing relationship) between the consumer and the person, during the 18-month period immediately preceding the date on which the consumer is sent a solicitation covered by this subpart; or
(iii) An inquiry or application by the consumer regarding a product or service offered by that person during the three-month period immediately preceding the date on which the consumer is sent a solicitation covered by this subpart.
(2)
(ii) If a consumer has an investment advisory contract with a registered investment adviser, the investment adviser has a pre-existing business relationship with the consumer and can use eligibility information it receives from its affiliates to make solicitations to the consumer about its products or services.
(iii) If a consumer was the record owner of securities issued by an investment company, but the consumer redeems these securities, the investment company has a pre-existing business relationship with the consumer and can use eligibility information it receives from its affiliates to make solicitations to the consumer about its products or services for 18 months after the date the consumer redeemed the investment company's securities.
(iv) If a consumer applies for a margin account offered by a broker-dealer, but does not obtain a product or service from or enter into a financial contract or transaction with the broker-dealer, the broker-dealer has a pre-existing business relationship with the consumer and can therefore use eligibility information it receives from its affiliates to make solicitations to the consumer about its products or services for three months after the date of the application.
(v) If a consumer makes a telephone inquiry to a broker-dealer about its products or services and provides contact information to the broker-dealer, but does not obtain a product or service from or enter into a financial contract or transaction with the institution, the broker-dealer has a pre-existing business relationship with the consumer and can therefore use eligibility information it receives from its affiliates to make solicitations to the consumer about its products or services for three months after the date of the inquiry.
(vi) If a consumer makes an inquiry by e-mail to a broker-dealer about one of its affiliated investment company's products or services but does not obtain a product or service from, or enter into a financial contract or transaction with the broker-dealer or the investment company, the broker-dealer and the investment company both have a pre-existing business relationship with the consumer and can therefore use eligibility information they receive from their affiliates to make solicitations to the consumer about their products or services for three months after the date of the inquiry.
(vii) If a consumer who has a pre-existing business relationship with an investment company that is part of a group of affiliated companies makes a telephone call to the centralized call center for the affiliated companies to inquire about products or services offered by a broker-dealer affiliated with the investment company, and provides contact information to the call center, the call constitutes an inquiry to the broker-dealer. In these circumstances, the broker-dealer has a pre-existing business relationship with the consumer and can therefore use eligibility information it receives from the investment company to make solicitations to the consumer about its products or services for three months after the date of the inquiry.
(3)
(ii) If a consumer who has an advisory contract with a registered investment adviser makes a telephone call to an affiliate of the investment adviser to ask about the affiliate's retail locations and hours, but does not make an inquiry about the affiliate's products or services, the call does not constitute an inquiry and does not establish a pre-existing business relationship between the consumer and the affiliate. Also, the affiliate's capture of the consumer's telephone number does not constitute an inquiry and does not establish a pre-existing business relationship between the consumer and the affiliate.
(iii) If a consumer makes a telephone call to a broker-dealer in response to an advertisement offering a free promotional item to consumers who call a toll-free number, but the advertisement does not indicate that the broker-dealer's products or services will be marketed to consumers who call in response, the call does not create a pre-existing business relationship between the consumer and the broker-dealer because the consumer has not made an inquiry about a product or service offered by the institution, but has merely responded to an offer for a free promotional item.
(r)
(s)
(1) Any broker or dealer other than a broker or dealer registered by notice with the Commission under section 15(b)(11) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b)(11));
(2) Any investment company;
(3) Any investment adviser registered with the Commission under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1,
(4) Any transfer agent registered with the Commission under section 17A of the Securities Exchange Act of 1934 (15 U.S.C. 78q–1).
(a)
(i) It is clearly and conspicuously disclosed to the consumer in writing or, if the consumer agrees, electronically, in a concise notice that you may use eligibility information about that consumer received from an affiliate to make marketing solicitations to the consumer;
(ii) The consumer is provided a reasonable opportunity and a reasonable and simple method to “opt out,” or the consumer prohibits you from using eligibility information to make marketing solicitations to the consumer; and
(iii) The consumer has not opted out.
(2)
(3)
(i) By an affiliate that has or has previously had a pre-existing business relationship with the consumer; or
(ii) As part of a joint notice from two or more members of an affiliated group of companies, provided that at least one of the affiliates on the joint notice has or has previously had a pre-existing business relationship with the consumer.
(b)
(i) You receive eligibility information from an affiliate;
(ii) You use that eligibility information to do one or more of the following:
(A) Identify the consumer or type of consumer to receive a marketing solicitation;
(B) Establish criteria used to select the consumer to receive a marketing solicitation; or
(C) Decide which of your products or services to market to the consumer or tailor your marketing solicitation to that consumer; and
(iii) As a result of your use of the eligibility information, the consumer is provided a marketing solicitation.
(2)
(3)
(4)
(i) Uses its own eligibility information that it obtained in connection with a pre-existing business relationship it has or had with the consumer to market your products or services to the affiliate's consumer; or
(ii) Directs its service provider to use the affiliate's own eligibility information that it obtained in connection with a pre-existing business relationship it has or had with the consumer to market your products or services to the consumer, and you do not communicate directly with the service provider regarding that use.
(5)
(A) Your affiliate controls access to and use of its eligibility information by the service provider (including the right to establish the specific terms and conditions under which the service provider may use such information to market your products or services);
(B) Your affiliate establishes specific terms and conditions under which the service provider may access and use your affiliate's eligibility information to market your products and services (or those of affiliates generally) to your affiliate's consumers, such as the identity of the affiliated companies whose products or services may be marketed to the affiliate's consumers by the service provider, the types of products or services of affiliated companies that may be marketed, and the number of times your affiliate's consumers may receive marketing materials, and periodically evaluates the service provider's compliance with those terms and conditions;
(C) Your affiliate requires the service provider to implement reasonable policies and procedures designed to ensure that the service provider uses your affiliate's eligibility information in accordance with the terms and conditions established by your affiliate relating to the marketing of your products or services;
(D) Your affiliate is identified on or with the marketing materials provided to the consumer; and
(E) You do not directly use your affiliate's eligibility information in the manner described in paragraph (b)(1)(ii) of this section.
(ii)
(B) The specific terms and conditions established by your affiliate as provided in paragraph (b)(5)(i)(B) of this section must be set forth in writing.
(6)
(ii) The same facts as in the example in paragraph (b)(6)(i) of this section, except that after using the eligibility information to identify the consumer to receive a marketing solicitation about brokerage products and services, the broker-dealer asks the registered investment adviser to send the marketing solicitation to the consumer and the investment adviser does so. Pursuant to paragraph (b)(1) of this section, the broker-dealer has made a marketing solicitation to the consumer because it used eligibility information about the consumer that it received from an affiliate to identify the consumer to receive a marketing solicitation about its products or services, and, as a result, a marketing solicitation was provided to the consumer about the broker-dealer's products and services.
(iii) The same facts as in the example in paragraph (b)(6)(i) of this section, except that eligibility information about consumers who have an investment advisory contract with a registered investment adviser is placed into a common database that all members of the affiliated group of companies may independently access and use. Without using the investment adviser's eligibility information, the broker-dealer develops selection criteria and provides those criteria, marketing materials, and related instructions to the investment adviser. The investment adviser reviews eligibility information about its own consumers using the selection criteria provided by the broker-dealer to determine which consumers should receive the broker-dealer's marketing materials and sends the broker-dealer's marketing materials to those consumers. Even though the broker-dealer has received eligibility information through the common database as provided in paragraph (b)(2) of this section, it did not use that information to identify consumers or establish selection criteria; instead, the investment adviser used its own eligibility information. Therefore, pursuant to paragraph (b)(4)(i) of this section, the broker-dealer has not made a marketing solicitation to the consumer.
(iv) The same facts as in the example in paragraph (b)(6)(iii) of this section, except that the registered investment adviser provides the broker-dealer's criteria to the investment adviser's service provider and directs the service provider to use the investment adviser's eligibility information to identify investment adviser consumers who meet the criteria and to send the broker-dealer's marketing materials to those consumers. The broker-dealer does not communicate directly with the service provider regarding the use of the investment adviser's information to market its products or services to the investment adviser's consumers. Pursuant to paragraph (b)(4)(ii) of this section, the broker-dealer has not made a marketing solicitation to the consumer.
(v) An affiliated group of companies includes an investment company, a principal underwriter for the investment company, a retail broker-dealer, and a transfer agent that also acts as a service provider. Each affiliate in the group places information about its consumers into a common database. The service provider has access to all information in the common database. The investment company controls access to and use of its eligibility information by the service provider. This control is set forth in a written agreement between the investment company and the service provider. The written agreement also requires the service provider to establish reasonable policies and procedures designed to ensure that the service provider uses the investment company's eligibility information in accordance with specific terms and conditions established by the investment company relating to the marketing of the products and services of all affiliates, including the principal underwriter and the retail broker-dealer. In a separate written communication, the investment company specifies the terms and conditions under which the service provider may use the investment company's eligibility information to market the retail broker-dealer's products and services to the investment company's consumers. The specific terms and conditions are: a list of affiliated companies (including the retail broker-dealer) whose products or services may be marketed to the investment company's consumers by the service provider; the specific products or services or types of products or services that may be marketed to the investment company's consumers by the service provider; the categories of eligibility information that may be used by the service provider in marketing products or services to the investment company's consumers; the types or categories of the investment company's consumers to whom the service provider may market products or services of investment company affiliates; the number and types of marketing communications that the service provider may send to the investment company's consumers; and the length of time during which the service provider may market the products or services of the investment company's affiliates to its consumers.
(vi) The same facts as in the example in paragraph (b)(6)(v) of this section, except that the terms and conditions permit the service provider to use the investment company's eligibility information to market the products and services of other affiliates to the investment company's consumers whenever the service provider deems it appropriate to do so. The service provider uses the investment company's eligibility information in accordance with the discretion afforded to it by the terms and conditions. Because the terms and conditions are not specific, the requirements of paragraph (b)(5) of this section have not been satisfied.
(c)
(1) To make a marketing solicitation to a consumer with whom you have a pre-existing business relationship;
(2) To facilitate communications to an individual for whose benefit you provide employee benefit or other services pursuant to a contract with an employer related to and arising out of the current employment relationship or status of the individual as a participant or beneficiary of an employee benefit plan;
(3) To perform services on behalf of an affiliate, except that this paragraph shall not be construed as permitting you to send marketing solicitations on behalf of an affiliate if the affiliate would not be permitted to send the marketing solicitation as a result of the election of the consumer to opt out under this subpart;
(4) In response to a communication about your products or services initiated by the consumer;
(5) In response to an authorization or request by the consumer to receive solicitations; or
(6) If your compliance with this subpart would prevent you from complying with any provision of State insurance laws pertaining to unfair discrimination in any State in which you are lawfully doing business.
(d)
(2)
(ii) The same facts as in paragraph (d)(2)(i) of this section, except the consumer has been given an opt out notice, but has not elected to opt out. The investment adviser asks a service provider to send the solicitation to the consumer on its behalf. The service provider may send the marketing solicitation on behalf of the investment adviser because, as a result of the consumer's not opting out, the investment adviser is permitted to make the marketing solicitation.
(3)
(ii) A consumer who has a brokerage account with a broker-dealer contacts the broker-dealer to request information about how to save and invest for a child's college education without specifying the type of savings or investment vehicle in which the consumer may be interested. Information about a range of different products or services offered by the broker-dealer and one or more of its affiliates may be responsive to that communication. Such products, services, and investments may include the following: investments in affiliated investment companies; investments in section 529 plans offered by the broker-dealer; or trust services offered by a different financial institution in the affiliated group. Any affiliate offering products or services that would be responsive to the consumer's request for information about saving and investing for a child's college education may use eligibility information to make marketing solicitations to the consumer in response to this communication.
(iii) A registered investment adviser makes a marketing call to the consumer without using eligibility information received from an affiliate. The investment adviser leaves a voice-mail message that invites the consumer to call a toll-free number to receive information about services offered by the investment adviser. If the consumer calls the toll-free number to inquire about the investment advisory services, the call is a consumer-initiated communication about a product or service, and the investment adviser may now use eligibility information it receives from its affiliates to make marketing solicitations to the consumer.
(iv) A consumer calls a broker-dealer to ask about retail locations and hours, but does not request information about
(v) A consumer calls a broker-dealer to ask about retail locations and hours. The customer service representative asks the consumer if there is a particular product or service about which the consumer is seeking information. The consumer responds that the consumer wants to stop in and find out about mutual funds (
(4)
(ii) A consumer completes an online application to open an online brokerage account with a broker-dealer. The broker-dealer's online application contains a blank check box that the consumer may check to authorize or request information from the broker-dealer's affiliates. The consumer checks the box. The consumer has authorized or requested marketing solicitations from the broker-dealer's affiliates.
(iii) A consumer completes an online application to open an online brokerage account with a broker-dealer. The broker-dealer's online application contains a check box indicating that the consumer authorizes or requests information from the broker-dealer's affiliates. The consumer does not deselect the check box. The consumer has not authorized or requested marketing solicitations from the broker-dealer's affiliates.
(iv) The terms and conditions of a brokerage account agreement contain preprinted boilerplate language stating that by applying to open an account the consumer authorizes or requests to receive solicitations from the broker-dealer's affiliates. The consumer has not authorized or requested marketing solicitations from the broker-dealer's affiliates.
(e)
(a)
(2)
(A) A single continuing relationship or multiple continuing relationships that the consumer establishes with you or your affiliates, including continuing relationships established subsequent to delivery of the opt out notice, so long as the notice adequately describes the continuing relationships covered by the opt out; or
(B) Any other transaction between the consumer and you or your affiliates as described in the notice.
(ii)
(A) Opens a brokerage account or enters into an advisory contract with you or your affiliate;
(B) Obtains a loan for which you or your affiliate owns the servicing rights;
(C) Purchases investment company shares in his or her own name;
(D) Holds an investment through you or your affiliate; such as when you act or your affiliate acts as a custodian for securities or for assets in an individual retirement arrangement;
(E) Enters into an agreement or understanding with you or your affiliate whereby you or your affiliate undertakes to arrange or broker a home mortgage loan for the consumer;
(F) Enters into a lease of personal property with you or your affiliate; or
(G) Obtains financial, investment, or economic advisory services from you or your affiliate for a fee.
(3)
(ii)
(A) The consumer uses your or your affiliate's ATM to withdraw cash from an account at another financial institution; or
(B) A broker-dealer opens a brokerage account for the consumer solely for the purpose of liquidating or purchasing securities as an accommodation,
(4)
(5)
(ii)
(b)
(c)
(a)
(i) The name of the affiliate(s) providing the notice. If the notice is provided jointly by multiple affiliates and each affiliate shares a common name, such as “ABC,” then the notice may indicate that it is being provided by multiple companies with the ABC name or multiple companies in the ABC group or family of companies, for example, by stating that the notice is provided by “all of the ABC companies,” “the ABC banking, credit card, insurance, and securities companies,” or by listing the name of each affiliate providing the notice. But if the affiliates providing the joint notice do not all share a common name, then the notice must either separately identify each affiliate by name or identify each of the common names used by those affiliates, for example, by stating that the notice is provided by “all of the ABC and XYZ companies” or by “the ABC bank and securities companies and the XYZ insurance companies”;
(ii) A list of the affiliates or types of affiliates whose use of eligibility information is covered by the notice, which may include companies that become affiliates after the notice is provided to the consumer. If each affiliate covered by the notice shares a common name, such as “ABC,” then the notice may indicate that it applies to multiple companies with the ABC name or multiple companies in the ABC group or family of companies, for example, by stating that the notice is provided by “all of the ABC companies,” “the ABC banking, credit card, insurance, and securities companies,” or by listing the name of each affiliate providing the notice. But if the affiliates covered by the notice do not all share a common name, then the notice must either separately identify each covered affiliate by name or identify each of the common names used by those affiliates, for example, by stating that the notice applies to “all of the ABC and XYZ companies” or to “the ABC banking and securities companies and the XYZ insurance companies”;
(iii) A general description of the types of eligibility information that may be used to make marketing solicitations to the consumer;
(iv) That the consumer may elect to limit the use of eligibility information to make marketing solicitations to the consumer;
(v) That the consumer's election will apply for the specified period of time stated in the notice and, if applicable, that the consumer will be allowed to renew the election once that period expires;
(vi) If the notice is provided to consumers who may have previously opted out, such as if a notice is provided to consumers annually, that the consumer who has chosen to limit marketing solicitations does not need to act again until the consumer receives a renewal notice; and
(vii) A reasonable and simple method for the consumer to opt out.
(2)
(ii) The opt out notice must explain how an opt out direction by a joint consumer will be treated. An opt out direction by a joint consumer may be treated as applying to all of the associated joint consumers, or each joint consumer may be permitted to opt out separately. If each joint consumer is permitted to opt out separately, one of the joint consumers must be permitted to opt out on behalf of all of the joint consumers and the joint consumers must be permitted to exercise their separate rights to opt out in a single response.
(iii) It is impermissible to require
(3)
(4)
(b)
(c)
(a)
(b)
(1)
(2)
(ii) The opt out notice is provided to the consumer by e-mail where the consumer has agreed to receive disclosures by e-mail from the person sending the notice. The consumer is given 30 days after the e-mail is sent to elect to opt out by any reasonable means.
(3)
(4)
(5)
(a)
(b)
(i) Designating a check-off box in a prominent position on the opt out form;
(ii) Including a reply form and a self-addressed envelope together with the opt out notice;
(iii) Providing an electronic means to opt out, such as a form that can be electronically mailed or processed at an Internet Web site, if the consumer agrees to the electronic delivery of information;
(iv) Providing a toll-free telephone number that consumers may call to opt out; or
(v) Allowing consumers to exercise all of their opt out rights described in a consolidated opt out notice that includes the GLBA privacy, FCRA affiliate sharing, and FCRA affiliate marketing opt outs, by a single method, such as by calling a single toll-free telephone number.
(2)
(i) Requiring the consumer to write his or her own letter;
(ii) Requiring the consumer to call or write to obtain a form for opting out, rather than including the form with the opt out notice; or
(iii) Requiring the consumer who receives the opt out notice in electronic form only, such as through posting at an Internet Web site, to opt out solely by paper mail or by visiting a different Web site without providing a link to that site.
(c)
(a)
(b)
(1) Hand-delivers a printed copy of the notice to the consumer;
(2) Mails a printed copy of the notice to the last known mailing address of the consumer;
(3) Provides a notice by e-mail to a consumer who has agreed to receive electronic disclosures by e-mail from the affiliate providing the notice; or
(4) Posts the notice on the Internet Web site at which the consumer obtained a product or service electronically and requires the consumer to acknowledge receipt of the notice.
(c)
(1) Only posts the notice on a sign in a branch or office or generally publishes the notice in a newspaper;
(2) Sends the notice by e-mail to a consumer who has not agreed to receive electronic disclosures by e-mail from the affiliate providing the notice; or
(3) Posts the notice on an Internet Web site without requiring the consumer to acknowledge receipt of the notice.
(a)
(i) The consumer has been given a renewal notice that complies with the requirements of this section and §§ 248.124 through 248.126, and a reasonable opportunity and a reasonable and simple method to renew the opt out, and the consumer does not renew the opt out; or
(ii) An exception in § 248.121(c) applies.
(2)
(3)
(i) By the affiliate that provided the previous opt out notice, or its successor; or
(ii) As part of a joint renewal notice from two or more members of an affiliated group of companies, or their successors, that jointly provided the previous opt out notice.
(b)
(1) The name of the affiliate(s) providing the notice. If the notice is provided jointly by multiple affiliates and each affiliate shares a common name, such as “ABC,” then the notice may indicate it is being provided by multiple companies with the ABC name
(2) A list of the affiliates or types of affiliates whose use of eligibility information is covered by the notice, which may include companies that become affiliates after the notice is provided to the consumer. If each affiliate covered by the notice shares a common name, such as “ABC,” then the notice may indicate that it applies to multiple companies with the ABC name or multiple companies in the ABC group or family of companies, for example, by stating that the notice is provided by “all of the ABC companies,” “the ABC banking, credit card, insurance, and securities companies,” or by listing the name of each affiliate providing the notice. But if the affiliates covered by the notice do not all share a common name, then the notice must either separately identify each covered affiliate by name or identify each of the common names used by those affiliates, for example, by stating that the notice applies to “all of the ABC and XYZ companies” or to “the ABC banking and securities companies and the XYZ insurance companies”;
(3) A general description of the types of eligibility information that may be used to make marketing solicitations to the consumer;
(4) That the consumer previously elected to limit the use of certain information to make marketing solicitations to the consumer;
(5) That the consumer's election has expired or is about to expire;
(6) That the consumer may elect to renew the consumer's previous election;
(7) If applicable, that the consumer's election to renew will apply for the specified period of time stated in the notice and that the consumer will be allowed to renew the election once that period expires; and
(8) A reasonable and simple method for the consumer to opt out.
(c)
(i) A reasonable period of time before the expiration of the opt out period; or
(ii) Any time after the expiration of the opt out period but before marketing solicitations that would have been prohibited by the expired opt out are made to the consumer.
(2)
(d)
(a)
(b)
(c)
a. Although you and your affiliates are not required to use the model forms in this Appendix, use of a model form (if applicable to each person that uses it) complies with the requirement in section 624 of the FCRA for clear, conspicuous, and concise notices.
b. Although you may need to change the language or format of a model form to reflect your actual policies and procedures, any such changes may not be so extensive as to affect the substance, clarity, or meaningful sequence of the language in the model forms. Acceptable changes include, for example:
1. Rearranging the order of the references to “your income,” “your account history,” and “your credit score.”
2. Substituting other types of information for “income,” “account history,” or “credit score” for accuracy, such as “payment history,” “credit history,” “payoff status,” or “claims history.”
3. Substituting a clearer and more accurate description of the affiliates providing or covered by the notice for phrases such as “the [ABC] group of companies.”
4. Substituting other types of affiliates covered by the notice for “credit card,” “insurance,” or “securities” affiliates.
5. Omitting items that are not accurate or applicable. For example, if a person does not limit the duration of the opt out period, the notice may omit information about the renewal notice.
6. Adding a statement informing the consumer how much time they have to opt out before shared eligibility information may be used to make solicitations to them.
7. Adding a statement that the consumer may exercise the right to opt out at any time.
8. Adding the following statement, if accurate: “If you previously opted out, you do not need to do so again.”
9. Providing a place on the form for the consumer to fill in identifying information, such as his or her name and address.
10. Adding disclosures regarding the treatment of opt-outs by joint consumers to comply with § 248.123(a)(2), if applicable.
• [Name of Affiliate] is providing this notice.
• [Optional: Federal law gives you the right to limit some but not all marketing from our affiliates. Federal law also requires us to give you this notice to tell you about your choice to limit marketing from our affiliates.]
• You may limit our affiliates in the [ABC] group of companies, such as our [investment adviser, broker, transfer agent, and investment company] affiliates, from marketing their products or services to you based on your personal information that we collect and share with them. This information includes your [income], your [account history with us], and your [credit score].
• Your choice to limit marketing offers from our affiliates will apply [until you tell us to change your choice]/[for x years from when you tell us your choice]/[for at least 5 years from when you tell us your choice]. [Include if the opt out period expires.] Once that period expires, you will receive a renewal notice that will allow you to continue to limit marketing offers from our affiliates for [another x years]/[at least another 5 years].
• [Include, if applicable, in a subsequent notice, including an annual notice, for consumers who may have previously opted out.] If you have already made a choice to limit marketing offers from our affiliates, you do not need to act again until you receive the renewal notice.
To limit marketing offers, contact us [include all that apply]:
• By telephone: 1–877–###–####
• On the Web:
• By mail: check the box and complete the form below, and send the form to:
☐ Do not allow your affiliates to use my personal information to market to me.
• The [ABC group of companies] is providing this notice.
• [Optional: Federal law gives you the right to limit some but not all marketing from the [ABC] companies. Federal law also requires us to give you this notice to tell you about your choice to limit marketing from the [ABC] companies.]
• You may limit the [ABC] companies, such as the [ABC investment companies, investment advisers, transfer agents, and broker-dealers] affiliates, from marketing their products or services to you based on your personal information that they receive from other [ABC] companies. This information includes your [income], your [account history], and your [credit score].
• Your choice to limit marketing offers from the [ABC] companies will apply [until you tell us to change your choice]/[for x years from when you tell us your choice]/[for at least 5 years from when you tell us your choice]. [Include if the opt out period expires.] Once that period expires, you will receive a renewal notice that will allow you to continue to limit marketing offers from the [ABC] companies for [another x years]/[at least another 5 years].
• [Include, if applicable, in a subsequent notice, including an annual notice, for consumers who may have previously opted out.] If you have already made a choice to limit marketing offers from the [ABC] companies, you do not need to act again until you receive the renewal notice.
To limit marketing offers, contact us [include all that apply]:
• By telephone: 1–877–###–####
• On the Web:
• By mail: check the box and complete the form below, and send the form to:
☐ Do not allow any company [in the ABC group of companies] to use my personal information to market to me.
• [Name of Affiliate] is providing this notice.
• [Optional: Federal law gives you the right to limit some but not all marketing from our affiliates. Federal law also requires us to give you this notice to tell you about your choice to limit marketing from our affiliates.]
• You previously chose to limit our affiliates in the [ABC] group of companies, such as our [investment adviser, investment company, transfer agent, and broker-dealer] affiliates, from marketing their products or services to you based on your personal information that we share with them. This information includes your [income], your [account history with us], and your [credit score].
• Your choice has expired or is about to expire.
To renew your choice to limit marketing for [x] more years, contact us [include all that apply]:
• By telephone: 1–877–###–####
• On the Web:
• By mail: check the box and complete the form below, and send the form to:
☐ Renew my choice to limit marketing for [x] more years.
• The [ABC group of companies] is providing this notice.
• [Optional: Federal law gives you the right to limit some but not all marketing from the [ABC] companies. Federal law also requires us to give you this notice to tell you about your choice to limit marketing from the [ABC] companies.]
• You previously chose to limit the [ABC] companies, such as the [ABC investment adviser, investment company, transfer agent, and broker-dealer] affiliates, from marketing their products or services to you based on your personal information that they receive from other ABC companies. This information includes your [income], your [account history], and your [credit score].
• Your choice has expired or is about to expire.
To renew your choice to limit marketing for [x] more years, contact us [include all that apply]:
• By telephone: 1–877–###–####
• On the Web:
• By mail: check the box and complete the form below, and send the form to:
☐ Renew my choice to limit marketing for [x] more years.
• [Name of Affiliate] is providing this notice.
• You may choose to stop all marketing from us and our affiliates.
• [Your choice to stop marketing from us and our affiliates will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
• By telephone: 1–877–###–####
• On the Web:
• By mail: check the box and complete the form below, and send the form to:
☐ Do not market to me.
By the Commission.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Direct final rule; request for comments.
In this direct final rule, the Agency is revising its Acetylene Standard for general industry by updating references to standards published by standards developing organizations (
This direct final rule will become effective on November 9, 2009 unless significant adverse comment is received by September 10, 2009. If adverse comment is received, OSHA will publish a timely withdrawal of the rule in the
The incorporation by reference of specific publications listed in this direct final rule is approved by the Director of the Federal Register as of November 9, 2009.
Submit comments and hearing requests as follows:
•
•
•
•
OSHA requests comments on all issues related to this direct final rule. It also welcomes comments on its findings that this direct final rule would have no negative economic, paperwork, or other regulatory impacts on the regulated community. This direct final rule is the companion document to a notice of proposed rulemaking also published in the “Proposed Rules” section of today's
•
This action is part of a rulemaking project instituted by the Occupational Safety and Health Administration (“OSHA” or “the Agency”) to update OSHA standards that reference or include language from outdated standards published by standards developing organizations (“SDO standards”) (69 FR 68283). The SDO standards referenced in OSHA's Acetylene Standard (29 CFR 1910.102) are among the SDO standards that the Agency identified for revision.
OSHA adopted the Acetylene Standard in 1974 pursuant to Section 6(a) of the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 651, 655). This section allowed OSHA, during the first two years after passage of the OSH Act, to adopt existing Federal and national consensus standards as OSHA safety and health standards, including the current Acetylene Standard.
After OSHA announced the SDO rulemaking project, the Agency met with the Compressed Gas Association (“CGA”) about the rulemaking project. CGA, a private standards organization, provided detailed recommendations on updating SDO standards referenced in OSHA standards, including the Acetylene Standard (Ex. OSHA–2008–0034–0003). Thereafter, the U.S. Chemical Safety and Hazard Investigation Board (“Chemical Safety Board”) also recommended that OSHA update the SDO standards referenced in the Acetylene Standard (Ex. OSHA–2008–0034–0004).
In a direct final rulemaking, an agency publishes a direct final rule in the
OSHA uses direct final rules in the SDO rulemaking project because it expects the rules to: Be noncontroversial; provide protection to employees that is at least equivalent to the protection afforded to them by the outdated SDO standard; and impose no significant new compliance costs on employers (69 FR 68283, 68285). OSHA is using direct final rules to update or, when appropriate, revoke references to outdated national SDO standards in OSHA rules (
For purposes of the direct final rule, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach. In determining whether a comment necessitates withdrawal of the direct final rule, OSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. OSHA will not consider a comment recommending additional revisions to a rule to be a significant adverse comment unless the comment states why the direct final rule would be ineffective without the revisions. If OSHA receives a timely significant adverse comment, the Agency will publish a
OSHA believes that the revisions made to the Acetylene Standard by this direct final rule do not compromise the safety of employees, and instead enhance employee protection. For example, the updated Acetylene Standard includes mandatory requirements for acetylene piping systems, has special requirements for high-pressure piping systems, and prohibits storage of acetylene cylinders in confined spaces—requirements that are not included in the current SDO standards. The updated SDO standards also provide employers with new and more extensive information than the current standards, which should facilitate compliance. OSHA believes that replacing the unenforceable SDO standard in § 1910.102(b) (
The Agency determined that updating and replacing the SDO standards in the Acetylene Standard is appropriate for direct final rulemaking. As described below, the revisions will make the requirements of OSHA's Acetylene Standard consistent with current industry practices, thereby eliminating confusion and clarifying employer obligations. Eliminating confusion and clarifying employer obligations should increase employee safety while reducing compliance costs.
This direct final rule updates the SDO standards referenced in the three paragraphs that comprise the Acetylene Standard. The Compressed Gas Association (CGA) published several editions of these SDO standards after OSHA adopted them in 1974, and one of these standards (
The following discussion provides a summary of the revisions OSHA is making to paragraphs (a), (b), and (c) of the Acetylene Standard.
For paragraph (a) of § 1910.102, the direct final rule is replacing the reference to the 1966 edition of CGA Pamphlet G–1 (“Acetylene”) (Ex. OSHA–2008–0034–0005) with the most recent (
In reviewing CGA–1–2003, OSHA identified two provisions in that standard that appear to be substantive
Other differences between the 1966 and 2003 editions of CGA G–1 include adding the following sentence to the provision warning employers to avoid abnormal mechanical shocks that could damage cylinders, valves, and pressure-relief devices:
The remaining differences between the 1966 and 2003 editions include: Making plain-language revisions to the text; providing measurements using the International System of Units; listing current Department of Transportation specifications; presenting guidance in the 2003 edition on how to handle leaking cylinders; and noting in the 2003 edition that commercial acetylene generally is considered nontoxic. CGA also added text to the 2003 edition that prohibits tightening leaking fuseplugs or valves while the cylinder is under pressure, as well as enhanced illustrations (Figure 1) of acetylene cylinder-shell constructions.
OSHA believes that the provisions of CGA G–1–2003 are consistent with the usual and customary practice of employers in the industry, and has determined that incorporating CGA G–1–2003 into paragraph (a) of § 1910.102 does not add compliance burden for employers. OSHA invites the public to comment on whether the revisions made to CGA G–1–1966 in the 2003 edition of the standard represent current industry practice.
CGA no longer publishes CGA Pamphlet G–1.3–1959 (“Acetylene Transmission for Chemical Synthesis”) (Ex. OSHA–2008–0034–0007). In addition, both this standard and its recent replacement (
The piping-system requirements specified in NFPA 51A–2006 or NFPA 51A–2001 are not as extensive as the requirements contained in either CGA Pamphlet G–1.3–1959 or Part 3 of CGA G–1.2–2006. However, OSHA believes that the piping-system requirements in the two NFPA standards will provide employers with important information for installing and maintaining piping systems used to transfer acetylene until a more detailed (and enforceable) standard becomes available. In addition, unlike CGA Pamphlet G–1.3–1959, the two NFPA standards have special requirements for high-pressure acetylene piping systems, which OSHA believes will likely increase employee protection. Meanwhile, paragraph (b)(iv) of § 1910.102 refers employers to Part 3 of CGA G–1.2–2006 for additional information on acetylene piping systems.
OSHA believes that the revisions to § 1910.102(b) represent the usual and customary practice of the industry today. Therefore, OSHA concludes that making these revisions will not impose an additional compliance burden on employers. Accordingly, OSHA requests public comment on the extent to which the revisions made in § 1910.102(b) represent current industry practice.
CGA no longer publishes the consensus standard referenced in paragraph (c) of CGA G–1.4–1966 (“Standard for Acetylene Charging Plants”) (Ex. OSHA–2008–0034–0011). In 1970, the National Fire Protection Association (NFPA) adopted this CGA standard as NFPA 51A (“Standard for Acetylene Charging Plants”) (Ex. OSHA–2008–0034–0012). NFPA manages revisions to this standard, the latest versions of which it published in 2001 and 2006.
Section 1.4.1 of the 2006 standard excepts from the standard any “facilities, equipment, structures, or installations that existed or were approved for construction or installation prior to the effective date of the standard.”
OSHA is requiring in this direct final rule that employers comply with NFPA 51A–2001, provided they demonstrate that the installations, facilities, equipment, or structures used to generate acetylene or to charge (fill) acetylene cylinders existed, or were approved for construction or installation, prior to February 16, 2006. Employers having installations, facilities, equipment, or structures approved for construction or installation on or after February 16, 2006, must comply with NFPR 51A–2006.
While many of the differences between CGA G–1.4–1966 and NFPA 51A–2001 and –2006 involve minor revisions to the text, usually to update the terminology or to improve the comprehensibility of the text, a number of the differences are substantive. OSHA compiled lists of these substantive differences, and is making these lists available in the docket at
OSHA presumes that employers in the industry currently apply the requirements of NFPA 51A–2001 to installations, facilities, equipment, or structures constructed or installed prior to February 16, 2006, and that they apply NFPA 51A–2006 to installations, facilities, equipment, or structures approved for construction or installation on or after February 16, 2006. Consequently, OSHA has determined that this direct final rule will impose no additional compliance burden on these employers. OSHA invites the public to comment on the extent to which employers involved in charging acetylene cylinders already comply with NFPA 51A–2001 and –2006, as well as any additional burden this direct final rule imposes on these employers.
The purpose of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
This direct final rule will not reduce the employee protections put into place by the standards OSHA is updating under this rulemaking. In fact, this rulemaking likely will enhance employee safety by adding requirements, eliminating confusing requirements, and clarifying employer obligations. Therefore, it is unnecessary to determine significant risk, or the extent to which this rule would reduce that risk, as typically is required by
The direct final rule is not “economically significant” as specified by Executive Order 12866, or a “major rule” under Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”; 5 U.S.C. 804). The direct final rule does not impose significant additional costs on any private- or public-sector entity, and does not meet any of the criteria for an economically significant or major rule specified by Executive Order 12866 and the relevant statutes. (While not economically significant, as part of OSHA's regulatory agenda, the direct final rule is a “significant regulatory action” under Executive Order 12866.)
The direct final rule simply updates references to outdated SDO standards in OSHA's Acetylene Standard. The Agency concludes that the revisions will not impose any additional costs on employers because it believes that the updated SDO standards represent the usual and customary practice of employers in the industry. Consequently, the direct final rule imposes no costs on employers. Therefore, OSHA certifies that it will not have a significant impact on a substantial number of small entities. Accordingly, the Agency is not preparing a regulatory flexibility analysis under the SBREFA (5 U.S.C. 601
Neither the existing nor updated SDO standards addressed by this direct final rule contain collection of information requirements. Therefore, this direct final rule does not impose or remove any information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Members of the public may respond to this paperwork determination by sending their written comments to the Office of Information and Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218–AC08), Office of Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503. The Agency encourages commenters to submit these comments to the rulemaking docket, along with their comments on other parts of the direct final rule. For instructions on submitting these comments and accessing the docket,
To make inquiries, or to request other information, contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, Room N–3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693–2222.
OSHA reviewed this direct final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional authority exists and the
Under Section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act”; U.S.C. 651
While OSHA drafted this direct final rule to protect employees in every State, Section 18(c)(2) of the Act permits State-Plan States and Territories to develop and enforce their own standards for acetylene operations provided these requirements are at least as effective in providing safe and healthful employment and places of employment as the requirements specified in this direct final rule.
In summary, this direct final rule complies with Executive Order 13132. In States without OSHA-approved State Plans, any standard developed from this direct final rule would limit State policy options in the same manner as every standard promulgated by OSHA. In States with OSHA-approved State Plans, this rulemaking would not significantly limit State policy options.
When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, the 26 States or U.S. Territories with their own OSHA-approved occupational safety and health plans (“State-Plan States”) must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary (
OSHA has determined that the State-Plan States must adopt provisions comparable to the provisions in this direct final rule within six months after the effective date of the rule. OSHA believes that the provisions of this direct final rule provide employers in State-Plan States and Territories with new and critical information and methods necessary to protect their employees from the hazards found in and around workplaces engaged in acetylene operations. The 26 States and territories with OSHA-approved State Plans are: Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Connecticut, New Jersey, New York, and the Virgin Islands have OSHA-approved State Plans that apply to State and local government employees only. Until a State-Plan State/Territory promulgates its own comparable provisions based on this direct final rule, Federal OSHA will provide the State/Territory with interim enforcement assistance, as appropriate.
OSHA reviewed this direct final rule in accordance with the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501
As noted above under Section IV.E (“State-Plan States”) of this notice, the Agency's standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this direct final rule does not meet the definition of a “Federal intergovernmental mandate” (
OSHA requests comments on all issues concerning this direct final rule. The Agency also welcomes comments on its determination that this direct final rule has no negative economic or other regulatory impacts on employers, and will increase employee protection. If OSHA receives no significant adverse comment, it will publish a
The Agency will withdraw this direct final rule if it receives significant adverse comment on the amendments contained in it, and proceed with the companion proposed rule by addressing the comment(s) and publishing a new final rule. Should the Agency receive a significant adverse comment regarding some actions taken in the direct final rule, but not others, it may (1) finalize those actions that did not receive significant adverse comment, and (2) conduct further rulemaking under the companion proposed rule for the actions that received significant adverse comment. The comment period for this direct final rule runs concurrently with that of the companion proposed rule. Therefore, any comments received under this direct final rule will be treated as comments regarding the companion proposed rule. Similarly, OSHA will consider a significant adverse comment submitted to this direct final rule as a comment to the companion proposed rule; the Agency will consider such a comment in developing a subsequent final rule.
Comments received will be posted without revision to
Acetylene, General industry, Incorporation by reference, Occupational safety and health, Safety.
Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this notice. The Agency is issuing this notice under Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5–2007 (72 FR 31159), and 29 CFR part 1911.
Sections 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Numbers 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), and 5–2007 (72 FR 31159), as applicable.
Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Public Law 106–113 (113 Stat. 1501A–222); and OMB Circular A–25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
The additions and revisions read as follows:
(k) * * *
(3) CGA G–1–2003 Acetylene, IBR approved for § 1910.102(a). Copies of CGA Pamphlet G–1–2003 are available for purchase from the: Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor, Chantilly, VA 20151; telephone: 703–788–2700; fax: 703–961–1831; e-mail:
(q) * * *
(34) NFPA 51A (2001) Standard for Acetylene Cylinder Charging Plants, IBR approved for § 1910.102(b) and (c). Copies of NFPA 51A–2001 are available for purchase from the: National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169–7471; telephone: 1–800–344–35557; e-mail:
(35) NFPA 51A (2006) Standard for Acetylene Cylinder Charging Plants, IBR approved for § 1910.102(b) and (c). Copies of NFPA 51A–2006 are available for purchase from the: National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169–7471; telephone: 1–800–344–35557; e-mail:
Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders Nos. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), or 5–2007 (72 FR 31159), as applicable; and 29 CFR part 11.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119, 1910.120, and 1910.122 through 1910.126 also issued under 29 CFR part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act Amendments of 1990 (Pub. L. 101–549), reprinted at 29 U.S.C. 655 Note.
Section 1910.120 also issued under Section 126, Superfund Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655 Note), and 5 U.S.C. 553.
(a)
(b)
(2) When employers can demonstrate that the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) acetylene cylinders were installed prior to February 16, 2006, these employers may comply with the provisions of Chapter 7 (“Acetylene Piping”) of NFPA 51A–2001 (“Standard for Acetylene Charging Plants”) (National Fire Protection Association, 2001 ed., 2001).
(3) The provisions of § 1910.102(b)(2) also apply when the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) acetylene cylinders were approved for construction or installation prior to February 16, 2006, but constructed and installed on or after that date.
(4) For additional information on acetylene piping systems,
(c)
(2) When employers can demonstrate that the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) of acetylene cylinders were constructed or installed prior to February 16, 2006, these employers may comply with the provisions of NFPA 51A–2001 (“Standard for Acetylene Charging Plants”) (National Fire Protection Association, 2001 ed., 2001).
(3) The provisions of § 1910.102(c)(2) also apply when the facilities, equipment, structures, or installations were approved for construction or installation prior to February 16, 2006, but constructed and installed on or after that date.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of proposed rulemaking.
In this Notice of Proposed Rulemaking (NPRM), the Agency is proposing to revise its Acetylene Standard for general industry by updating references to standards published by standards developing organizations (
Submit comments to this NPRM (including comments to the information-collection (paperwork) determination described under the section titled Procedural Determinations), hearing requests, and other information by September 10, 2009. All submissions must bear a postmark or provide other evidence of the submission date. (The following section titled
Submit comments and hearing requests as follows:
•
•
•
•
OSHA requests comments on all issues related to this NPRM. It also welcomes comments on its findings that this NPRM would have no negative economic, paperwork, or other regulatory impacts on the regulated community. This NPRM is the companion document to a direct final rule also published in today's
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This action is part of a rulemaking project instituted by the Occupational Safety and Health Administration (“OSHA” or “the Agency”) to update OSHA standards that reference or include language from outdated standards published by standards developing organizations (“SDO standards”) (69 FR 68283). The SDO
OSHA adopted the Acetylene Standard in 1974 pursuant to Section 6(a) of the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 651, 655). This section allowed OSHA, during the first two years after passage of the OSH Act, to adopt existing Federal and national consensus standards as OSHA safety and health standards, including the current Acetylene Standard.
After OSHA announced the SDO rulemaking project, the Agency met with the Compressed Gas Association (“CGA”) about the rulemaking project. CGA, a private standard organization, provided detailed recommendations on updating SDO standards referenced in OSHA standards, including the Acetylene Standard (Ex. OSHA–2008–0034–0003). Thereafter, the U.S. Chemical Safety and Hazard Investigation Board (“Chemical Safety Board”) also recommended that OSHA update the SDO standards referenced in the Acetylene Standard (Ex. OSHA–2008–0034–0004).
In a direct final rulemaking (“DFR”), an agency publishes a DFR in the
OSHA uses DFRs in the SDO rulemaking project because it expects the rules to: be noncontroversial; provide protection to employees that is at least equivalent to the protection afforded to them by the outdated SDO standard; and impose no significant new compliance costs on employers (69 FR 68283, 68285). OSHA is using DFRs to update or, when appropriate, revoke references to outdated national SDO standards in OSHA rules (
For purposes of the DFR, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach. In determining whether a comment necessitates withdrawal of the DFR, OSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. OSHA will not consider a comment recommending additional revisions to a rule to be a significant adverse comment unless the comment states why the DFR would be ineffective without the revisions. If OSHA receives a timely significant adverse comment, the Agency will publish a
OSHA believes that the proposed revisions to the Acetylene Standard would not compromise the safety of employees, and instead would enhance employee protection. For example, the updated Acetylene Standard would include mandatory requirements for acetylene piping systems, have special requirements for high-pressure piping systems, and prohibit storage of acetylene cylinders in confined spaces—requirements that are not included in the current SDO standards. The updated SDO standards also provide employers with new and more extensive information than the current standards, which should facilitate compliance. Replacing the unenforceable SDO standard in § 1910.102(b) (
The Agency preliminarily determined that updating and replacing the SDO standards in the Acetylene Standard is appropriate for direct final rulemaking. As described below, the proposed revisions will make the requirements of OSHA's Acetylene Standard consistent with current industry practices, thereby eliminating confusion and clarifying employer obligations. Eliminating confusion and clarifying employer obligations should increase employee safety while reducing compliance costs.
This NPRM would update the SDO standards referenced in the three paragraphs that comprise the Acetylene Standard. The Compressed Gas Association (CGA) published several editions of these SDO standards after OSHA adopted them in 1974, and one of these standards (
For paragraph (a) of § 1910.102, the NPRM proposes to replace the reference to the 1966 edition of CGA Pamphlet G–1 (“Acetylene”) (Ex. OSHA–2008–0034–0005) with the most recent (
In reviewing CGA–1–2003, OSHA identified two provisions in that standard that appear to be substantive revisions from the 1966 edition. First, the last provision of paragraph 5.2 in the 2003 edition prohibits storing acetylene cylinders in confined spaces such as drawers, closets, unventilated cabinets, automobile trunks, or toolboxes. In addition, the document recommends that acetylene cylinders should not be stored or transported in automobiles or any enclosed vehicles. The 1966 edition contains neither the above prohibition nor recommendation. Second, both editions recommend flow rates that will minimize withdrawal of liquid solvent when releasing acetylene from a cylinder; however, the recommended flow rates differ between the two editions. Paragraph 5.3.3.13 of the 1966 edition specifies that the flow rate should be one-seventh of the capacity of the cylinder per hour regardless of the duration of use, while paragraph 6.2 of the 2003 edition recommends a flow rate of one-tenth of the cylinder capacity per hour during intermittent use, and one-fifteenth of the cylinder capacity per hour during continuous use.
Other differences between the 1966 and 2003 editions of CGA G–1 include adding the following sentence to the provision warning employers to avoid abnormal mechanical shocks that could damage cylinders, valves, and pressure-relief devices:
The remaining differences between the 1966 and 2003 editions include: making plain-language revisions to the text; providing measurements using the International System of Units; listing current Department of Transportation specifications; presenting guidance in the 2003 edition on how to handle leaking cylinders; and noting in the 2003 edition that commercial acetylene generally is considered nontoxic. CGA also added text to the 2003 edition that prohibits tightening leaking fuseplugs or valves while the cylinder is under pressure, as well as enhanced illustrations (Figure 1) of acetylene cylinder-shell constructions.
OSHA believes that the provisions of CGA G–1–2003 are consistent with the usual and customary practice of employers in the industry, and preliminarily determines that incorporating CGA G–1–2003 into paragraph (a) of § 1910.102 would not add compliance burden for employers. OSHA invites the public to comment on whether the revisions made to CGA G–1–1966 in the 2003 edition of the standard represent current industry practice.
CGA no longer publishes CGA Pamphlet G–1.3–1959 (“Acetylene Transmission for Chemical Synthesis”) (Ex. OSHA–2008–0034–0007). In addition, both this standard and its recent replacement (
The piping-system requirements specified in NFPA 51A–2006 or NFPA 51A–2001 are not as extensive as the requirements contained in either CGA Pamphlet G–1.3–1959 or Part 3 of CGA G–1.2–2006. However, OSHA believes that the piping-system requirements in the two NFPA standards will provide employers with important information for installing and maintaining piping systems used to transfer acetylene until a more detailed (and enforceable) standard becomes available. In addition, unlike CGA Pamphlet G–1.3–1959, the two NFPA standards have special requirements for high-pressure acetylene piping systems, which likely would increase employee protection. Meanwhile, paragraph (b)(iv) of § 1910.102 refers employers to Part 3 of CGA G–1.2–2006 for additional information on acetylene piping systems.
OSHA believes that the revisions it is proposing to § 1910.102(b) represent the usual and customary practice of the industry today. Therefore, OSHA preliminarily concludes that making the proposed revisions would not impose an additional compliance burden on employers. Accordingly, OSHA requests public comment on the extent to which the revisions proposed for § 1910.102(b) represent current industry practice.
CGA no longer publishes the consensus standard referenced in paragraph (c) of CGA G–1.4–1966 (“Standard for Acetylene Charging Plants”) (Ex. OSHA–2008–0034–0011). In 1970, the National Fire Protection Association (NFPA) adopted this CGA standard as NFPA 51A (“Standard for Acetylene Charging Plants”) (Ex. OSHA–2008–0034–0012). NFPA manages revisions to this standard, the latest versions of which it published in 2001 and 2006.
Section 1.4.1 of the 2006 standard excepts from the standard any “facilities, equipment, structures, or installations that existed or were approved for construction or installation prior to the effective date of the standard.”
OSHA is proposing in this NPRM that employers comply with NFPA 51A–2001, provided they demonstrate that the installations, facilities, equipment, or structures used to generate acetylene or to charge (fill) acetylene cylinders existed, or were approved for construction or installation, prior to February 16, 2006. Employers having installations, facilities, equipment, or structures approved for construction or installation on or after February 16, 2006, would have to comply with NFPR 51A–2006.
While many of the differences between CGA G–1.4–1966 and NFPA 51A–2001 and –2006 involve minor revisions to the text, usually to update the terminology or to improve the
OSHA believes that employers in the industry currently apply the requirements of NFPA 51A–2001 to installations, facilities, equipment, or structures constructed or installed prior to February 16, 2006, and that they apply NFPA 51A–2006 to installations, facilities, equipment, or structures approved for construction or installation on or after February 16, 2006. Consequently, OSHA preliminarily determines that this NPRM would impose no additional compliance burden on these employers. OSHA invites the public to comment on the extent to which employers involved in charging acetylene cylinders already comply with NFPA 51A–2001 and –2006, as well as any additional burden these employers would have if OSHA adopted the proposed standard.
The purpose of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
This proposed rule will not reduce the employee protections put into place by the standards OSHA is updating under this rulemaking. In fact, this rulemaking likely would enhance employee safety by adding requirements, eliminating confusing requirements, and clarifying employer obligations. Therefore, it is unnecessary to determine significant risk, or the extent to which this rule would reduce that risk, as typically is required by
The proposed standard would not be “economically significant” as specified by Executive Order 12866, or a “major rule” under Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”; 5 U.S.C. 804). The direct final rule does not impose significant additional costs on any private- or public-sector entity, and does not meet any of the criteria for an economically significant or major rule specified by Executive Order 12866 and the relevant statutes. (While not economically significant, as part of OSHA's regulatory agenda, the proposed standard is a “significant regulatory action” under Executive Order 12866.)
The NPRM simply proposes to update references to outdated SDO standards in OSHA's Acetylene Standard. The Agency preliminarily concludes that the proposed revisions would not impose any additional costs on employers because it believes that the updated SDO standards represent the usual and customary practice of employers in the industry. Consequently, the proposal imposes no costs on employers. Therefore, OSHA certifies that it would not have a significant impact on a substantial number of small entities. Accordingly, the Agency is not preparing a regulatory flexibility analysis under the SBREFA (5 U.S.C. 601
Neither the existing nor updated SDO standards addressed by this NPRM contain collection-of-information requirements. Therefore, this NPRM does not impose or remove any information-collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Members of the public may respond to this paperwork determination by sending their written comments to the Office of Information and Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218–AC08), Office of Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503. The Agency encourages commenters to submit these comments to the rulemaking docket, along with their comments on other parts of the direct final rule. For instructions on submitting these comments and accessing the docket,
To make inquiries, or to request other information, contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, Room N–3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693–2222.
OSHA reviewed this NPRM in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption must be limited to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act”; U.S.C. 651
While OSHA drafted this NPRM to protect employees in every State, Section 18(c)(2) of the Act permits State-Plan States and Territories to develop and enforce their own standards for acetylene operations provided these requirements are at least as effective in providing safe and healthful employment and places of employment as the final requirements that result from this proposal.
In summary, this NPRM complies with Executive Order 13132. In States without OSHA-approved State Plans,
When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, the 26 States or U.S. Territories with their own OSHA-approved occupational safety and health plans (“State-Plan States”) must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary (
OSHA preliminarily determined that the State-Plan States would have to adopt provisions comparable to the provisions in this NPRM within six months after the Agency publishes the final rule that results from this proposal. OSHA believes that the provisions of this NPRM would provide employers in State-Plan States and Territories with new and critical information and methods necessary to protect their employees from the hazards found in and around workplaces engaged in acetylene operations. The 26 States and Territories with OSHA-approved State Plans are: Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Connecticut, New Jersey, New York, and the Virgin Islands have OSHA-approved State Plans that apply to State and local government employees only. Until a State-Plan State/Territory promulgates its own comparable provisions based on the final rule developed from this NPRM, Federal OSHA will provide the State/Territory with interim enforcement assistance, as appropriate.
OSHA reviewed this NPRM in accordance with the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501
As noted above under Section IV.E (“State-Plan States”) of this notice, the Agency's standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this NPRM would not meet the definition of a “Federal intergovernmental mandate” (
OSHA requests comments on all issues concerning this NPRM. The Agency also welcomes comments on its determination that this NPRM would have no negative economic or other regulatory impacts on employers, and will increase employee protection. If OSHA receives no significant adverse comment, it will publish a
The Agency will withdraw the DFR if it receives significant adverse comment on the amendments contained in the DFR, and proceed with this NPRM by addressing the comment(s) and publishing a new final rule. Should the Agency receive a significant adverse comment regarding some actions taken in the DFRs, but not others, it may (1) finalize those actions that did not receive significant adverse comment, and (2) conduct further rulemaking under this NPRM for the actions that received significant adverse comment. The comment period for this NPRM runs concurrently with that of the DFR. Therefore, any comments received under this NPRM will be treated as comments regarding the DFR. Similarly, OSHA will consider a significant adverse comment submitted to the DFR as a comment to this NPRM; the Agency will consider such a comment in developing a subsequent final rule.
Comments received will be posted without revision to
Acetylene, General industry, Occupational safety and health, Safety.
Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this proposed standard. The Agency is issuing this proposed standard under Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5–2007 (72 FR 31159), and 29 CFR part 1911.
For the reasons stated above in the preamble, OSHA is proposing to amend 29 CFR part 1910 as follows:
1. Revise the authority citation for subpart A of part 1910 to read as follows:
Sections 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Numbers 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), and 5–2007 (72 FR 31159), as applicable.
Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106–113 (113 Stat. 1501A–222); and OMB Circular A–25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
2. Amend § 1910.6 as follows:
A. Revise paragraph (k)(3).
B. Remove paragraphs (k)(4) and (k)(5), and redesignate paragraphs (k)(6) through (k)(15) as paragraphs (k)(4) through (k)(13).
C. Add new paragraphs (q)(34) and (q)(35).
The additions and revisions read as follows:
(k) * * *
(3) CGA G–1–2003 Acetylene, IBR approved for § 1910.102(a). Copies of CGA Pamphlet G–1–2003 are available for purchase from the: Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor, Chantilly, VA 20151; telephone: 703–788–2700; fax: 703–961–1831; e-mail:
(q) * * *
(34) NFPA 51A (2001)
(35) NFPA 51A (2006)
3. Revise the authority citation for subpart H of part 1910 to read as follows:
Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders Nos. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), or 5–2007 (72 FR 31159), as applicable; and 29 CFR part 11.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119, 1910.120, and 1910.122 through 1910.126 also issued under 29 CFR part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act Amendments of 1990 (Pub. L. 101–549), reprinted at 29 U.S.C. 655 Note.
Section 1910.120 also issued under Section 126, Superfund Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655 Note), and 5 U.S.C. 553.
4. Revise § 1910.102 to read as follows:
(a)
(b)
(2) When employers can demonstrate that the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) acetylene cylinders were installed prior to February 16, 2006, these employers may comply with the provisions of Chapter 7 (“Acetylene Piping”) of NFPA 51A–2001 (“Standard for Acetylene Charging Plants”) (National Fire Protection Association, 2001 ed., 2001).
(3) The provisions of § 1910.102(b)(2) also apply when the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) acetylene cylinders were approved for construction or installation prior to February 16, 2006, but constructed and installed on or after that date.
(4) For additional information on acetylene piping systems,
(c)
(2) When employers can demonstrate that the facilities, equipment, structures, or installations used to generate acetylene or to charge (fill) of acetylene cylinders were constructed or installed prior to February 16, 2006, these employers may comply with the provisions of NFPA 51A–2001 (“Standard for Acetylene Charging Plants”) (National Fire Protection Association, 2001 ed., 2001).
(3) The provisions of § 1910.102(c)(2) also apply when the facilities, equipment, structures, or installations were approved for construction or installation prior to February 16, 2006, but constructed and installed on or after that date.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2005–36. A companion document, the
For effective dates and comment dates, see separate documents, which follow.
The analyst whose name appears in the table below in relation to each FAR case. Please cite FAC 2005–36 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501–4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005–36 amends the FAR as specified below:
This final rule amends the Federal Acquisition Regulation (FAR) subparts 5.1, 5.2, and 7.1 to remove all references to the Federal Technical Data Solution (FedTeDS) System, and refer to the enhanced capabilities of the Governmentwide Point of Entry (GPE) system. The FedTeDS system was used to post on-line technical data packages and other items associated with solicitations that required some level of access control. It was interfaced directly with the GPE system. In April 2008, the newest version of the GPE was launched. This version incorporated the capabilities of FedTeDS, allowing the FedTeDS system to be retired. This rule will only have a slight impact on Government. It will inform and direct both internal and external users to the new system and website. This rule does not have a significant impact on any automated systems.
This final rule amends the Federal Acquisition Regulation (FAR) to specifically require the incorporation of FAR clauses 52.222–43, Fair Labor Standards Act and Service Contract Act-Price Adjustment (Multiple Year and Option Contracts) and 52.222–44, Fair Labor Standards Act and Service Contract Act—Price Adjustment, in time-and-materials and labor-hour service contracts that are subject to the Service Contract Act.
This interim rule implements in FAR Parts 22, 25, and 52, as appropriate, the designation of Taiwan under the World Trade Organization Agreement on Government Procurement, which took effect on July 15, 2009. This FAR change allows contracting officers to purchase goods and services made in Taiwan without application of the Buy American Act if the acquisition is covered by the World Trade Organization Agreement on Government Procurement.
This final rule converts the interim rule published in the
This final rule amends Federal Acquisition Regulation (FAR) 28.203–3 and 52.228–11 to update the procedures for the acceptance of a bond with a security interest in real property. The FAR has relied on the Department of Justice (DOJ) to provide a “List of Approved Attorneys, Abstractors, and Title Companies”. However, DOJ has discontinued maintenance of the List. Replacing the List, DOJ published “Title Standards 2001”, establishing the evidence requirements for acceptance of
The rule also provides that in lieu of evidence of title that is consistent with DOJ standards, that sureties may provide a mortgagee title insurance policy in an insurance amount equal to the amount of the lien.
This final rule converts, without change, the interim rule published in the
Effective June 14, 2007, the CAS Board amended the contract clauses contained in its rules and regulations at 48 CFR 9903.201–4, pertaining to the administration of CAS, to adjust the CAS applicability threshold in accordance with section 822 of the 2006 National Defense Authorization Act (Pub. L. 109–163). That section amended 41 U.S.C. 422(f)(2)(A) to require that the threshold for CAS applicability be the same as the threshold for compliance with the Truth in Negotiations Act (TINA).
Editorial changes are made at FAR 32.503–9, 52.213–4, and 52.244–6.
Federal Acquisition Circular (FAC) 2005-36 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-36 is effective August 11, 2009, except for Items I, II, and V, which are effective September 10, 2009.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are issuing a final rule to amend the Federal Acquisition Regulation (FAR) to reflect that FedTeDS capabilities have been incorporated into the Governmentwide Point of Entry (GPE). References to FedTeDS are amended to reflect the GPE i.e., FedBizOpps system.
For clarification of content, contact Mr. Ed Loeb, Director, Contract Policy Division at (202) 501–0650. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–36, FAR case 2008–038.
The Federal Technical Data Solution (FedTeDS) is the system that was used for the past several years to post on-line technical data packages and other items associated with solicitations that required some level of access control. It was interfaced directly with the Governmentwide Point of Entry (GPE) i.e., FedBizOpps system. In April 2008, a new version of the GPE was launched. This version incorporated the capabilities of FedTeDS, thereby allowing FedTeDS to be retired. FAR Sections 5.102, 5.207 and 7.105 will be amended to (1) remove all references to FedTeDS and refer to the enhanced controls of the GPE, (2) address technical data availability via GPE in lieu of FedTeDS, and (3) substitute GPE in lieu of FedTeDS in references to acquisition plans.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98–577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Parts 5 and 7 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(a) * * *
(4) When an agency determines that a solicitation contains information that requires additional controls to monitor access and distribution (e.g., technical data, specifications, maps, building designs, schedules, etc.), the information shall be made available through the enhanced controls of the GPE, unless an exception in paragraph (a)(5) of this section applies. The GPE meets the synopsis and advertising requirements of this part.
(5) The contracting officer need not make a solicitation available through the GPE as required in paragraph (a)(4) of this section, when—
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to specifically require the incorporation of FAR clauses 52.222–43, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts) and 52.222–44, Fair Labor Standards Act and Service Contract Act—Price Adjustment, in time-and-materials and labor-hour service contracts that are subject to the Service Contract Act. No comments were received in response to the proposed rule.
For clarification of content, contact Ms. Meredith Murphy, Procurement Analyst, at (202) 208–6925. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–36, FAR case 2007–021.
This final rule amends the FAR to revise the clause prescriptions at FAR 22.1006(c)(1) and (2) to specifically require that time-and-materials and labor-hour service contracts subject to the Service Contract Act contain the appropriate price adjustment clauses set forth at FAR 52.222–43 and 52.222–44.
DoD, GSA, and NASA published a proposed rule in the
Despite the fact that the previous prescriptions did not require use of the clauses in time-and-materials or labor-hour contracts, there was actually broad usage of the clause(s) in such contracts. This change will achieve consistency throughout the Government acquisition community and resolve potential inequities where the clauses have not been applied. It will achieve an equitable result for contractors and will also allow the Government to avoid use of other means of adjusting contract unit price labor rates which may be more costly to the Government. Other means of adjusting contract labor rates, such as allowing for wage/benefit escalation, equitable adjustment or economic price adjustment, would likely include profit, overhead, and general and administrative expenses. The FAR clauses at 52.222–43 and 52.222–44 explicitly exclude these additional costs.
The clause prescriptions at FAR 22.1006(c)(1) and (c)(2) currently require that Service Contract Act wage determination updates be applied to contracts subject to the FAR clause at 52.222–41, Service Contract Act of 1965 but, as required by FAR clause 52.222–41, minimum monetary wages and fringe benefits to be paid to service employees under the contract may be subject to adjustment, under wage determinations issued by the Department of Labor. While there may be other means permitted to adjust fixed labor rates on time-and-materials or labor-hour contracts, those other means do not achieve the consistent results that use of the Service Contract Act price adjustment clause(s) will achieve.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT—PRICE ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) (Sep 2009)
(d) The contract price, contract unit price labor rates, or fixed hourly labor rates will be adjusted to reflect the Contractor's actual increase or decrease in applicable wages and fringe benefits to the extent that the increase is made to comply with or the decrease is voluntarily made by the Contractor as a result of:
(f) * * * The notice shall contain a statement of the amount claimed and the change in fixed hourly rates (if this is a time-and-materials or labor-hour contract), and any relevant supporting data, including payroll records, that the Contracting Officer may reasonably require. Upon agreement of the parties, the contract price, contract unit price labor rates, or fixed hourly rates shall be modified in writing. * * *
FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT—PRICE ADJUSTMENT (Sep 2009)
(c) The contract price, contract unit price labor rates, or fixed hourly labor rates will be adjusted to reflect increases or decreases by the Contractor in wages and fringe benefits to the extent that these increases or decreases are made to comply with—
(e) * * * The notice shall contain a statement of the amount and the change in fixed hourly rates (if this is a time-and-materials or labor-hour contract) claimed and any relevant supporting data that the Contracting Officer may reasonably require. Upon agreement of the parties, the contract price, contract unit price labor rates, or fixed hourly rates shall be modified in writing. * * *
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to add Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei))” as a designated country, due to the accession of Taiwan to membership in the World Trade Organization Agreement on Government Procurement.
Submit comments identified by FAC 2005–36, FAR case 2009–014, by any of the following methods:
• Regulations.gov:
Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2009–014” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2009–014. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2009–014” on your attached document.
• Fax: 202–501–4067.
• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Hada Flowers, Washington, DC 20405.
For clarification of content, contact Ms. Meredith Murphy, Procurement Analyst, at (202) 208–6925. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501–4755. Please cite FAR Case 2009–014.
On July 15, 2009, Taiwan became a designated country based on its accession to the World Trade Organization Agreement on Government Procurement. This interim rule adds Taiwan to the list of World Trade Organization Government Procurement Agreement countries in FAR 22.1503, 25.003, 52.222–19, 52.225–5, 52.225–11, and 52.225–23.
This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000–0141, Buy American Act—Construction. The interim rule affects the certification and information collection requirement in the clause at FAR 52.225–11. The impact, however, is negligible.
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because this interim rule implements the designation of Taiwan under the World Trade Organization Agreement on Government Procurement, which took effect on July 15, 2009. However, pursuant to Pub. L. 98–577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(1)A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu” (Chinese Taipei)) or United Kingdom);
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIAL ITEMS (Aug 09)
(b) * * *
__ (20) 52.222–19, Child Labor—Cooperation with Authorities and Remedies (Aug 09) (E.O. 13126).
__ (33) 52.225–5, Trade Agreements (Aug 09) (19 U.S.C. 2501,
TERMS AND CONDITIONS—SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL ITEMS)(Aug 09)
(b) * * *
(1) * * *
(i) 52.222–19, Child Labor—Cooperation with Authorities and Remedies (Aug 09) (E.O. 13126). (Applies to contracts for supplies exceeding the micro-purchase threshold.)
TRADE AGREEMENTS (Aug 09)
(a)
(1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei))”, or United Kingdom);
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement Section 6 of the Sudan Accountability and Divestment Act of 2007. Section 6 requires certification in each contract entered into by an Executive Agency that the contractor does not conduct certain business operations in Sudan. In addition, the Councils added Burma to the list of countries from which most imports are prohibited. This action was taken in accordance with Executive Order (E.O.) 13310, Blocking Property of the Government of Burma and Prohibiting Certain Transactions, and E.O. 13448, Blocking the Property and Prohibiting Certain Transactions Related to Burma.
For clarification of content, contact Ms. Meredith Murphy, Procurement Analyst, at (202) 208–6925. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–36, FAR case 2008–004.
This final rule amends the Federal Acquisition Regulation (FAR) to implement Section 6 of the Sudan Accountability and Divestment Act of 2007, which was signed on December 31, 2007.
DoD, GSA, and NASA published an interim rule in the
This rule amends the FAR to implement Section 6 of the Sudan Accountability and Divestment Act of 2007 (the Act), which requires certification in each contract entered into by an executive agency that the contractor does not conduct certain business operations in Sudan. In addition, the Councils added Burma to the list of countries from which most imports are prohibited.
The FAR Secretariat received five (5) responses to the interim rule. These responses included a total of 16 comments on 11 issues. A sixth response was simply a copy of the statute and was not counted as a comment. All of the responses concerned the implementation of the Act; there were no comments on the addition of Burma to the list of prohibited countries. Each issue is discussed in the following sections.
No public comments were received regarding the portion of the interim rule addressing Burma. Therefore, that part of the interim rule is unchanged (see the
Further, one respondent recommended that the certification not be required (1) under the annual Online Representations and Certifications (ORCA) update, (2) upon the exercise of an option or issuance of a task or delivery order under an existing contract, or (3) pursuant to the performance of warranty work or safety-related repair work for an otherwise completed project in Sudan.
This rule does not require the new certification upon exercise of options or issuance of a task or delivery order.
With regard to annual update of the Online Representations and Certifications (ORCA), that has no impact on an existing contract. Annual updates to ORCA are only applicable to future contracts.
With regard to the third situation posed by the respondent above, this seems to be an extreme situation and should be treated by the contracting officer, if it occurs, under the FAR deviation process.
This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(2) Does not include business operations that the person (as that term is defined in Section 2 of the Sudan Accountability and Divestment Act of 2007) conducting the business can demonstrate—
OFFEROR REPRESENTATIONS AND CERTIFICATIONS—COMMERCIAL ITEMS (Aug 2009)
(a)
PROHIBITION ON CONDUCTING RESTRICTED BUSINESS OPERATIONS IN SUDAN—CERTIFICATION (Aug 2009)
(a)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to update the procedures for the acceptance of a bond with a security interest in real property.
For clarification of content, contact Mr. Edward N. Chambers, Procurement Analyst, at (202) 501–3221. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–36, FAR case 2006–013.
FAR Subpart 28.2 requires agencies to obtain adequate security for bonds when bonds are used with a contract. A corporate or individual surety is an acceptable form of security for a bond. FAR Subpart 28.2 provides that when an individual surety secures a bond with an interest in real estate, the surety must provide evidence of title (
This FAR rule revises the types of acceptable title evidence by individual sureties to include mortgagee title insurance or other evidence of title consistent with Section 2 of the DOJ Title Standards 2001, maintained on a DOJ website. FAR clause 52.228–11, Pledges of Assets, is also updated with this new reference.
The rule also provides that contracting officers should request the assistance of agency legal counsel in determining if title evidence from individual sureties is consistent with the Justice Department Standards.
DoD, GSA, and NASA published a proposed rule in the
In considering the public comment, the Government revisited the proposed rule in total. In consultation with the Department of Justice, it was decided that when real property is pledged to secure a bond, instead of only allowing evidence of title that is consistent with DOJ standards as set forth in the proposed rule, that sureties could provide a mortgagee title insurance policy in an insurance amount equal to the amount of the lien. The Department of Justice observed that mortgagee title insurance is the most common form of title evidence in the commercial marketplace.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(a) * * *
(1) A mortgagee title insurance policy, in an insurance amount equal to the amount of the lien, or other evidence of title that is consistent with the requirements of Section 2 of the United States Department of Justice Title Standards at
PLEDGES OF ASSETS (Sept 2009)
(b) * * *
(2) * * *
(i) A mortgagee title insurance policy, in an insurance amount equal to the amount of the lien, or other evidence of title that is consistent with the requirements of Section 2 of the United States Department of Justice Title Standards at
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to revise the contract clauses related to the administration of the Cost Accounting Standards (CAS) to maintain consistency between the FAR and CAS.
For clarification of content, contact Mr. Edward N. Chambers, Procurement Analyst, at (202) 501–3221. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501–4755. Please cite FAR Case 2007–002.
The CAS Board published a final rule in the
• Amended the CAS applicability threshold to be the same as the threshold for compliance with the Truth in Negotiations Act (TINA) as required by section 822 of the 2006 National Defense Authorization Act (Pub. L. 109–163). The TINA threshold is currently $650,000.
• Changed the effective dates of 48 CFR 9903.201–3 and 48 CFR 9903.201–4(a), (c), and (e) from April 2000 and June 2000, respectively, to June 2007.
The CAS Board published a final rule in the
In order to maintain consistency between CAS and FAR, the Councils issued an interim rule revising 30.201–4 and 50.230–1 through 50.230–5.
This final rule adopts, without change, the interim rule published in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,
Government procurement.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation in order to make editorial changes.
The Regulatory Secretariat, 1800 F Street, NW., Room 4041, Washington, DC, 20405, (202) 501–4755, for information pertaining to status or publication schedules. Please cite FAC 2005–35, Technical Amendments.
This document makes amendments to the Federal Acquisition Regulation in order to make editorial changes.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
SUBCONTRACTS FOR COMMERCIAL ITEMS (August 11, 2009)
(c)(1) * * *
(i) 52.203–13, Contractor Code of Business Ethics and Conduct (Dec 2008) (Pub. L. 110–252, Title VI, Chapter 1 (41 U.S.C. 251 note)), if the subcontract exceeds $5,000,000 and has a performance period of more than 120 days. In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.
(ii) 52.203–15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (Section 1553 of Pub. L. 111–5), if the subcontract is funded under the Recovery Act.(iii) 52.219–8, Utilization of Small Business Concerns (May 2004) (15 U.S.C. 637(d)(2) and (3)), if the subcontract offers further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $550,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219–8 in lower tier subcontracts that offer subcontracting opportunities.
(vii) 52.222–39, Notification of Employee Rights Concerning Payment of Union Dues or Fees (Dec 2004) (E.O. 13201), if flow down is required in accordance with paragraph (g) of FAR clause 52.222–39).
(ix) 52.247–64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. App. 1241 and 10 U.S.C. 2631), if flow down is required in accordance with paragraph (d) of FAR clause 52.247–64.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This Small Entity Compliance Guide
Hada Flowers, FAR Secretariat, (202) 208–7282. For clarification of content, contact the analyst whose name appears in the table below.
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005–36 amends the FAR as specified below:
This final rule amends the Federal Acquisition Regulation (FAR) subparts 5.1, 5.2, and 7.1 to remove all references to the Federal Technical Data Solution (FedTeDS) System, and refer to the enhanced capabilities of the Governmentwide Point of Entry (GPE) system. The FedTeDS system was used to post on-line technical data packages and other items associated with solicitations that required some level of access control. It was interfaced directly with the GPE system. In April 2008, the newest version of the GPE was launched. This version incorporated the capabilities of FedTeDS, allowing the FedTeDS system to be retired. This rule will only have a slight impact on Government. It will inform and direct both internal and external users to the new system and website. This rule does not have a significant impact on any automated systems.
This final rule amends the Federal Acquisition Regulation (FAR) to specifically require the incorporation of FAR clauses 52.222–43, Fair Labor Standards Act and Service Contract Act-Price Adjustment (Multiple Year and Option Contracts) and 52.222–44, Fair Labor Standards Act and Service Contract Act—Price Adjustment, in time-and-materials and labor-hour service contracts that are subject to the Service Contract Act.
This interim rule implements in FAR Parts 22, 25, and 52, as appropriate, the designation of Taiwan under the World Trade Organization Agreement on Government Procurement, which took effect on July 15, 2009. This FAR change allows contracting officers to purchase goods and services made in Taiwan without application of the Buy American Act if the acquisition is covered by the World Trade Organization Agreement on Government Procurement.
This final rule converts the interim rule published in the
This final rule amends Federal Acquisition Regulation (FAR) 28.203–3 and 52.228–11 to update the procedures for the acceptance of a bond with a security interest in real property. The FAR has relied on the Department of Justice (DOJ) to provide a “List of Approved Attorneys, Abstractors, and Title Companies”. However, DOJ has discontinued maintenance of the List. Replacing the List, DOJ published “Title Standards 2001”, establishing the evidence requirements for acceptance of title to real property for individual sureties.
The rule also provides that in lieu of evidence of title that is consistent with DOJ standards, that sureties may provide a mortgagee title insurance policy in an insurance amount equal to the amount of the lien.
This final rule converts, without change, the interim rule published in the
Effective June 14, 2007, the CAS Board amended the contract clauses contained in its rules and regulations at 48 CFR 9903.201–4, pertaining to the administration of CAS, to adjust the CAS applicability threshold in accordance with section 822 of the 2006 National Defense Authorization Act (Pub. L. 109–163). That section amended 41 U.S.C. 422(f)(2)(A) to require that the threshold for CAS applicability be the same as the threshold for compliance with the Truth in Negotiations Act (TINA).
Editorial changes are made at FAR 32.503–9, 52.213–4, and 52.244–6.